Director of Public Prosecutions (Cth) v Satharupan
[2016] VCC 1783
•8 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01566
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| PRATHEEP SATHARUPAN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2016 | |
DATE OF SENTENCE: | 8 December 2016 | |
CASE MAY BE CITED AS: | DPP (Cth) v Satharupan | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1783 | |
REASONS FOR SENTENCE
Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - using a carriage service to transmit child pornography – No criminal record – Low risk of re-offending – Diagnosis of Adjustment Disorder
Legislation Cited: Criminal CodeAct 1995 (Cth) - Sex Offenders Registration Act 2004
Cases Cited: DPP (Cth) & DPP v Garside [2016] VSCA 74
Sentence: Convicted and fined $1,000 with 3 months stay – Sex Offender Registration – s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr A. Albore (Plea) Mr I. Buckley (Sentence) | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms K. Kotharikis | Doogue O’Brien George |
HER HONOUR:
1 Pratheep Satharupan, you have pleaded guilty to one charge of using a carriage service to transmit child pornography contrary to the relevant provision of the Commonwealth Criminal Code.
2 The maximum penalty for this offence is fifteen years’ imprisonment, which reflects the seriousness with which Parliament regards the offence.
3 By way of background, I was told that a person by the name of
Amal Raj Anthony, arrived at Sydney International Airport on
4 February 2016, whereupon his mobile phone was examined by Australian Border Force officials.
4 Examination of Mr Anthony’s phone revealed material which was classified as child pornography. The image found was contained within a “WhatsApp” group chat on Mr Anthony’s phone. The group chat was called “funnygroup”.
5 Images and videos viewed through the App were saved automatically onto the device, which is used to access WhatsApp. The funnygroup chat contained seven members, including
Mr Anthony, and including you.
6 Your contact details were found on Mr Anthony’s phone.
7 The child pornography material which was found by police was one image file sent from you on 27 November 2015 to the other six members of the group chat. The image depicted one male between the ages of six to nine years with an erect penis. He was looking at a female child of an unidentified age. The female child is facing opposite to the camera and is naked from the waist down. The male child had his hands placed on top of the female child’s buttocks.
8 The image file is classified as a Category 1 child pornography image in accordance with the categorisation model for child exploitation material. Category 1 classification of child exploitation material concerns any depiction of children with no sexual activity, including nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on the genital area, and solo urination.
9 On 1 May 2016, Mr Anthony took part in a Record of Interview. He told police that you had sent him the image, that he, “Mr Anthony”, had closed the file as soon as he realised what it was and felt disgusted by what he saw. He was not aware that the file sent to him would automatically save to his phone album. Mr Anthony was not charged with any offence relating to the investigation.
10 A subsequent execution of a search warrant at your address took place on 12 May 2016 and your mobile phone was seized.
11 In a record of conversation with police on 12 May 2016, you denied any knowledge of any child pornography material sent from your phone. You acknowledge that the phone seized was yours and that only you and your fiancée knew the password. You said that you did not really know Mr Anthony – that you knew him through the WhatsApp chat group called “funny something”, where guys shared funny videos and pictures. You also said that you had possession of your phone on 27 November 2015, and that you may have sent the image by accident on that date, but could not recall. You told police that you deleted the WhatsApp because you did not like the things being posted in the group – that the group was for funny videos and pictures – for example, of people, to quote you, “pooing”.
12 Subsequent forensic analysis of your phone confirmed that the image previously described was sent from your phone on
27 November 2015 to the WhatsApp group chat “funnygroup”. This is the basis of the charge for which I now sentence you.
13 In a Record of Interview on 16 June 2016, you denied knowledge of the image and said you could not recall sending any images containing children. You said that you deleted all the videos and pictures that you thought your wife would not like.
14 You were subsequently arrested and charged.
15 Your offending is serious and is deserving of a punishment which is just in all the circumstances. Your conduct is to be denounced and strong weight must be attached to general deterrence in a bid to deter others from behaving as you have. You have transmitted this most repugnant image to six others who are not said to be interested in child pornography, apparently taking the view that this type of image was somehow amusing. I can assure you that such images are certainly not amusing for the victims involved, who are innocent children who have no control whatsoever of images of themselves being sent on to others in perpetuity. Your behaviour has assisted in the evil trade of child pornography. If there had been a greater number of images than one, you may well have been sentenced to a period of imprisonment.
16 HER HONOUR: Do you understand that?
17 DEFENDANT: Yes.
18 In sentencing you, I am mindful of what the Court of Appeal said in the decision of DPP (Cth) & DPP v Garside [2016] VSCA 74, at paragraphs 67 and 68, in relation to level one material. In relation to the image which you saw fit to transmit, the children were made to pose in particularly depraved ways and I regard the image as being of significant gravity.
19 In your favour, you are of otherwise good character, and you have no prior convictions either in Australia or in your country of origin,
Sri Lanka.
20 Further, you pleaded guilty at the earliest opportunity, which has significantly facilitated justice, as you have saved witnesses the time and trouble of giving evidence and you have saved the community the time and expense of running contested proceedings. I make a substantial allowance in your favour because of this.
21 In sentencing you, I have also taken into account the character references which have been provided on your behalf, which attest to your otherwise good character, and which indicate that your offending is aberrational, that is a one-off.
22 I am concerned however that as recently as 8 October 2016, when speaking with Dr Rachel MacKenzie, clinical psychologist, you saw fit to give an account of your offending, which was not consistent with matters said at the plea hearing; nor was it consistent with intentionally transmitting child pornography. This has given me some cause for concern in terms of your level of insight and ability to take full responsibility for your actions.
23 However, Dr MacKenzie undertook various risk assessments of you, which indicate that you are at low risk of re-offending – in particular, at low risk of offending in relation to sexual offences.
24 In sentencing you, I have also taken into account that, as at the time of being examined by Dr MacKenzie, you were experiencing symptoms which were indicative of a significant level of depression, anxiety and stress.
25 In sentencing you, I have factored in that you are remorseful for your conduct, in that you have felt shame and embarrassment in front of other family members, and it is to be hoped that you will develop further insight and more thorough remorse when thinking about the plight of victims of child pornography.
26 I was told that you became a member of the chat group in a bid to forge some friendships, in the context of finding it difficult to fit in at the local cricket club of which you had become a member.
27 I was told that your offending occurred in the context of members of this chat group, trying to ‘outdo’ each other with distasteful material. However, no one else descended to the level that you did in sending child pornography. You sent an image that was unsolicited and hopefully, unwelcome to the other members in the chat group. While I accept that you did not behave as you did in order to obtain any sexual gratification, as was conceded on your behalf, your conduct showed a staggering lack of judgement. Your actions were immature and in very bad taste.
28 I factor in that you removed the chat group app before the police became involved, as you regarded the material being sent around the group as being increasingly distasteful, and your wife had also taken issue with it.
29 I take into account your background:
30 You grew up in a very loving family in Sri Lanka who were always very close and supportive of each other. Your life there centred around family and the various special occasions that families enjoy.
31 You performed well at school and you exhibited no behavioural issues.
32 When you were 19, you came to Australia to study and lived with a cousin for a few years. You achieved a diploma and advanced diploma in accounting, and worked in retail and at McDonalds whilst you were studying.
33 You met your wife when she was studying nursing. You married last year, and have strong family support from her family, as well as from your own. Your wife was in court to support you and I see she is here today. She is a fine person who has stuck by you and you are most fortunate to have her support. I was told that she is currently studying nursing and midwifery.
34 You live in a household where you are the only wage earner. You help to support your wife’s parents and grandmother, as well as your wife. You have been working full time as a courier, earning $1200 per week.
35 I take into account in that you have suffered, and will continue to suffer some anxiety about jeopardising your ability to stay in Australia. In pleading guilty to this charge, you will have failed the character test which places your spousal visa at some risk of being cancelled. However, this is by no means a certainty and I cannot speculate as to what might eventuate in this regard. You will need to engage in a process with the Department of Immigration after these proceedings.
36 In view of your motivation for the offending, lack of prior matters, the risk assessment by Dr Mackenzie, your strong work ethic, your otherwise good character, your strong family support and awareness about risking deportation, I find that your prospects of rehabilitation are very good. I place very little weight on specific deterrence.
37 As a result of this offending, you have lost your working with children check and you have been unable to remain at the cricket club, which had been a strong social connection that you had looked to. This has been a source of punishment for you.
38 I also take into account that you have been suffering from extremely severe depression, anxiety and stress following being charged for this matter, resulting in a diagnosis of Adjustment Disorder.
39 Usually, offending of this type warrants a gaol term. However, in view of the limited nature of your offending, and the strong matters in mitigation in your case, I accept your counsel’s submission conceded by the prosecution, that a fine is warranted.
40 In fining you, I have taken into account your financial situation insofar as I can, but I must also give appropriate weight to all relevant sentencing matters.
41 You are convicted of the charge.
42 Under the Sex Offenders Registration Act 2004, by reason of your conviction of this offence, you are to be recorded as a registrable offender for eight years. You must report your personal details to the Chief Commissioner of Police annually for the next eight years. You must first do so, that is, report, within seven days from today. Details in writing of these reporting conditions will be served shortly upon you now by my associate and I will ask Ms Kothraikis to attend to an acknowledgement of the notice and have you sign that. Thank you, Ms Kothraikis.
43 MS KOTHRAKIS: Certainly, Your Honour. Thank you, Your Honour, that's been acknowledged.
44 HER HONOUR: You are fined $1000 and I will give you some time to pay that fine after first being further addressed by Ms Kothraikis.
45 If not for your plea of guilty, I would have sentenced you to a suitably crafted community corrections order for a period of 18 months which would have included a lengthy period of unpaid community work. Just take a seat for a moment please. Is there anything arising from any of those sentencing remarks?
46 MR BUCKLEY: Nothing from prosecution.
47 HER HONOUR: Thank you.
48 MS KOTHRAKIS: No, Your Honour.
49 HER HONOUR: All right. Do you want to go and ask your client how long he needs to pay?
50 MS KOTHRAKIS: I'll do that, Your Honour.
51 HER HONOUR: Thank you.
52 MS KOTHRAKIS: Seek a two month stay, Your Honour.
53 HER HONOUR: Yes, all right. Well in the circumstances, I will grant a three month stay just in case a little extra time is needed
Ms Kothraikis.
54 MS KOTHRAKIS: Thank you, Your Honour, we are heading into the Christmas period - - -
55 HER HONOUR: Yes.
56 MS KOTHRAKIS: - - - which does tend to drain peoples resources a bit more than usual.
57 HER HONOUR: All right. I will grant a stay of three months to pay the fine, all right? Three months. All right, thank you very much. Nothing further?
58 MS KOTHRAKIS: Nothing further, Your Honour.
59 HER HONOUR: All right, we will now adjourn.
60 MS KOTHRAKIS: As Your Honour pleases.
61 MR BUCKLEY: As Your Honour pleases.
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