Director of Public Prosecutions (Cth) v Shaw

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-14-01412

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL MARK SHAW

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 31 October 2014
DATE OF SENTENCE:	6 November 2014
CASE MAY BE CITED AS:	Director of Public Prosecutions (Cth) v Shaw
MEDIUM NEUTRAL CITATION:	[2014] VCC 1848

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW

Catchwords: Sentence – using a carriage service to transmit indecent communication to a person believed to be under sixteen years of age – accessing child pornography material using a carriage service – knowingly possess child pornography
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code (Cth); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Director of Public Prosecutions v Smith [2010] VSCA 215

Sentence: …

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Ryan	Solicitor for Commonwealth Office of Public Prosecutions
For the Accused	Mr D Dann	Matthew White & Associates

HIS HONOUR:

Mr Shaw, you have pleaded guilty to:

(a)one charge of using a carriage service to transmit indecent communication to a person believed to be under the age of 16 years, contrary to s.427.27A(1) of the Criminal Code (Cth);
(b)one charge of accessing child pornography material using a carriage service, contrary to s.474.19(1) of the Criminal Code (Cth); and
(c)one charge of knowingly possessing child pornography, contrary to s.70(1) of the Crimes Act 1958 (Vic).

A summary of facts tendered by the prosecutor, and agreed to by your counsel, sets out the circumstances of those offences.

In brief, the first of those offences involved a communication between you and a South Australian police officer (being part of a South Australian Police Internet Child Exploitation Team) on a networking site known as “Netlog” which utilises the internet to allow people to communicate with each other. The police officer posed as and utilised an assumed identity of “Jenny”, who described herself as a 14 year old female, purportedly residing in Adelaide.

On 21 December 2012, you communicated with “Jenny”. “She” stated to you that she was 14 years of age, to which you replied, “fourteen’s a nice age”. At the time, you were aged 44. I shall not repeat here the full contents of the communication, but your counsel conceded that it had a disturbing content. In it, you referred to the prospect of visiting her and "getting sexy together"; you said you would teach her to have an orgasm; you requested that she open her legs slightly and imagine you lying beside her; you requested her to place her hand inside her pyjama bottoms and gently rub her vagina whilst imagining you undressing her.

When interviewed by police on 4 April 2014, you admitted that you had chatted to “Jenny” on that date but it was your intention just to chat with her. You denied any intention to travel to Adelaide to meet her. You described your action as “just having a bit of fun”.

The second charge relates to 33 still images and one video file, all containing child pornography, which Victorian police located after conducting a forensic analysis of your laptop computer.

The prosecution summary contains a table, set out in paragraph 17 of the opening, indicating that of the 33 still images, 15 consisted of category 1 representations (depicting children with no sexual activity but with nudity, sexually suggestive posing and explicit emphasis on genital areas); eight were category 3 images (depicting non-penetrative sexual activity between children and adults); seven consisted of category 4 images (depicting penetrative sexual activity between children and adults) some of which depicted young girls being subjected to full sexual penetration by adult males; and the remaining three consisted of category 6 images (being animated drawings depicting children engaged in sexual poses or activity). The one video file depicted category 1 activity (as described previously).

These 34 files had been accessed by you on three different dates. On 30 September 2012, the video file was accessed. About nine months later, on 17 June 2013, 31 still image files were accessed. About 7 months later, on 2 January 2014, one still image file was accessed by you.

The third charge of possessing child pornography relates to your continued possession of those 34 files.

You are now aged 46. You were born in England but have resided in Victoria since 1971, at which time you were aged three. You appear to have had a relatively normal and uneventful family upbringing.

Your schooling finished after form 3 or year 9 as it is now known. Soon after, you commenced work with the railways and later, with Metrail.

You have had various other occupations including that of a farm labourer, packer, forklift driver and warehouseman. More recently, you have been employed by a friend at a cabinetmaking business.

You do have prior convictions.

In September 2003 (about eleven years ago), you pleaded guilty to eight counts of indecent assault. These related to offences against two of your nieces, which occurred between 1984 and 1986, at which time you were aged between 16 and 18 and your nieces were respectively aged between five and seven and between seven and nine years of age.

Those offences involved touching of the vagina on the outside of clothing, touching of the vagina itself, digital penetration of the vagina, performing oral sex and exposing your penis to them.

You were sentenced to a term of imprisonment for a period of three months in relation to four of those charges, nine months' imprisonment on three of the charges and, on the remaining charge, to imprisonment for a period of six months. The sentences were directed to be served concurrently and were wholly suspended for a period of twelve months.

Further, in 1989, when you were aged about 21, you were convicted of charges of burglary and theft. You were sentenced to a community-based order with various associated conditions including unpaid community work and treatment for alcohol abuse. You were later sentenced for a breach of that community-based order and directed to serve a further community-based order for nine months with other associated conditions.

Offences of accessing and possessing child pornography are serious offences. In an earlier case decided by the Court of Appeal in this State, Director of Public Prosecutions v Smith, Nettle JA said the following:

“The precepts which apply to the sentencing of offenders for offences of possessing child pornography are tolerably clear.
1) First, the nature and gravity of the offending ordinarily falls to be determined by reference to the four criteria adumbrated by Johnson J in R v Gent:
(a) The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted.
(b) The number of images or items possessed.
(c) Whether the material is for the purpose of sale or further distribution.
(d) Whether the offender will profit from the offence.
In the case of child pornography for personal use, the number of children depicted (and thereby victims) is also regarded as relevant considerations.
2) Secondly, general deterrence is regarded as the paramount sentencing consideration — because of the public interest in stifling the provision and use of child pornography; and less or limited weight is given to an offender’s prior good character because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character.
3) Thirdly, a sentence of immediate imprisonment would ordinarily be warranted, but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded.” [1]

[1](Supra) at paragraph [23]

Although those comments were made in relation to a charge of possession of pornographic material, they are, in my opinion, equally relevant to the charge of accessing as well as possessing such material.

In your case, the accessing of pornographic material occurred on three discrete dates.

There is no suggestion by the Crown that any of the material accessed by you was further distributed or sold.

There is no suggestion that you stood to profit from your offending.

The material, whilst mainly consisting of Category 1 images also including some Category 4 images and that is of concern to me.

I note that the number of items accessed and possessed was relatively small when compared with many other cases that have come before this Court; nevertheless, 33 images and one video could hardly be described as insignificant.

Regarding the offence concerning your indecent communication to “Jenny”, I note that this relates one single “chat” or conversation. Notwithstanding, I consider that the contents of that conversation were indecent and disgraceful. To say that a person of your age should have known better is an understatement.

I have noted the matters set out in s16A of the Crimes Act 1914 (Cth) regarding matters which the Court must consider and take into account in determining sentences for a federal offence. These are similar to those set out in s5 of the Sentencing Act 1991 (Vic) in respect of Victorian offences, which I have also taken into account.

I consider that those most relevant to consideration of your sentence are:
·   The denunciation of your offending conduct,
·   General deterrence, that is, to deter others in the community from offending as you have;
·   Specific deterrence, that is, deterring you from offending again;
·   The fact that you pleaded guilty at an early time,
·   The fact that you do appear to have shown remorse for your offending,
·   The fact that you appear to have reasonable prospects of rehabilitation.
Your prior convictions for indecent assaults are of concern. On any view, they were serious offences. However, they occurred when you were young – between 16 and 18 years of age – and occurred more than twenty-five years before these offences. I note that there has been no known offending in the interim. I do not attach the same weight to your prior convictions as would have been the case had they occurred more recently.

I note your relatively steady employment record and that is to your credit. I take into account that a period of incarceration will put your current employment at risk, although your employer does appear to be supportive of you.

Your statement to “Jenny” in your chat, that you intended to go to meet her at a motel room in Adelaide is of concern. In your record of interview, you denied that you ever had such intention of meeting her. There is no other evidence indicating you had any such intention. Further, you did not attempt to communicate with “her” again after your one chat on 21 December 2012. There is no evidence of any similar chats with anyone else. On balance, I accept that you did not have an intention to actually meet “Jenny”.

Your counsel has tendered an undated report from your GP, Dr Glowinski. The report makes reference to you having been treated for a number of conditions: deep vein thrombosis, an episode of pulmonary embolism, obstructive airways disease and mild sleep apnoea. The doctor states that he saw you on four occasions in 2013 in relation to toothache, smoking cessation and low libido. He does not make any reference to consultations in 2014. Whether this is because there have been no consultations this year or because the report was actually written in 2013 I cannot say. Dr Glowinski states that, at the time the report was written by him, you were on medication for your cholesterol levels, chronic obstructive disease, Warfarin for DVT and testosterone for libido issues.

Your counsel submitted that these conditions would be difficult to manage if you were incarcerated. Dr Glowinski does not express any such opinion and merely states that gaol would lead to further depression and demotivation. I have come to the conclusion that your medical conditions are not such that could not be adequately treated in a prison.

A report from Mr Jeffrey Cummins, clinical and forensic psychologist, dated 3 October 2014 was tendered on your behalf. Mr Cummins has seen you once, in late September this year.

Mr Cummins was aware of your prior convictions and the nature of the offences to which you have pleaded guilty in this Court. He obtained a history from you that you had been sexually abused on one occasion when you were aged about seventeen but had never received any counselling concerning this. He noted that you had suffered for some years from problems concerning erectile dysfunction and noted your advice to him that that condition was relevant to your offending behaviour, as you would view child pornography images and chat online in order to see if you could achieve sexual arousal. I do not accept that that would be an acceptable reason for viewing child pornography or constitute any legitimate excuse for your offending.

Mr Cummins concluded:

(a) You did not suffer from any specific sexual deviance, although your chat room conversation the subject of Charge 1 was said to be hebephilic in type (defined by him as sexual attraction to persons who are post pubescent but under the legal age).

(b) You did not suffer any psychopathic personality disorder or from any major mental illness.

(c) Your risk of re-offending was low to moderate, but that this risk would be likely to reduce if you participated in sex offender treatment programs.

(d) You were still in a state of some grief concerning the abrupt ending of your recent defacto relationship and in a state of some shock concerning your current legal situation.

(e) Your mental health would be likely to deteriorate if you were incarcerated because he considered that you were currently feeling depressed and in a state of grief. However, he has not indicated that your condition was one involving any true depressive illness. I have concluded that you are merely, and understandably, unhappy with your current state of affairs concerning the termination of your relationship and the current court proceedings. I am not satisfied that your mental health is such that it would be likely to significantly deteriorate if incarcerated.

Counsel for the Commonwealth Director of Public Prosecutions submitted that paragraph 22 of Mr Cummins’ report indicated a less than real remorse on your part. I do not draw that conclusion from a reading of it. I consider that, this is the statement where you referred to other people in your family having access to your computer. I consider that by the statement you had emphasised that other people had had access to your laptop computer, including your former partner and her son and a nephew. I consider that that statement was consistent with you effectively saying that although you might have been able to divert blame onto others, you were not doing so. I do not consider that that was indicative of any lack of true remorse.

Character references from Lauren Walker, Karen Walker and Steven Tuilape were tendered. I have taken these into account. I particularly note the reference from Mr Tuilape, who is your current employer. He indicates that you are a valued employee who would be missed if incarcerated.

I take into account s17A of the Crimes Act (Cth), which provides that a court shall not pass a sentence of imprisonment on any person for a federal offence, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. Section 5(4) of the Sentencing Act 1991 (Vic) provides a similar direction.

Mr Ryan, before I go further, what I intend to do here is sentence Mr Shaw to a period of imprisonment but direct that forthwith he be released on a recognisance release order with various conditions in relation to the two Commonwealth offences. In relation to the State offence, my intention was to order that he serve a community correction order with conditions which, to an extent but not entirely, might be seen to overlap with the conditions of the recognisance release order. Do you see anything wrong, in principle, with that course of action?

MR RYAN: No, sir.

HIS HONOUR: Mr Dann, do you want to say anything about that? Not just to the wisdom of it or whether it is an error of law to proceed down that track?

MR DANN: No, Your Honour, I don't see it as an error of law. The only aspect that may or may not arise is whether, on the Commonwealth offences, if you are ordering those periods of imprisonment but ordering release forthwith, whether they are using the State terms or maybe they translate but whether they are concurrent or whether there is cumulation because, as I understand, under the Commonwealth provisions - - -

HIS HONOUR: If there was any doubt about it, I would direct that they be concurrent. I will direct that they both be of an operational period of two years.

MR DANN: It was just that if there was any sort of cumulation ordered, theoretically there has to be different starting dates and so forth. But we can leave that to one side.

HIS HONOUR: That is not my intention. Thank you.

Sentence

I have formed the view that your rehabilitation is of primary importance not only for you but also for the community as a whole. I am of the view that this is better achieved by way of a sentence that does not involve immediate incarceration.

I have received a report dated 31 October 2014 from an assessing officer of Community Correctional Services stating that you are considered suitable for a community correction order.

Taking into all of the matters referred to earlier in these remarks, I have reached the conclusion that the Commonwealth and State legislative aims relating to sentencing can be satisfied by way of a recognisance release order and a community corrections order to be served concurrently.

I have come to that conclusion, in relation to the two Commonwealth offences, that you should be sentenced to a term of imprisonment of six months but that you should be released forthwith pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth) on a recognisance release order with an operating period of two years.

Mr Ryan, the draft that I have of the recognisance release order makes reference to recognisance of a certain monetary sum. Presumably there is, as always was the case, entering into a recognisance without monetary sum, is that the case? Or is it mandatory?

MR RYAN: It's highly unusual, sir, and I have not experienced it yet. It can be a nominal figure and the money is not payable unless the order is breached.

HIS HONOUR: The conditions of that Order will be that you shall be released upon you entering into a recognisance of $500, payable only in the event that you breach the terms of this order, to comply with the following conditions:

(a) that you be of good behaviour for two years; and

(b) that you are to be under the supervision of the Deputy Commissioner, Community Correction Services Sex Offender Management (“the Commissioner”) or his or her nominee for two years; and

(c) that you are to attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by the Commissioner or his or her nominee;

(d) that you are to report to the Broadmeadows Community Correctional Services, 25-27 Dimboola Rd Broadmeadows by 4pm on Monday, 10 November 2014, that is, next Monday;

(e) That you are to report to and receive visits from a community corrections officer or officers;

(f) That you are to notify an officer at the specified community corrections centre of any change of address or employment within two clear working days after the change;

(g) That you are not to leave Victoria except with the permission of an officer at the specified community corrections centre; and

(h) That you are to obey all lawful instructions and directions of the community corrections officer.

In respect of the charge of possession of child pornography in breach of s70(1) of the Crimes Act (Vic), you will be sentenced to a community correction order with an operative period of two years.

The terms of a community corrections order must, by the legislation, include those terms set out in s.45(1) of the Sentencing Act namely:

(a) That you must not commit, whether in or outside Victoria during the two year period of the order, an offence punishable by imprisonment.

(b) Secondly, that you must comply with any obligations or requirement prescribed by regulations.

(c) Thirdly, that you must report to and receive visits from the Secretary of the Department of Justice during the period of the order.

(d) Fourthly, that you must report to Community Corrections Centre at 25-27 Dimboola Rd Broadmeadows within two clear working days after this order comes into effect, that is, by 4 pm on Monday, 10 November 2014.

(e) Fifthly, that you must notify the Secretary of any change of address or employment within two clear working days of that change.

(f) Sixthly, you must not leave Victoria except with the permission of the Secretary; and

(g) Finally, that you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with this order.

They are mandatory terms and you will see that many of them overlap with the earlier terms applicable to the recognisance release order.

In addition to those general or usual terms, I will impose further conditions of the community corrections order as follows:

(a)You must perform unpaid community work of 150 hours during the course of the 24 months of this order.
(b)You must undergo treatment, as directed by the Secretary, with regard to:
· Any program that addresses factors relating to your offending behaviour and, in particular, sex offender treatment programs.
· Any mental health assessment and treatment, including psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility.

I would not make that community corrections order unless you consented to such an order being made in those terms. Mr Shaw, do you consent to a community corrections order in those terms and conditions?

Mr Dann, if you want to talk to your client, I will give you permission to approach the dock, if you want time, I will stand the matter down for a short time.

MR DANN: Perhaps if we could stand the matter for a very short time, Your Honour, I would like to ask my learned friend something.

HIS HONOUR: Thank you.

(At a later stage.)

HIS HONOUR: Mr Shaw, do you consent to a community corrections order being made in those terms?

Shaw: I do.

Paul Shaw, you are convicted of each of the charges.

In relation to the two Commonwealth charges to which I have referred, you are sentenced to imprisonment for a term of six months. You shall be released forthwith pursuant to a recognisance release order on the terms to which I have previously referred.

In relation to the Victorian Offence of possessing child pornography, you are sentenced to a community correction order for 24 months from this date. That order shall contain each of the conditions to which I have previously referred.

In relation to s.6AAA of the Sentencing Act, I take it that would apply to the State charge.

MR RYAN: Yes, Your Honour.

MR DANN: Yes sir.

HIS HONOUR: And not necessarily to the Commonwealth charge.

MR RYAN: It doesn't but the view of the officer it's recommenced to make a statement.

HIS HONOUR: In relation to the Victorian offence, that is the charge of possessing child pornography, had you not pleaded guilty to that offence, I would have sentenced you to three months' imprisonment. In relation to the Commonwealth offences, had you not pleaded guilty to both of them, I would have sentenced you to an aggregate term of imprisonment of nine months, to be released on a recognisance release order after having served four months of that period. Such order would have the same operational period of two years.

Other ancillary orders, firstly, have you seen this, Mr Dann?

MR DANN: No I haven't but we consent to the making of the order.

HIS HONOUR: Anything you want to say about that, Mr Dann?

MR DANN: No, Your Honour.

HIS HONOUR: Mr Ryan?

MR RYAN: No sir.

HIS HONOUR: I will make an order, pursuant to s.23XWO of the Crimes Act (Cth.) authorising a forensic procedure to which Division 6R of the Act applies. Mr Shaw, this is an order enabling authorities to obtain, effectively, a saliva sample from you. As I understand it notwithstanding that your counsel has, on your behalf, consented to the order, in the event that you resist, authorities are empowered to use reasonable force to obtain that sample from you. So I make that order as handed to counsel.

Mr Ryan, what is sought with respect to the Sex Offenders' Registration Act?

MR RYAN: Registration, sir.

HIS HONOUR: Just take me to the relevant section of that, would you?

MR RYAN: It is Schedule 2, Items 18 and 28A(i).

HIS HONOUR: Items 18 and?

MR RYAN: Item 28A(i).

HIS HONOUR: Which section of the Act takes me to Schedule 2?

MR RYAN: Section 13(1)(b).

HIS HONOUR: Mr Shaw becomes a registrable offender, have you got a draft of the order that you wish me to make in relation to this aspect?

MR RYAN: I don't, sir, I was under the impression the order was merely an oral order. I did no prepared orders.

HIS HONOUR: What do you suggest I order?

MR RYAN: Registration to comply with reporting periods for 15 years.

HIS HONOUR: That Mr Shaw be registered - is that the term?

MR RYAN: I understand so, yes.

HIS HONOUR: I declare that he is a registrable offender?

MR RYAN: Yes sir.

MR DANN: Your Honour, I think there is meant to be an order prepared. I believe that something has to be provided to a prisoner in my client's situation.

HIS HONOUR: Sorry, what exactly are you saying? That before I make the order that the - - -

MR DANN: You could make it orally but I think an order also needs to be prepared and provided.

HIS HONOUR: Prepared by whom? That's a different issue, isn't it? The reporting obligations have to be notified to your client.

MR DANN: Yes.

HIS HONOUR: So that there's no misunderstanding. Just let me see what Mr Darby has in front of him.

MR DANN: Yes sir.

HIS HONOUR: It seems to me that, quite apart from the actual conditions and the reporting requirements, there needs to be something said from here.

MR DANN: Yes.

HIS HONOUR: That he is a registrable offender, pursuant to the provisions of the Sex Offenders' Registration Act 2004.

MR DANN: That's right, Your Honour makes that order and all I was saying was that also the documents are then provided to him.

HIS HONOUR: Yes, well he has to sign an acknowledgment of them.

MR DANN: That's right.

HIS HONOUR: Mr Ryan says that it is 15 years, where does that come from, Mr Ryan?

MR RYAN: My instructions are it is from s.13(1)(b).

HIS HONOUR: That merely says "If a registrable offender's reporting period expires, that he or she is then sentenced for a registrable offence, he must report his or her personal details to the Chief Commissioner or Police if the registrable offender is in government custody within seven days after he or she ceases to be in government custody", which doesn't appear remotely applicable here.

MR RYAN: Clearly the wrong section. Your Honour, I'm unable to take the matter any further at the moment, if the matter was stood down.

HIS HONOUR: You are the one seeking the order. You want to stand it down and sort it out?

MR RYAN: Yes please.

HIS HONOUR: Very well, I will stand it down and I will hand you the notification of reporting obligations, Mr Dann, and the acknowledgment form and you can satisfy yourself that they are in order and, if necessary, have your client sign the acknowledgment form.

MR DANN: Will I also ask him to sign the other orders, the recognisance release order and community corrections order?

HIS HONOUR: Have they not been signed as yet?

MR DANN: Not yet.

HIS HONOUR: They should be. Do you want to stand your matter down for a short time?

MR DANN: Yes, we will just find the relevant section in the Act, it will take two minutes.

HIS HONOUR: I will let you leave the Bar table, we're in the middle of an appeal here, how long do you think you might be?

MR RYAN: Half an hour.

HIS HONOUR: Very well.

(At a later stage.)

MR DANN: Your Honour, my client has signed those orders and we've got the relevant sections of the Sex Offenders' Registration Act and there are one or two other matters my friend wants to mention.

HIS HONOUR: Yes.

MR RYAN: Your Honour, the section is 34B(ii).

HIS HONOUR: Very well, I wonder whether an actual order has to be made or whether it automatically follows from the conviction, so that a registrable offender must comply with the reporting obligations imposed by this part for 15 years, if he had been found guilty of a single Class 1 offence and those offences are set out in Schedule 2, as I understand it. Which Schedule did you take me to before?

MR RYAN: Schedule 2, sir.

HIS HONOUR: Which deals with Class 2 offences - "...guilty of two Class 2 offences", which is the case here, so s.34B(i) and (ii) is the applicable sub-section.

Mr Shaw, what you are required to do is to note the reporting obligations which you will have to comply with for the next 15 years and you are required here to sign an acknowledgment that you have received a notice of those reporting obligations. I will hand those down to your counsel who I believe has looked at them and considers they are appropriate to be signed by you.

MR RYAN: Your Honour, there are two further things. In relation to the Commonwealth sentences, Your Honour is required to state the date on which they commence and explain to the offender the consequences of breaching the recognisance release order.

HIS HONOUR: Yes. In relation to the recognisance release order, those orders commence today, 6 November 2014. There are a number of conditions attached, if you breach one or more that amounts to an offence in itself and you would come back before this court for re-sentencing in relation to that breach.

Is there anything else I am obliged to tell Mr Shaw?

MR RYAN: Nothing further, sir.

HIS HONOUR: Thank you.

MR DANN: As your Honour pleases.

HIS HONOUR: Is there anything that is required at the present time with regard to Mr Shaw.

MR DANN: No, Your Honour.

MR RYAN: No sir.

HIS HONOUR: Thank you. You are excused from the Bar table and you are free to go, Mr Shaw.

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Citations

Director of Public Prosecutions (Cth) v Shaw [2014] VCC 1848

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DPP v Smith [2010] VSCA 215

[2014] VCC 1848

6 November 2014