Director of Public Prosecutions (Cth) v Winter (a pseudonym)
[2016] VCC 863
•21 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| MARK LESLIE WINTER (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 & 17 May 2016 | |
DATE OF SENTENCE: | 21 June 2016 | |
CASE MAY BE CITED AS: | DPP (Cth) v Winter (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 863 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – Commonwealth and State offences – use carriage service to access child pornography and knowingly possess child pornography – family hardship – Community Correction Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms H Loh | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr T Strong | Victoria Legal Aid |
HER HONOUR:
1 Mark Leslie Winter[1], you have pleaded guilty to one charge of use of a carriage service to access child pornography between 18 March 2014 and 30 June 2015 and one charge of knowingly possess child pornography on 1 July 2015.
[1] Mark Leslie Winter is a pseudonym.
2 Both charges are serious and that is reflected in the maximum penalties. The maximum penalty for Charge 1, use of a carriage service to access child pornography is 15 years' imprisonment and in respect to knowingly possess child pornography five years' imprisonment.
3 You are aged 36 and come before the court with no prior criminal history.
4 I shall proceed to sentence you on the basis of the amended prosecution opening for plea that was read to the court and exhibited at the plea hearing, a copy of which documents will be appended to these sentencing remarks.
5 You were arrested on 1 July 2015 following the execution of a search warrant.
6 At that time, you were living with your wife and twin seven year old daughters in Doveton. Following investigations, police identified two user names, both of which were members of a website called “Image Source.RU” (“Image Source”). The Image Source website is a free photo sharing website which originated in Russia. It contains numerous categories such as “Kids” or “Nudity” which are readily available online to members as well as non-members. The website provides members with opportunities to upload, download, share, and make comments about child pornography material.
7 Your email address was used to register as a member. One of your usernames, “Username[2]” had an album entitled “My Girls” with the tag line “Kids”. This album had a foreword “My Girls Please All Comments Welcome” and that album contained 13 images of your nieces (aged eight to13) at the beach. It is not alleged that these were child pornography images but instead these allowed you to source child pornography material from other persons who commented about those pictures.
8
On 22 February 2015, whilst logged on to your “Username” account, you viewed and commented on an album displayed by “Other User 1[3]”. On this date, “Other User 1” displayed an album entitled “Baby” and that album contained
23 photos of three young girls aged between three and five, naked, semi-naked and clothed. You made a comment “very pretty would love to see more”.
[2] Username is a pseudonym.
[3] Other User 1 is a pseudonym.
9 Enquiries showed that you registered a third username, “Username 2[4]” that joined Image Source on 7 February 2015, using the same IP address as had previously been used to register at Image Source. That IP address was allocated to your wife as at 16 February 2015.
[4] Username 2 is a pseudonym.
10 On 1 July 2015 police executed the warrant at your home and seized your HP Desktop computer. You were present and participated in a video recorded field interview during which you made admissions that there had been an occasion when inappropriate material had been viewed and that you did not feel proud of it.
11 You also provided police with a computer and other digital devices located within your home. After the completion of the search warrant you were arrested and conveyed to Dandenong Police Station where you participated in a record of interview and made full and frank admissions to the offending.
12 You admitted that you used the family computer to access child pornography, admitted to possessing inappropriate images of children under eight, some clothed, others not.
13 You told police you started looking at child pornography a few years ago when first searching for child modelling sites, after your daughter from a previous relationship indicated that she would like to be a model. You explained to police that you just got dragged into a particular website and it had images on there, and then you started getting certain things.
14 You indicated to police “the whole thing disgusts me as quick as I do it” and 99.99 per cent of the time you said that you would delete child pornography that you downloaded straight away. You explained it was a sick cycle.
15 In recent times, you were accessing child pornography maybe once or twice a week. You admitted that you had done so the day before, being 30 June 2015, when your family was not at home. You would download child pornography pictures and said that you “may view some of them” and you “may not”. You would then delete them. Sometimes you would move the files into other folders, in an unusual location, to hide them from any other family members.
16 When deleting the child pornography, you were thinking of the ramifications. You acknowledged to police that your actions were not appropriate and that it was not right. You told them that you had two young girls and you would hate to see them in that environment.
17 You said to police you had used a Russian website which you referred to as “Image Screen” to access child pornography and other sites. You specifically looked for child pornography, actively searching for images of girls between eight and 15 in various states of undress.
18 You made many fake web profiles and you would set up a profile which included a random email address and then within a couple of days you would delete the profile.
19 You indicated that occasionally you would receive emails with a link and that that link would primarily contain files of young girls, pictures of young girls, some clothed, some not and sometimes there would be a sexual context to the pictures.
20 You told police you shared the beach photos of your nieces to see what other people would send but that you had never put up photos of your own children.
21 You maintained that you did not get any sexual gratification from the viewing these images but after accessing child pornography you would normally go onto something else, just a hardcore porn site. You said that you were disappointed in yourself.
22 A forensic examination of the computer was conducted by police that contained a single internal hard drive and that was analysed. The data was classified in accordance with the Australian National Victim Identification Library and a breakdown of the files was set out in paragraph 22 of the opening. For the child pornography files, the earliest file creation date was 13 March 2014 and the last one was 30 June 2015, which spans the period set out in Charge 1 of the indictment.
23 The breakdown of files classified by the informant as child pornography, is set out below:
| Cat 1 | Cat 2 | Cat 3 | Cat 4 | Cat 5 | Cat 6 | Total CEM | |
| Images | 1466 | 24 | 122 | 80 | 1 | 0 | 1,693 |
| Movies | 3 | 16 | 2 | 25 | 0 | 0 | 46 |
| Total | 1469 | 40 | 124 | 105 | 1 | 0 | 1739 |
24 Of the 46 movies categorised as child pornography, the length of the shortest movie was 17 seconds and the longest was 1:11:10 seconds. The total sum of child pornography movies on the hard drive was 5:54:51 seconds.
25 In summary, the accessing and possession of 1,693 images and 46 movie files form the basis of both Charges 1 and 2.
26 The opening sets out in detail sample images from each category in paragraphs 26-30 and sets out detailed descriptions of sample images, one from each category, the descriptions of which I do not propose to repeat but I agree with those descriptions.
27 At the plea hearing, the prosecutor, Ms Loh, filed a Victim Impact Statement that had been completed by the mother of your two nieces, whose photos you posted online. This was done without objection by defence. I make it clear that your offending did not involve your nieces, merely their photos were used by you as a conduit to others from whom you could access child pornography.
28 You do however acknowledge that the placing of your nieces’ photos online has caused the hurt that was described in the Victim Impact Statement.
29 Not only has your offending affected your sister-in-law and her family, but it has also impacted upon her relationship with her sister and has caused fracturing in your family life.
30 Mr Strong, on your behalf, accepted that ultimately there was no excuse for this offending. As a context for the offending he stated that it occurred when you had had a significant issue with alcohol abuse. Drinking for you has been a lifelong problem but over the period from 2010 it became worse and you were suffering from depression. In early 2014 to mid-2015 you were prescribed Effexor and Pristiq for depression.
31 Originally, your exploration on the internet was benign, that is looking at modelling sites because of your young daughter’s expressed interest, but that then morphed into child pornography.
32 Mr Strong acknowledged how serious the offending was. He highlighted the fact that you now show real insight in the answers that you provided during your record of interview and that you understood completely that your conduct was inappropriate and part of a sick cycle. Through your plea of guilty you accept full responsibility for your actions.
33 Mr Strong acknowledged that one of the most concerning aspects of the offending was that it revealed your sharing of your nieces’ images and you now acknowledge and understand the real pain that it has caused.
34 The real gravamen of your offending however is accessing and possessing the child pornography found on your computer. That is the offending for which you will be sentenced.
35 Insofar as your personal history and background are concerned, you grew up in Mt Waverley. You have a sister with special needs. Your family life was difficult. Your parents separated when you were ten. As a young teenager you were diagnosed with Tourette’s Syndrome. Fortunately that resolved when you were about 18. Sadly, you were teased and bullied and ostracised at school. You were however able to complete Year 12.
36 You have an excellent work history and have worked mainly in hospitality and restaurants and cafes in a wide variety of jobs. For three or four years you worked in a call centre doing customer service. You have also worked as a courier driver and a truck driver doing interstate runs. Currently, you are working as a warehouse storeperson/factory hand undertaking nightshift.
37 Your first marriage broke down and you have one daughter from that marriage who is aged 14. You have had regular contact with her until she was about eight, but you have virtually had no contact since that time.
38 You are living with your wife, Brittany[5], and twin daughters Evangeline[6] and Gardenia[7] who are now aged eight. Both girls attend Children’s[8] Primary School, Endeavour Hills.
[5]Brittany is a pseudonym.
[6] Evangeline is a pseudonym.
[7] Gardenia is a pseudonym.
[8] Children’s is a pseudonym.
39 Both girls have documented global difficulties. Evangeline has been diagnosed with an intellectual disability with a full scale IQ assessed at 68. Her language score of 57 indicates severe receptive and expressive difficulties. Her fine motor skills are not well-developed.
40 She requires constant adult assistance and encouragement to complete fine motor activities and tasks.
41 She needs adult assistance for her activities of daily living, particularly those involving fine motor skills, for instance unpacking her school bag, unpacking her school lunch, taking off clothes, toileting, taking off shoes and tying laces.
42 The reports show she needs one-on-one assistance in the school environment to ensure that she has a clear understanding of what is expected. She has difficulties expressing her needs verbally and her challenging behaviours were noted. She gets easily distressed and frustrated, resulting in her reacting loudly and emotionally, crying and shouting. She has regular emotional meltdowns that were described in some detail today by your wife in her evidence.
43 She requires constant adult monitoring and assistance to ensure she does not hurt others. It was said in one report that this risk is real and it is stated that she may hurt others around her. Her behaviour was described as very disruptive and aggressive. She requires adult supervision. It is documented that she is very domineering over her twin, Gardenia.
44 Her diagnosis of global developmental delay was confirmed by her paediatrician, Dr Edwina Montgomery, in her report dated 22 May 2015.
45 Evangeline's psychologist, Catherine Charlton, confirms in addition to what is said with respect to global developmental delay, she is also vulnerable to being exploited socially. She is friendly, easily led, and over-trusting of adults, which means that those combined features make for major safety concerns. She has very poor awareness of risk and safety and no awareness of road danger or road safety skills. She requires constant supervision. This morning your wife, Brittany, confirmed at times she does run off.
46 Gardenia also has significant global difficulties and has been diagnosed with an intellectual disability with a full scale IQ assessed at 70. She also has a language score of 61 that indicates severe receptive and expressive difficulties. Her fine motor skills are not well-developed. She lacks confidence and relies heavily on her sister, Evangeline. She, too, requires constant adult assistance and encouragement to complete fine motor activities and tasks. She, too, needs adult assistance with activities for daily living. She has severe impairment in receptive and expressive language and requires information to be provided one-on-one with visual cues and modelling.
47 She, too, exhibits significant challenging behaviours, reacts loudly and emotionally, wailing, crying and having tantrums if there is a change to her routine or if her immediate needs are not met. She becomes easily frustrated and withdraws from situations. Her emotional meltdowns occur daily. She, too, requires constant adult monitoring and assistance to regulate her emotions. She, too, is at risk of lashing out and hurting others. It is said that she requires individualised care in order for her to cope with school and the curriculum.
48 In pre-school it was noted that Gardenia had little or no awareness of who or what is around her and that she relied heavily on her twin, Evangeline. She displayed poor self-confidence and coping strategies. She, too, has no awareness of the safety of herself or others. Her behaviours are described as very challenging and it is said she displays inappropriate social interactions. Her ability to follow instructions and concentrate is poor. She, too, is vulnerable to being exploited socially. Dr Montgomery, the paediatrician, confirms that she has global developmental delay. I also noted in your wife's evidence this morning, she confirmed that Gardenia is currently having treatment with the psychologist at Children’s Primary School and that a referral has been made to a paediatrician to explore further the diagnosis of autism or other condition, so her problems are ongoing.
49 Your wife, Brittany, confirmed in her evidence the contents of the two Statutory Declarations that have been exhibited. They deal with matters such as the difficulties you had with depression, anxiety and panic attacks that have been evident since 2007 for which you are prescribed anti-depressants. She also described, due to depression, you have been alcohol dependent since about 2010. She said you sought treatment with Dr Williams and have since March 2016 cut down considerably on your levels of drinking. She stated in her written letter to the court that you are very committed to getting your life back on track and eventually becoming alcohol-free. She expressed the view that you are truly sorry for the crimes you have committed.
50 She described you as being a loving, dedicated husband and father. She says you have been devastated by your actions and that these charges have meant that it has been a real wake-up call for you. You have always acknowledged that your behaviour is totally unacceptable.
51
I have had regard to the report of Ms Pamela Matthews, forensic psychologist, and her report dated 5 May 2016 was tendered. She examined you on
11 February 2016. Ms Matthews documented your long-term alcohol abuse problems, which began following diagnosis of depression during the course of your first marriage. About four to five years ago you sought treatment for your alcohol problems and you were prescribed medication, but you have subsequently ceased taking that medication. You have been reducing your alcohol intake gradually, but admit to increasing this whenever you are feeling stressed. She said you suffer sleep apnoea and have difficulty sleeping. You are working night shifts driving trucks so that you can help your wife with the twins. You experience neck and back pain due to the rigours of your job, involving long hours of driving and heavy manual lifting and recently you have been prescribed blood-pressure tablets.
52 She diagnosed you with alcohol-use disorder as defined by DSM‑V and an interrelated history of low-level depression. Currently you present with major depressive episodes, a single episode mild and reactive to your situation. She said that you are not a person who presented with any formal thought disorders, delusional constructs, perceptual disturbances or other indications of psychosis and you cognosis was estimated to be average and you presented with partial insight.
53 She undertook a risk assessment, namely Risk Matrix 2000, which she says is currently the only instrument structured for the assessment of non-contact offenders. She estimated your risk of reoffending to be low, on a four-level scale of low, medium, high and very high. She noted your behaviour was chronic but not diverse. Your move to sharing material with others represented an escalation in your behaviour. You have no history of sexual abuse. There is no behaviour involving physical or psychological coercion of a victim. You do not seek to deny or minimise or deny your offending. You present as being ashamed. You make appropriate statements in regard to the horror of your actions and the disconnect between your behaviour and your ideas about this.
54 You reported a history of mental health issues, and presented with depressed mood and current suicidal ideation, also having problems with stress and coping, and building and maintaining non-intimate relationships. You are not averse to seeking treatment for your alcohol problems and depression. She described you as having some partial insight into the current offence behaviour. Your history of being able to act on insight to effect change has been poor, but you have the support of your wife. You do not present with a psychopathic personality disorder or any other personality disorder.
55 She stated the nature of the material described in the police brief, the length of time your admitted interest in the child exploitation material, would indicate a diagnosis of paedophilia.
56 You have a history of substance use issues and report current alcohol consumption at hazardous and dependent levels.
57 Following psychometric assessment, she confirmed that you perceive yourself as being somebody who is aware of a need for help; however your tendencies to low levels of energy, passivity, and withdrawal may prove to be a complication during your treatment.
58 In her final opinion she notes in regards to the risk of reoffending in a similar manner that your overall risk is estimated to be low to moderate. Elevating that risk estimate is your paedophilic interest escalation in regards to communicating with and sharing child-exploitation material with others, and long-term difficulties managing the interrelationship between psychosocial stress, low-level persistent depression and alcohol dependence. Your lack of social supports outside those provided by your wife and mother are of concern.
59 She confirmed factors likely to reduce risk are access restrictions to digital internet and photographs of children or opportunities to photograph children and unsupervised access to children. Further treatment in terms of addressing your deviant sexual interest and behaviour and alcohol dependence, mood management and stress management, and building of psychosocial supports, are indicated.
60 She indicated should you be incarcerated, that you are the sort of person who is likely to experience increased depression, particularly in relation to the stress such an option would place on your wife, Brittany, who would then have unsupported care of your two high-needs children. From a rehabilitative perspective you are someone who is likely to be compliant with and benefit from a treatment-focused order served in the community.
61 Mr Strong submitted, having regard to the particular combination of features in your case, the court ought to consider formulating a sentence that does not involve immediate imprisonment.
62 He relied on mitigating features which I accept:
(a)Your plea of guilty entered following the straight hand‑up brief committal hearing, entered at the earliest available opportunity.
(b)Plea of guilty being evidence of genuine remorse, such remorse further indicated by your full and frank disclosures to police immediately at the time of your arrest and during your record of interview.
(c)Whilst imprisonment is ordinarily the starting point for offending of this nature, there were particular features associated with your personal circumstances that militate against such an order. He relied on the contextual background that I have gone into in great detail earlier. He also emphasised the current steps that you have taken to address your underlying alcohol problem, the fact that you are in stable paid employment and that both you and your wife are committed to continuing your relationship. Notwithstanding the fact of the disclosure of the offending and the stress that has occurred, your wife remains supportive of you.
(d)He emphasised your good prospects of rehabilitation. You do show insight into your offending. You show a willingness to seek treatment for both alcohol and psychological issues, and an expressed willingness to undergo a sex offenders treatment program. He submitted with such treatment it would enhance the risk of reoffending being low.
(e)Finally he relied on Ms Matthews’ report and her opinion that gaol would likely to increase depression and further would involve hardship as is known to the law.
63 Hardship to a family of an offender is relevant only where the degree of hardship is “highly exceptional or clearly exceptional”. In Markovic v R; Pantelic v R [2010] VSCA 105, the Full Bench of the Court of Appeal acknowledged:
“It has long been the position at common law that, unless the circumstances are shown to be exceptional, family hardship is disregarded as a sentencing consideration.”
64 In R v Esposito [2009] VSCA 277, Nettle JA described the test as follows:
“In order to establish exceptional circumstances, there must be cogent evidence that a prisoner’s imprisonment would impose exceptional hardship upon his family, one which is considerably more severe than normal for a family where the father is imprisoned, and the situation must be so highly exceptional that ‘it would be, in effect inhuman to refuse to do so’.”
65 It is accepted that cases where family hardship gives rise to exceptional circumstances will be rare.
66 Having regard to the particular circumstances of this case, the documented special needs of your daughters, together with the evidence of your wife, Brittany Winter[9], which evidence I accept and which evidence was not challenged, I find that the principles of hardship do apply, such that the court can consider a merciful sentence.
[9] Brittany Winter is a pseudonym.
67 Ms Loh, in her sentencing submissions, pointed out the gravity of the offending having regard to the penalties prescribed by law with respect to both charges, and also the objective features of your offending. She highlighted the length of time that you used the carriage service to access child pornography spanning 18 March 2014 to 30 June 2015, the nature of the material and the circumstances of the offending.
68 Whilst acknowledging that the majority of the total images, being 86.6 per cent, were classified as Category 1 material, it nonetheless included serious examples of abuse of child victims, and in the present case included young girls in explicit poses with focus on their genitals. At the higher classification level of 46 videos, more than half were Category 4, and that material depicted horrifying degrading and exploitative material of young children. Ms Loh further pointed out the volume of the files, namely 1739, was not insignificant.
69 The Crown accepted the possession was for personal use only, but nonetheless submitted that, whilst not being able to precisely quantify the number of children depicted, it is evident that many children were abused to produce the amount of images and videos that were found in your possession. It is not suggested in any way that you would profit or benefit from the activity. The files were not stored in a particularly sophisticated manner and you were using a computer shared by your family. There is no suggestion that you were acting in collaboration with others, but nonetheless the Ms Loh highlighted that a concerning aspect of the case was your use of your nieces’ photographs to attract and identify other like-minded persons in order to potentially source child pornography material in the future. It is not clear what the personal circumstances of any of the victims were, but nonetheless it is accepted that children in the material were sexually abused in order to create the material and supply the market. It has to be said although none of the victims could be identified, they nonetheless have been exploited.
70 The Crown emphasised general deterrence is a paramount consideration in sentencing cases of this sort. That was emphasised again recently in two decisions of the Victorian Court of Appeal in DPP (Cth) and DPP v Garside (‘Garside’) [2016] VSCA 74 and DPP (Cth) and DPP v Watson (‘Watson’) [2016] VSCA 73.
71 There is major public interest in protecting children from sexual abuse. Such offending involves the necessary creation and perpetuation of child exploitation material. It also enables the perpetuation of a market. Without such a market there would be no need for children to be exploited, degraded, violated or abused in order to supply the market. Mr Winter, by accessing this material and viewing it, and possessing it, you have contributed to that exploitative market. It is wrong and there is a real need for the court to emphasise general deterrence and specific deterrence in your case, to formally denounce the behaviour and to impose just punishment.
72 Ms Loh acknowledged that your plea of guilty was entered at the first reasonable opportunity. She also accepted that in this court Commonwealth offenders are given a discount for a plea of guilty on the basis of the utilitarian value of the plea in terms of the cost savings to the community, and she referred to a recent ruling of the Chief Judge of this court. Nonetheless, the Crown maintained its attitude that the High Court decision of Cameron applies to Commonwealth offenders and that no discount should be given for a plea of guilty on the basis of its objective utilitarian value. The Crown’s attitude is that a discount is confined to three subjective factors: remorse, acceptance of responsibility and your willingness to facilitate justice.
73 In the circumstances of your case, given that I accept that the plea was entered at an early stage, I accept there was utility in the plea and you have facilitated justice and your sentence will be discounted accordingly. It is not in dispute the plea also is indicative of remorse.
74 Ms Loh emphasised the need for any sentence to reflect specific deterrence and she highlighted what was said by Ms Matthews in her report in terms of her diagnosis of paedophilia.
75 She also emphasised that the courts need to denounce this sort of criminal behaviour and that stern punishment should be expected for the offending. Ultimately, she submitted that an immediate term of imprisonment to be served was the most appropriate disposition and submitted that exceptional circumstances, insofar as hardship was concerned, were not made out.
76
She acknowledged the fact that you did not have any prior convictions, but emphasised it is well established that less weight attaches to evidence of prior good behaviour for offences of this nature.[10] She referred the court to numerous decisions that I have footnoted in my sentencing remarks. She acknowledged
Ms Matthews’ report does refer to likely increased depression in the event of incarceration, particularly because of your expressed concerns about the extra stress that would place on your wife, and accepted therefore it would be likely that time spent in custody would be more onerous.
[10]R v Jongsma (2004) 150 A Crim R 386 at [395]; DPP (Cth) v D’Alessandro (2010) 26 VR 477 at [21]; DPP (Cth) v Guest [2014] VSCA 29 at [23]–[24]; R v De Leeuw [2015] NSWCCA 183 at [24]
77 In terms of your prospects of rehabilitation, she submitted the Court ought to be guarded in making a positive finding regarding such.
78 Having carefully reviewed Ms Matthews’ report, she considered that her assessment of your overall risk of reoffending as low to moderate is appropriate provided you get appropriate treatment, including assessment and treatment under the sex offenders treatment program, and I agree with that submission.
Conclusion
79 The offences of accessing and possessing child pornography are separate and distinct offences, although one offence is linked to, and substantially overlaps with, the other. Some degree of cumulation is required to reflect your overall criminality.
80 The recent case of Watson illustrates that one would ordinarily expect cumulation and, depending on the circumstances, substantial cumulation, of Commonwealth offences. Here, I have had regard to the fact that with respect to the State charge, Charge 2, possession of child pornography, it is for one day only and therefore I do not consider the degree of cumulation should be great in this case. The Crown accepts substantial concurrency is warranted.
81 The Court of Appeal in Garside recognised that if a Community Correction Order was an appropriate form of sentence for each offence charged in the totality of the offending, then there is no reason in principle why the same Community Correction Order could not be ordered to cover both charges.
82 Ultimately, Mr Winter, in your case, because of the particular circumstances, I am satisfied that all the relevant sentencing principles that I must apply pertaining to both the Commonwealth charge and the State charge can be achieved by the imposition of a Community Correction Order.
83 In respect to both charges on the indictment, you will be convicted and a Community Corrections Order will be imposed of three years’ duration with the special conditions I have already outlined, that you undergo treatment and rehabilitation for alcohol problems, treatment and rehabilitation for any mental health problems identified, treatment and rehabilitation insofar as undergoing an assessment for your suitability for a sex offender advice and treatment program. I do not propose to order any community work, given your heavy involvement with your special needs children and your work commitments working night shift.
84 The assessment report from Community Corrections says you are a person who is deemed suitable for such an order. You have personally indicated to me that you acknowledge that you have been advised by Corrections Victoria about the conditions and requirements the order and that you understand your obligations should you receive such an order. I have personally explained the consequences of failing to meet your obligations under a community corrections order and you understand what may happen if you do not do what the order requires. You have formally consented to such an order being made by the court.
85 There will be two orders, but the same terms will apply for both charges.
86 It will be necessary for you to report to Dandenong Community Corrections Services by 4pm on 23 June 2016 and that office is at 46–50 Walker Street, Dandenong, Victoria.
87 Finally, you have pleaded guilty to two registrable Class 2 offences as identified in Schedule 2 of the Sex Offenders Registration Act 2004 (‘SORA’) and pursuant to that Act you are required to comply with reporting obligations for 15 years. Shortly my Associate will approach you in the dock with the necessary notification under that Act, with a request that you sign the acknowledgment. Once all those documents are prepared, you can attend with Mr Strong. You can actually release Mr Winter from the dock and he can come to the Bar table and acknowledge those in the presence of Mr Strong and my associate.
88 MR STRONG: Just one thing. Does Your Honour have to make a s.6AAA declaration?
89 HER HONOUR: I do not, I believe. No, I have not imposed gaol. No, the Sentencing Act does not require that be done.
90 MS LOH: No, Your Honour.
91 HER HONOUR: It is only in the event that I impose gaol.
92 MR STRONG: All right. I was not sure, Your Honour.
93 HER HONOUR: Yes. I looked at it recently.
94 MR STRONG: For some reason a lot of judges and magistrates still make it even when they - - -
95 HER HONOUR: Yes, I know, but. Section 6AAA says:
“If in sentencing an offender a court imposes a less severe sentence than it would otherwise impose -"
96 Yes, I think it is only in respect of imprisonment. It says:
“If an offender is sentenced for more than offence in the same proceeding, the court must state in respect of any total effective period of imprisonment the sentence and any non-parole period it would have imposed but for the plea of guilty."
97 It is Division 2, Part 3. Division 2, Part 3 only refers to custodial orders. Section 6AAA(1)(a)(b) has to include an order in respect to imprisonment or a fine exceeding ten penalty units or an aggregate fine excluding 20 penalty units. That is my interpretation of the Act.
98 MR STRONG: I think Your Honour is right, it does seem peculiar because - - -
99 HER HONOUR: Division 2 of Part 3 only refers to custodial orders.
100 MR STRONG: Yes.
101 HER HONOUR: There is no custodial order, so.
102 MR STRONG: Yes, I agree, Your Honour - - -
103 HER HONOUR: My view is it does not apply.
104 MR STRONG: No, I think Your Honour is right. It is kind of peculiar, you could impose a fine which is far less severe.
105 HER HONOUR: I know.
106 MR STRONG: And have to make the declaration.
107 HER HONOUR: I know, but that is how I read that section.
108 MR STRONG: No, I agree with Your Honour having read it.
109 HER HONOUR: All right. All right, thank you. Mr Strong, I appreciate all the assistance you have been giving the court and I just would like you just to spend some time just explaining the SORA requirements to your client, because increasingly the courts are seeing people come back before them because of not meeting the obligations and they are quite strict, so it is another matter that he must have regard to.
110 MR STRONG: Yes. I will explain it in detail, Your Honour.
111 HER HONOUR: Yes. Yes. The only other thing, Ms Loh, is I noted that a sister who was here supporting Ms Winter this morning walked out when I indicated that a Community Correction Order was going to be imposed.
112 MR LOH: I understand it was actually a brother.
113 HER HONOUR: A brother, all right. If you could just spend some time explaining. At some stage if you require I can redact my sentencing remarks and provide them for you.
114 MS LOH: Thank you, yes. I will do that, Your Honour.
115 HER HONOUR: It is important that they understand that he is not being punished for doing what he did in respect to his nieces' photographs. I explained that on the previous occasion, but it seems to me by the reaction that they are not understanding that.
116 MS LOH: Yes, I will explain that, Your Honour.
117 HER HONOUR: All right, I appreciate that. Thank you. Is that all right?
118 MR STRONG: It seems to be all right.
119 HER HONOUR: We will get copies of all the documents. They are all signed now? All right. I will leave the Bench now and you can provide the copies. Again, thank you, Mr Strong.
120 (Community Correction Order signed and acknowledged.)
- - -
IN THE COUNTY COURT
OF VICTORIA
AT MELBOURNE
CR-15-01956
THE QUEEN
V
MARK WINTER
Amended Prosecution Opening for Plea
121 Charges:
The offender has been charged with the following two charges:
Charge 1: Use a carriage service to access child pornography material, between 18 March 2014 and 30 June 2015, contrary to s.474.19(1) Criminal Code (Cth)
Charge 2: Knowingly possess child pornography, on 1 July 2015, contrary to s.70(1) Crimes Act 1958 (Vic).
122 Background Information
The offender is a 36 year old male (DOB: 9 July 1979). He resided with his wife and twin xxxxxxxx daughters at xxxxxxxxxxx.
In February 2015, investigators from the Queensland Police Service commenced an investigation into two usernames: Username 3[11] and Username 2. Both usernames were members of a website called iMGSRC.RU (pronounced ‘image-source dot RU’, hereinafter referred to as ‘Image Source’).
[11] Username 3 is a pseudonym.
The Image Source website is a free photo-sharing website which originated in Russia. It contains numerous categories such as ‘kids’ or ‘nudity’ which are readily available online to members as well as non-members. The website provides members with opportunities to upload, download, share and make comments about child pornography material. An email address is all that is required to register as a member.
Enquiries revealed that the username Username 2 joined the Image Source website on 7 February 2015[12] using the email address xxxxxxxxxxxxx. An Internet Protocol Address[13] (IP Address) of xxxxxxxxxxx was captured by the Image Source website during the registration process.
[12] Exhibit 1 – Username 2 profile, pp. 28 – 29 of the hand-up brief.
[13] An IP Address is a unique number assigned to a computing device that is operating over the internet at a given date and time. NB: No two people in the world can have the same IP address at the same time.
Contained within the account belonging to Username 2 was an album titled ‘Minis’, with the tag line ‘kids’. The album had the foreword ‘Love all things small’ and contained the following:
a. 12 images of mini motor cars.[14]
[14] Exhibit 2 – Username 2 album ‘Minis’, pp. 30 - 36.
b. An individual image, number 1, which had received numerous comments from other users.
c. Comment from Other User 2[15] “Trade?” The offender replied by stating: ‘Love to see some pics’[16]. The user Other User 2 had in his User info “I trade EVERYTHING 9-13yo.”
[15] Other User 2 is a pseudonym.
[16] Exhibit 3 – Username 2 image 1 with comments, pp. 37 – 38.
Enquiries further revealed that username Username 3 joined the Image Source website on 16 February 2015 using the registered email address xxxxxxxxxx.[17] The IP Address of xxxxxxxxx was again captured by the Image Source website during the registration process.
[17] Exhibit 4 – Username 3 profile, pp. 39 – 40.
Contained within Username 3’s account on 16 February 2015 was an album entitled ‘My Girls’, with the tag line ‘kids’. This album had the foreword “My girls… Please all comments welcome…”[18]:
[18] Ibid.
a.‘My Girls’ album contained 13 images of the offender’s nieces (aged 8 – 13 years old) at the beach.[19]
[19] Exhibit 5 – Username 3 ‘My Girls…’ album with 13 images, pp. 41 – 46. NB: It is not alleged that these were child pornography images, but instead, these allowed the offender to source, from the comments made by others, from whom he could obtain child pornography material.
b.The album and individual photos received numerous comments.
c.The first image in the album received a comment: “Vert Cute! Love to see more” from Other User 3[20] on 16 February 2015 at 11.27 (UTC). The offender, Username 3, then replied to this comment, with “Thanks…” on 16 February 2015 at 11.40 (UTC).[21]
[20] Other User 3 is a pseudonym.
[21] Exhibit 6 – Username 3 images with comments, pp. 47 – 50.
d.A number of other users had commented on individual photos.[22] Most of these comments were of a sexualised nature and indicative of child exploitation, and included the following: “…bet dad likes to sneak peeks at his little angel…”; “…she knows who is checkin’ her out…”; “…very sexy…” and “…hope you have fun with them…”.
[22] Ibid.
On 22 February 2015 (at 07.13UTC) the offender, while logged on to his Username 3 account, viewed and commented on an album displayed by Other User 1. On 22 February 2015, Other User 1 displayed an album titled “baby”:
a.The album contained 23 photos of 3 young girls aged between 3 and 5 years old; naked, semi-naked and clothed.
b.At 7.13 (UTC) Username made a comment “Very pretty… Would love to see more…”[23]
[23] Exhibit 7 – Other User 1 album with comments, pp. 50 – 52.
Enquiries further revealed that the offender registered another, third, username Username 2, which joined the Image Source website on 7 February 2015 using the registered email address xxxxxxxxxxx. The IP Address of xxxxxxxxxxxx was, for a third time, captured by the Image Source website during the registration process.
Enquiries with Optus revealed that IP Address xxxxxxxxxx was allocated to the offender’s wife, as at 16 February 2015.[24]
[24] Exhibit 8 – Optus IP Address Check xxxxxxxxxxx, pp. 53 – 54.
123 Execution of search warrant:
On 1 July 2015 members of Victoria Police executed a Section 3E of the Crimes Act 1914 (Cth) at the offender’s residence.
The following electronic device of relevance was seized:
· HP desktop computer (all in one monitor and hard drive).[25]
[25] Exhibit 15 – Property Seizure Record, pp. 96 – 97.
The offender was present at the premises and participated in a video recorded field interview, during which he said that “there has been an occasion when [inappropriate material] has been viewed” and that he does not feel proud of it.[26]
[26] Exhibit 12 – Field interview, pp. 73 – 81, at pp. 77-78.
He was also provided with a copy of an order to provide information or assistance pursuant to section 3LA of the Crimes Act 1914 (Cth).[27]
[27] Exhibit 11 – Section 3LA Order (Cth) #2604/15, pp. 69 – 71.
He indicated where his computer and other digital devices were located within the premises. While his computer was password-protected, the files and images relating to charges 1 and 2 were not protected by passwords or encryption programs.
At the completion of the search warrant, the offender was arrested and conveyed to Dandenong Police Station.
Record of Interview:
The offender participated in a recorded interview conducted that day during which he made admissions to the offending.[28] In the course of the interview, he gave responses including the following:
[28] Exhibits 17 + 18: DVD of the Interview + Transcript of the Interview, pp. 99 – 200.
a. He used the family computer to access child pornography, admitting to possessing “inappropriate images” of “children under the age of 18… some clothed others not.” (A 26 – 31).
b. He started looking at child pornography a few years ago (A 64; A 68). He was first searching for child modelling sites, after his daughter from a previous relationship said, when she was maybe 8 years old (she is now 13), that she wanted to be a model (A 76 – 88; 138).
c. He explained, “I just got dragged into a particular website and it had images on there and then I started getting sent certain things” (A 65 – 66), and “I suppose if you go onto one site and then you click on something and then it goes into others” (A 155).
d. He stated, “The whole thing disgusts me as quick as I do it” and “99.99 per cent of the time” he would delete the child pornography he downloaded “straightaway” (A 70 – 71).
e. He explained it was a “sick cycle” (A 72).
f. In recent times, he was accessing child pornography “not that often of late”, maybe once or twice per week (A 163 – 164; A 351).
g. He had accessed child pornography the day before, being 30 June 2015, when his family was not home (A 170 – 172).
h. He would download child pornography pictures, he may view some of them and some he may not, then delete them into the recycle bin sometimes straightaway, more likely when he was “jumping off” the computer (A 241 – 244; A 256; A 374).
i. Sometimes he would move the files into other folders, an unusual location, to hide them from anyone else; however, a lot of the time he would then forget where he had hidden them (A 257 – 273). He had never changed the file name (A 300).
j. He said that when he deleted the child pornography, he was “thinking of the ramifications”, “it’s not appropriate, it’s not right. I’ve got two young girls. I’d hate to see them in that environment” and “Yeah, I think about the future and if…someone found out, then how would that affect me? What would happen?” (A 376 – 378).
k. He described regretting viewing the material “as quick as I do it… but then a few days later, something draws me back and then I go just through that same cycle” (A 394).
l. He stated, “I suppose I just … like what I see… I suppose I like the … naked body. I suppose that’s primarily why I do view it” (A 397 – 398). He further stated, “I’d join a nudism resort if I could but my wife says no” (A 404).
m. He had used a Russian website he referred to as ‘Image Screen’ to access child pornography (this website was iMGSRC.RU) (A 322 – 324). He had also used torrent sites BitTorrent and BitSnoop (A 209 – 210).
n. He had specifically looked for child pornography (A 331). He preferred actively searching for images of girls aged between 8 and 15 years (A 940 – 946), in varying stages of undress (A 963 – 965).
o. He used many fake profiles on that website: he would set up a profile which included a random email address he had just created and, within a couple of days, he would delete the profile. He thought the last profile he used was probably a couple of weeks ago, if not more (A 521 – 537; A 574; A 984 - 987).
p. He did not really respond if people posted a comment, but when he had received emails with “a link”, he had replied by sending back a link to a cloud storage on “Yandex” which was something of a similar category (A 586 – 603; A 630 – 638). He admitted that the link would be to files primarily containing “pictures” of young girls, stating “some are clothed, some not” and that there would sometimes be a sexual context to the pictures (A 608 – 618).
q. He had shared “beach photos” of his 14 and 9 year old nieces, who are the children of his sister-in-law (A 809; A 813; A 841 – 844) and he did this “to see what people would send” (A 831).
r. He never put up photos of his own children (A 867 – 868), stating “I suppose going to that – just protecting them” (A 867 – 868).
s. He stated he did not get sexual gratification from viewing the images (A 999), but that, after accessing child pornography he would “normally go on something else… just a hardcore porn site” (A 1005 – 1006).
t. He stated he was “disappointed in” himself (A 1041).
Charges 1 and 2
Results of the forensic examination of the HP desktop computer (Exhibit 16)
The offender’s computer contained a single internal hard drive which was analysed by the Informant. The data obtained from this exhibit, including images and video, were reviewed by the informant using a program called NetClean.[29]
[29] Exhibit 19 – NetClean Report.
Child pornography is classified in accordance with the Australian National Victim Identification Library, as follows:
Category 1 Depictions of children without sexual activity but in sexually suggestive poses, images showing underwear, nudity with explicit emphasis on genital areas and solo urination.
Category 2 Solo masturbation by a child including penetrative use of sex toys by victim only or sexual acts between children but excluding penetration.
Category 3 Non-penetrative sexual activity between adults and children including mutual masturbation.
Category 4 Penetrative sexual activity between children only; penetrative sexual activity between children and adults which may include vaginal/anal intercourse, cunnilingus and fellatio. Also included is the penetrative use of sex toys or foreign objects.
Category 5 Sadism, bestiality or humiliation (such as urination, defecation, vomiting or bondage).
Category 6 Drawing, cartoons, comics, computer generated graphics, audio describing children engaged in sexual activity.
Other material (not child pornography) was categorised as follows:
· Category 7: Non-illegal child material (believed to form part of a series containing child exploitation material) – includes images of circumcision being performed.
· Category 8: Adult pornography (all pornography material not considered child pornography material).
The breakdown of files classified by the informant as child pornography, and also in categories 7 and 8, is set out below:
| Cat 1 | Cat 2 | Cat 3 | Cat 4 | Cat 5 | Cat 6 | Total CEM | Cat 7 | Cat 8 | Total | |
| Images | 1466 | 24 | 122 | 80 | 1 | 0 | 1,693 | 546 | 2 | 2241 |
| Movies | 3 | 16 | 2 | 25 | 0 | 0 | 46 | 8 | 3 | 57 |
| Total | 1469 | 40 | 124 | 105 | 1 | 0 | 1739 | 554 | 5 | 2298 |
These figures comprise unique files which were able to be viewed by the user, and were not deleted or hidden from view. For the child pornography files, the earliest file creation date was 18 March 2014 and the last was on 30 June 2015.
Of the 46 movies categorised as child pornography, the length of the shortest movie was 17 seconds and the longest movie was 1 hour, 11 minutes and 12 seconds. The total sum of child pornography movies on the hard drive was 5 hours, 54 minutes and 51 seconds.
In summary, the accessing and possession of 1,693 images and 46 movie files form the basis of charges 1 and 2.
Description of Sample Images: one from each category
Category 1
Image 32732-0 depicts a female minor aged between about 7 and 10 years old. The young girl is lying on a bed wearing nothing but thigh-high black stockings and oversized white high heel shoes. She is lying with her legs apart, and her genitalia are able to be viewed.
Category 2
Image 31477-0 depicts a female minor aged between about 7 and 9 years old. The young girl is lying on a bed naked with her legs apart. She is holding what appears to be a sex toy (similar to a vibrator) on her exposed vagina. This image was located in the following directory: xxxxxxxxxxxx.
Category 3
Image 31421-0 depicts a female minor who is approximately 3-5 years old. The young girl is sitting naked touching the end of an erect adult penis. This image was located in the following directory: xxxxxxxxxxx.
Category 4
Image 32655-0 depicts a naked adult male sitting on a bed with 2 young girls who are both naked. One young girl is approximately 7-9 years old and the other young girl is approximately 8-11 years old. The adult is kissing one young girl on the mouth while the other young girl has the male’s erect penis in her mouth. This image was located in the following directory: xxxxxxxxxx.
Category 5
As outlined in the table above, one category 5 image file was located on the HP desktop. Image 31745-0 depicts a female minor aged approximately 3-4 years old. The young girl is naked standing on a bed. Both wrists are tied with rope and held above her head, and both ankles are tied with rope and stretched apart. The young girl also has a black leather studded gag tied over her head covering her mouth (similar to a fetish/SBDSM mask). The image was located in the following directory: xxxxxxxxxxxxxx.
Other file names included:
·4yo girl eating dads cum.mp4 (Cat. 4)
·12 yo sucks dick off_mpeg4.mp4 (Cat. 4)
·(Philipino girls) Karen 04 4yo 8yo - More Pleasure_mpeg4.mp4 (Cat. 4)
·12yo girl sucks dad.mp4 (Cat. 4)
·VNights03 – 10yo girl fuck and cum 2012_mpeg4.mp4 (Cat. 4)
·Daughter fuck mom.jpg (Cat. 3).
Further forensic analysis of the HP internal hard drive indicated that the following search terms had been used on the device to search for child exploitation material and other material:
· Bittorrent – preteen girl nude art collection
· Barby-model
· Slutroulette – Teen sex show
· Google search terms – ‘teen animal sex’, ‘Bright young things’.
Maximum penalties
The maximum penalty for using a carriage service to access child pornography, contrary to section 474.19(1) of the Criminal Code (Cth), is imprisonment for 15 years. [Charge 1]
The maximum penalty for knowingly possessing child pornography, contrary to section 70(1) of the Crimes Act 1958 (Vic), is imprisonment for 5 years. [Charge 2]
Sex Offender Registration
The offender has now pleaded guilty to two registrable Class 2 offences as identified in Schedule 2 of the Sex Offenders Registration Act 2004 (Vic).
Pursuant to section 34(1)(b)(ii) of that Act, he will be required to comply with reporting obligations for 15 years.
Other
The offender has no prior convictions.
There is no pre-sentence detention.
Commonwealth Director of Public Prosecutions
18 February 2016
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