Director of Public Prosecutions v Adams

[2022] VCC 1671

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

CR 22-00677

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON LUKE ADAMS

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2022
DATE OF SENTENCE:	29 September 2022
CASE MAY BE CITED AS:	DPP v Adams
MEDIUM NEUTRAL CITATION:	[2022] VCC 1671

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:   Possess child abuse material – use a carriage service to                access child abuse material

Legislation Cited:  Crimes Act 1914 (Cth); s16A(2), s16AC, s17A: Sex   Offenders Registration Act 2004; s34

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Rossi v The                  Queen [2021] VSCA 296

Sentence:  Convicted and sentenced to a two-year community   corrections order and a term of six months’ imprisonment               wholly suspended on a two-year recognizance order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Accused	Mr S. Ginsbourg

HIS HONOUR:

1Simon Luke Adams, on 26 September 2022, you pleaded guilty to the following charges on Indictment No. M11947910:

·Charge 1, possession of child abuse material.  This charge has a maximum penalty of 10 years' imprisonment.

·Charge 2, using a carriage service to access child abuse material.  This charge has a maximum penalty of 15 years' imprisonment.

2

You have no prior convictions.  You have not spent any time in custody as

pre-sentence detention.

The circumstances of your offending

3

You were 38 years old at the time of your offending, you are now 41 years of age.  The prosecutor tendered the summary of prosecution opening dated

5 September 2022, it was Exhibit “A”. 

4The police attended at your home on 26 November 2020, to execute a warrant and search of child abuse material which had been accessed on 27 February 2020 from your IP address.  Initially, you were not at your home but arrived approximately one hour after the police had attended.

Charge 1: Possession of child abuse material

5The police seized a Dell computer from your loungeroom and a Lenovo laptop computer from your kitchen.  An examination of your Dell computer revealed that you possessed child abuse material from 7 October 2019 until 20 April 2020, a period of some six months.

6In total there were 173 child abuse images on that computer.  Two-thirds of those total images were in categories 1-3 on the ANVIL scale, 46 of the images were in categories 4 and 5 on the ANVIL scale. The images included:

·Naked female children in sexualised pose with breasts visible;

·Solo penetrative acts involving female children under the age of 13 years; 

·Sexual acts between female children under the age of 16 years;

·Non-penetrative sexual acts between female children under 13 and an adult male; 

·Penetrative sexual acts between female children under 13 and an adult male; 

·Penetrative sexual acts between a male child under 16 and an adult female and;

·Penetrative sexual acts between children under 18 and an adult male.

7

An examination of your Lenovo laptop computer revealed you possessed

12 category 1 Interpol baselines classification scale child abuse images.  Those images included:

·Female children under the age of 13 performing oral sex on an adult male;

·Naked female children under 13 with the breasts visible;

·Female child under 16 with breasts visible wearing underwear and;

·Female child under 13 engaged in sexual acts with an adult male.

Charge 2: Use a carriage service to access child abuse material

8This offending occurs on a single day.  Between 11:30 am and 1:20 pm on 27 February 2020, you accessed 35 files containing child abuse material.  I am not going to read out the whole 35, but some of those files included filenames such as:

·'Pre-teen give little brother a blow job.' 

·'Brosis 15 year old Dylan fucks his 14 year old sis in the ass'. 

·'13 year old Turkish girl molested by 17 year old boy.' 

·'Fifteen year old zoophilia bestiality teen Pthc fucking with dog.' 

·'Pedmom parents fucks both with ten year old.’

·‘Five year old Latina fucked by big and little bros and Mum'. 

9The other 30 files were set out in a statement of Craig Glover dated 2 September 2022.

10On 22 November 2020, you were arrested and taken to the Knox Police Station to be interviewed about your offending.  In the interview you provided the police with the PIN codes, passwords and usernames and then made the following admissions in your record of interview and I am going to read them out:

·You are aware that child abuse material refers to anyone under the age of 18.

·You're attracted to late teens; 'It would have been like, just teenagers.  I deleted everything that wasn't teenagers.  I'm not attracted to under age and I don't know why, it was just stupid.'

·As a result of lockdown you had moved your Dell computer into the garage but you used file sharing programs titled 'Shereaza' and ‘sharethefiles’ 

·Child abuse material came up while searching for pirated movies and then you downloaded it; 'A lot of the times you'll find that there was quite a lot of pornography in those searches which probably just triggered, well not triggered but just got me started.' 

·You searched  for child abuse material using words such as "PTHC" and downloaded the files and had no idea what that stands for; 'It's an abbreviation, I'm not entirely sure, just sort of, it was always in every heading in the filename, in the peer-to-peer program.' 

·The files were subsequently transferred onto a hard drive, the hard drive is permanently connected to the computer through a cable. 

·You selected files that were transferred onto your mobile phone. 

·You viewed child abuse material a few times before deleting the files.  But you did not send those images to anyone and you're not part of any chat groups, and you did not pay for it.

·The material was used for self-pleasure; ‘Masturbation wasn't gratifying which was the reason he got rid of it.  Initially it was okay and after a while I was disgusted after it, it was something different.  To begin it was excited and afterwards it was quite embarrassing and humiliating. I didn't know how to tell my wife about it, so I'm glad I sort of come to this.  It ate away at me. Just guilt and disgust I guess.  I know it's bad, I hate it.  It's not ethical or moral or whatever you want to call it.  I really wanted to sort of tell her but again, the stigma of it. I'm glad you guys came knocking on my door.' 

·You then went onto say, 'I go to church, and they view older women pornography even as a religious person, is frowned upon.'

·You stated, you were first exposed to child pornography when you were 12 or 13 years old.  One of your friends had something on his computer. 

·And you said, when you were 18 and 19 you did the same for about a month or two and then you got rid of it; 'And especially this time, it was really bad, but I just, I felt really bad this time cause of my kids.' 

·And then you stated, 'A criminal conviction was something would harm my chances of becoming a registered building surveyor.'

11After the record of interview you were released pending summons.  You were not formally charged until 9 September 2021, some 10 months after your arrest.  In April 2022, the charges were resolved at the committal mention stage. 

12

Your plea of guilty is an early plea.  You have pleaded guilty to two class

2 offences, under the operation of s34 of the Sex Offenders Registration Act, you are ordered to report for a period of some 15 years, more about that later.

Personal circumstances

13

At the time of your offending you were 38, as I said you are now 41.  You live with your wife of 15 years and your two daughters aged seven and five respectively.  Currently you are employed as an assistant building surveyor for a firm in

South Melbourne.  Your wife conducts her own business of a pool safety inspector.

14You live in the family home which is subject to a mortgage.  You have no prior convictions.  You have grown up in a stable family background.  Your father was in court to support you on the day of your plea hearing and I know that he is here today.  Unfortunately your mother is in poor health, having surgery for a brain tumour earlier on this this year.  Due to her health your mother was unable to attend court on the day of your plea.

15You are the middle child of a sibship of five children.  You have two sets of twin siblings.  One set five years older than you, and the second set five years younger than you.  You describe your family as ‘close knit’.  You are all members of the Church of Latter Day Saints.

16

You attended primary school in Queensland, you completed Year 12 at

Luther College.  After you completed school you were sent on a mission to

New Zealand.  Initially you were to remain in New Zealand for a period of

two years, but due to your home sickness you returned to Melbourne after

three months.  This experience of separation from your family affected you badly and you attended counselling to deal with those difficulties.

17

Upon your return to Melbourne you completed an Advanced Diploma of

Business Management.  You also completed an apprenticeship course to be an electrician.  You had met your wife in 2005 and then worked in an office furniture assembly business for some nine years.  You have done study, you become a building surveyor.  You have worked in kitchen design, manufacture and installation industry.  Your employer retrenched you in October 2021, when you told him of your legal difficulties arising from these charges.  Your current employment is an assistant building surveyor.

18You have been cooperative with the investigators in this case, giving them your passwords and access codes to your electronic devices.  You have expressed your disgust and remorse in your record of interview about your offending.

19

Within two weeks of your arrest you have attended and engaged with counselling and treatment for your addiction to adult pornography and child abuse material.  The treatment has encompassed some 34 appointments with Daria Sizenko, a provisional psychologist.  Ms Sizenko's report dated September 2022, was

Exhibit 5.  Ms Sizenko's opinion is that you have engaged with therapy appropriately and that you recognise that you will have to manage your urges in respect of sexual material for the remainder of your life.  Ms Sizenko notes that you wish to continue with your current counselling engagement.  I note that you have also attended the 12-steps program conducted by the Church of

Latter Day Saints to deal with your addiction to pornography. 

20You have also been assessed by Pamela Matthews, a Forensic Psychologist for the purpose of this proceeding.  Her report dated 30 August 2022 and her addendum report dated the same date were Exhibit 4. Ms Matthews has assessed you as a low to average risk of re-offending.  Ms Matthews has diagnosed you with compulsive sexual behaviour disorder, paedophilia and haemophilia.  Ms Matthews noted that your protective factors are a supportive wife and family and friends.  Employment, lack of substance abuse and lack of diverse criminality and your engagement with treatment to date.

21

You have divulged your dark and dirty secret, of possessing and accessing child abuse material to your family and friends.  There were a total of 20 separate references from family, relatives and friends, to whom you have admitted your offending, they were Exhibit 3.  Your approach would have taken courage and faith on your part that you would not be rejected by these people.  The referees will be support for you in the future and hopefully limiting factor in your prospects of

re-offending.

Sentencing considerations

22Charge 1 is a State offence.  Charge 2 is a Commonwealth offence.

23The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances. 

24I am also required to balance the interest of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure as far as possible, that you as an offender are rehabilitated and reintegrated into society. I am also required to take into account current sentencing practices when fixing your sentence.

25That enquiry is directed particularly, but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time.  I have considered this, both the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.

26Of course current sentencing practices, is only one of the considerations I am required to take into account when imposing a just sentence.

27Your counsel submitted a comprehensive spreadsheet of sentences handed down in this court between 2016 and 2019 for offending which is similar to your charges.  The cases referred to in the spreadsheet are of assistance to this court, but none of them are on all fours with your offending or your personal circumstances.

28

In respect of Charge 2 on the indictment, I am required to consider the provisions set out in the Crimes Act 1914 Commonwealth (“the

Act”)

. Section 17A of the Act provides that a court shall not pass a sentence of imprisonment for a federal offence unless it is satisfied, having considered all other available sentences that no other sentence is appropriate in all the circumstances of the case.

29In s16A(2) of the Act, it sets out a non-exhaustive list of factors a court is required to consider when sentencing a federal offender such as yourself.  Some of those matters include the following:

(a) The principles of general deterrence;

(b) The nature and circumstances of the offending including your moral      culpability;

(c) The maximum penalty's applicable to the charges that you have pleaded      guilty to;

(d) If the offence forms part of the course of conduct consisting of serious criminal acts then that course of conduct,

(e) The fact that you have pleaded guilty to the charges;

(f) The degree to which you have cooperated with law enforcement agencies in    their investigation of the offending itself. 

(g) The deterrent effect of any sentence or order under consideration may have   on you personally, that is specific deterrence;

(h) The need to ensure that you are adequately punished for your offending; 

(i) Your character, antecedence, age means and physical, and mental       condition;

(j) The probable effect of any sentence or order under consideration may have     on your family or your dependants;

(k) Your prospects of rehabilitation; and

(l) The fact that prison, as I have said before is the last resort in your case, as      it would be your first experience of it.

30Section 16AC of the Act also requires a sentencing court to take into account the level and degree of assistance and cooperation you have given authorities.  In respect of Charge 1, your cooperation and admissions in the record of interview are the whole of the evidence effectively against you. You have given the police access to the material stored on you computer. Your plea of guilty to that charge is a consistent approach by you to this offending.

31You have pleaded guilty to these charges at the earliest time in these proceedings.  The plea of guilty and cooperation with the police indicate and demonstrate remorse on your part and I accept that you are remorseful for your offending.

32Your plea of guilty has a utilitarian value.  You have allowed the orderly and administration of justice to take place.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community. As I said before, you have no criminal history and you have no charges outstanding.

33

The Court of Appeal in the case of Worboyes v The Queen reported at[2021] VSCA 169, set out a number of considerations that were particular to a plea of guilty in the course of the COVID-19 pandemic and even more so in the sentencing process. Those considerations were reinforced by the Court of Appeal in the case of Rossi v The Queen reported at [2021] VSCA 296, which recited paragraphs

35-39 of the Worboyes case and highlighted the following:

'We therefore consider that whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances and concomitantly as attracting an augmented, mitigatory effect on the sentence, simply because the plea will benefit the believed administration of justice, given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and probable amelioration of sentence.'

34The Court of Appeal went on to state:

'For these reasons we consider that, all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea and entered at a time when the community and the courts were not afflicted by the pandemic's effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence that in another time.  Although a sentencing judge may not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.'

35The Worboyes discount as I have said has particular application in your case because of you have been at large on bail. In coming to court, you were always at risk of being sentenced to imprisonment and the plea adds more weight to your plea of guilty.

36In your case there has been considerable delay between your arrest and delay in the charges by police.  A period of some 10 months on my calculation.  There had been a further delay of some 12 months while this case has proceeded through the courts.  The delay has not been caused by any of your actions.  Right from the beginning you have admitted your criminality and then proceeded to engage in treatment for your diagnosed condition which is the basis of your offending.

37There are two aspects of the delay which I am required to consider.  The first is that you have had the outcome of this prosecution hanging over your head for nearly two years.  The second aspect that upon detection by police, you immediately embarked upon a course of rehabilitation in the form of counselling by Ms Sizenko and the 12-steps program that you have completed at your church.

38You continued with your counselling with Ms Sizenko up until the date of your plea.  On the assessment of Ms Matthews and Ms Sizenko you have made significant progress in your rehabilitation. 

39A term of imprisonment would interrupt and potentially undo the progress on rehabilitation that you have made to date.  I take into account both aspects of delay when finalising your sentence for these offences.

40I assess your prospects of rehabilitation as good.  Your self-driven approach to psychological treatment within days of your arrest, your strong family support, your employment, your lack of any other criminal convictions are a basis for this assessment.  I accept your expressions of self-disgust are genuine.

41The two offences of possessing child abuse material and using a carriage service to access child abuse material are serious offending. In respect of the possession charge the period of offending was over six months.  Unusually, you have deleted the child abuse material prior to your arrest which occurred six months later.  In respect of the access to child abuse material by using a carriage service, the offence occurred on a single date.

42In total you have the possession of 185 images on your two devices.  The images were in each categories of 1-5 on the ANVIL scale of child abuse material.  In simple terms the images and material are depraved and clearly show the abuse of children under the ages of 13 years and 16 years in various poses of sexual acts.

43The primary sentencing consideration in offences of child abuse material is general deterrence.  By your actions of accessing and retaining the child abuse material, you have contributed to the creation of a market for the continued corruption and exploitation of children.

44Your overall offending is at the lower end of the offending for these types of offences.  Your counsel submitted that a Community Corrections Order be imposed on you as an appropriate sentence.  I have had you assessed for a Community Corrections Order with conditions, and you have been deemed as suitable, I will return to this later.  The imposition of a Community Corrections Order is appropriate in respect of Charge 1.

45The principles of general and specific deterrence are paramount in the sentencing process, the principles of just punishment and denunciation of your conduct are also applicable.  The community demands that the law protects children and a just sentence dictates that a term of imprisonment is the only appropriate sentence for Charge 2 in your case.  There are exceptional circumstances which allow for that term of imprisonment to be wholly suspended for the term of the recognizance order.

46The exceptional circumstances arise from a combination of the following matters:

(a)   The offending occurs on a single day.

(b)   At 41 years of age you have no prior convictions.

(c)   You have ceased your offending prior to the police involvement.

(d)   You have engaged in positive steps of rehabilitation and continue to do so.

(e)   You are employed and have a strong family support around you.

(f)    The delay in these proceedings.

47Would you stand please?

48

On Charge 1, you are convicted and ordered to serve a two year

Community Corrections Order with the following conditions:

(1)  You are to be supervised.

(2)  You do unpaid community work for 200 hours.

(3)  There is treatment and rehabilitation for mental health.

(4) 

There is treatment and rehabilitation for programs to reduce the risk of

re-offending in your case, a sex offender's course.

(5)  There will be judicial monitoring.  You are to attend here on 16 December 2022 at 9.30 am for judicial monitoring.  And you are within two days to report at Lilydale CCS within the two days of today.

49Charge 2, you are convicted and sentenced to a term of six months' imprisonment.  You are placed on a two year reconnaissance release order in the sum of $5,000.  And upon signing the reconnaissance you are to be released immediately.

50In effect, this is a suspended sentence of six months imprisonment for a period of two years commencing today.  You have been convicted of two class 2 offences under the Serious Sexual Offenders Act and are placed on the register for a period of 15 months.

51OFFENDER:  Fifteen years Your Honour.

52HIS HONOUR:  Fifteen, sorry, thank you.  Thank you 15 years.  Pursuant to s6AAA but for your plea of guilty I would have sentenced you to a total effective sentence of 12 months' imprisonment to serve.  I have also signed the forfeiture order.  Now Madam prosecutor I am just asking, in respect of the reconnaissance, I think I have had a draft of the reconnaissance sent to me, I think.  Not the precise one because it wasn't until now I've announced it.  I just want to check with you that that covers the legislation, crimes legislation?

53MS MALOBABIC:  Yes, Your Honour I've asked my instructor yesterday to provide a draft although I'll check.

54HIS HONOUR:  Yes, a lot of things came up in it, but thanks.

55MR GINSBURG:  They always do.

56HIS HONOUR:  Thank you.  I'll just hand this down and if you can check, both counsel could check it for me please?

57COUNSEL:  Yes.

58MR GINSBOURG:  Counsel are content with that, Your Honour.

59HIS HONOUR:  Yes, you can take a seat.  There are three pieces of paper that are coming your way that I'll ask you to read.  Your counsel will be able to attend where you stand and you have to sign them, they are the recognizance in respect of Charge 2.  They are the Community Corrections Order in respect of Charge 1.  And the last of them is the sexual offender register document which applies to both the cases, both charges.  And the limitations on your life for the next 15 years.  Mr Adams you can - you'll see from that Sex Offender Register that there's some serious limitations on your life.  Let me tell you that the authorities supervise the Sex Offender Register very closely and that if you breach any of those conditions under that order, you will be back here before me on the breach of the supervision order.  What that will also trigger is this.  You come back on the reconnaissance, six months of your life and you come back on the breach of the CCO as well, all right?  So, if you thought you had the Sword of Damocles hanging over you for the last year or so, you know exactly what it looks like now.  All right.  The other thing is you have to honour the support that you have been given by your family and your friends.  And the last thing is you have got two little girls, that someone else might be interested in.  Just remember that.  You have got to protect them.  Counsel thank you very much for your assistance.

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