Director of Public Prosecutions v Anderson

[2016] VCC 744

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00192

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN WESLEY ANDERSON

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	31 May 2016
CASE MAY BE CITED AS:	DPP v Anderson
MEDIUM NEUTRAL CITATION:	[2016] VCC 744

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Dhillon
For the Offender	Mr R. Stransky

HER HONOUR: 

1John Wesley Anderson, you have pleaded guilty to one charge of possession of child pornography, pursuant to s.71 of the Crimes Act Victoria.  The maximum penalty for this charge is five years.

2The circumstances of this offending are set out in Exhibit A, summary of the prosecution opening for plea.  I have also had available a sample of the child pornography material, the subject of these offences, and with the agreement of parties viewed it in my Chambers.

3The Australian Federal Police received information regarding a Canadian investigation and you were identified in connection with those enquiries.  Police attended at your home on 2 August 2013 with a warrant and a number of external data storage devices were seized.  The devices were forensically examined and child pornography files were located.  Forensic analysis located a total of 29 child pornography images. 

4This material was classified in accordance with the Australian National Victim Image Library, categories of which there are seven classifications.  The relevant criteria for classification is set out in paragraph 3 of Exhibit A.  Twenty-one of the files were classified Category 1; four of the files were classified Category 2; and four of the files were classified Category 3.  In each category most of the victims are pre-pubescent or around the age of puberty and are predominantly female.  The images clearly fall within the category described.  The details of some of them are contained in paragraphs 8-10 of Exhibit A.

5When police were at your house you denied that you had any child pornography.  When confronted with some of the images you said they were old ones that you had not got rid of and that you had not looked at them for a long time, for over two and a half years.  You said you should have got rid of them.  You maintained you had no sexual interest in the images.

6You were not arrested at that time but subsequently charged on summons on 23 October 2015, some two years after police came to your house.  I will address the issue of delay later in these reasons.

7You are currently aged 58 and are a retired watchmaker.  You reside on your own at a unit in the eastern suburbs.  Both your parents are deceased and you have no contact with your brother and sister.  You had a difficult childhood due to the early onset of epilepsy and spinal scoliosis.  Much of the detail regarding your personal circumstances and background was provided in a report prepared by clinical and forensic psychologist, Ian Joblin, dated 31 August 2011.  This report was prepared for a previous court appearance in September 2011 for similar offending.  I take that material into account 

8It is apparent that your medical conditions meant that you had issues relating to your adolescence, physical development and social isolation.  These issues manifested as severe anxiety due to medical treatments and low self-worth due to lack of acceptance and bullying by peers.  You have been on a regime of medication to control your epilepsy for most of your life.

9You worked at Box Hill Electricity Supply as an instrument maker for 20 years, then took a package, ceasing work there.  You have since held various casual or part time positions, though engagement in paid work stopped when you suffered a heart attack in 2010.  You have been on the disability pension since 1995.  You have also actively engaged in volunteer work at various organisations for the last 20 years or so and enjoy that involvement in the community.

10You were assessed by neuropsychologist, Matthew Statiosis, and a report dated 3 February 2016 was tendered.  He concludes that your previous and current offending is rooted in factors related to your psycho social and psycho sexual development, rather than simply a reduction in your cognitive functioning. 

11A more recent psychological assessment was also provided by Dr Julie Janev in a report dated 5 May 2016.  In her report, a combination of issues are identified as contributing to this offending, including early developmental factors, your diagnosis of scoliosis and epilepsy, coupled with bullying and social isolation, which seem to have arrested your social competency skills and your ability to form meaningful relationships.  You appear to identify more readily with children who are less likely to trigger inferiority type issues.  She also lists factors that increase of your recidivism.

12I note that you participated in monthly counselling sessions with Dr Janev over a 19 month period between November 2011 and May 2013, when you were undertaking a community-based order.  She reports a significant change in you, since then, with more recent counselling sessions.  Your positive progress in respect of counselling recently engaged in with her is referred to in connection with your rehabilitation prospects below.

13I was provided with a number of cases from the prosecution regarding sentencing in these kind of cases.  In cases involving child pornography, the relevant sentencing principles are set out most recently in DPP (Commonwealth) & DPP (Victoria) v Garside [2016] VSCA 74 at 25. That is:

"(a) Unless exceptional circumstances exist the sentence involving an immediate term of imprisonment is ordinarily warranted, (see also paragraph [62].)

(b)  The objective seriousness of the offending determined by reference to various matters which I list below.

(c)  General deterrence is the primary sentencing consideration.

(d)  Less or limited weight is to be given to an offender's prior good character.

(e)  Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography.

(f)  Offending involving child pornography is difficult to detect given the anonymity provided by the internet.

(g)  The possession of child pornography material creates a market for the continued corruption and exploitation of children.

(h)  There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime.  Children are sexually abused in order to supply the market; and

(i)  The fact that an offender does not pay to access a child pornography website, or was not involved in the distribution or sale of child pornography does not mitigate the offending."

14Taking those matters into account, and of particular relevance to you, as to the nature and gravity of the offence in considering this factor the following is relevant:

(1) the nature and content of the material including the age of the children and gravity of the sexual activity depicted;

(2) the number of images or items possessed;

(3) whether the material is for the purpose of sale or further distribution; and,

(4) whether the offender will profit from the offence. 

15Where, as in this case, the child pornography is for personal use, the number of children depicted and thereby victims is also regarded as a relevant consideration as is the length of time for which the material was possessed.

16Four of your files were classified Level 2 and the same amount were Level 3.  The remaining 21 files were classified Level 1, relating to depictions of children engaging in sexually suggestive behaviour.  This material does not involve participation in actual sexual activity and, though it is still serious, it is at the lowest level of classification.  It is apparent on viewing the files that those depicted were pre-pubescent or aged around puberty and were not predominantly of extremely young children or toddlers.

17This is not to denigrate from the seriousness of this kind of offending, as such exploitation and abuse of children can cause irreparable and psychological harm to them.  As Acting Justice Harper remarked in D'Allesandro at paragraph 23:

"What they see is not merely a titillating picture but the degradation of human beings too young to avoid the exploitation to which they are being subjected."

18As to the number of images, many of these cases involve hundreds or even thousands of images.  Comparatively, you had a small amount of images.  Additionally, they were not highly organised or compartmentalised in your system and it was relatively easy for authorities to discover the material.

19The prosecution conceded the material was at the lower end in terms of volume but highlighted the inherent seriousness of each image depicting a different victim each time. 

20There was no suggestion that this material was downloaded by you for the purpose of sale or further distribution or that you were motivated by profit, all of which would have amounted to aggravating features.  This material was for your personal use.

21This offence relates to a single date.  It is unclear how long you had the material in your possession.  I was informed that the activity date in the computer file, a date in 2011, did not assist in determining the period the material had been in your possession.  Your activity provides a market for the exploitation of vulnerable children.

22The prevalence and ready availability of child pornography on the internet makes general deterrence an important consideration.  With a readily accessible market and demand for this prohibited product, those minded to exploit children in this manner must be aware that they will be severely punished.  The Court of Appeal has made it clear on a number of occasions general deterrence is the paramount consideration for offending of this grave nature.

23You were previously convicted of one count of accessing child pornography, a Commonwealth offence, and one count of possessing child pornography on
29 September 2011 at Ringwood Magistrates' Court.  You were sentenced to five months' imprisonment wholly suspended for 12 months in respect of the possession offence and released on a CBO for a period of 18 months in respect of the other offence.  It is apparent that the suspended sentence of imprisonment and conditions on the CBO did not deter you from re-offending in a similar manner.

24Both counsel recognise the proper application to this sentencing exercise of both general and specific deterrence in cases of this kind.

25You have pleaded guilty to these matters at the first opportunity.  I accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  I accept that your plea is indicative of remorse and is also consistent with some of the material tendered on your behalf from your psychologist and naturopath.  You have gradually gained insight into your offending and are now being assisted with counselling in relation to that.

26Police attended at your home on 2 August 2013 and you were not charged until December 2015.  The prosecution were unable to provide any acceptable explanation for the delay.  It was apparent from the depositions that the material was analysed on 9 April 2014.  Between the time the police were involved, up until you were charged, over two years you have had this matter hanging over your head.  You have utilised the services of a naturopath re your medication regime for epilepsy.  Prior to this court hearing you have also reconnected with your psychologist and engaged in counselling.

27There are some features that augur well for your rehabilitation.  As previously set out, you do not have family support or a large social network.  However, you have engaged in the services of a naturopath, Alan Stubenrauch, who provided a report, dated 9 May 2016, and attended court to support you.  You remain involved in significant volunteer work. You therefore have a level of support in the community.

28Dr Julie Janev, psychologist, in her report notes:  "In terms of insight,
Mr Anderson demonstrated a major improvement when compared to his initial course of counselling in November 2011 to May 2013, during which time he remained in denial for the majority of his sessions.  During his current treatment he admitted to wrongdoing towards children and expressed empathy for the victims, perhaps in part because he developed a deeper trust in the writer and acceptance that his behaviour is serious in nature."

29In her opinion your expressions of empathy and ability to take responsibility for your actions was genuine in nature.  She notes your reduced level of denial demonstrates a positive capacity for change and rehabilitation when compared to your presentation during counselling sessions in 2013.

30The prosecution submitted that a degree of caution was required in assessing your rehabilitation prospects, given your prior convictions and that you attended 22 sessions with that psychologist on the CBO then imposed.  Neither that nor the suspended sentence deterred you from further offending.  Further, it was submitted, you continued to deny any sexual interest in children after police attended your home in relation to this matter in August 2013.  There were several years, the prosecution submitted, that you had the opportunity to progress regarding your rehabilitation and you are now only taking the first steps.

31Your rehabilitation prospects do need to be considered within this context, however there are some positive indications from your psychologist who has worked with you over an extended period.  You have never participated in a sex offender's program.  I accept that your rehabilitation prospects are fair, assuming you continue to engage positively with counselling and your other supports.

32The prosecution submitted that given your prior convictions and the prominence of general deterrence and denunciation in cases of this kind, that an immediate custodial sentence was warranted in this case.

33Defence counsel submitted that all sentencing purposes could be properly served without the imposition of an actual term to serve.  It was submitted that even recognising the importance of general deterrence in this kind of offending, given the matters personal to you, your plea, delay and your initial steps towards rehabilitation you should be placed on a community corrections order.

34These cases present a very difficult sentencing task, given the disturbing nature of the material, your relevant prior convictions and the impact on the many victims, vulnerable children.  However, this needs to be properly balanced with an assessment of the seriousness of the offending in your particular case, matters personal to you, delay and prospects for rehabilitation.

35I do accept that all relevant sentencing considerations can be properly met by the imposition of a sentence that does not involve immediate incarceration but provides for conditions to ensure a level of punishment, continued monitoring and rehabilitation.

36I have received a pre-sentence report from Corrections Victoria regarding your suitability for a community correction order.  You have been deemed suitable and conditions including that you participate in offending behaviour programs as directed is recommended.  The program that is anticipated as being suitable for you takes 18 months to complete.  It is also recommended you continue with counselling and that this should be monitored.  It is recommended that there be a work component of the order and the report indicates that you consent to the making of such an order.

37In respect of the charge of possession of child pornography, I impose a community correction order for a period of two years.  There will be a work component of 150 hours.  There is a condition regarding your offending which will require you to attend at the Sex Offender Advice and Treatment Services.  You are to continue counselling as directed by Corrections and that will be monitored by Corrections.  You will be supervised by Box Hill Community Corrections. 

38By virtue of your prior convictions for this offence, you will now have a reporting period under the Sex Offenders Registration Act for life.

39Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have sentenced you to a term of imprisonment of 12 months. 

40I will have my associate now prepare the order and if you could sign that,
Mr Anderson, and, Mr Stransky, if you could assist your client there please.

41MR STRANSKY:  Yes, Your Honour.

42(Community corrections order signed and acknowledged.)

43(Sex offenders registration signed and acknowledged.)

44HER HONOUR:  Thank you.  Thanks, I will just stand down.  Thank you.

45MR STRANSKY:  As Your Honour pleases.

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