Director of Public Prosecutions v Arambasic
[2023] VCC 2440
•21 December 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-00176
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY ARAMBASIC |
---
JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 December 2023 |
DATE OF SENTENCE: | 21 December 2023 |
CASE MAY BE CITED AS: | DPP v Arambasic |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2440 |
REASONS FOR SENTENCE
---
Subject: Criminal law
Catchwords: Use carriage service to transmit child abuse material contrary to sub-section 474.22(1) of the Criminal Code (Cth), possess or control child abuse material obtained or accessed using a carriage service contrary to sub-section 474.22A(1) of the Criminal Code (Cth).
Legislation Cited: Criminal Code Act 1995, Crimes Act 1914 (Cth)
Cases Cited:
Sentence:Term of imprisonment of four years and six months with a non-parole period of two year and eight months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr E. Diwell | Commonwealth Direction of Public Prosecutions |
For the Accused | Mr R. de Kretser | Marshall Jovanovska Ralph Criminal Lawyers |
HER HONOUR:
1Anthony Arambasic, you have pleaded guilty on indictment to one charge of using a carriage service to transmit child abuse material contrary to s474.22 sub‑s(1) of the Commonwealth Criminal Code and to one charge of possess or control child abuse material obtained or accessed using a carriage service contrary to s474.22A sub-s(1) of the Commonwealth Criminal Code.
2In sentencing you for these crimes I must have regard to the maximum penalties for the offences you have committed. Both charges carry a maximum penalty of 15 years' imprisonment. These penalties reflect the seriousness with which parliament regards each offence.
3The circumstances of your offending were set out in a document entitled 'Prosecution opening for plea' dated 15 June 2022. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
The offending
4I turn now to the offending. I will not repeat the entire summary as it is a matter of record, but in brief terms, the offending that gives rise to these charges occurred between 14 February 2020 and 18 May 2021. During the period between 14 February 2020 and 24 April 2020, you transmitted eight images or eight image files containing child abuse material- known as CAM - on eight occasions to two different users on the secure end-to-end communications platform named Wickr, forming the basis for charge 1.
5Police executed a search warrant at your premises on 18 May 2021. You were the sole occupant at that time. Police located six separate devices capable of storing data and all of which, upon analysis, were found to contain child abuse material. Across the devices police located 7,171 CAM files, 5,747 of these were unique. There were 3,794 images and 1,953 videos. 1424 CAM files were duplicates. These facts form the basis for charge 2.
6A representative sample report for each of the six devices was produced. That document and the Crown summary contain details of the nature of the material you possessed and will not be repeated here given the graphic nature of the content.
7On the same day of the police search you participated in a record of interview. You were cooperative with police and made the following statements.
(a) You had images on your phone.
(b) The images were explicit photos of young girls.
(c) When asked how young you said, 'Thirteen up'.
(d) You sourced them online from a chat room called chatiw.com.
(e) You had them for under a year, a few months.
(f) Your mobile number has always been the same and no one else has access to that phone.
(g) You confirmed your email addresses.
(h) You lived at the address alone and finally, the computers belonged to you and no one else had access.
Gravity of Offending
8In terms of the gravity of the offending, I see charge 2 as the objectively more serious of your two offences and accept the submission that there should be a degree of cumulation between each charge in order to reflect the distinct and separate forms of offending and in recognition of the presumption in favour of cumulation contained in s9 sub-s5 of the Crimes Act 1914 Commonwealth.
9In your case, your offending did not coincide timewise, and this perhaps demonstrates your level of interest in such material.
10It is long established that the objective seriousness of such offending is determined by reference to a range of factors, which include; the nature and content of the material, the number of items or images possessed, whether the material was held for the purposes of sale or further distribution, whether the offender would profit from the offence, the number of children depicted and thereby victimised and the length of time for which the child abuse material was possessed.
11Your counsel sensibly classified your offending as very serious, involving the transmission and possession of vile and depraved child abuse materials. Counsel at paragraphs 5 to 6 of his submissions further acknowledged that child abuse material offending was not a victimless crime and that any involvement facilitated and encouraged the abuse and exploitation of children.
12Counsel for the prosecution at page 5 of his submissions also characterised your offending as very serious, noting that the materials were serious or extreme. Those descriptions are accurate.
13Whilst there is no suggestion that you profited from your crimes, the material you possessed on that single date included both photographs and videos of some length. The annexure to the Crown opening, noting that it is a representative sample only, referenced material that was particularly depraved, disturbing and abhorrent and included forced penetrative sex, sexual abuse and torture with children ranging in age from mere infants to teenagers.
14Your possession of child abuse material axiomatically aids the proliferation of a market for such material which, by its very nature, involves the abuse and degradation of children and is highlighted by your offending, the subject of charge 1. By sending child abuse material to two other users on the internet you participated in the active perpetuation of this offensive market. I note that this involved one photograph on eight separate occasions to two separate addresses.
15Your actions were clearly deliberate and your moral culpability would appear high.
16General deterrence is a paramount sentencing principle lessening the weight that might otherwise be given to personal mitigatory factors. Given the volume of material, the extreme nature of it and your longstanding interest, specific deterrence, denunciation and protection of the community are all important sentencing factors.
Plea of Guilty
17The Crimes Act 1914 obliges me to take into account the stage at which you entered your pleas. This matter resolved by way of straight hand-up brief at committal mention held on 11 February 2022, representing a plea made at the earliest opportunity. This much is conceded.
18There is clear utilitarian value in saving the community the expense of contested proceedings. Although the court's criminal trial lists are no longer overwhelmed, your decision to plead guilty occurred at a time when the court was still responding to the COVID-19 pandemic and therefore has additional utilitarian value in providing certainty and finality to all parties in circumstances where the court's operations had been significantly disrupted.
19Your counsel at paragraph 25 (c) of his submissions submits that your plea reflects an acceptance of responsibility for the commission of the offence, is an indicator of remorse and provides evidence of enhanced prospects of rehabilitation. At paragraph 25 (a) it is noted that you cooperated with authorities from the moment you were arrested, provided police with access to your devices and were candid in your record of interview.
20Counsel for the prosecution submitted at paragraph 17 of his submissions that your plea of guilty is evidence of your willingness to accept responsibility but in the face of a strong prosecution case. This is also accurate but I do take the factors raised on your behalf into account and in your favour.
Delay
21You were charged on 18 May 2021.
22From committal mention held on 11 February 2022- at which time you indicated your guilty plea - a plea hearing was listed on 4 August 2022 but did not proceed on that day.
23Instead, your plea hearing occurred on 8 December 2023, with your sentencing taking place today, 21 December 2023.
24Your counsel calls into your aid the delay in finalising this matter. Much of the delayed occasions were for you to organise legal representation. Three separate plea dates were vacated. In advance of a previous plea listing on 1 September 2023, you finally told your family and partner of your offending, which I accept was a big step for you, but then required a further adjournment.
25In general terms, I do accept that the period between charge and today has been a period in which you were likely to be concerned about the outcome for you. In general terms, I accept that the same period offers a period over which to assess your prospects for rehabilitation.
26In your case, this has given you the opportunity to commence offence specific treatment to which I will later refer.
Personal Circumstances
27I turn now to your personal circumstances, which have been helpfully outlined in defence submissions and a report authored by consulting psychologist, Warren Simmons, dated 24 November 2023.
28You are currently 33 years of age and were born in Melbourne to your parents, Dee and Fred. Both your parents are of Croatian background. Your father was previously employed in automotive work, while your mother is currently a teacher. You have two younger sisters, aged 32 and 27. Your father is currently in his eighties and is experiencing declining health and dementia. You assist your mother, who is aged 52 years, to support him in addition to you both working full time.
29Growing up your family did not have a great deal of money. There were periods which were financially difficult. However, you told Mr Simmons that you still always had what you needed.
30You have a positive relationship with your family and although you report that there was some physical discipline growing up, Mr Simmons notes that this appears to have never been excessive.
31At primary school you were an average student academically. You endured difficulties and harassment from your peers and were considered to be a weird kid and felt that you did not fit in. You were diagnosed with attention deficit hyperactivity disorder when you were in Grade 2 or 3 and were prescribed Ritalin and dexamphetamine. You attended Camberwell High School and ceased taking your medication for ADHD when you were in Year 8.
32At school you struggled to concentrate and experienced issues with relationships, generally with teachers. You ultimately found school boring and begun engaging in truancy, eventually leaving in Year 11.
33As a teenager you were a member of the Australian Junior Air Force Cadets and aspired to join the Air Force, however, you were rejected on a number of occasions due to your ADHD.
34When you were 16 years of age you began consuming alcohol with friends. You began drinking more heavily at the age of 17 and would go to nightclubs on weekends and drink up to three quarters of a slab of beer. You continued this pattern of binge drinking up until the age of 21.
35When you were 18 years of age, you began experimenting with party drugs and would take ecstasy with friends at nightclubs every three to four months for a period of about two years. You have also experimented with cocaine on three to four occasions and have tried both LSD and mushrooms.
36In terms of your employment history, you commenced a plumbing apprenticeship once you left school. However, three years in, you dislocated your knee and were unable to work for some 10 months and could not continue with your apprenticeship. You were bedbound for three months as a result of your injury and during this period you struggled greatly with your mental health and eventually attempted suicide.
37In terms of your employment history, when you were approximately 20 years of age you commenced work in the area of labouring and civil construction. You have worked for various companies within this field and have had no significant periods of unemployment since your injury. You have worked for the same employer now for approximately three years and have worked at a number of different job sites across Victoria.
38In terms of your mental health, you do have a history of suicidal ideation and self-harm. Your counsel submits that you have endured psychological dysfunction and in April 2020, your general practitioner referred you to a psychologist and noted a possible diagnosis of bipolar disorder. This condition has not been confirmed through other materials.
39You have had three significant relationships throughout your life. Your current partner is Hailey Meredith. Ms Meredith has provided a reference in which she confirms that she has known you for seven months and speaks of your good character. She was incredibly shocked to learn of your offending. However, after an initial separation, you do remain together and she is supportive of you and hopes to spend her future with you.
40I note that you met Ms Meredith on a dating application, which was in breach of bail conditions not to access the internet or any online service except in certain circumstances. This breach of a court order is of obvious concern. I otherwise accept that your relationship with Ms Meredith is a supportive relationship and a positive motivator for you into the future.
Prior Criminal History
41Your prior criminal history does form part of your personal circumstances. You have what can only be described as a limited criminal record, which does not contain relevant offending.
42On 10 March 2010, you appeared before the Melbourne Magistrates' Court for charges of possessing a controlled weapon without excuse and carrying a controlled weapon without excuse. You were sentenced to an 18-month adjourned undertaking and ordered to pay $500 to the court fund. No conviction was recorded. You complied with your undertaking which was dismissed on 9 September 2011.
43Given the penalty imposed, the age of this offence, your age at that time and the charges, this court appearance has little, if any, relevance to your sentence for your offending before me other than indicating an ability to comply, at least at that time, with court orders.
44There are no other matters since.
Prospects of Rehabilitation
45In terms of your prospects for rehabilitation, your mother, Dragica Arambasic, has provided a reference and speaks of being shocked and saddened to learn of your offending. She notes your offence occurred after a relationship breakup and during the COVID-19 lockdown, which you found difficult, but I note your interest in such material is longstanding.
46Your mother otherwise describes you as caring and a hardworking individual. You have been helpful to your mother looking after your father as his health declines. Your mother also indicates that you understand that there are consequences for your actions and that you are ready to accept them. She describes you as showing genuine remorse for your actions.
47I do accept that you are well supported by your partner and family, which augurs well for your future. Your dirty laundry has been aired, albeit only in September of this year, so you are now operating in a truthful environment. Family members were present for your plea hearing and are present here for your sentencing.
48I have also seen a reference authored by Georgia Kramer who described you as hardworking, honest and kind. She also states that you have shown remorse for what you have done.
49I do take all character material tendered on your behalf into account.
50You do have a strong employment history and for the last three years have been working for Gillies Civil and Excavation at different work sites across Victoria. You are likely to be able to return to this field of work.
51You had a brief period of treatment with a psychologist after referral from your general practitioner between the two offences occurring but did not find this helpful at that time. It is not clear to me what this treatment involved.
52You have been assessed by Mr Warren Simmons, psychologist, and a report dated 24 November 2023 has been tendered on your behalf. You told Mr Simmons that last year you were drinking heavily for a period of time, which was linked to a decline in your mental health. You do not appear to currently have a problematic relationship with drugs or alcohol and told Mr Simmons you currently have a few drinks on the weekend and will drink a beer after work. This would indicate an improvement in your overall functioning.
53You told Mr Simmons that it was in Grade 6 when you first accessed pornographic materials. You said you stumbled across them and found them interesting as the pictures were of people engaging in sex who were closer to your own age. You then began to actively search for such materials and began a pattern of intermittent use throughout your life when you were feeling low or depressed. You found such material arousing.
54Mr Simmons opined that your return to child exploitation materials when feeling depressed suggested that you experience problems with an addiction to pornography. Mr Simmons does recommend a referral to sex offender treatment, finding evidence that you suffer from a paedophilic interest secondary to an adult heterosexual orientation.
55You were referred by your solicitor for psychological treatment and a report authored by Ms Daria Sizenko dated 30 November 2023 has been tendered on your behalf. You attended six appointments between 14 July and 13 September 2021. You reengaged in September 2023 and attended five further appointments. You have found this treatment to be of assistance to you.
56Ms Sizenko reported that you told her you hated yourself for having an interest in child abuse material but were unable to seek help as you were too embarrassed to talk about it. You do not believe that you would resume engagement with such material and hope to continue therapeutic engagement both as a supportive factor and as an opportunity to work on other areas of your mental health. You say treatment has improved your mental health. Discussing your offending with family and Ms Meredith may have also assisted with any improvements.
57You told Ms Sizenko that you became normalised to child abuse material after being groomed online when in Year 8 or 9 by an older woman and by accessing pornographic material since the age of nine or 10 years. You found child abuse material to be an escape from daily stressors.
58Sessions with Ms Sizenko focused on improving your understanding of the impacts of child abuse material, enhancing empathy and developing insight. You were described as open and willing to discuss prior maladaptive thought patterns and your offending behaviour.
59You recognise that you need to engage with risk recognition and management throughout your life. You are showing insight. You are to be commended on the work that you have done to date with offence specific psychological treatment. It is equally clear that such treatment is still in its infancy and will need to continue for an extended period of time to significantly reduce your future risk given the entrenched nature of your interest in child abuse material.
Sex Offender Registration
60The charges to which you have pleaded guilty are Class 2 offences in accordance with the Sex Offenders Registration Act. This means I am required to place you on the Sex Offenders Register for a period of 15 years and I do so. At the conclusion of these matters you will be provided with documents that you will be required to sign and set out your obligations under this scheme and it may be that Mr de Kretser can assist you with that.
Sentencing Submissions
61In terms of sentencing submissions, the Crown submitted that a term of immediate imprisonment with a non-parole period is required in your case, taking into account the seriousness of your offending and the prominence of general and specific deterrence.
62Your legal representative submitted that a custodial sentence is the appropriate sentencing disposition in the circumstances and that you should be released on a recognizance release order after a period of confinement. This is only available to me when a sentence of imprisonment is imposed for a period greater than six months but not in excess of three years. In such circumstances, the court must impose a recognizance release order pursuant to s20 sub-s(1) sub-s(b) of the Act and not a non-parole period.
Sentencing
63Charge 2 is a Commonwealth child sex offence committed after 23 June 2020. Pursuant to s20 sub-s(b)(ii) of the Act, if the court is not satisfied there are exceptional circumstances, a period of imprisonment must be completed before being released on a recognizance release order. Exceptional circumstances are not pressed in your case.
64It is made clear by s17A of the Crimes Act 1914 that imprisonment is to be a sentence of last resort and only to be imposed where a court is satisfied no other penalty is appropriate in the circumstances of the case.
65I am satisfied that the total effective sentence I must impose should be in excess of three years.
66I am also satisfied, given your limited history, the commencement of rehabilitative treatment and available supports, that there is merit in an extended period of a supported transition into the community. This is capable of fostering your rehabilitation and protecting the community.
67The federal sentencing regime is set in Part 1B of the Crimes Act 1914. Under that regime, the court must impose a sentence that is of a severity that is appropriate in all the circumstances. That requirement must be read together with the need to ensure that a person is adequately punished for the offence.
68Section 16A(1) provides that a court must impose a sentence that is of a severity appropriate in all the circumstances of the case. Section 16A sub-s(2) sets out a non-exhaustive list of factors that the court must take into account where they are relevant and known to the court.
69Of particular relevance to your case, are the nature and circumstances of the offence, general deterrence, specific deterrence and prospects of rehabilitation. Contrition, guilty plea and the need for adequate punishment and your character, antecedence, age, means and physical or mental health.
70I have taken into account current sentencing practices for the offences to which you have pleaded guilty and note the comparative cases provided to me to which I have had regard.
71In relation to charge 1, use carriage service to transmit child abuse material, you are convicted and sentenced to 18 months imprisonment.
72In relation to charge 2, which relates to the possession of child abuse material, you are convicted and sentenced to four years imprisonment. This is the base sentence.
73Six months of the sentence imposed on charge 1 is cumulative on the sentence imposed on charge 2. Your total effective sentence is therefore one of four years and six months imprisonment.
74You are to serve two years and eight months before being eligible for parole and I reckon eight days as having been served. The sentence commences today.
75Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty. If not for your pleas of guilty I would have sentenced you to a total effective sentence of five years and 10 months imprisonment with four years and four months before being eligible for parole.
76HER HONOUR: Does that complete all matters?
77MR DIWELL: Can I just - - -
78HER HONOUR: Please.
79MR DIWELL: In relation to the charges for the matter we need to set a start date for each charge.
80HER HONOUR: Right.
81MR DIWELL: In terms of the cumulation, six months cumulation.
82HER HONOUR: That's correct.
83MR DIWELL: In terms of setting the start date I might make the submission that charge 2 should be commencing today.
84HER HONOUR: Yes.
85MR DIWELL: And to achieve six months cumulation if Your Honour would give me one moment (indistinct) to assist with that.
86HER HONOUR: I'd be very grateful. I am also being corrected on my pre‑sentence detention - - -
87MR de KRETSER: Yes.
88HER HONOUR: - - - which is very embarrassing.
89MR de KRETSER: Yes.
90HER HONOUR: All right. So I will certainly correct the pre-sentence detention to 13 days. I should have checked that with each of you at the outset so my apologies.
91MR de KRETSER: (Indistinct).
92HER HONOUR: Look maths is not my strong point, Mr de Kretser as we're rapidly realising. And I will confirm that the sentence imposed on charge 2 commences today and I will await for Mr Diwell's very much appreciated assistance in relation to the start date for charge 1. So actually, four years from today would take it to 20 December 2027.
93MR DIWELL: If Your Honour is able to set the start date for charge 1 in words to the effect that the sentence for charge 1 should commence 12 months prior to the end of charge 2 to achieve six months cumulation.
94HER HONOUR: Do you agree with that - - -
95MR de KRETSER: Yes, Your Honour (indistinct).
96HER HONOUR: (Indistinct) thank you. So I will make that order. That in relation to charge 1- that the sentence imposed on charge 1 should commence 12 months in advance of the expiration of the sentence on charge 2?
97MR DIWELL: (Indistinct).
98HER HONOUR: All right. Are you content with that?
99MR de KRETSER: Yes.
100HER HONOUR: All right. Were there other matters, Mr Diwell?
101MR DIWELL: No, Your Honour. That's everything.
102HER HONOUR: Mr de Kretser?
103MR de KRETSER: No.
104HER HONOUR: Thank you. I do thank both of you for your assistance. I was greatly assisted by both of you for which I'm very grateful. Yes. Your client will need to sign the registration too, Mr de Kretser. So I'm going to disappear and if you would be kind enough to assist. All right. Thank you. I'll adjourn the court sine die.
- - -
0
0
0