Director of Public Prosecutions v Augustine
[2022] VCC 1419
•19 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-00279
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT AUGUSTINE |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2022 | |
DATE OF SENTENCE: | 19 August 2022 | |
CASE MAY BE CITED AS: | DPP v Augustine | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1419 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Commonwealth Child Abuse Material – Alcohol and substance abuse – Prior good character - Good prospects of rehabilitation
Legislation Cited: Crimes Act 1914 (Cth); Criminal Code Act 1995 (Cth)
Cases Cited: R v Stroempl (1995) 105 CCC (3d); R v Booth [2009] NSWCCA 89; DPP (Cth) v D’Alessandro [2010] VSCA 60; DPP v Smith [2010] VSCA 215; R v De Leeuw [2015] NSWCCA 183; DPP v Garside [2016] VSCA 74.
Sentence: Convicted and sentenced to a term of imprisonment of 14 months. Release on 3-year Recognisance Release Order after serving 4 months of imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Holmes | Ms N. Simpson |
| For the Accused | Mr R. Nathwani | Ms S. Vardy |
HER HONOUR:
1 Mr Augustine, you have pleaded guilty to one charge of use a carriage service to access child abuse material (Charge 1), contrary to s 474.22 of the Criminal Code, for which the maximum penalty is 15 years' imprisonment.
2 You have also pleaded guilty to one charge of use a carriage service to transmit child abuse material (Charge 2) contrary to the same section of the Criminal Code, and again the maximum penalty is 15 years' imprisonment.
3 Lastly, you have pleaded guilty to one charge of possess or control child abuse material obtained or accessed using a carriage service (Charge 3) contrary to the same section of the Criminal Code, for which again, the maximum penalty is 15 years' imprisonment.
Circumstances of offending
4 The facts are contained in the prosecution opening plea and are not in dispute. In summary, they are that on 29 October 2021, a search warrant was executed at your home address. You were present. Police located an Apple iPhone 8, two USB drives and an Apple iPhone SE. All four contained child abuse material. The files located on these devices are the subject of Charge 3 that I have just read out, that is, the possession charge.
5 Police also observed a Kik chat between you and another person using the username, Wendy White. In the course of this chat, which was over a six‑week period, child abuse material was transmitted by you to the other party. Child abuse material was also sent by the other person and accessed by you.
6 You were arrested and participated in a record of interview. You made certain admissions which will be detailed below. The images and texts are classified according to an Australian child abuse categorisation schema, which again will be detailed below.
Objective seriousness
7 In assessing the objective seriousness of each offence, a number of facts relevant.
8 In relation to Charge 1, you engaged in text-based communications with the other party on the application, WhatsApp. The conversation centred around highly sexualised fantasies involving children. Such conversations themselves are described as Category 2 offending. In addition, between 11 September 2021 and 22 October 2021, you accessed 11 images sent by the person referred as Wendy White. The categorisation of items found on various devices will be detailed below.
9 An example of the communication and images is described in paragraphs 7 and 8 of the prosecution opening. The conversations are confronting. Descriptions of the images suggest to the court that there is no way you could have believed that the images were anything but illegal. Your responses on receiving them were positive and encouraging.
10 In relation to Charge 2, using a carriage service to transmit child abuse material, on this charge, you transmitted 53 images classified as child abuse material to the other communicant between the same two dates. The images depicted are similar to the images which I will describe shortly.
11 In relation to Charge 3, possession of child abuse material obtained through a carriage service, the analysis of the four devices showed a total of 837 child abuse image files and 65 child abuse image video files alongside further material that I will detail shortly. I have now been provided with a summary of the various number of discrete images and videos in each classification pursuant to the child abuse schema. I have also been provided with a representative sample of the images.
Categories
12 Category 1 in the schema includes images of prepubescent children witnessing or involved in a sex act and/or a clear focus on the genitalia. Category 2 images or videos include images of children under 16 years, including images of children subject to a range of activities, of placing children in sexual activity or poses, or posing in non-age appropriate ways, including photoshopping of children into other adult categories. Categories 3 and 4 are not of concern in this case and I do not propose to detail what they are.
13 Two USBs containing 10 Category 1 images, and a total of 749 Category 2 images, were obtained. Your iPhone contained 10 images and 42 videos of Category 1 and 62 images and 23 videos categorised as Category 2. The second iPhone contained six Category 2 images.
14 A sample description of the images and videos located includes images depicting female children aged between four and 12 years engaging in penetrative sexual acts with adult males or posing in sexualised ways. There are also videos depicting female children aged between five to 13 years engaged in sexual intercourse with a male. Lastly, there are materials concerning children aged five to six years engaged in sexual acts with other female children as well as adult males and adult females.
15 I have viewed a sample provided by police and the classification is not in dispute. The images are clearly and obviously child abuse material depicting, as I have noted, young children in sexual activity and/or posing to suggest or invite same. You do not suggest that they are not child abuse material. There is no mistaking that the sample images I viewed depicted young children displaying their genitals.
16 In some images, where adult male bodies are superimposed on the images, or otherwise appear in the images, the adult males are displaying their genitals in a confronting and sexualised manner. Penetrative acts on children are included. It is obvious, and I would suggest, it must have been obvious to you that the material was not only illegal but harmful in many ways.
17 The information you provided in your record of interview is that you downloaded these images from several websites you accessed over a few weeks. The prosecution do not suggest that it was over an extended period of time. The storing of the significant amount of material over four devices indicates that it was not an isolated incident.
18 In assessing the objective seriousness of each offence, I have had regard to the number of images, the approximate ages of the children, the nature of the images and the number of children apparently involved in producing those images.
19 The classification of the images on the child abuse schema scale is an indicator of the objective seriousness of them. There is no information that any profit arose from your possession of the material. The reward for you, Mr Augustine, was your own sexual gratification. As observed, you must have known the images were illicit. You obviously thought you would not get caught. The offences were committed across six weeks. There is no information that the offending occurred outside of that timeframe.
20 I find the objective seriousness of Counts 1 and 2 is at the lower end of the scale of objective seriousness for the offences charged. It is noted that the conversations and exchanges occurred over a short period. The number of images is relatively small, and the exchange was between only you and one other.
21 The objective seriousness of Count 3 is below mid range, but not significantly so. The number of discrete images and videos is significant. It is acknowledged that in many cases, the number of images is greater, but the possession of 837 individual images and 65 individual videos is a large amount. The classification and samples show the same degree of harmful and seriously worrying material.
Early plea of guilty
22 I now turn to the issue of your plea. You pled guilty at the first available opportunity at the first committal mention and the matter was committed to this court for sentence. You are entitled to a substantial discount, both for the utilitarian benefit to the administration of justice and to the prosecution. At present, such benefit is greater than usual due to the current delays occasioned by the current pandemic restrictions. This must be acknowledged.
23 I note you also made full admissions in your initial record of interview with police which, in addition to your early plea, and the steps you have subsequently taken, is evidence of your acceptance of responsibility and remorse. Such evidence may support a finding of positive rehabilitation prospects. To a large extent, you have taken many of the steps that any court would require you to take in order to promote rehabilitation. It can, and must, be counted as a good start. The detail of what you have undertaken will be considered shortly.
Personal circumstances
24 Submissions on your behalf and reports to psychologists Kim Dowse and Patrick Newton indicate that the person you were communicating with was, perhaps, a former partner. It is submitted that your offending was associated with your then severe substance abuse disorder. The substances included alcohol and cocaine. I pause to observe that cocaine is, of course, an illegal substance.
25 Your self-report to Mr Newton places the offending in the context of you returning to Australia with your then partner, a fractured relationship with her, an affair with another and your subsequent online affair with another; that person being the person you offended with.
26 You report that while your then partner was working onsite at hospitals, you often remained at home, as a result of the COVID restrictions, I understand, and worked on a digital program. You were also drinking alcohol, using cocaine and exchanging sexualised conversations with the other person.
27 Your self-report of this period is accepted, but I observe somewhat self‑pitying. It is submitted, on your behalf, that the conversations with the other communicant was the precursor to you later downloading child abuse material from websites. There is no information otherwise and I accept this in the context of Count 3, however, the escalation into more disturbing material was rapid and serious. It is not suggested that your moral culpability is reduced by any mental health compromise during the time of offending. Psychologist Mr Newton observed - and I quote with some deletions:
Mr Augustine was reportedly experiencing noteworthy relationship stress.
28 And further on:
There is no indication to suggest that this led to the development of any mental disorder. Rather [he opines] the most important influence upon his judgment, impulse control and decision-making at the time of the offending, was his abuse of alcohol and cocaine. These effects were (a), voluntarily self-administered by Mr Augustine; (b), deliberately sought out by him as a means of intensifying his enjoyment of sexualised chat and other sexualised activities; and (c), familiar to him through his long use of these substances.
Rehabilitation and risk of reoffending
29 In assessing your prospects of rehabilitation, and thus assessing your risk of reoffending, I accept that you offended in the context of significant alcohol and drug abuse. However, it is obvious that the alcohol and substance abuse did not cause your interest in child pornographic material. They reduced your inhibitions to the extent that you felt it was appropriate to indulge in your perverted and harmful fantasies.
30 Again, I observe that you must have thought your behaviour would go unnoticed by the authorities. While psychologist Patrick Newton notes and accepts the explanation that substance abuse played a role in your actions, he observed - and this is paragraph 50 of his report – that, to paraphrase:
Mr Augustine's offending is characterised by repeated engagement with child abuse material and active efforts to obtain it over social media.
31 He further notes:
[Mr Augustine] acknowledged that his experience of arousal had been heightened on account of the forbidden and deviant nature of the material. The fantasies he generated, the sexual arousal he experienced and the intensity of his response, all combined to underscore the severity of his sexual deviance.
32 I am told you justified your fantasies and deviance by maintaining that the offences you were committing were victimless. Your self-justification was that the children must have enjoyed the acts being perpetrated on them, for your enjoyment. A cursory viewing of the samples suggest that this self-justification is indeed, a fantasy.
33 I am told that you have come to understand that this is far from the truth. This understanding is instinctive in most of us. Pictures of cruelty being inflicted on others, be they adults or children, can and should cause revulsion in normal human beings. Pictures of human beings being coerced to behave in a way that is clearly harmful are abhorrent to most proper thinking people.
34 Being intoxicated does not excuse your behaviour and it is not an explanation that reduces your moral culpability. You were apparently desensitised to the illegality of the images and the harm that it caused, either because you convinced yourself that your pleasure was shared by the victim and/or in your intoxicated state, you did not care. Neither of these scenarios suggest that you did not know that what you were indulging in was seriously criminal and morally wrong.
35 In your favour is the fact that almost immediately after being apprehended, you sought professional assistance from Ms Dowse and have continued with therapy. You have attended, I am told, at least 25 sessions and she is content to continue those sessions in the long term.
36 It is reported that since seeking therapy, you have not been drinking or using illicit substances. You have been active in Alcoholics Anonymous (‘AA’) as part of that therapy. You have, unsurprisingly, for a person with your significant background in the care sector, taken a positive role in helping others in the AA organisation.
37 This is evidence of your character and a further pointer to the uncharacteristic nature of antisocial behaviour in general. I accept that. You have undertaken what is referred to as cognitive behavioural therapy and educational treatment in order to trigger a lifestyle change.
38 I am told that the treatment has focused on the features of your life that contributed to your offending. Through your treatment with Ms Dowse, it is reported, and I accept, that you have come to understand the reality of the child abuse material industry and the pain, damage and trauma inflicted upon children depicted in such imagery.
39 I have the report from Ms Dowse, the observations of Mr Newton and your letter to the court, on which to make a positive finding that you have now understood and reflected on the seriousness and destructive nature of the offences. Particularly, the serious and destructive impact on the children involved and the community as a whole.
40 In undertaking a risk of future sexual offending assessment, Mr Newton observes that you are adamant that you have never engaged in sexual activity with an underage person. However, he observes that the offending committed by you clearly indicates the presence of sexual deviance. In assessing your various risk factors, Mr Newton opines that as a result of the significant therapy you have already undertaken, you currently pose a moderate to low risk of recidivism for sexual reoffending and a low risk of general reoffending. I accept that.
41 To put this in context, you are at about the same level for most sex offenders at this stage of the sentence proceeding, but slightly higher than the average offender facing only online charges. I am told by Mr Newton that the identified risk factors are best addressed by continued attention being directed your specific risk factors. Namely, substance abuse and alcohol abuse. Your registration on the Sex Offenders Register will monitor and restrict any contact with children personally and in any online forum.
Delay
42 A further relevant sentencing consideration is the effect of delay on your emotional wellbeing and the toll that such delay has taken on you while awaiting sentence. I note you were granted bail on arrest. I have been addressed that a consequence of the delay is your increased anxiety. I accept that you have been concerned at the outcome. I am sure it is no help to you to be told that, insofar as matters such as this are concerned, the delay has been slight.
43 I accept that for you, it has been a long time. However, as noted above, you have used this time wisely and as a result, I am able to make a finding that you have good prospects of rehabilitation provided you continue with therapy. Such a finding is not unknown, but not common for matters of this nature. I accept that.
Prior character
44 Turning to character issues in general, I note you are now 48 years of age. You have no relevant prior offences. You are, I accept, prior to this event, a person of extremely good character and a person who has contributed to the community in many ways, both personally and professionally.
45 You have achieved much in your life in your chosen field. Your lack of prior offending and a positive finding of prior good character allows for leniency in any sentence to be imposed. You have the support of your family and community members. The references tendered on your behalf indicate that they are aware of your offending and the complex picture for your personality that the offending presents. They support you notwithstanding that.
46 Your background, as set out in the report of Mr Newton and confirmed by your referees, is impressive. You tell of a disrupted youth owing to the breakdown of your parents' marriage. However, this occurred after you had completed Year 12. The complaint that the separation caused you to drink too much is not accepted, you were at university by then.
47 Your work record is impressive. After you obtained a degree in nursing, you were well employed in Australia and Canada and assumed a more administrative role over time. You blame this move in causing an increase in your use of substances. Again, I do not necessarily accept this is a causal connection. The decision was yours.
48 Your use of cocaine commenced when you were about 38 years of age. Again, you alone are responsible for that decision. Your work since being apprehended to resolve substance abuse, and your other involvement in rehabilitation, must be acknowledged as a very important and good first step.
Commonwealth sentencing considerations
49 I now refer to what I must take into account under the Commonwealth Crimes Act. Section 16A of the Act requires that in determining the sentence to be passed, a court must impose a sentence or make an order that is of a severity appropriate to all of the circumstances of the offence. As part of this requirement, the court must consider the nature and circumstances of the offending, including, in the context of this case, the course of criminal conduct. I have referred to the objective seriousness of the offending above. I further acknowledge that imprisonment is, and must be, a last resort in any matters under the Act.
50 To expand, a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in the circumstances of the case.
General sentencing considerations
51 A number of general sentencing considerations for matters such these have been propounded in various cases. In R v Booth,[1] Justice Simpson acknowledged the callous and predatory nature of child abuse material. Her Honour said:
In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of this product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material. What makes the crime callous is not just that it exploits and abuses children, it is callous because, each time the material is viewed, the offender is reminded of, and confronted with, obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.[2]
[1] [2009] NSWCCA 89.
[2] Ibid at [40]-[44].
52 In R v Stroempl,[3] a much earlier Canadian decision, the court acknowledged matters of timeless relevance. It said:
The possession of child pornography is a very important contributing element to the general problem of child pornography. In a very real sense, possessors [such as the appellant in that case] instigate the production and distribution of child pornography and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. If courts, through the imposition of appropriate sanctions, stifle the activities of prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. This, in turn, would substantially reduce the motivation to produce child pornography in the first place.[4]
[3] (1995) 105 CCC (3d).
[4] Ibid at [187] per Morden ACJO.
Sentencing disposition
53 Section 20 of the Commonwealth Crimes Act relates to the release of offenders on recognisance after conviction. The prosecution in this case concedes that an imprisonment term with such a recognisance release order is within range for this offending. I accept that. The defence seek a sentence which includes such a sentence and an immediate release.
54 In R v De Leeuw,[5] a New South Wales Court of Appeal decision, the Court of Appeal stated that where child pornography offences are concerned, an immediate term of imprisonment is ordinarily warranted unless exceptional circumstances exist.
[5] [2015] NSWCCA 183.
Whether exceptional circumstances are established
55 The Victorian Court of Appeal endorsed that statement of law in the matters of D’Alessandro[6] and Smith[7] and reaffirmed same in DPP v Garside.[8] Further, a 2020 amendment to the Commonwealth Crimes Act made it clear that immediate release is not to be ordered unless exceptional circumstances exist. As far as counsel are aware, there are no appellate decisions on this particular point since the law changed.
[6] [2010] VSCA 60.
[7] [2010] VSCA 215.
[8] [2016] VSCA 74.
56 Exceptional circumstances have been considered in other contexts and, although rarely defined in this context, it must mean some feature either in the offender or the offending which is rare or unusual. There is nothing unusual in the offending or in your explanation for same. In fact, the circumstances you claim of indulging or fantasising while under the influence of alcohol and/or cocaine is a frequent feature of offending of this nature in my observation.
57 Similarly, while your progress in rehabilitation of both your substance abuse and the use of child pornography is noteworthy, persons who are apprehended in such circumstances often seek such assistance if they are free to do so. A recognition that what you have done is seriously wrong is something I believe you always knew. Doing something to address it is an excellent step, as I have observed, and while not common, it is neither rare nor unusual.
58 Defence counsel have provided me with the case of DPP v James which was decided in this jurisdiction in March of this year. In that case, His Honour found a combination of personal circumstances, together with the impact of COVID on the prison system, amounted to exceptional circumstances. In that case the objective offending was of a less serious nature, however, the plea was entered at a later time. The offender had not, it seemed, engaged in the same sort of therapeutic intervention which you did. This is not a binding decision on me, but it must be considered.
59 Exceptional circumstances have been referred to in other contexts in other child pornography cases. Exceptional circumstances may consist of; an unfortunate early life; the immaturity of the offender; a noticeable change in the offender which was sufficient to seek psychological intervention in the lead up to the offending (suggesting that the person was acting out of character); an inability to appreciate, due to cognitive difficulty, the harm that offences such as these cause; an accidental download where there is no evidence that images of prepubescent children were sought; a large part of the pornography involving children who were close to legal age, that is, the images were less objectively serious and lastly, the risk of an offender's physical and mental wellbeing deteriorating in incarceration.
60 None of the above potential exceptional circumstances apply to you. Those that do apply are: that you are of otherwise good character, you have expressed your genuine remorse and you have good prospects of rehabilitation. I accept that, to some extent, your progress in rehabilitation may be delayed by a term in custody. The primary consideration is to impose a sentence of appropriate severity. I acknowledge the purposes of sentencing. The important considerations for offences of this nature are of general deterrence, punishment and the promotion of rehabilitation.
Final matters
61 I do accept that since being apprehended you have done everything possible to change your deleterious behaviour. I accept that your remorse is genuine. I accept that you have taken the offending and your guilt seriously. I have read your letter of apology which is a personal acceptance of your responsibility. It shows the court that you now understand the serious nature of the offending and that, to some extent, your risk of reoffending has been reduced. As I have already observed, this is an excellent start and, therefore, to some extent, the sentencing consideration of specific deterrence has been addressed. However, general deterrence and proportionate punishment remain significant considerations.
62 In my view, it shall only be the case where unusual or special circumstances are made out, either for an offender or the circumstances of the offending, that imprisonment should not be imposed. This is not to diminish the extent to which supervised orders can and do provide substantial punishment. However, the requirement for general deterrence and punishment are strong considerations which only a term of imprisonment can satisfy.
63 In setting the term to be served before your release on what I propose on a recognisance release order, I have taken into account the appropriate discount for an early plea and the unusually difficult conditions in custody as a result of the current pandemic situation. Both of these considerations will ameliorate the length of the sentence. I propose a relatively short term to be served before ordering your release on a recognisance release order. During the term of recognisance release order you will be required to continue with the program of therapy you have commenced. You will be required to be supervised and, of course, you must not commit any further offences.
64 I must tell you by way of explanation that if you do offend during the term of the recognisance release order you risk being returned to prison to complete the sentence imposed.
65 I am now going to impose the sentence numbers. Would you stand up, please, sir. Thank you.
Sentence
66 In relation to Count 1, I sentence you to a term of imprisonment of six months. In relation to Count 2, I sentence you to a term of imprisonment of six months. In relation to Count 3, I sentence you to a term of imprisonment of 12 months. Two months on Count 2 will accumulate on Count 3. The total effective term of imprisonment is 14 months.
67 After you have served a period of four months you will be released pursuant to s 21B of the Crimes Act on a recognisance release order. You will enter into a recognisance in the sum of $5,000 and will be required to comply with the following conditions for a period of three years:
(1) You are to be of good behaviour;
(2) You will be under the supervision of Community Correctional Services and Sex Offender Management or their nominee through that period;
(3) You are to continue with the treatment you have been receiving from Kim Dowse or Patrick Newton or their nominee. Such treatment is to continue until the person treating you considers that such treatment is no longer necessary;
(4) You are to undertake and complete any required Sex Offender Program as directed by Corrective Services;
(5) You are to report to the Melbourne Justice Service Centre upon your release from custody;
(6) You are to report to and receive visits from a Community Corrections officer or officers;
(7) You are not to leave Victoria except with the permission of the Office of Corrections Victoria; and
(8) You are to obey all lawful directions of Community Corrections.
68 The date for the commencement of the recognisance release order will be the date of your release.
69 I have that document ready for your client to sign. Do you want to assist him?
70 MR NATHWANI: Yes, I've asked my instructor to if that's all right, Your Honour.
71 HER HONOUR: Thank you. As a result of these convictions, sir, you are eligible and required to be included on the Sex Offenders Register. Because of these offences, you will be a registrable offender for the remainder of your life. My associate will now have you sign the appropriate acknowledgement as well as the community corrections order. I will also sign.
72 Any questions, counsel?
73 MR NATHWANI: No, thank you, Your Honour.
74 MR HOLMES: No, thank you, Your Honour.
75 HER HONOUR: Thank you, sir. Please sit down.
76 OFFENDER: Thank you.
77 HER HONOUR: Thank you. And the solicitor will come and assist you. Take your time. Read them. It's important you understand them. If you have any questions I'm going to sit here and wait. Thank you. If there's nothing else we'll adjourn. All right.
78 MR HOLMES: No, Your Honour.
79 HER HONOUR: Thank you very much. Thank you, sir. Can I thank counsel for their assistance and submissions in this matter. Thank you.
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