Director of Public Prosecutions v Bakowski
[2013] VCC 1805
•21 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-01524
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTONI EDWARD BAKOWSKI |
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JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2013 | |
DATE OF SENTENCE: | 21 November 2013 | |
CASE MAY BE CITED AS: | DPP v Bakowski | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1805 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Accessing child pornography.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Young | Office of Public Prosecutions |
| For the Accused | Mr S. Payne | VLA - Melbourne |
HIS HONOUR:
1 Antoni Edward Bakowski, you have pleaded guilty to one charge of accessing child pornography. As you know that is a very serious offence with a maximum penalty of 15 years' imprisonment. The facts of your offending are set out in Exhibit A, the prosecution and plea summary. I was informed by your counsel that I could treat that document as an agreed statement of facts. I incorporate it into these reasons for sentence and I sentence you on the basis of the facts therein contained.
2 Very briefly stated between January 2011 and May 2013 you continually and regularly assessed child pornography on your home computer located at Hoppers Crossing. Police seized your computer on 6 May 2013 and a forensic examination of the computer located 12 pictures and two videos in a default cache on the machine. You had erased and removed other pornographic material although lists of deleted files were recovered and they demonstrate the type of material you viewed and erased. You were interviewed and made full and frank admissions as to your conduct. You admitted accessing pornography on the internet, you admitted doing so regularly and you said you knew what you did was wrong, both legally and morally and you expressed shame and remorse for your conduct.
3 You are now 51 years of age being born on 25 February 1962. you have no prior convictions or subsequent convictions. Your history is set out in the submissions filed by your counsel, Exhibit 1 and need not be set out in full in these reasons for sentence. Suffice to say you were born in Melbourne from Polish parents. You have one elder brother who attended court at your plea and provided a reference for you. You were educated to Year 12 at St John's College in Braybrook. You were a police cadet for some months and worked briefly before completing a Bachelor of Arts at Latrobe University.
4 You were married at age 27 and you have two children born from that marriage and both your sons and your daughter in law are at court today to support you. One of your sons has provided a reference. You have two grandchildren as I understand it. You separated from your wife after ten years although you still remain on friendly terms with her and she also attended court to support you.
5 You have a full work history and a good work ethic. You worked for 22 years with Australian Customs and as the prosecutor pointed out, knew full well what legal responsibilities of keeping child pornography out of this country. You resigned when this offence was detected.
6 You have had long term psychological issues. You have suffered from anxiety throughout your life and you sought psychiatric help for that condition in May 2009. The report of Dr Polonowita Exhibit 3, sets out your involvement with him and earlier involvement with other psychiatrists. He reports
"On 8 August 2013 Mr Bakowski, who has been a patient in my practice from 18 May 2009, presented to me with new information regarding a psycho-sexual problem he's been harbouring for some years. Prior to his I was aware that he suffered from erectile impotence for many years which was considered to be largely due to major depression throughout - although medication and other factors may have contributed. As a result of impotence he was avoiding approaching women sexually since he separated from his wife in 1999-2000.
On this presentation he admitted that he had been habitually viewing child pornography downloaded from the internet for many years. Coinciding with about the time he began to be estranged from his wife due to financial issues. He has experienced erectile impotence for about the same period which can be related to his depressive disorder".
7 He said later:
"He developed a compulsive habit and needed to download such material regularly until the date of his arrest. He felt so ashamed that he took extreme precautions not discuss his habit with anyone, nor to communicate with anyone online and took particular care to delete files in case his son found any material on his computer and because of his deep sense of shame and disgust.
Since the date of his arrest he has not had any desire or craving to access pornography sites or to use a peer to peer download program. Since then he has no fantasies related to children either".
8 He reported that you saw Dr Marcus Benjamin, a psychiatrist in the early 90's and he told you that you could not become anxious without depression and that your primary problem is depression and you were prescribed Zoloft and vallium. You were seeing Dr Benjamin for about nine years until the doctor retired.
9 Later in his report Dr Polonowita reports:
"He would feel overwhelmed by shame and guilt when fantasizing about or viewing children while masturbating. He also admits to having significant doubts and checking the locks and stoves multiple times during the day, included his car. He is at times extremely ashamed, hopeless and on the verge of suicide and requires significant support. There are no psychotic symptoms evident. There is no evidence of cognitive impairment. He is insightful and displays adequate and appropriate judgment".
10 He concludes under the heading "Formulation":
"Mr Bakowski is a 51 year old man with a long term past history of mood disorder who having experienced estrangement from an unsatisfactory marital relationship has experienced significant lowering of his mood and associated symptoms qualifying for the diagnosis of major depression over the past 15 years or so. In this context he has also displayed various anxiety symptoms such as obsessional ruminations and rituals.
He has displayed paraphiliac behaviour during this period . His sexual fantasies have not been exclusively involving children and many actions have been limited to intermittent masturbation with little satisfaction and intermingled with his feelings of sexual inadequacies associated with low libido and impotence. Which in turn has been influenced by the core reasons leading to his depressive exacerbation".
11 He diagnoses you as suffering from dysthymic disorder, major depression, anxiety disorder, benzodiazepine dependence, unspecified paraphiliac disorder, which is remission and male hypo-active sexual desire acquired and impotence. He says that you have been under his care since May 2009 and has had a number of interventions including cognitive behavioural therapy and interpersonal therapy in the past.
12 Asked whether or not there was any causal relationship between your psychiatric issues and your offending behaviour he replied:
"In the section under the heading "Formulation" I have just postulated as to the likely causal relationship between his life history, mental illness and his offence and believe that there are clear temporal causal relationship. With the regard to the risk of re-offending I believe that it is unlikely given his actions after being discovered and his deep remorse on the one hand and relief in not being burdened by such a secret on the other hand. It appears that the arrest was a short, sharp, shock that resulted in sensitisation against him engaging in such habitual actions again".
13 What he is saying is that he believes you have been specifically deterred.
14 In my view it is significant that you had required and obtained psychiatric assistance first from Dr Benjamin and then from Dr Polonowita prior to the commission of this offence. I accept that the principles set out in R v Verdins, R v Buckley, R v Vo [2007] VSCA 102 are enlivened in your case. I propose to ameliorate the relevance of general deterrence and denunciation in sentencing you because of your underlying depression, your physical problems and its connection with your offending.
15 I accept for the reasons discussed with counsel during your plea that there is a real connection between your offending and your underlying psychological or psychiatric problems. Your issues have a nexus to your offending that helps me understand or explain your offending.
16 In sentencing you I must have regard to the principles set out in DPP (Cth) v D'Alessandro [2010] VSCA 60 where at paragraph 21 Justice Harper with whom the other Justices agreed said:
"It is therefore worth recording that there seemed to be unanimous support across the jurisdictions for a number of propositions. Firstly that the problem of child pornography is an international one".
17 I interpolate that is clearly so as the Russian police were the ones who tipped off our police as to your behaviour.
"Secondly that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration.
Thirdly, that those included to exploit children by involved them in the production of child pornography are encouraged by the fact that there is a market for it.
Fourthly, that those who make up that market cannot escape responsibility for such exploitation.
Fifthly, that limited weight must be given to the offender's prior good character.
Sixthly, that a range of factors bear upon the objective seriousness of the offence to which the respondent in this case pleaded guilty. They include
(a) the nature and content of the pornographic material including the age of the children and the gravity of the sexual activity portrayed.
(b) the number of images or items of material possessed by the offender.
(c) whether the possession or importation is for the purposes of sale or further distribution; and
(d) whether the offender will profit from the offence".
18 In this case, in dealing with the material that was provided it is clear that the nature and contents of the pornographic material were mid level material. There were no examples of category 5 material although some of the material was explicit and depraved. The number of images or items were not extensive. This court often sees cases where there are thousands or tens of thousands of items stored or held by the offender but it is clear that you viewed, over the course of two and a bit year regularly, a significant quantity of pornographic material. The exact nature of it will never be known because you deleted it.
19 I accept that as far as you are concerned there is no suggestion that you paid for or intended to further distribute the material and that nor there was any suggestion that you would profit from it.
20 In sentencing you I must have regard to a range of factors that are set out in s.16A(s) of the Crimes Act 1914. These factors include the nature and circumstances of your offence, the personal circumstances of yourself, which I will come back to later, the degree to which you have shown contrition for the offence, whether or not you have pleaded guilty, the degree to which you have cooperated with the police or the law enforcement authorities, the deterrent effect that a sentence or order may have on you, the need to ensure that you are adequately punished for the offence, your character antecedence, age, means and physical or mental condition and your prospects of rehabilitation. They seem to me to be the relevant factors in your case to be extracted from s.16.
21 Your counsel filed comprehensive and helpful written submissions and I refer to Exhibit 1 on this plea. I take into account in sentencing you your frank and full cooperation with the police and the admissions that you made, to which I have already referred, when interviewed.
22 Secondly I take into account your plea of guilty which I accept was made at the earliest opportunity. You are entitled to a reduction of sentence to reflect that plea of guilty and particularly when your plea is accompanied by what I accept is genuine remorse in your case for your conduct. You are entitled to a significant reduction to the sentence I would otherwise impose. I will return to the effect of that reduction at the conclusion of these remarks.
23 I take into account the insight you have into your offending and I accept that you fully understand the nature of your offending and why you offended. I take into account your lack of prior criminal history and your prior good character and the lack of any subsequent or outstanding matters.
24 I accept and take into account the fact that you are, in my view, of low risk for re-offending and that you have excellent prospects for rehabilitation. Your work history, your family support all tend to indicate that. You have a hard work ethic, you have been a productive member of society and I take into account, in the way in which I have indicated, the mental health issues or psychiatric issues to which I have already referred.
25 Your counsel conceded, and my view properly, that a term of imprisonment was the only appropriate sentence for your offending but urged that you be released immediately upon a recognisance release. I do not propose to repeat all the matters contained in Mr Payne's comprehensive submissions but declare - I want you to know that I have, in fact, had regard to all of the submissions that he made in the written document filed.
26 I do accept the submissions of the learned prosecutor who, in his helpful submission, where he said that your offending was serious. I accept that you had extensive and ongoing sexual interest in depraved child pornographic material. The names of the file you viewed and deleted demonstrate the ages of the children involved and the nature of the activity involved in the videos and photographs. Your offending continued over a lengthy period and as a law enforcement official with Customs, you knew full well the seriousness of your ongoing conduct.
27 I believe you have been specifically deterred from re-offending and as I have said earlier, your underlying psychological and related physical problems give me context and explanation for your conduct. Otherwise you have led an exemplary and valuable life and I doubt that you will re-offend in the future.
28 Balancing all the factors to which I have referred I propose to impose a term of imprisonment but order that you be released immediately upon a recognisance release order. The term of imprisonment is required to deter others from offending. It is only because of the unique factors that I have referred, unique to you, that I am prepared to take what is the rare and unusual step of releasing you immediately in respect of charges like this. You need to know that people who commit this sort of offending almost invariably go to gaol.
29 I warn you that if you breach the recognisance release order I am about to impose you will be brought back before me and you know what will happen: you will be going to prison. Stand up, please.
30 On the one charge of accessing child pornography, you will convicted. You are sentenced to be imprisoned for 18 months. I order that you be released immediately upon a recognisance release order in the sum of $500. You are required to register pursuant to the provisions of the Sex Offender's Registration Act for eight years and I am obliged to provide you with a document that outlines your obligations. I will come back to that in a moment. As a term of the recognisance I am asking you to enter I am going to make it a term that you undergo assessment for participation in the Sex Offender's Program run in Victoria and if you are suitable, undergo such a program. Are you prepared to undergo such a term?
31 OFFENDER: Yes I am, Your Honour.
32 HIS HONOUR: That will be a term of the order. I indicate that pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty I would have imposed a term of imprisonment of 18 months with a non-parole period, or a recognisance release order, after nine months. Would you come forward, seat behind your counsel while that document is prepared and while that is being prepared can I have my Associate, through you Mr Payne, hand to your client and have him sign an acknowledgement - - -
33 MR PAYNE: Certainly.
34 HIS HONOUR: - - - of being served with his obligations under the Sex Offender's Registration Act.
35 MR YOUNG: Indeed. Your Honour, I'll just prepare the form of the recognisance release order but Your Honour hasn't specified, I don't think a period of good behaviour.
36 HIS HONOUR: The period will be for three years.
37 MR YOUNG: Three years.
38 HIS HONOUR: You're quite right. The term is for three years. You probably didn't hear that. The recognisance is for three years. If you commit any offence in the next three years you will not be wanting to come back to see me.
39 OFFENDER: No, no.
40 MR PAYNE: Thank you, Your Honour.
41 HIS HONOUR: I'll just get the recognisance - document prepared.
42 MR PAYNE: Your Honour, the condition in relation to reporting to the Community Corrections Centre, this is in relation to assessment requires the nomination of a specific Community Corrections Centre.
43 HIS HONOUR: What do you suggest it should be?
44 MR PAYNE: Sunshine.
45 HIS HONOUR: Out that way? All right, Sunshine, all right thank you. I was going to ask you about it. The word - I'll check the wording you put in on that because I'm unsure of the precise term as it should be but we'll have a look at it when you've drafted it.
46 MR PAYNE: And normally the requirement to report is within - - -
47 HIS HONOUR: Forty-eight hours.
48 MR PAYNE: That's correct, yes.
49 HIS HONOUR: In this case I don't think it's necessary to make it in quite such a time. It's Friday. He's to report within seven days because the terms of the bond is that he's got to undergo assessment for suitability and that can be done any time. The sooner he goes the sooner he'll get it finished if he's going to do it but - - -
50 MR PAYNE: Within seven days.
51 HIS HONOUR: - - - within seven days.
52 MR PAYNE: By the 28th.
53 HIS HONOUR: From today. It's a Thursday, so - - -
54 MR PAYNE: Your Honour, I don't have the address of the Sunshine Community Corrections Centre - - -
55 HIS HONOUR: My Associate will get that for you. Won't you?
56 ASSOCIATE: Yes, Your Honour.
57 HIS HONOUR: We'll have it. I don't know, I should know it off the top of my head, I've sent so many people there.
58
MR PAYNE: Your Honour is no doubt familiar with these forms but
Your Honour's signature is required towards the top of the second page. Signature and dating and then the accused's signature to be witnessed and dated by Your Honour's Associate lower down.
59 HIS HONOUR: Now it's important, I think, also you continue to keep seeing your doctor in getting help. That's for your benefit.
60 OFFENDER: Yes I will.
61 ASSOCIATE: Is this your signature?
62 OFFENDER: This is my signature.
63 ASSOCIATE: Thank you.
64 HIS HONOUR: If you breach the bond you will forfeit the sum of $500 and come back. I will adjourn until 9.30 tomorrow - - -
65 MR PAYNE: Your Honour, might a copy of that document be made available - - - -
66 HIS HONOUR: Yes it will. It will be provided to each of the parties after I leave.
67 MR PAYNE: Thank you.
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