Director of Public Prosecutions v Baron
[2023] VCC 956
•5 June 2023
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-01441
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEXANDER JOHN BARON |
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JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 26 May 2023 | |
DATE OF SENTENCE: | 5 June 2023 | |
CASE MAY BE CITED AS: | DPP v Baron | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 956 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW SENTENCE
Catchwords: Sentencing – use carriage service to access child abuse material, use carriage service to make available child abuse material, possess child abuse material obtained by a carriage service.
Legislation Cited: ss s16, 16A(2AAA), 19(5), s20(1)(b), ss 3LA, Crimes Act 1914 (Cth), 6AAA Sentencing Act 1991, Sex Offenders Registration Act 2004.
Cases Cited:
Sentence: Imprisonment – Total Effective sentence 2 years and 9 months, Recognizance Release order after 10 months imprisonment, $1,000 recognizance, recognizance period of 2 years and 6 months , forfeiture and disposal order, Sex Offender Registration for life
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Barry | Ms. L. Skoblar, Commonwealth Director of Public Prosecutions |
| For the Accused | Ms J. McGarvie | Ms. E. King and Ms. R. Parks, Slater & King. |
HIS HONOUR:
1Alexander John Baron, you have pleaded guilty to two charges of using a carriage service to access child abuse material, two charges of use a carriage service to make available child abuse material, and one charge of possess child abuse material obtained using a carriage service.
2Each of those offences are serious criminal offences, all with the maximum penalty of 15 years' imprisonment. The facts of your offending are set out in Exhibit A, the further amended summary of prosecution opening. I was informed by your counsel that I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein. There is no need to comprehensively then deal with the facts of your offending.
3Briefly stated, on 25 February 2021, State and Federal Police executed a search warrant at your residential address in Shepparton. You were present and cooperated with investigators as required by an order issued under s3LA of the Crimes Act 1914.
4Police seized three mobile phones, a tablet and a number of disks. These devices all contained child abuse material. Police also identified cloud storage accounts containing child abuse material.
5Analysis of the devices and the cloud storage accounts established that between 21 September 2019 and 25 February 2021 you accessed 6,018 images and 1,264 videos, a total of 7,264 child abuse material files. There are two charges to cover this material. Charges 1 and 3, as there was a relevant legislative change on 23 June 2020. It is common ground that the two charges cover one course of conduct for the entire period and I have had regard to that fact when arriving at an appropriate sentence for Charges 1 and 3 and in determining appropriate cumulation of sentence.
6
Charges 1 and 3 need to be viewed as a continuous course of conduct. On
19 June 2020, you made available 19 child abuse videos to a Dropbox account. A little over an hour later you made available a further 19 child abuse material videos to a Dropbox account. Those 38 videos are the subject of Charge 2.
7On 23 December 2020, you made available 221 child abuse videos to an account using a Mega New Zealand or Mega NZ account. This is the basis of Charge 4.
8A Microsoft Surface Pro device seized by police was found to contain 22 images, 525 videos. The disks seized were found to contain seven child abuse images and 371 child abuse videos. The total of 925 child abuse material files is the basis of Charge 5, possessing child abuse material obtained by a carriage service.
9All of the child abuse material relating to the five charges was found to fall either in category 1 or category 2 as classified in the appendix to the prosecution opening. These are the two most serious and depraved categories of child abuse material. A description of the image is set out in that appendix. Male and female children, infants to 10 years old are depicted in vile and abhorrent acts that I do not intend to further describe, they are gross. You made a no comment record of interview when arrested and you have no prior police history.
10You do however have a subsequent court appearance on 1 November 2021, you received a non-conviction bond for possessing methylamphetamine and committing an indictable offence on bail. Those offences were committed in May 2021. This appearance has no relevance to the sentence for the offending for which I am to pass save that it is does relate to your prospects of rehabilitation as relied on by your counsel.
11Turning to your personal circumstances.
12You are now 42 years of age, being born in December 1980. And you grew up in Blackburn and you have a younger sister. Your father died in 1991 and your life appears to have been significantly disrupted as a result. You managed to complete Year 12, then commenced but did not complete an arts degree. You claim to have been bullied at school because of your homosexuality. After leaving university you worked in a call centre and then completed a theatre course at the Victorian College of the Arts. For reasons that are unclear to me, you developed a methamphetamine habit. You contracted HIV, a condition for which you are still medicated. You told Ms Lechner that you suffered a breakdown and did not maintain regular work.
13
You moved to Shepparton seven years ago and obtained employment first with
JB Hi-Fi, then as a support worker after completing a Certificate IV in Community Service.
14After your arrest on these charges, you resigned, briefly worked as a cleaner but you have been studying civil construction in the meantime. As mentioned, you are homosexual. You have been involved in multiple casual sexual encounters. You claim to have used drugs, met other men and engaged in group sex and you used child abuse material because, 'you liked watching others have sex'. You claim you role played a father son fantasy including pre-pubescent boys. You told Ms Lechner that you were not attracted to children, or adolescents, and that you preferred older men.
15I do not accept these assertions. Ms Lechner's psychological report does not address the issues of your clear paedophilic tendencies. The images you possessed and shared demonstrated deviate interest in children and infants. You are clearly required to complete the Sex Offenders Course. Ms Lechner concluded that you present with symptoms of borderline personality disorder, stimulant and alcohol abuse disorder in partial remission. She concludes that you will find incarceration difficult because of your fragile mental health and that you maybe stood over and bullied.
16In the over two years since your arrest, you have taken substantial and commendable steps towards your rehabilitation. You completed a 15 session Forensicare program to address your accessing child abuse material. Although you presented as anxious and overwhelmed at times, the author of Exhibit 2, the Forensicare CEM-COPE Group treatment summary states that you derived benefit from the group sessions. You appear to have developed insight into your offending.
17You have also engaged with the Goulburn Valley Alcohol and Drug Service therapeutic rehabilitation program over 10 weeks to address your alcohol and drug dependencies. I refer to Exhibit 5. You have acknowledged the need to change these dependencies. You also participated in the Salvation Army Positive Lifestyle Program and I refer to Exhibit 4. You are described by the chaplain of that program as a mature, positive and polite man. You are willing to learn and discovery more about yourself. You are said to have made very real and positive progress in that program. A reference from Michael Milburn, your ex-partner and friend summarises your progress. He states,
'Since his arrest and bail conditions Alex has worked extremely hard, attended hundreds of hours of therapy, drug rehabilitation programs, TEMCHO program and attending career courses to retrain himself to enable him to get a job and be a positive contributing citizen.'
18He attests to your expression of extreme remorse for your crimes.
19In addition, you have undertaken ongoing counselling to deal with anxiety and stress created by the legal process you have experienced over the past two years. And to develop insight into your offending in order to attempt to prevent recidivism.
20You have attended 26 such counselling sessions and Exhibit 6 outlines your involvement in that counselling. And Psychologist, Ryan Veal reports that you have demonstrated considerably improved stability in more recent sessions. You wrote a letter to the court, Exhibit 9, outlining what you gained from the various programs you participated in and that the considerable time travelling enabled you to reflect on the child exploitation industry and the abuse of minors.
21You concluded,
'I deeply regret and apologise for my past offending behaviours and decision making. I let myself fall and wallow in a dark pit of socially and morally unacceptable and illegal activities. The work I've done over the last two years through one-on-one group therapy have shone a light on how far I had fallen from my formally productive and happy life, and I hope the court recognises the self-rehabilitation that I have committed to and takes it into account in its sentencing.'
22Your counsel filed extensive written submissions, Exhibit 1. She properly conceded that your offending represents serious examples of the charged offences. Thea nature and content of the images, the sexual activity depicted is of the worst classification. You accessed and possessed over 8,000 child abuse files. This is a significant quantity. You distributed the child abuse material to others and offended over a protracted period of 17 months.
23Ms McGarvie relied heavily upon your early pleas of guilty as demonstrating remorse. Your willingness to facilitate the course of justice and acceptance of responsibility. You are entitled to and shall receive a reduction of sentence to reflect your pleas of guilty. The benefit of those please is greater because of the affect COVID-19 has had upon our legal system and hence the reduction is increased. Ms McGarvie relied upon your cooperation with investigators although you provided passwords and access details you were simply complying with the obligations of the warrant order. I do take into account the significant and remarkable steps you have taken over the past two years as previously outlined to rehabilitate yourself.
24You have had these matters hanging over your head for over two years but have not simply waited but have taken meaningful steps towards you rehabilitation. The combination of delay in significant rehabilitation is in my view an important sentencing consideration and one that significantly reduces the sentence to be imposed on you. I accept that you have demonstrated remorse and that your future prospects are good. You are in my view, unlikely to reoffend provided you continue to get appropriate treatment and support.
25I propose to impose conditions to a reconnaissance release order to further that treatment and rehabilitation as mandated by s16A(2AAA) of the Crimes Act (Cth). I take into account what is common ground that will find time in custody more onerous because of your fragile mental health and that incarceration will possibly make that mental health and fragility worse. I take into account in a limited way your prior good character and lack of criminal history, as these factors have less weight for offending such as yours.
26Totality is an important consideration in sentencing you. As already stated, Charges 1 and 3 represent one continuous offence, although you fall to be sentenced on five separate offences of a related kind. Section 19(5) of the Crimes Act requires cumulation of sentence for child sex offences unless the court is satisfied that a partially or fully concurrent sentence will result in a sentence of appropriate severity in all the circumstances.
27I am satisfied that there should be some concurrency of sentences in place and that the final term of imprisonment imposed does represent a sentence of appropriate severity. I have had regard to all matters set out in s16 of the Crimes Act in determining an appropriate sentence in this case. Clearly, nothing other than a term of imprisonment for each offence is appropriate.
28Principles of general deterrence, specific deterrence and just punishment and protection of the community in my view require such a disposition. I cannot accept your counsel's submission that the combination of factors relied upon or referred to previously amount to exceptional circumstances required in order to reduce you immediately. I do however significantly reduce the term of imprisonment imposed and the period that should be served before you are released on a reconnaissance release order to give full weight to the matters urged in mitigation.
29I believe you now understand that child abuse material involves real victims, the children depicted. The child abuse industry is large and unfortunately growing larger. Possession of individual child abuse files promotes the future of that industry, the children in all images are the real victims and supporting the child abuse industry promotes further victimisation of children.
30Sentences imposed must seek to address this victimisation. The maximum penalty for your offences show how clearly Parliament sees the offending is serious. I accept the prosecution's submissions in this regard as set out in Exhibit B.
31The sentences of the court are on all charges you are convicted.
32On Charge 1, use carriage service to access child abuse material, you are sentenced to 12 months' imprisonment.
33On Charge 2, use carriage service to make child abuse material available, you are sentenced to 12 months' imprisonment.
34On Charge 3, use a carriage service to access child abuse material, you are sentenced to 12 months' imprisonment.
35Charge 4, use carriage service to make available child abuse material, you are sentenced to 12 months' imprisonment.
36And on Charge 5, possess child abuse material obtained by a carriage service, you are sentenced to 12 months' imprisonment.
37
The sentence on Charge 1 will commence today. The sentence on Charge 2 will comment on 4 December, this year. The sentence on Charge 3, will commence on 4 March, next year. The sentence on Charge 4, will commence on
4 December next year. And the sentence on Charge 5, will commence on
4 March 2025. My intention is to impose a sentence that will see you in prison for two years and nine months from today.
38
I order that you be released on a reconnaissance release order after serving
10 months of that sentence. The reconnaissance release order will be in the sum of a thousand dollars and will be for a period of two years and six months.
39The order will have the mandatory conditions required by s20(1)(b) of the Crimes Act, that is that you be subject to supervision and that you must obey the directions of that probation officer and not to travel interstate and to undertake such treatment or rehabilitation programs that the probation officer reasonably directs. You are to report to the Shepparton Community Corrections Centre within two clear working days of your release from custody.
40
I direct that a copy of Exhibit 7, the summary of your medication be provided to the prison authorities if it has not already. I declare that 10 days of the sentence I have just imposed has already been served by way of pre-sentence detention and I indicate that but for your pleas of guilty pursuant to s6AAA of the Sentencing Act, I would have imposed a term of imprisonment of four years with a
non-parole period of two years and six months.
41Have I achieved the intention I set out that I desired, Mr Prosecutor? You had better switch your microphone on. Now I can hear.
42MR BARRY: Yes, thank you Your Honour, I think it was on Your Honour, I'm sorry. As to the total effective sentence is that Your Honour's question?
43HIS HONOUR: Yes, I think I give two years and nine months.
44
MR BARRY: Yes, I haven't done – I haven't quite calculated it as yet
Your Honour but will you just give me 30 seconds?
45HIS HONOUR: Absolutely.
46MR BARRY: Thank you Your Honour.
47HIS HONOUR: Yes. Is there sex offence – SORA in this?
48MR BARRY: Yes, Your Honour, yes for a lifetime period as set out.
49HIS HONOUR: All right. So, yes, he's to be – he's - Sex Offenders Registration Act for life.
50MR BARRY: Yes, Your Honour, yes.
51HIS HONOUR: All right, I'm imposing that as part of the order.
52MR BARRY: Yes. And there was a forfeiture order as well but - - -
53HIS HONOUR: I make the forfeiture order sought by the prosecution.
54MR BARRY: Yes, thank you, Your Honour.
55HIS HONOUR: Now what happens to get him to sign the reconnaissance release order? All right Ms McGarvie I'll send the reconnaissance release order to the prison which will have those mandatory conditions and where he's got to go and things of that sort.
56MS McGARVIE: Yes, Your Honour.
57HIS HONOUR: Obviously, he should – when he gets it, he should sign it or otherwise he won't be released.
58MS McGARVIE: Yes.
59HIS HONOUR: Yes, All right.
60MS McGARVIE: Yes, Your Honour I understand that the forfeiture order also needs to be signed by him and will be provided by the prosecutor in a bundle of documents to go to him.
61HIS HONOUR: All right, thank you.
62MR BARRY: I've – checking those commencement dates Your Honour, yes, my calculation is that it adds up to 33 months, which is two years, nine months, that's what Your Honour order.
63HIS HONOUR: Yes. Excellent.
64MR BARRY: Thank you, Your Honour.
65HIS HONOUR: Thank you. Madam Associate I've had a go at a draft of that reconnaissance release order. All right, thank you, I'll terminate the links.
66MS McGARVIE: If Your Honour please.
67MR BARRY: All right, if Your Honour pleases, thank you.
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