Director of Public Prosecutions v Bartlett
[2016] VCC 444
•13 April 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-02164
| DIRECTOR OF PUBLIC PROSECUTIONS (Cth) |
| v |
| ANDREW CLIVE BARTLETT |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March 2016 | |
DATE OF SENTENCE: | 13 April 2016 | |
CASE MAY BE CITED AS: | DPP v Bartlett | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 444 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentencing
Catchwords: Transmitting child pornography material using a carriage service
Legislation Cited: Crimes Act 1914 (C’th)
Cases Cited:DPP v D’Alessandro (2010) 26 VR 477 [21] ; R v Zarb [2014] VSCA 347 [ 27, 37, 46, 48]; R v Kennedy [2000] NSWCCA 527 [21-22] ; Assheton v R (2002) 132 A Crim R 237 [35-37] ; R v Gent (2005) 162 A Crim R 29 [64] ; Mouscas v R [2008] NSWCCA 181 [37] ; DPP (Cth) v Guest [2014] VSCA 48 [29] ; Heathcote (a pseudonym) v The Queen [2014] VSCA [35]
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Verdon | Solicitor for Office of Public Prosecutions (Cth) |
| For the Accused | Mr B Bourke (Plea) Mr A Halphen (Sentence) | Stary Norton Halphen |
HIS HONOUR:
1 Andrew Clive Bartlett, you have pleaded guilty to one charge of transmitting child pornography material using a carriage service contrary to section 474.19(1) of the Criminal Code (Cth).
2 The circumstances of your offending are set out in the Prosecution Opening, which was tendered at the plea hearing. They can be briefly summarised as follows:
· Between 28 April 2015 and 26 June 2015, you created and operated two false profiles on different social networking websites. You used these profiles to transmit text-based child pornography material.
· On a social networking website entitled ‘Tagged’, you created a false online profile with the username ‘Maddie M’. Whilst the profile stated that ‘Maddie’ was aged 18, you uploaded six photos of an unknown female who appeared to be approximately 13 years old. The profile stated that Maddie wanted to try anal sex.
· You engaged in ‘chats’ with other users between 28 April 2015 and 3 May 2015. Relevantly, you engaged in conversations with various men, ostensibly aged between 19 and 36 years old. The content of these chats was sexualised and explicit. Whilst posing as a 14 year old girl, you discussed sex, anal sex, underage sex, oral sex, rape, sexual anatomy, and ‘Maddie’s’ prior sexual experiences. Still posing as ‘Maddie’, you purported to make plans to meet up with a number of those men to engage in sexual activity.
· Whilst posing as a year 7 schoolgirl you engaged in a conversation with a person identifying himself as a father of 8 and 10 year old daughters. Amongst other pornographic subjects discussed with him, you discussed performing oral sex upon him and enquired whether his 10 year old daughter had seen him naked and whether he would engage in oral sex with his daughter.
· On a social networking website entitled ‘Skout’ you created a false online profile with the username ‘Shae’. On 26 June 2015 you engaged in three separate, sexualised chats with ostensibly older men.
· Again, you transmitted text-based child pornography material. Posing this time as a 12 year old girl, you discussed sex, oral sex, anal sex, meeting for sex, masturbation, and sexual anatomy. You also sent a number of photos to two of the users you engaged with, at their request. However, those images have not been recovered. I make no finding as to what those images may have depicted, and I sentence you on the basis that no child pornography images or videos were involved in your offending and that the child pornography material transmitted by you was entirely text-based.
· Each of the chats, on both networks, has been classified as Category 4 on the Child Exploitation Tracking System Scale, being material describing penetrative sexual activity between a child and an adult.
Background
3 By way of background, your family history is a tragic one.
4 Before you were born, your mother was diagnosed with bi-polar disorder and schizophrenia. These illnesses persisted throughout the rest of her life, resulting in numerous hospitalisations, and numerous disruptions to family life. Your father also had significant mental health issues.
5 In the 1970s, your parents formed a relationship and began living together. They moved frequently across country Victoria, relying largely upon welfare, and support from your maternal grandparents.
6 You are the youngest of their 5 children. Your eldest sibling was the subject of a compulsory adoption order, as a result of your parents’ inability to care for her.
7 The family eventually settled in Frankston, after your father was diagnosed with cancer. He ultimately died in 1985, when you were two years old.
8 Sometime after the death of your father, your mother took in a boarder at the family home for around 12 months, to help make ends meet. Over that period, the boarder sexually abused you.
9 When you were 13, your mother died following a traumatic battle with breast cancer. Understandably, you experienced profound grief upon her death.
10 After your mother’s death, you and your brothers lived independently in the family home; you have described it as being “left to your own devices”. Your eldest brother, Stuart, became the head of the household. With the support of your aunts and uncles, and the local community, you and your brothers managed to graduate from high school and, subsequently, from the University of Melbourne.
11 Stuart committed suicide in 2005, which came as a shock to you and your family.
12 Despite your difficult upbringing, you managed to excel academically. You completed your secondary education at the Peninsula School, where you excelled in your studies and in extracurricular activities, including football and cricket. You were appointed Senior Prefect in your final year, and graduated with very good results. After a ‘gap year’ in which you volunteered to work with the homeless in Ireland, you went on to complete a combined degree in Arts and Commerce at the University of Melbourne.
13 You also have an impressive work history. Upon graduating from the University of Melbourne, you joined the Victorian Public Service as a Graduate Trainee. You rose steadily through the ranks of the Public Service and most recently held the position of Operations Manager at the Adult Parole Board. As a result of your offending, you resigned from that position. You currently work as a Project Manager for a commercial property firm.
14 You enjoy the support of a strong network of friends and family, many of whom were present at your plea hearing and again today, and many of whom have written character references on your behalf.
15 A psychological report by Mr Patrick Newton was tendered on your behalf. He also gave evidence at your plea hearing. Mr Newton describes your mental status as “essentially normal” and your thought processes as “free from disorder”. Mr Newton also details the effect of the sexual abuse you suffered as a child on the development of your personality and sexuality.
16 Mr Newton concludes that you are a Moderate-Low Risk of re-offending, however he believes this could be closer to a Low Risk, provided you complete the treatment that he notes you are currently undertaking with a psychiatrist, Dr Matthew Barth.
17 A report of Dr Barth was also tendered. Dr Barth describes your “motivated and committed” participation in the Sex-Offender Treatment Program since commencing that program in August 2015.
Sentencing Principles
18 Section 16A of the Crimes Act (Cth) provides that a court, when sentencing a person in respect of a federal offence, must impose a sentence that is of a severity appropriate in all the circumstances. The section requires me to take a number of matters into account. These include –
· The nature and circumstances of your offending;
· Any course of conduct on your part;
· Your personal circumstances;
· The degree to which you have shown contrition for the offence;
· The fact that you have pleaded guilty;
· The deterrent effect of any sentence on the community;
· The deterrent effect that any sentence 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
· The prospects of your rehabilitation.
19 I am conscious also of the provisions of s.17A of that Act, which provide that 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 all the circumstances of the case.
20 The offence committed by you is a serious one. This is reflected by the maximum penalty set by parliament of 15 years imprisonment.
21 I have already described the nature and circumstances of your offending briefly, including the course of your conduct. In terms of the nature of the transmitted material, I accept that it might be described as the lower end of the scale in comparison with those often seen in courts such as this, insofar as no photographs or videos were transmitted by you.
22 Nevertheless, your conduct involved what I consider to have been truly disgraceful pornographic texts.
23 Your conduct occurred in two bursts, about three months apart. Whilst this is not a particularly long time, it cannot be described as short or instantaneous. Further, I note that your conduct involved chats with nine different persons purporting to be men.
24 The prosecutor referred me to authorities supporting the proposition that, in respect of child pornography offences, general deterrence is the paramount sentencing consideration for such offending, and prior good character is to be given less weight than usual.[1]
25 The essence of those authorities is captured in the following passage, which I quote from a Court of Appeal judgment:
[T]here seems to be unanimous support across jurisdictions for a number of propositions. First, that the problem of child pornography is an international one. 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 inclined to exploit children by involving 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 an offender’s prior good character. Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in the case pleaded guilty.[2]
[2]D’Alessandro at [ 21]
26 Further submissions filed on your behalf by your solicitors seek to distinguish your offending from the examples provided by the prosecution. It was submitted that your offending was not predatory; it did not involve the possession or transmission of images or videos; it did not involve the sale or further distribution of material; and you did not stand to profit from your offending. It was also submitted that this was not a case where any children were actually exploited in the creation of the pornographic material.
27 I accept those submissions.
28 The authorities referred to have a clear focus on child pornography material that is exploitative; that is, they have a clear focus on offending involving images and videos, often in large numbers, depicting the sexual abuse of children. The authorities stress how destructive the creation of such material was on the child victims depicted.[3] This is not such a case. I accept that general deterrence is of less importance in your case than in those referred to me by the prosecution. I also accept that your prior good character should be given no less weight as a mitigating factor than it ordinarily would.
[3]See D’Alessandro at [19].
29 That is not to say that I give general deterrence little or no weight. The Court of Appeal has expressed the importance of general deterrence in the following terms:
[T]he evil that is the making and distribution of pornographic images involving children is so great, and so comparatively common, and so readily facilitated by modern technology, that every attempt must be made to limit its scope and range – indeed, to eliminate it altogether if that is possible…. Hence the need for general deterrence.[4]
Although that passage again refers specifically to the creation and distribution of images, I consider that it does have application to your conduct; it is important that my sentence deters others from engaging in internet-based, sexually explicit conduct that involves children in any way.
Mitigating Factors
[4]D’Alessandro at [40].
30 I have taken into account a number of mitigating factors that were referred to by your counsel on your behalf.
31 Firstly, I accept that you pleaded guilty to this offence at the earliest opportunity. Further, I accept that you have at all times cooperated with and assisted the authorities in the investigation of this matter.
32 Secondly, I take into account your prior good character. Despite a tragic upbringing, you managed to excel academically and in your previous employment with the Victorian Public Service. This is to your credit. You have no prior convictions, and I sentence you on the basis that you were of good character prior to committing these offences. There is no evidence of any offending since these charges were brought against you.
33 Thirdly, I take into account what I consider to be genuine remorse on your part. This is demonstrated by your early plea of guilty and the assistance that you have provided to the authorities. Your remorse is also evident in your statement to police, your police interview, and your correspondence and character references tendered at your plea.
34 Fourthly, I accept that you have good prospects for rehabilitation. You enjoy the support of a strong network of friends and family, you have demonstrated genuine remorse and insight into your offending, and you have been proactive in seeking treatment for the factors that contributed to your offending. I stress that your prospects for rehabilitation strongly depend on your ongoing engagement with the Sex Offender Treatment Program.
35 Your sentence should and does take into account each of those matters.
Sentence
36 Taking all of these matters into account, I consider that the appropriate sentence for you is one where you are sentenced to a term of imprisonment, but are released forthwith on a Recognizance Release Order.
37 The purpose of imposing a term of imprisonment on you is to denounce your conduct and to deter you and others from engaging in similar conduct. The purpose of releasing you forthwith is that you will have the opportunity to continue to receive specific treatment in respect of your offending behaviour.
38 With regard to the charge of transmitting child pornography material using a carriage service, I sentence you to a term of imprisonment of 12 months.
39 In relation to that sentence, I consider that it is appropriate that you be released forthwith upon a five year recognizance release order pursuant to s.20 of the Crimes Act (Cth) upon you giving security by recognizance in the sum of $500 with an undertaking to be of good behaviour for the duration of that five year term. In addition, I consider that it is appropriate to impose a further condition to that Order pursuant to s.20(1)(a)(iv) of that Act, that you are to engage in the Sex Offender Treatment Program at Central Melbourne Psychology for a period of two years and undergo such treatment as is recommended by Dr Matthew Barth or a psychiatrist nominated by him during that period.
40 I would only be prepared to release you pursuant to such an Order, such as a recognizance release order, if you consent to it with those conditions.
41 And I now ask you whether you do you consent to it. Before answering me you may wish to consult your counsel in relation to it.
42 MR HALPHEN: May I approach the dock, Your Honour?
43 HIS HONOUR: Yes.
44 MR HALPHEN: Yes, Your Honour. There is consent from Mr Bartlett. Just a matter to assist the court, Dr Barth is a psychologist.
45 HIS HONOUR: Why did I think he was a psychiatrist?
46 MR HALPHEN: Probably because he is referred to as a doctor, but it is just because of his further training.
47 HIS HONOUR: Indeed he is. Well, in fact I note that the individuals at Central Melbourne Psychology, Mr Patrick Newton, who has seen your client, and Dr Matthew Barth – yes, I think it is the doctor that has got me slightly.
48 MR HALPHEN: Yes, Your Honour.
49 HIS HONOUR: In any event, the condition that I impose will be that your client is to engage in the sex offender treatment program and Central Melbourne Psychology for a period of two years and undergo such treatment as is recommended by Dr Matthew Barth – I think I will put, or any psychologist or psychiatrist nominated by him during that period.
50 MR HALPHEN: Certainly, Your Honour.
51 HIS HONOUR: I think that would be appropriate.
52 Given that you do consent to an order with those conditions, I shall make that Order on those terms.
53 I direct that that sentence commence today.
54 In the event that the treatment condition is at some time in the future considered unnecessary or if some other condition is considered preferable, an application for variation of that condition can be made to this Court.
55 Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to this charge and been found guilty of it, I would have sentenced you to a term of imprisonment of 18 months.
56 Under the Sex Offenders Registration Act 2004, by reason of this conviction, you are to be recorded as a registrable offender for a period of 8 years.
57 Madam Prosecutor, is that the correct period?
58 MS VERDON: That’s correct, Your Honour. It’s 8 years.
59 HIS HONOUR: Thank you.
60 Your reporting obligations will be served upon you shortly by my associate. And you will also need to sign the Recognizance Release Order shortly. Just wait for a moment and I will attend to that documentation. Mr Bartlett, the documentation in connection with the Sex Offender Registration Act is relatively lengthy. What I suggest you do at the earliest opportunity is read it carefully, and if you have any doubt as to its meaning you should consult your legal representative immediately.
61 There is only one other thing I want to say to you, Mr Bartlett, and that is this. You have undertaken by agreeing to this recognizance to be of good behaviour for five years. Should that not be the case, and especially if you were to commit offences that bore any similarity to the offence that you are before me today, you would be an optimist to think that you would be walking the street again for some time.
62 Yes. Is there anything else that counsel want me to address?
63 MS VERDON: Nothing further, Your Honour.
64 MR HALPHEN: No, Your Honour.
65 HIS HONOUR: Yes, thank you. Adjourn till half past 10.
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DPP v D’Alessandro (2010) 26 VR 477 [21] ; R v Zarb [2014] VSCA 347 [ 27, 37, 46, 48]; R v Kennedy [2000] NSWCCA 527 [21-22] ; Assheton v R (2002) 132 A Crim R 237 [35-37] ;
R v Gent(2005) 162 A Crim R 29 [64] ; Mouscas v R [2008] NSWCCA 181 [37] ; DPP (Cth) v Guest [2014] VSCA 48 [29] ; Heathcote (a pseudonym) v The Queen [2014] VSCA [35]
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