Director of Public Prosecutions v Bryant
[2024] VCC 2060
•18 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
Case No. CR-24-00182
Indictment No. N12550593
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY BRYANT |
---
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 12 July and 16 December 2024 | |
DATE OF SENTENCE: | 18 December 2024 | |
CASE MAY BE CITED AS: | DPP v Bryant | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2060 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: One charge of possession of child abuse material – significant number of child abuse material images spread over multiple devices of Category 1 and Category 2 seriousness – 32 year old offender with no prior convictions – background of severe social isolation – childhood trauma, longstanding Depression and Anxiety – recently diagnosed Complex Post-Traumatic Stress Disorder, Autism Spectrum Disorder and ADD (inattentive type), together with avoidant and schizoid personality traits – application of Limbs 1, 5 and 6 of Verdins – early plea of guilty – some remorse and high utilitarian value with added Worboyes discount – reasonably good prospects of rehabilitation if engages with treatment – some rehabilitative psychological treatment already undertaken – assessed by forensic psychologist as being at low risk of reoffending and motivated to engage in treatment
Legislation Cited: Sex Offenders Registration Act 2004, Confiscation Act1997; Sentencing Act 1991.
Cases Cited:R v Verdins (2007) 16 VR 269; DPP (Cth) & DPP v Garside (2016) 50 VR 800; Worboyes v R [2021] VSCA 169; Hutchinson v The King [2022] VSCA 217.
Sentence: Convicted and sentenced to Community Corrections Order of 3 years
6AAA: 18 months' imprisonment with a non-parole period of 9 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B Goding (12/7/2024) Ms G Fitzgerland (16/12/24) Ms O Chan (13/12/24) | Solicitor for the Director of Public Prosecutions |
| For the Offender | Ms S Thomas | Tait Lawyers |
HER HONOUR:
1Timothy Bryant, you have pleaded guilty to one charge of knowingly possessing child abuse material which carries a maximum penalty of 10 years’ imprisonment.
2The circumstances of your offending are detailed in the Summary of Prosecution Opening Upon Plea.[1]
[1]Exhibit “A”.
3The offending relates to the possession of child abuse material on 11 February 2021, when a search warrant was issued at a residential property where you were living with your mother. Police asked whether you were in possession of any child abuse material and you indicated that you were and pointed towards a computer that was on the floor.
4Police seized one mobile phone in which there were two Category 1 videos and two Category 2 videos; a black PC tower, on which there were 821 Category 2 images; another mobile phone upon which there was one Category 2 image; a WD desktop external hard drive on which there were 52 Category 2 images; and a Coolermaster PC upon which there were 6,594 Category 1 images and 3 Category 1 videos and, also, 312,175 Category 2 images and 2,510 Category 2 videos. The videos ranged in duration from two seconds to three hours and one minute.
5The Category 1 videos and images depict real children approximately 10 years old or younger and some possibly as young as four or five years of age. In some of the material, the child depicted is involved in a sex act and appears to be crying or in pain. The Category 2 videos and images depict pubescent children, aged between 13 and 18 years, in various sexualised poses, some with genitalia or breasts exposed. Most are real children. Less than 18 images are cartoons of children.
6You were arrested and gave a largely “no comment” interview on 11 February 2021. You suggested that your Wi-Fi network and mobile phone may have been hacked. You also claimed that you had reported other users on an instant messaging platform for under-age material, but that one user had continued to try to contact you despite such reports and repeated blocking. You claimed that other users had asked to exchange digital material referencing seven and eight year olds and gave you a list of “tags” to search for child abuse material.
7Subsequent to the record of interview on 17 January 2022, you attended Bayside Police Station and wanted to have a conversation with police. You gave various accounts to police as to how any child abuse material could have ended up on your devices, including that you had been hacked, that the material was on the computer from a previous owner, or that it was put there through network sharing. You acknowledged being aware that the material on the Coolermaster tower included a video of a very young naked child (estimated to be around one year of age) with ejaculate on its bottom and professional-looking images of naked girls in what appeared to be studio settings.
8According to written submissions filed by your counsel,[2] on 17 November 2022, you were served with a copy of charges relating to the child abuse material. Apparently, the charges were the subject of a number of adjourned mentions in the Magistrates’ Court. However, on 31 July 2023, you indicated your intention to plead guilty to them and a plea hearing in the Magistrates’ Court was listed for 13 September 2023. As your counsel was unavailable and/or needed time to prepare, the plea hearing was adjourned to 23 September 2023. On that date, you attended court, expecting the plea hearing to proceed. However, prosecuting police indicated an intention to have the charges uplifted from the summary jurisdiction of the Magistrates’ Court to be heard in the County Court. That application was made on behalf of the prosecution on 27 September 2023, and, on 4 October 2023, a single charge of possessing child abuse material was filed. This is the charge to which you have pleaded guilty before me.
[2] Outline of submissions on plea dated 10 July 2024, “MFI-1”.
9At a committal mention on 12 January 2024, you had indicated your intention to plead guilty to the charge. However, the matter was adjourned because you wished to make an application to have your plea heard in the summary jurisdiction. This application was heard and refused on 12 February 2024. The matter was uplifted to the County Court and was listed for a plea hearing on 12 July 2024 before me.
10On that day, a quantity of material had been filed on your behalf. However, I expressed concern about a number of matters, including a need for more information in relation to your psychological history and also a risk assessment in relation to future re-offending. The matter was adjourned for plea hearing to 21 October 2024, to enable your legal representatives to file any further material on your behalf and also to enable the court to obtain a psychological assessment of you from Forensicare.
11Subsequently, the matter was further adjourned due to commitments of your counsel and, also, myself. Ultimately, it came on for further plea hearing before me on 16 December 2024, after having had the benefit of receiving further written submissions from both parties.
12You are presently aged 36 years, having been born in September 1988. You were aged 32 years at the time of offending. You come before the Court with no prior criminal history.
13The material before the Court indicates that you have had psychological difficulties from an early age, having been isolated and bullied at school and apparently had attempted suicide at age eight. Two reports from psychologists specifically mention that you were sexually abused during your childhood.[3] You have been prescribed Zoloft, 200 milligrams daily, for depression and anxiety, which you have taken for some six years. You also suffer Type 2 Diabetes, requiring medication to manage that condition, and suffer chronic back pain relating to a workplace injury as a bus driver back in 2015, which necessitated you retraining for alternative work.
[3] Exhibit “2”, Report of Mr David Ball, forensic psychologist dated 8 September 2023, page 3, and Exhibit “B”, Report of Dr Joseph Sakdalan, Principal Psychologist, Victorian Institute of Forensic Mental Health, page 3, paragraph [16].
14In more recent times, the challenges which you have encountered in your childhood have been assessed by Mr Ball, forensic psychologist, as being indicative of a diagnosis of Autism Spectrum Disorder – Level 1, namely, high functioning autism, with your IQ falling within the superior range.[4] This is in addition to depression and anxiety, avoidant and schizoid personality functioning and persistent and exaggerated negative beliefs about yourself.
[4]Exhibit “2”, report from Mr David Ball, forensic psychologist, dated 8 September 2023 and further report, Exhibit “10”, dated 27 November 2024. The further report noted that the first report had a typographical error in referring to Autism Spectrum Disorder Level 3, which should read “Autism Spectrum Disorder Level 1”.
15The report from Forensicare requested by the Court was authored by Dr Joseph Sakdalan, Principal Psychologist at the Victorian Institute of Forensic Mental Health and dated 15 October 2024. He noted a diagnosis of Autism (albeit that he assessed it at Level 2, but “requiring substantial support”[5]); with symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder and Complex Post-Traumatic Stress Disorder, due to a resurgence of childhood trauma, and the trauma related to this offending; and also a symptom profile consistent with Attention Deficit Hyperactivity Disorder (inattentive type). Overall, he assessed your depression, anxiety and stress to be in the severe range with moderate disability and cognition, severe disability in the areas of mobility, life activities, participation and extreme range in “getting along”.[6]
[5] Exhibit “B”, paragraph [76].
[6]Ibid, paragraphs [46], [48], [50], [52] and [54], pages 6-9.
16A letter to the Court from your mother, Ms Marina Bryant, a retired director of nursing of 17 years duration, was tendered at the plea hearing.[7] She described you as a young child who had been bullied and ostracised at school, socially awkward, gentle, naïve and trusting, which meant that you were often taken advantage of by others. She stated that you had limited friendships and took to being at home playing computer games and interacting with online communications.
[7]Exhibit “3”.
17Your mother noted that you had seen a child psychologist during your school years, but had endeavoured to find fulfilment and contribute by being an active member of the Royal Australian Airforce Cadets from age 12-19 years, and a regular volunteer in your twenties for Chelsea SES, involved in search and rescue clean-up operations. She noted that, notwithstanding your challenges, you had always been law abiding and had been involved in fulltime employment. She stated that, since these proceedings had been on foot, you had suffered extreme clinical anxiety and depression which significantly impacted upon your mental and physical health, including your diabetes, and you had, on at least one occasion, attempted to take your own life by overdosing on Insulin. Apparently, this was after you were arrested by police in February 2021. Nevertheless, she described you as being committed to maintaining your fulltime employment and trying to manage your mental health by seeing your GP, a psychologist and a psychiatrist. She stated that you had developed a mental health crisis plan. On at least three occasions, you had contacted your support worker and been triaged to the CAT team at Peninsula Health.
18There was a significant area of dispute between the parties over the extent to which you have accepted responsibility for your offending and the extent of your remorse and how these impact upon your prospects of rehabilitation. This issue arose due to the explanation you provided at various times for how you came to be in possession of the child abuse material.
19In your record of interview, you had apparently suggested that your Wi-Fi network and mobile phone may have been hacked. When you attended on 17 January 2022 to speak with police at Bayside Police Station, you again stated that your possession of the child abuse material could be because you were hacked or because it was on the computer from a previous owner, or had been put there through network sharing.
20You had given a history to Mr David Ball, the forensic psychologist, when you saw him on 11 August 2023, that you had endeavoured to deal with your social isolation by trying to get people to like you by hosting internet servers and believed you had been taken advantage of because you had become too trusting. You told him that you did not think downloading child abuse material was even a possibility and, when you found that it did occur, you thought you could fix it on your own.
21You told Dr Joseph Sakdalan, the psychologist from Forensicare, that you had built your own server and would give friends online access to it to enable them to watch movies or series while engaging in gaming with you. One of your computers had broken and you were merging two computers into one. Upon investigating this, you discovered that the child abuse material had been downloaded onto your computer. You tried to fix it and remove access you had given people in an attempt to delete all of the material, but, as this occurred in the COVID-19 pandemic, you had difficulty sourcing the parts you required to merge your two computers. You claim to have reported it to the Federal Bureau of Investigation and also to the Australian Federal Police, although you understood that the latter has no record of your report. You claim that, as you were deleting items from the server, no storage space was freeing up, and you believed that someone had “deeper access” to your server. You admitted you had skimmed through a large amount of material and watched some of the videos, which disturbed you. You denied any arousal or sexual attraction to the children depicted in the material on the computer.
22In written submissions, the prosecution submitted that the Court could not be satisfied, on the balance of probabilities, that you came into possession of the child abuse material in any of the circumstances which you had variously described. It was put that part of your explanation was inconsistent with what you had stated to a psychologist, Ms Miriam Latif, as disclosed in her report dated 14 October 2024,[8] namely, that once you discovered the child abuse material had been uploaded to the server by another user, you reported this to the relevant authorities and then “stuck [your] head” in the sand. Also, reliance was placed upon the opinion of Ms Kim Dowse, psychologist, that, as you had denied interest in the images, it was not possible to engage you in individual treatment, as such treatment would require you to acknowledge your role in the activity in order to discuss victim empathy and remorse.[9] These submissions were elaborated upon orally at the Plea Hearing on 16 December 2024.
[8]Exhibit “9”.
[9]Exhibit “4”.
23The prosecution has not put before the Court any expert opinion as to the means whereby the child abuse material came to be on your various devices, nor, indeed, for how long it had been present on those devices or the extent to which it had been actually accessed by you. You are charged with, and have pleaded guilty to, only the charge of possessing that material. While it is possible that one of the explanations provided by you, such as sharing your server with others online, did result in the download of the material onto your devices, I am unable to be satisfied of this on the balance of probabilities. However, there is no doubt in my mind that your significant constellation of neurodivergent, personality and psychological issues resulting in long-term extreme social isolation, and depression and anxiety, caused you to engage with others online to try to make friendships. I conclude that this is likely to have been the main factor and context that led to you being involved in the offending. I note that Mr Ball referred to you as “likely to be a follower, rather than a leader, often taking a passive role in social situations”.[10] Also, Dr Sakdalan referred to your social naivete and intense need to please others.[11] In this sense, your vulnerable psychological make-up is relevant as a causative factor.
[10] Exhibit “2”, page 4.
[11] Exhibit “B”, paras [18] and [71].
24As previously mentioned, Mr Ball diagnosed you as suffering Autism Spectrum Disorder Level 1, together with comorbid depression and anxiety, which narrowly fall short of a mood disorder. He had also opined that you suffer significant signs of avoidant and schizoid personality function, which narrowly fall short of a diagnosed personality disorder. He has opined that you suffer fragile ego, an insecure attachment style, poor coping skills, that you are socially detached and alienated, suffer crushingly low self-esteem and have trouble understanding the feelings and motivations of others. He considers your autism means you have a history of being unable to correctly assess, gauge and interpret social cues and that, as a consequence of your then undiagnosed autism, your capacity for appropriate judgement was impaired at the time of your offending. He opined that, without treatment and psycho-education, this could continue to be a permanent and lifelong impairment. He also considers that your avoidant and schizoid personality features lead to stress-related reactivity of mood, particularly anxiety. He stated that your inability to correctly assess, gauge and interpret social cues has left you vulnerable to exploitation, where your already high state of anxiety has impaired your capacity for appropriate judgement. Finally, he considered that your persistent and exaggerated negative beliefs about yourself further impaired your ability to exercise appropriate judgement. He opined that a combination of those factors impaired your ability to think clearly and make calm and rational choices and would also make a custodial environment weigh far more heavily upon you than would be the case for other prisoners.[12] He also noted that you reported relationship difficulties in your daily interactions with people in all aspects of life and reported fleeting suicidal ideation, albeit without a plan.[13]
[12] Exhibit “2”, page 5.
[13] Ibid, page 3.
25Dr Sakdalan opined that:
“A confluence of factors such as [your] own experiences of sexual and physical abuse during [your] lifetime, coupled with [your] difficulties in maintaining and sustaining positive relationships with others, social naivete, [your] intense need for connection and acceptance, poor judgement and consequential thinking, problems with self-awareness and attempts to manage undiagnosed neurodivergence, would have likely contributed to [your] offending.”[14]
[14]Exhibit “B”, page 10, paragraph [73].
26On the balance of probabilities, I am satisfied that your neurodivergence (particularly your undiagnosed autism), together with your longstanding depression and anxiety and related bullying and isolation by way of childhood trauma resulting in undiagnosed Complex Post-Traumatic Stress Disorder, have all contributed to impaired judgement at the time of this offending. For these reasons, I am satisfied that Limb 1 of R v Verdins[15] has application. As I have already stated, I accept that the relevant context for this offending is that, due to your vulnerability and need for acceptance and emotional connection, you desperately wanted to be accepted by your online peers and it is through those online peers that you somehow were exposed to, and become involved in, this offence of possessing child abuse material.
[15](2007) 16 VR 269.
27I am also satisfied that Limb 5 of Verdins has application. Dr Sakdalan refers to you suffering severe disability by reason of your psychological distress (albeit that a component of your anxiety and depression is referable to your legal situation). I have already referred to the ways in which Mr Ball opines that your avoidant and schizoid personality features, autism and comorbid depression and anxiety impinge on your capacity for judgement and why they would make a custodial sentence weigh more heavily upon you than for other prisoners. I accept Mr Ball’s judgement. I also accept Dr Sakdalan’s assessment that your depression, anxiety and stress levels are in the extremely severe range, indicating that you are experiencing a clinically significant degree of psychological distress.
28Taking into the account the opinion of Mr Ball and Dr Sakdalan, and as a matter of commonsense, I conclude that, should you be imprisoned, your longstanding depression and anxiety for which you have now been medicated for some years, is likely to be exacerbated. I also consider it likely that your symptoms of Complex Post-Traumatic Stress Disorder, which are rooted in your childhood trauma of bullying and social isolation, are likely to worsen in a prison environment. I consider that your vulnerability is so high and your self-esteem is so low that you are likely to be adversely impacted by being in a prison environment. In spite of a relatively high IQ, you are likely to be unable to read basic social cues and are likely to be stood over or bullied, as you were in a school environment, only it is likely to be more intense in a prison environment. I note that you still have fleeting suicidal ideation, albeit no actual plan to take your life. You apparently attempted suicide by hanging when you were only 8 years old. I have already referred to you having attempted to take your life by taking an overdose of insulin after being interviewed by police in February 2021 and your mother’s reference to three occasions since, when you initiated crisis contact with your mental health support worker and were triaged to the CAT team at Peninsula Health. In short, I consider your complex psychological, neurodivergent, and personality profile to be such that a term of imprisonment may well crush you by removing you from what treatment and supports you have in the community. Thus, I am satisfied on the balance of probabilities that Limb 6 of Verdins has application in your case. This was ultimately conceded by the prosecutor, Ms Fitzgerald, at the plea hearing on 16 December 2024.
29Although quite a number of the images and videos were replicated on your various devices, there were still 135,449 unique images or videos, which is a significant amount of child abuse material. The seriously aberrant material, involving degrading or violent acts of sexual penetration of innocent young children is very disturbing. It is plain that a court must presume there is harm to victims, particularly those of a tender age, as depicted in much of the material. The number of images possessed, and the number of children thereby victimised, are both important factors to be considered in sentencing for this offence. However, other factors which are often present in child abuse material cases, are absent. These include such factors as possessing the material for sale or further distribution or profit.[16] Also, as previously mentioned, there is no material before the Court as to the length of time over which the material was possessed or the extent to which it was actually accessed by you.
[16]DPP (Cth) & DPP v Garside (2016) 50 VR 800.
30The fact that you are charged only with possessing child abuse material does not, of itself, mitigate the gravity of your offending. This is because the internet is so widespread and so accessible that those who exploit children in this vile way by creating and transmitting child pornography would not have a market for their evil trade were it not for those who possessed it. For this reason, generally speaking, denunciation of such conduct and general deterrence must be the predominant sentencing principles. General deterrence means that, through sentencing an offender, a message must be sent to others in the community who are minded to possess child pornography that this conduct will not be tolerated and will meet with appropriate punishment.
31The protection of the community is also a very relevant consideration in sentencing for this offence. Usually, a person possessing the quantity of serious child abuse material that you possessed should expect to receive a term of imprisonment. However, I have found that your moral culpability is significantly moderated by your complex neurodivergent and psychological conditions which impaired your judgement and, for this reason, there must be significant moderation of the application of the principle of general deterrence. In this regard, it is of some importance that your conditions of Autism and ADHD had not been diagnosed at the time of offending. I have also indicated my view that imprisonment is likely to be very difficult for you with your multiple psychological conditions and personality traits, and, indeed, your mental health is likely to worsen if you are imprisoned.
32Other matters which I take into account in sentencing you are as follows:
(a) I regard your plea as an early plea, given the protracted sequence of events between the filing hearing in the Magistrates’ Court and the charge finally being uplifted to the County Court;
(b) I regard your plea of guilty as being motivated by some remorse, noting that you apparently broke down when speaking to police on 22 January 2022, while describing as “sickening” the video of a baby which you said you had viewed. In this context, it is appropriate to, again, note that Mr Ball diagnosed you as showing symptoms of avoidant and schizoid personality functioning, which I consider may to some extent explain your denial of having personally downloaded the child abuse material. Further, Dr Sakdalan noted that your denial of sexual interest in or arousal from the child abuse material, when not associated with other risk factors, such as anti-social attitudes, may be a protective factor in that it may indicate that you do not associate with attitudes that support sexual offending.[17]
[17] Exhibit “B”, page 8, paragraph [64].
(c) Apart from some remorse, your plea of guilty does have very significant utilitarian value. You have saved the time and expense of a trial and have facilitated the course of justice. Also, there should be an added discount off your sentence attributable to the utilitarian value of your plea of guilty, as it was first indicated in the Magistrates’ Court on 31 July 2023. This was a time when criminal trial lists in the County Court were still congested due to the impact of the restrictions occasioned by the COVID-19 pandemic.[18] The prosecution has acknowledged that this matter did resolve while it was listed in the summary stream in the Magistrates’ Court in July 2023 and, hence, “[t]he utilitarian value of the plea of guilty is heightened by it being entered in the context of the COVID-19 pandemic”;[19]
[18]Worboyes v R [2021] VSCA 169, paragraph [39].
[19]Outline of Prosecution Submissions on Plea dated 11 July 2024 at page 3, paragraph [13] “MFI-A”.
(d) It is to your credit that, since being charged with these offences, you have endeavoured to address your mental health problems:
(i)You have maintained regular contact every one to three weeks with your general practitioner, Dr Luci Drake.[20]
[20]Exhibits “1” and “8”.
(ii)You have been linked in with the HOPE team at Peninsula Health. This team supports people who are at risk of suicide. On 13 February 2024, the HOPE team referred you to Mr Earl Wyatt, a community mental health practitioner at Mentis Assist in Mornington. A letter from Mr Wyatt to the Court, dated 11 July 2024, notes your history of depression and anxiety, autism, social isolation, awkwardness and social vulnerabilities and wanting to be accepted by peers. You have engaged regularly with the Mentis program every week for one or two hours and Mr Wyatt states that you are working on community exposure and strategies to overcome anxiety in these settings, with a view to working towards social interaction and group activities.[21]
[21]Exhibit “5”.
(iii)A report was tendered from Ms Latif, psychologist, whom you saw on four occasions between 26 August and 7 October 2024, and your counsel stated at the hearing on 16 December 2024 that you have continued to consult every 3 weeks, with your most recent consultation having taken place on 11 October 2024. Ms Latif is aware of your history of depression, anxiety, avoidant personality type and recent diagnosis of Autism Spectrum Disorder. Your treatment with her focuses on you developing social skills and managing your anxiety and depression. She considers it would be appropriate for an application to be made on your behalf to the National Disability Insurance Scheme to assist you with your goals (a matter also mentioned by Dr Sakdalan[22]). Ms Latif stated that you have already engaged reliably with her and are keen to address your concerns in treatment. She considers your poor social ability and feelings of isolation were contributing factors to your offending and it is likely your mood and social ability will improve through psychological treatment, resulting in you being able to expand your social network and reduce feelings of isolation.
(e) Up until last week when you were one of 10 people retrenched from your employment, you continued to engage in full-time employment as a logistics despatch support officer with Oji Fibre Solutions. According to your counsel, you retrained for this type of work after your work-related back injury in 2015. Your work there involved compiling loads for delivery on a computer, organising delivery drivers and arranging delivery dockets and pallets for loads. A letter from Ms Belinda Brunton from Oji Fibre Solutions confirmed that you held the role of despatch support officer since 9 May 2022.[23] The reference from your mother noted you had been with that employer for in excess of three years.[24] There is a further reference from Palvindar Singh, director of B&G Transport Services Pty Ltd, dated 10 July 2024, which states that the author has known you in a work context for one year and eight months and he speaks of your good character and the respect and integrity that you show towards others with whom you work.[25] I consider that your employment has been a very important pro-social activity in giving you a sense of ongoing purpose, given what has been described by Dr Ball as your “crushingly low self-esteem”.[26] Since being retrenched last week, you have made applications for two other similar positions with other businesses and have been interviewed for one of those positions so far.
(f) I note there has been significant delay in this matter, which is in no way attributable to you. There was a quite lengthy delay between the search warrant being executed and your record of interview on 11 February 2021 and charges being served upon you on 17 November 2022. Further delay was occasioned by police prosecutors having left the charge in the summary stream of cases in the Magistrates’ Court until an application was made to uplift it on 27 September 2023, and your application for summary jurisdiction was ultimately refused on 12 February 2024. I accept this delay would have weighed heavily upon you, particularly given your symptoms of anxiety and depression, which Dr Sakdalan has described as being in the extremely severe range, indicating that you are experiencing a clinically significant degree of psychological distress. Unfortunately, there have been further delays since 12 July 2024, which have not been occasioned by yourself and which I accept have protracted this distress.
(g) You have no prior convictions of any sort and it is now three years and ten months since the offending and there has been no further offending by you. Thus, you have used the delay to assist you in rehabilitation and this bodes well for your future. I accept that you endeavoured to engage in offence specific treatment with Ms Kim Dowse, psychologist, on two occasions, but she held the view that it was not possible to treat you whilst you continued to deny that you had downloaded the child abuse material.[27] Dr Sakdalan disagrees with this view, to which I will refer to in due course. In any event, your plea of guilty does recognise that you accept the moral depravity of child abuse material. I accept that the lack of prior or subsequent offending by you is significant in showing that you grasp the evil of child abuse material.
(h) (i) Although Mr Ball indicated there is no instrument to measure the risk of recidivism of offenders charged with child abuse material offences, he noted that risk assessment for such offenders is often based on personality factors, such as psychopathy, antisocial personality features and other high risk behaviours and lifestyle, and disclosures by the offender.[28] I note that none of these features are said to be present in your case.
(ii) Dr Sakdalan, who is the principal psychologist at the Victorian Institute of Forensic Mental Health, has done what appears to be an assiduous risk assessment with recognised tools, while acknowledging the limitations of those tools. In particular, he has noted that you do not meet the criteria for a diagnosis of paedophilic disorder, do not exhibit a pervasive and stable pattern of sexually-deviant preference, have no past or recent evidence of psychopathy, problems with substance abuse or problems with sexually-violent ideation. He noted, utilising the Child Pornography Offender Risk Tool, that there were no risk factors endorsed. He stated that, while it is possible that you developed a transient deviant sexual interest towards child abuse material and your denial may be a function of your struggle to come to terms with your offending, your denial, itself, does not necessarily increase the risk of sexual recidivism. He stated that a denial:
“… becomes relevant when associated with other risk factors such as antisocial orientation/attitude. and ongoing deviant sexual behaviours. In this case, there does not seem to be any evidence that [your] behaviour progressed to engagement in other risk behaviours such as the production of CAM, seeking out chat rooms, writing child pornography text stories, or volunteering in a role with high access to children. Furthermore, [you have] not engaged in any further offending following [your] charges.”[29]
[22] Exhibit “B”, page 11, paragraph [79] (c).
[23]Exhibit “6”.
[24]Exhibit “3”.
[25] Exhibit “7”.
[26] Exhibit “2”, page 4
[27] Exhibit “4”, Report dated 8 September 2023.
[28]Exhibit “10”, report of Mr Ball dated 27 November 2024, page 2.
[29]Exhibit “B”, page 10, paragraph [72].
33I consider that it is a significant factor in your favour, given the quantity of child abuse material in your possession, that there was no escalation to other offending, such as transmission of child abuse material or attempts by you to make sexual overtures to children either on the internet or in person. I accept Dr Sakdalan’s opinion and find that, in this case, notwithstanding the number and gravity of the videos and images, you are now in no doubt about the seriousness of possessing such vile material involving real children, as victims and that this knowledge has weighed heavily upon you over almost 4 years now. In these circumstances, I do not see a need for great emphasis upon the principle of specific deterrence. Although you have a real need for ongoing support and treatment, I consider that you are willing to engage with treatment and that your prospects of rehabilitation are likely to be reasonably good if you do so. Both Ms Latif and Dr Sakdalan have expressed some optimism in this regard.
34I have wrestled with the sentence to be imposed in this case. I am conscious that you possessed a very large number of videos and images which depicted real children who were being degraded and exploited in a morally repugnant manner. As I have said, there is presumed to be harm to these victims and general deterrence and protection of the community generally mean that this crime would warrant a term of imprisonment. The prosecution has submitted that a term of imprisonment is necessary to give proper effect to the relevant sentencing principles and to reflect the objective gravity of the offending. The prosecutor was right to express her concern about the opinion of Ms Kim Dowse, the psychologist whom you consulted who opined that it is not possible to engage you in individual treatment because you had denied interest in the images.[30] However, the report from Dr Sakdalan has given the Court some reassurance in relation to this issue. Specifically, Dr Sakdalan stated:
“Research has shown that non-criminogenic factors, which include victim empathy and denial, are not reliably indicators of recidivism; hence, it is not a requirement for Mr Bryant to fully admit his offending for him to be considered for treatment. I am of the opinion that it is still possible to provide treatment to Mr Bryant to address his offending despite his denial. In this case, Mr Bryant partially denied his offending, ie, denying that he downloaded the CAM; however, he admitted responsibility for the CAM being found in his server and pleaded guilty. The treating therapist can still address issues such as poor judgement and consequential thinking, underlying psychological issues, and assist him in developing a risk management plan.”[31]
[30]Exhibit “4”.
[31]Exhibit “B”, page 10, paragraph [75].
35On the other hand, your counsel points to your reduced moral culpability due to the opinions of Mr Ball and Dr Sakdalan that the various conditions diagnosed by them likely contributed to your offending, together with the application of Limbs 5 and 6 in Verdins case, as well as Dr Sakdalan’s view that you are at low risk of reoffending, and also your need for treatment.
36Mr Ball noted that you had had minimal treatment for your autism and avoidant and schizoid personality features and given their severity they would not remit without extensive treatment and long-term management. He stated that you will “[r]equire intensive and structured treatment for [your] avoidant and schizoid personality features and treatment and psychoeducation related to [your] autism”.
37Dr Sakdalan’s conclusion also points to the need for significant treatment. He stated as follows:
“The DASS-42 test finding … revealed that Mr Bryant has been experiencing a clinically significant degree of psychological distress. The RAADS-R assessment finding indicated that his responses were consistent with autism. His ASRS symptom profile was consistent with ADHD inattentive type. The ITQ test result revealed that Mr Bryant’s scores were consistent with a diagnosis PTSD and complex PTSD. Based on his history and presentation he seemed to have PTSD symptoms due to a resurgence of the childhood trauma and the trauma related to his offending. Mr Bryant’s overall level of disability, as measured by the WHODAS 2.0, was assessed to be in the severe range.”[32]
[32]Exhibit “B”, page 10, paragraph [76].
38Dr Sakdalan went on to note that the risk assessment findings revealed that you were a low case prioritisation and did not appear to pose an imminent risk to the community. He noted that, since being charged, you had severed ties with online peers. He made the following recommendations:
(a) “Based on the findings that he carries a low risk of reoffending, Mr Bryant would not require group-based offence-specific intervention (ie. Sexual Offender Treatment Program). However, it is recommended that he continue to engage with a psychologist to resolve his trauma issues, develop a greater understanding of neurodivergence, and improve his insight into his offence cycle and offending issues. Given Mr Bryant’s diagnosis of C-PTSD, he may benefit from engagement in evidence-based trauma-specific intervention (eg. trauma-focussed cognitive behaviour therapy, eye movement desensitisation and reprocessing).
(b) Mr Bryant could be referred to the problem behaviour program (PBP) within Forensicare, whereby he could be assessed for suitability for CEM-COPE (an empirically informed group treatment program for CAM-only offenders). Such could be incorporated into a Community Correction Order if the Court concludes this is the most appropriate sentence. Alternatively, he could be referred after a period of imprisonment if that is the outcome of the Court. It is unlikely that Mr Bryant would be eligible for group-based intervention in a custodial setting due to his low-moderate case prioritisation.
(c) Mr Bryant should be supported in undergoing a full diagnostic assessment for ASD to determine his eligibility for NDIS funding.
(d) If he receives a community-based order, Mr Bryant would benefit from continuing to engage in meaningful employment.”[33]
[33]Ibid, page 11, paragraph [79].
39I am conscious that I must impose a sentence of a severity appropriate in all the circumstances. I have had regard to the matters in s 5 of the Sentencing Act (Vic). I have also had regard to other sentences for this type of offence. However, as was acknowledged by the prosecutor, Ms Fitzgerald, and also, your counsel, Ms Thomas, it is difficult to find other cases in which any offender is charged solely with possession of child abuse material. Generally, there are other charges of producing or transmitting child abuse material, or contact offending with a child. It is trite to say that no two cases are the same and I did not find the case of Hutchinson v The King[34], mentioned by Ms Fitzgerald, to be a relevant or comparable authority, given that the offending in that case spanned some 7 years and other charges were involved apart from possession of child abuse material. In your case there is no evidence as to how much of the child abuse material was accessed by you or how regularly. Certainly, there is no evidence that you sorted, labelled or bookmarked any of it for your own use.
[34] [2022] VSCA 217.
40Having anxiously considered all of the material before me, I cannot be satisfied that the sentence of last resort, imprisonment, is the only appropriate sentence in all the circumstances of this case. The mitigatory factors to which I have referred, in combination, are quite powerful. The treatment needs relating to your neurodivergent, psychological and personality profile must be carefully addressed. I am not satisfied that the necessary multi-disciplinary treatment would be available to you in custody, and I have already expressed my concern that your longstanding mental health issues may decline. Dr Sakdalan has made it clear that your low risk of reoffending makes it unlikely that you would be eligible for group-based intervention in a custodial setting.
41There seems to me to be considerable wisdom in the treatment recommendations of Dr Sakdalan, particularly the Problem Behaviour Program with Forensicare, which would enable you to be assessed for suitability for a group treatment program for child abuse material-only offenders. This is a situation where, in my view, your level of psychological distress is acute and the need for treatment for long-term childhood trauma, as well as to explore appropriate treatment for your offending, is critical to you being rehabilitated, and hence, critical to protecting the community.
42In my view, your long-term history of trauma, isolation, social awkwardness and inability to connect with others which is now diagnosed as due to your autism, together with your anxiety, depression and known suicidal ideation, call for the exercise of some mercy in sentencing. You have had an unusual, sad and reclusive life. You had no contact with your father once your parents separated when you were aged 18 years and you have never left the home of your mother. You have the ongoing support of your mother and, also, your older sister and have a good work history. In all of the circumstances I have determined that the appropriate disposition should be that of a Community Correction Order.
43I made a request that you be assessed for suitability for a Community Correction Order, and I have had the benefit of a report dated 16 December 2024[35] which assesses you as suitable for such an order. It is my view, given the lack of availability of likely treatment for your complex combination of neurodivergent, personality and psychological issues within the custody system, and the pressing need for such treatment which has been emphasised by both Mr Ball and Dr Sakdalan, that a Community Correction Order is the disposition most likely to ensure that you achieve the treatment that you require whilst permitting you to remain in the community with the support of your mother and sister, as well as permitting you to obtain future employment to enhance your chances of connecting with others in the community, and provide you with the dignity of earning your own living.
[35]Exhibit “C”.
44On one charge of knowingly possess child abuse material, you are convicted and sentenced to undertake a Community Correction Order for a period of three years.
45The standard terms of that Community Correction Order are as follows:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
(b) You must comply with any obligations or requirements prescribed by the regulations.
(c) You must report to and receive visits from the Secretary during the period of the order.
(d) You must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force.
(e) You must notify the Secretary of any change of address or employment within two clear working days after the change.
(f) You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary.
(g) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
46In addition to those terms, the following conditions apply to the order:
(a) That you perform 150 hours of unpaid community work throughout the period of the order.
(b) That you must be under the supervision of a Community Corrections Officer for a period of 3 years.
(c) That you undergo mental health assessment and treatment for your conditions of Anxiety and Depression, Complex Post-Traumatic Stress Disorder, Autism, and Attention Deficit Disorder (inattentive type).
(d) That you be assessed for and undergo any program for addressing your offending behaviour; in particular, the Problem Behaviour Program run by Forensicare.
47I further order that any hours of treatment or rehabilitation undergone by you pursuant to the conditions of this order be deducted from the hours of unpaid community work required to be performed by you.
48Mr Bryant, you need to understand that I cannot make this order unless you consent to it. Do you consent to it?
49OFFENDER: Yes, Your Honour.
50HER HONOUR: You need to understand that should you contravene this order without a reasonable excuse, then that, in itself, is a criminal offence punishable by a maximum of three months’ imprisonment. Should you contravene the order, it is likely that you will be brought back before the Court for such contravention and it may well be that you are at risk of having the order cancelled and being resentenced for this offending to a term of imprisonment. Do you understand that, Mr Bryant?
51OFFENDER: Yes, Your Honour.
52HER HONOUR: Upon you have been convicted of a Schedule 1 offence, namely knowingly possessing child abuse material, I order pursuant to s33(1) of the Confiscation Act1997 that the property referred to in the schedule be forfeited to the Minister. This property comprises the Google Pixel 4 mobile phone, the Intel Core i7 computer tower, another Google Pixel mobile phone, the Coolermaster computer tower, and the WD external hard drive.
53As the charge of knowingly possess child abuse material is a Class 2 offence, you fall to be registered under the Sex Offenders Registration Act, and the requisite length of the period of reporting is eight years, pursuant to s34(1)(a) of that Act. I will have my Associate provide to you a copy of your obligations under that order, and ask that you acknowledge receipt of that information, please, Mr Bryant.
54Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your plea of guilty, the total effective sentence imposed would have been 18 months' imprisonment with a non-parole period of 9 months.
0
5
0