Director of Public Prosecutions v Buckley

[2019] VCC 892

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-01043

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK BUCKLEY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	12 June 2019
DATE OF SENTENCE:	18 June 2019
CASE MAY BE CITED AS:	DPP v Buckley
MEDIUM NEUTRAL CITATION:	[2019] VCC 892

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. R. Furletti	Office of Public Prosecutions
For the Accused	Ms. A. Dosanjh	Tyler Tipping Woods

HIS HONOUR: 

1Mark Buckley, you have pleaded guilty to one charge of using a carriage service to access child pornography and one charge of possession of child pornography.  Those crimes carry maximum penalties of 15 years and 10 years' respectively. 

2You are now 61 years of age.  It could not be said that the plea of guilty was at an early stage, and indeed the matter dragged on for some time while you persisted with your innocence. 

3Accordingly, remorse is problematic, though obviously with a plea of guilty I have to give some accord to it.  You also, in this situation, get the utilitarian benefit of that plea of guilty.  You do have prior convictions and findings of guilt and I will refer to those later.

4This is a case where there has been a very significant delay between the offending being detected and the matter coming before the court.  A significant part of that is because you pleaded not guilty - or sorry- were pleading not guilty and denying the offending, but I do take that delay into account in determining the sentences to be imposed.

5The circumstances of the offending are that in June of 2016, police attended at your address and executed a search warrant.  Mobile phones, a laptop and hard drives were located and seized and taken back to the Morwell Police Station.

6Between June and November 2016, the items were analysed by a digital forensic analyst and the child sexual abuse material was found on them.

7This is not a situation where I need to go through, in detail, all the various images that were identified.  I can simply say this that there were realistically something in the order of about 20 images that could be described as pornographic. 

8I am well aware of the circumstances of other material being found and how that is usually described, but it's fair to say that this is at the lower end of the offending of this sort, and there are none of the very serious categories involved.  Unfortunately, Mr Buckley, in your situation that is not where the problem ends. 

9During the search, history records were located that contained a reference to anti-forensic tools that might have been used to delete information from computer hardware, but there is no software on the hardware to that effect. 

10The internet history of the hard drive revealed that searches had been undertaken using a number of key words, all of which involved child pornography or the connected images of child pornography. 

11The last date that it could be ascertained that you had accessed the material was 19 June 2016.  The charges relate to a short time frame but it is clear that it would have been there for an indeterminate period prior to that, but you are not to be sentenced on the basis of it being a repeated and continuing offence.

12When interviewed by police, you denied knowledge of all the matters and said that someone must have hacked your computer.  There is no victim impact statement, there never is in these matters, and there is no need for it.  People are well aware of the consequences of child pornography on the children who are compelled to take part in it, and accessing it and using it simply approves of, and gives incentive to people to make it. 

13The offending has to be regarded as serious, despite being at the lower end and calls for the application of general, and in your situation, specific deterrence, as well as denunciation and an appropriate punishment. 

14What then becomes important is your prior history and 2010, you were convicted in the Australian Capital Territory Supreme Court and sentenced to 16 months imprisonment to be released after serving three months imprisonment, for possessing child pornography. 

15In February of 2016, you were sentenced to be imprisoned for what, on the record at least, says was a total of 15 months suspended for indecent act on a person who I understand from the material was your step-daughter and that occurring over a one day period. 

16That matter was then adjourned, effectively for some 18 months for you to accept supervision.  During that, I was informed from the Bar table, you were to do a Sex Offenders Program.  Difficulties arose with that and you were charged with not complying with it.  In any event that order was breached and it was dealt with on 12 April of 2018. 

17The original order was cancelled and you were re-sentenced to a total effective sentence of 15 months' imprisonment, wholly suspended on a good behaviour bond for 16 months subject to you attending appointments with a psychologist and a security of a thousand dollars.  It appears that there were appointments with psychologists that you did attend, and you were seeing a Mr Redmond who is known to me, and also Mr Lee Minton, who is also known to me.

18The difficulty with it is, that the offending to which you were charged here, occurred at the most extreme, within four months of that good behaviour bond being imposed.

19I do not know what is going to happen in the Australian Capital Territory in regard to this breach.  At the time that you were dealt with up there for the breach of the original order, this matter was proceeding as a not guilty, and accordingly that judge was unable to take it into account.  I cannot even take that into account in terms of totality or anything along those lines.

20The difficulty in your situation, Mr Buckley, is that you have been gaoled for this before, you are on an effectively suspended sentence for sex offending and within months of being placed on that, you did it again. 

21You were 58 at the time of offending.  You have two children, you have limited contact with them.  Your relationship with another partner lasted 14 years and it was the daughter of that partner who was the victim of your offending that resulted in the wholly suspended sentence.  I note that that offending was historical and it occurred back in 1999.  It is more the breach of the suspended sentence that is of concern to me. 

22You did have a reasonably good work history.  You were with the Army and the Australian National University.  When you were charged with the child pornography back in 2010 and gaoled, your work was then terminated, and you have not worked since. 

23You have had depressive illnesses over a period of time, and have previously been prescribed anti-depressants.  You had a heart attack when you were 47 and a bypass on 6 August of 2018. 

24I do not need to go into the difficulties that you had when endeavouring to comply with the Sex Offender's Program previously.  You apparently told people you thought it was a waste of time.

25It had been hoped by the judge in the Australian Capital Territory whose reasons have obviously been tendered and which I have read, that that could be somehow dealt with.

26You are in effect now on your own.  You have no dependents such as I understand it.  It is clear that you knew what you were doing was wrong.  You have been described as having autism. 

27Relating that to this offending is a little bit difficult but I can accept that it may cause you to have greater problems relating to others and in understanding social nuances than it might, for somebody who did not have that condition. 

28I do not know how you went in gaol previously, but I also accept that the fifth limb of Verdins, in fairness to you, would come into effect in terms of a custodial sentence being difficult because of your condition. 

29Your counsel argued for a community corrections order, and I had you assessed for that.  As I indicated at the time, I was doing that out of essentially an abundance of caution.  I have now read that report which did find you suitable, with some obvious reservations because they wanted judicial monitoring. 

30As indicated the other day and having given the matter anxious consideration over the last few days, my view as tentatively expressed then, was that well, you  have done this, and you have done it before.  There is really only one sentence open.

31I do take into account that it is at the lower end of child pornography, if there can be such a concept, but it seems to me that your rehabilitation is realistically up to you. 

32The risk of your re-offending has to be moderate to high, if not high, in these circumstances and accordingly, I sentence you on Charge 1, to be imprisoned for a period of four months.  I direct that that sentence commence today. 

33I direct that on Charge 2, you be sentenced to be imprisoned for a period of three months and I direct that that sentence be served concurrently with the sentence on Charge 1, so be known better as the overall sentence is one of four months' and that sentence will commence today, pursuant to s.6AAA in this situation, six months. 

34MS DOSANJH:  As Your Honour pleases.

35HIS HONOUR:  All right, no other orders I need to make ladies?

36MS FURLETTI:  Just the 464ZF order and the disposal order.

37HIS HONOUR: The disposal order has been made. Pursuant to s.464 of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having  been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you. 

38MS DOSANJH:  If it please, Your Honour.

39HIS HONOUR:  All right, thanks gentlemen. 

40MS DOSANJH:  Thank Your Honour.

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