Director of Public Prosecutions v Campbell
[2017] VCC 771
•14 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 16-00009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN CAMPBELL |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2017 | |
DATE OF SENTENCE: | 14 June 2017 | |
CASE MAY BE CITED AS: | DPP v Campbell | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 771 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:DPP v O’Neill [2015] VSCA 325; Dwayne Williams v R [2017] VSCA 130; R v Verdins
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms M. Curmi | Office of Public Prosecutions |
| For the Accused | Mr S. Norton | Stary Norton Halphen |
HER HONOUR:
1 Lachlan Campbell, you have pleaded guilty to one charge of accessing child pornography material pursuant to s474.19(1) Criminal Code (Cth), the maximum penalty applicable is 15 years’ imprisonment. You have also pleaded guilty to one charge of possessing child pornography, contrary to s70(1) Crimes Act 1958 (Vic). The maximum penalty applicable for that offence is 5 years’ imprisonment.
2 These crimes arise out of events which took place between 17 June 2010 and 27 January 2015 and subsequently when police attended your home on 3 September 2015.
3 It is not necessary for me to recount in great detail the facts in this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor.
4 I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing.
5 On 31 May 2015, the Australian Federal Police High Tech Crimes Operations (HTCO) Assessment Centre received information through the National Centre for Missing and Exploited Children. That information related to child exploitation material (CEM) being uploaded to a Microsoft Sky Drive by the user of email account [email protected].
6 The internet IP address utilised at the time of uploading the images was 220.239.32.139. Enquiries with internet service provider Optus identified the subscriber of that IP address as Marion Campbell born 4 August 1949 at an address in Surrey Hills, Victoria.
7 Police viewed the files shared with police and classified them as child pornography.
8 At approximately 7.15am on Thursday, 3 September 2015, the AFP attended that Surrey Hills address for the purposes of executing a search warrant. You were at the premises at the time.
9 Police conducted an on-site preliminary analysis of electronic devices located at the premises and subsequently seized a number of items, a black Mybook hard drive, an Acer laptop computer, a Seagate 2TB hard drive and a black Toshiba laptop computer.
10 You participated in a recorded conversation during the course of the search with police and said the black hard drive was yours and acknowledged files on the hard drive were very inappropriate. You said you had not used it in a long time, that it had been unplugged and that no one had access to the hard drive. You said you had bought it brand new.
11 You were arrested and made a ‘no comment’ interview, which of course was your right. You were then subsequently charged and bailed.
12
Forensic examination of the electronic devices seized during the search revealed a total of 2,004 unique child pornography files created between
17 June 2010 and 27 January 2015. Those files were classified according to the characterisation model for child exploitation material and a description of those categories is contained within the prosecution opening at paragraph 8. I discussed the method of ‘creation’ during the course of the plea hearing. The types of images are classified using the CEM scale and the type of material contained in each CEM category is set out in that prosecution opening (Exhibit A, para 8).
13 A number of items were identified on the items seized and classified as child pornography files. In CEM category 1, there were 48 images and 56 videos, a total of 104. CEM category 2, 87 images and 74 videos, a total of 161. CEM category 3, 168 images and 46 videos, a total of 214. Category 4, 434 images and 586 videos, a total of 1,020. CEM category 5, 32 images and 28 videos, a total of 60.
14 There were over each of the five categories a total of 1,206 images and 790 videos, a total, as I have said, of 2,004 unique (ie: not multiple copies).
15 Specifically referring to the category 1 images and videos located, there was erotic posing of children with no sexual activity, the children identified in that category between approximately 6 months of age and 12 years. Further details of that material was provided within the prosecution opening (para 10).
16 In category 2, items located were of boys and girls engaged in self masturbation or between children and one video involving a 3 or 4 year old girl. There were videos in that category of children of a similar age and described in the prosecution opening (para 11).
17 In category 3, amongst other items there was an image file of a naked infant boy on the groin of an adult male and other videos as described (Exhibit A, para 12).
18 Category 4 involved numerous video files of penile/vaginal penetration involving a large number including infants (see further description Exhibit A, para 13).
19 In category 5, were items including a video described as 5 minutes in length involving a small infant boy. I shall not further describe this, as it is already contained within the prosecution opening (para 14), but I have certainly read it.
20
Forensic analysis of the items seized revealed 1,971 child pornography files on the Mybook hard drive with file creation dates between 22 February 2013 and 27 January 2015. No files were deleted. This was discussed in light of your instructions to others that you deleted most of the files. I was advised by Mr Norton, on your behalf, you did not maintain those original instructions, nor I add did you mention your downloading and creation was accidental.
Mr Norton conceded the downloading and creation occurred on multiple occasions.
21 On the Acer laptop computer a number of files were located with 20 of the file names indicative of child pornography material. There were also deleted files with creation dates between 6 December 2013 and 7 October 2014. Examples of those file names are seen within the prosecution opening (para 16).
22 On the Seagate 2TB hard drive, a number of file names also included reference to child pornography terms.
23 Thirty-three child pornography files with creation dates between 17 June 2010 and 15 February 2013 were located on the black Toshiba laptop computer.
24 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community, by your pleas of guilty, has been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. Your pleas have utilitarian benefit.
25 I note this matter proceeded on 8 January 2016 to committal mention by way of straight hand-up brief after you indicated you would plead guilty to these two charges.
26 A chronology from your date of arrest to this present hearing was within the prosecution opening. It appears delay in this plea being heard was due to your health and not due to delay by the prosecution.
27 Mr Norton prepared a written outline of submissions for your plea hearing. In that he accepted that the chronology prepared by the prosecution was accurate.
28 Mr Norton relied heavily upon your mental health at the time of sentence as being complex and significant, based upon the various reports placed before me. As such he urged you were not an appropriate vehicle for general deterrence consistent with the principles outlined in DPP v O’Neill[1] (in particular paragraphs 43, 47, 51, 54 and 57‑59). Also the most recent decision of Dwayne Williams v R[2]. Transcript will reveal that discussion.
[1] [2015] VSCA 325
[2] [2017] VSCA 130
29 Mr Norton conceded it was not asserted that the evidence demonstrated a direct causal link between your mental health and your offending, however he urged and I accept, general deterrence was also relevant at the time of sentencing you. He conceded that whether general deterrence was moderated or eliminated depended on the nature and severity of your mental illness. He submitted in your case, the nature and severity of your mental illness was profound, relying principally upon the reports tendered and the evidence given by Professor Carroll.
30 He submitted that the evidence before me demonstrated the burden of imprisonment upon you would be quite exceptional, consistent with a report of Professor Carroll (paragraph 121-129).
31 Mr Norton also submitted the evidence was clear that your condition was likely to substantially worsen in custody.
32 Mr Norton referred to you currently being under treatment with neurologist, Dr Ng, and Dr Cocks. Imprisonment would be more of a burden for you than for a prisoner without these issues, and also referred to your extensive medication regime.
33 I turn to the reports relied upon.
34 There was a report from Dr John Cocks dated 14 June 2016 who had been treating you since 2012. Your diagnosis was of ADHD and schizophrenia.
35 He described your attentional difficulties were first apparent in early childhood significantly impacting on your education. Despite that, he noted you were clearly of “above average intelligence” and had been doing well as an Enterprise Architect until the onset of psychosis.
36 It was unclear when your psychosis began, although it was noted there had been a decline in your social functioning since 2010-2011. Since that time, you had been increasingly preoccupied with paranoid ideas. Dr Cocks referred to you having in the past had a number of (appropriate) adult heterosexual relationships with women around your own age, and in the time he had spent with you, you had not expressed any sexual interest with underage people.
37 Dr Cocks referred to you having significant substance abuse over the years, particularly as a teenager. Regarding your psychotic disorder, your response to treatment had not been very successful. You had recently started Clozapine, the most effective anti-psychotic medication, however, that required careful monitoring due to its potentially severe side effects.
38 Reference was made to a worsening of your psychosis in April this year being discharged some three to four weeks prior to his report, from hospital that is.
39 You had expressed disgust at ideas of sexual matters involving underage children.
40 He said you remained very fragile with the recent introduction of Clozapine. In his opinion, it would be highly likely at this time imprisonment would be distressing for you.
41
There was a report from Dr Lester Walton, Consultant Psychiatrist, dated
6 April 2016, who examined you on 15 March 2016.
42 You told Dr Walton you encountered child pornography in the midst of pursuing legitimate adult imagery. A position now not maintained by you. You said you routinely deleted child pornography material if you encountered it, although acknowledged that the 2,004 images and videos remained. You acknowledged you recognise the images to be illegal images of child pornography and that you were curious when you viewed the materials and that there was a degree of sexual arousal at times with associated masturbation. I note your instructions to Professor Carroll regarding the latter was different from your description to Dr Walton. You said you expressed horror at some of these more extreme images.
43 Dr Walton referred to you previously being diagnosed with paranoid schizophrenia, and he referred to a number of occasions you said you had been hospitalised, the last in approximately August 2015 at Albert Road Clinic for approximately three weeks.
44 Dr Walton referred to your background history. You are 31 years of age at sentence. You completed Year 12 at Camberwell Grammar School. You then became a trade relationship officer with the ANZ Bank and then went to work for Alcoa as a bank liaison officer.
45 You returned to the ANZ Bank as a business process architect, later becoming a team leader with Telstra. You are now an invalid pensioner.
46 You had recently been in a de facto relationship for seven years until that ended in 2012. It appeared that there were issues with your then consumption of alcohol. You now live with your parents.
47 You are the third of four siblings and there is no family history of mental disturbance.
48 You currently described a hermit-like existence with no social life, stating that “I like to read.” You now only consumed alcohol occasionally.
49 At the time of interview, you were not experiencing hallucinations nor were you thought-disordered. In Dr Walton’s opinion, you were not floridly psychotic, however there were residual psychotic symptoms.
50 He described you as a man of normal intelligence with only quite minor cognitive deficit. There were no current problems with substance abuse.
51 Dr Walton stated you did not have a formal defence of mental impairment and that even if you had been actively psychotic during the period of your offending, he could find no particularly relevant delusions or hallucinations pertaining to the acquisition of child pornography.
52 Based on your account, you did not seem to have a primary and preferred sexual interest in children. Dr Walton would not describe you as a paedophile.
53 In the opinion of Dr Walton, you would require close monitoring in custody and any changes in medication would not be easy to effect in prison.
54 There were also two reports from Associate Professor Andrew Carroll, Consultant Forensic Psychiatrist, the first dated 28 August 2016. He was requested to provide a report regarding your fitness to stand trial and various psychiatric matters relevant to sentencing. He interviewed you for approximately 89 minutes including a brief time with your father. There was no evidence you were actively hallucinating during the interview. You were alert throughout the interview. Formal testing revealed very significant cognitive deficits. You were somewhat vague with respect to your diagnosis, although accepted a notion of having a persistent mental illness. Further details were provided regarding your background. You reported being very close to your siblings, especially an older brother, Tim and sister, Melissa. You are currently in receipt of a disability support pension.
55 You had previously been diagnosed with ADD in your teens then diagnosed with paranoid schizophrenia in approximately 2010. You had been on a trial of various anti-psychotics over the years. Early in 2016 you commenced on Clozapine.
56 You described a history of cannabis use in your late teens, LSD when you were younger, denying any other illicit drug use. You did not consume alcohol to excess.
57 Turning to your education, you spent a year at university before dropping out to commence paid employment. Thereafter you had a very successful business in the finance industry prior to the onset of your mental illness.
58 Regarding your offending, you described having inadvertently downloaded a virus or something that contained all this material (paragraph 79). You said you downloaded adult pornography material fairly often over the course of the year for masturbatory purposes, but denied using the child-related material for sexual gratification. I discussed with your counsel some inconsistencies in that description compared with your instructions to Dr Walton, as I have previously stated. You said you did not know what you were downloading, that the voices told you “just to get porn” (not child material specifically). You now resile from that position.
59 In summary, according to Professor Carroll you had an unremarkable developmental history, and a very successful professional life prior to the onset of mental illness in your mid‑twenties. You consistently denied any sexual interest apart from adult females. At the time of that report, you continued to have active psychotic symptoms, although at the current time those related to your cognitive status.
60 Professor Carroll described you giving a rather vague account of being encouraged to download pornography by hallucinatory voices. However, at no stage did you indicate the voices instructed you to download child-related material. He did not believe there was any direct link between those delusions and hallucinations and your offending behaviour. There was, however, he said an indirect link between your mental illness and your offending. Your offending was facilitated by your psychosocial decline and being unable to hold down intimate heterosexual relationships.
61 In his opinion, your mental health would suffer in a custodial environment, with possible concerns regarding your ability to receive and take appropriate medication. In his opinion, you would find prison more burdensome than the average prisoner due to your mental illness.
62 Professor Carroll was unable to give an opinion regarding your risk of recidivism, although generally considered it to be “guarded”. I agree.
63 I also received a further report from Professor Andrew Carroll dated 31 May 2017, to provide a further opinion with respect to your fitness to stand trial and psychiatric factors relevant when sentencing you. You were examined by Professor Carroll on 24 May 2017. Your major preoccupation at that time was with hallucinatory voices which you found distressing. There was also associated delusional thinking. Your hallucinations included visual and tactile modalities. You described being “extremely paranoid” and that you rarely left the house unaccompanied.
64 In the opinion of Professor Carroll, your cognitive status had significantly improved from his earlier assessment and report in August 2016. You also scored within the normal range on the memory domain. You were not slow in responding in the way you had been in August 2016. You impressed as a person of significantly above average premorbid intellectual capacity. You gave an account of a serious suicide attempt in January 2017, which appeared to be consistent with information provided by your parents. You were also understandably anxious about the court matters.
65 In the opinion of Professor Carroll, there was ongoing evidence of persistent, active psychotic symptoms in the form of hallucinations. Further, information from your parents referred to you needing prompting to adequately care for yourself. You were very dependent on your parents in terms of activities of your daily living and compliance with your medication regime.
66 You are still living with your parents in Surrey Hills and described a very limited impoverished lifestyle, with very little contact outside the home. That does concern me and I will come back to that in a moment.
67 Professor Carroll confirmed ongoing psychiatric care with Consultant Psychiatrist Dr John Cocks at Albert Road Clinic.
68 In Professor Carroll’s first interview with you in August 2016, he was of the opinion your medication regime was impacting on your cognitive status. At the recent assessment, there had been some improvement in that regard and he noted your medication regime had been revised.
69 In the opinion of Professor Carroll, your psychiatric picture was complicated by co-existent grand mal epilepsy, for which you are currently under the care of a neurologist (Dr Ng).
70 In his report, Dr Carroll set out the various medications you were currently taking (paragraph 70). Professor Carroll was under the impression your psychiatrist, Dr Cocks, met with you on a weekly basis and that your medication regime was constantly reviewed.
71 I discussed with Professor Carroll a potential error in his report (paragraph 91) and he acknowledged that error. The dates of your offending in charge 1 ran from 2010 to 2015 and that did not change his opinions regarding you from a psychiatric perspective. Professor Carroll noted you had previously told Dr Walton you encountered child-related material by mistake and then failed to delete it.
72 As previously stated, I discussed this with your counsel who conceded any suggestion this was an accidental downloading by you was not adhered to for the purposes of this plea. Further, it was conceded by Mr Norton, who appeared on your behalf as I said, that the downloading occurred on multiple occasions during the offending period. Further, he conceded you did not delete most of the material and that is apparent from the prosecution opening. In other words, there were in my opinion, some very concerning aspects of your recent presentation and your previous instructions to professionals regarding your offending. Professor Carroll was asked specifically about those inconsistencies and arguable minimisation of your offending and he conceded that could not be explained based on any mental illness you had.
73 This impacts to a degree upon your prospects of rehabilitation. Further, I note Professor Carroll’s limitations to his assessing your risk of re-offending.
74 At best, on the material before me, I do have guarded optimism regarding your rehabilitation prospects. In particular I have concern also that you still have access to a computer and that you tend to spend all day virtually at home without any social interactions. This to me is a very concerning aspect. I have no doubt police are keeping a very close eye on any material on that computer.
75 When sentencing, I must however seek to maximise your chances of rehabilitation as they may be.
76 Turning to his opinion and summary in his second report, Professor Carroll saw no evidence of personality dysfunction or substance use disorder. There was also insufficient evidence to formally diagnose a paraphilic disorder.
77 You had apparently been diagnosed with treatment-resistant paranoid schizophrenia and primary epilepsy.
78 Despite intensive input from a very experienced private consultant psychologist, you remained extraordinarily disabled and chronically distressed by your psychiatric illness. You had persistently hallucinated and were socially very withdrawn, reliant on your parents for basic tasks, as I said, of daily living and compliance with your complex medication regime.
79 Compared with his earlier assessment of you in August 2016, your mental state was, if anything, slightly worse in terms of your psychotic symptoms.
80 Regarding your offending behaviour and mental health, Professor Carroll confirmed there was no compelling evidence of a direct causal link between your psychotic symptoms and your offending conduct. It was only in an indirect sense your mental health difficulties impacted upon this offending.
81 Regarding your mental health issues, Professor Carroll submitted that assessment for sex offender programs with Corrections Victoria and a referral to Forensicare Community Services may be appropriate to enable you to be linked in with clinicians experienced in managing sex offenders with your complex mental illness.
82 In the opinion of Professor Carroll, your psychiatric prognosis was likely to be poor. You are likely to remain profoundly psychiatrically disabled on an indefinite basis.
83 Regarding your complex neuropsychiatric disorders, including paranoid schizophrenia and epilepsy, this would mean imprisonment would be “massively more burdensome” for you than the average prisoner, he stated. His reasons for so concluding were set out in his report (paragraphs 122-129).
84 In his opinion, it would be inevitable imprisonment would have a very serious adverse impact upon your mental health.
85 In the opinion of Professor Carroll, your parents were able to support you and take you to various appointments if required, as they had to date.
86 Professor Carroll also gave evidence before me at your plea hearing that you were not, in his opinion, in essence an appropriate vehicle for general deterrence. Ultimately, Mr Norton urged the restatement of Tsiaras principles in Verdins & Ors[3], in particular 3, 5 and 6, those principles were applicable when sentencing you.
[3] (2007) 16 VR 269
87 Professor Carroll confirmed you were on a complex regime of medication, some with significant potential side effects, and problems if you were not appropriately medicated, and as recently as May 2017 you were expressing auditory hallucinations.
88 Professor Carroll concluded from his assessment, given you were seeing a psychiatrist regularly, were on a complex medication regime, and that your parents described the severe disabilities you had living at home, that you were not malingering or being untruthful in relation to your various mental health issues.
89 Professor Carroll said that less than 10 per cent of people with schizophrenia had visual hallucinations and you were one who did. Further, your reporting of feeling “touched”, was not typical for those with schizophrenia. Your case , he said, was a severe example of hallucinations.
90 I discussed with Professor Carroll the possibility of Thomas Embling Hospital being an appropriate place should you be imprisoned but not be able to be treated in prison. Professor Carroll was of the opinion that your ability to get into Thomas Embling Hospital, would be most unlikely. Even in Thomas Embling Hospital he said you would be vulnerable to the influences of other co‑residents. He said you would not be able to get a bed at Thomas Embling Hospital unless you were acutely unwell. In the community, you would have the support of your parents, and continue to attend appointments with Dr Cocks and Dr Ng. It would be difficult to maintain that sort of treatment and assistance should you be in custody. Your situation would therefore get worse.
91 Regarding your ability to obtain appropriate medication in custody, Professor Carroll expressed concern about that, in particular as your current regime required medication approximately four times a day and monthly blood tests. In his opinion, if there was any error in relation to medication given to you, you would be at a heightened risk of seizure and exacerbation of hearing voices.
92 Professor Carroll referred to the potential benefit of a problem behaviour program which could be undertaken by Forensicare, although he noted it would be unlikely you would be suitable for group-based treatment and rather required individual treatment. In his opinion, you required the highest level of expertise, such as that available through Forensicare, although Professor Carroll was careful to say he could not guarantee you would necessarily be accepted into any program, but he was agreeable for his reports being provided to Forensicare to assist in that assessment and regard.
93 Evidence was given by your father, Grant Campbell. He confirmed the contents of the two documents contained in Exhibit 1 as true and correct. I understood those documents had been created from notes by your father and/or mother at the time of those events, referred to therefore fresh in their minds.
94 Your father referred to he and your mother being retired, but running a small business which involved them attending weekend markets, in particular on Sundays. On those days they would be away from the house between 7.00am and 5.00pm. He said you would usually be asleep during the day but they prepared your medication and were in regular contact with you during the day. He said he would be able to tell if you had not taken the medication by the condition you were in. As your carer, he gave evidence that in the last year they tried to avoid staying away overnight. Sometimes your sister would assist you but that you usually slept most of the day.
95 Despite some reservations and concerns your parents had regarding the type and amount of medication prescribed to you, your father agreed they would continue to give you such medication as prescribed.
96 He said your parents currently assist you with your day-to-day living, organising appointments for you, taking you to them, helping with showering and generally looking after you. They were now aware you were accessing computers for the purposes of this offending. You had a computer currently, although your father indicated the computer could be removed. They are at least aware of your criminal offending and activities now.
97 I state again it does concern me that you lead an isolative lifestyle, spending a lot of time and having access to a computer. Your parents seem to appreciate a possible risk of you re-offending and I understood your father intended to remove the computer. You should bear in mind that you could no doubt be detected if you were to re-offend. I am concerned that you spend so much time alone at home with nothing to do, it seems, and that in my opinion adds to my being guarded regarding your prospects of rehabilitation.
98 There was also a report from Dr Steven Ng, Neurologist, dated 18 December 2015 who confirmed that you had been in hospital for major psychosis and depression at around that time. Further, that you had had two seizures in the last week or so prior to the date of that report. Reference was also made to your medication at that time.
99 Mr Norton submitted you entered your plea of guilty at a committal mention, the earliest opportunity and I accept that is so and as such you have saved the expense of a trial, including resources of police and others were not required to give evidence.
100 He submitted your plea of guilty indicated some acceptance of responsibility and a willingness to facilitate the course of justice. I agree, however, I am concerned about extending this remorse beyond the entering of your plea of guilty, in particular due to the varying accounts you had given for your offending up until most recently. But I am of course aware you have pleaded guilty and that is relevant when sentencing you and in mitigation of sentence.
101 Mr Norton submitted, and I accept, that when police attended in September 2015 you were co-operative and made admissions to the ownership of the relevant computers.
102 Referring to delay, it was submitted by Mr Norton that there had been a very significant period of time since your offending and this matter being finally dealt with. There may be a delay, however, I note the chronology attached to the prosecution opening is that you were arrested on 3 September 2015. There was a filing hearing on 4 September, and on 8 January 2016 a committal mention. Thereafter on 19 April 2016 the plea date of 20 April 2016 was vacated due to you being ill, at which time the matter was further adjourned until 15 June 2016. On that date, you were still unwell and those representing you sought a further adjournment until 29 September 2016. Then prior to that date, on 2 September 2016, there was a report from a psychiatrist that you were unfit to plead and the matter was further mentioned on 7 February 2017, with a plea listed on 10 March 2017. In February 2017, you were again in hospital and the plea could not proceed in March. That was vacated and the plea date before me was then set. I do not consider the delay in this matter to be significant when sentencing you in those circumstances.
103 Whilst it is clear you do not have any prior convictions and I was told there were no subsequent matters or matters pending, of course when sentencing for this type of offending, prior good character is of less significance, I say not eliminated, of less significance.
104 Mr Norton submitted you have the continuing support of your parents who would be able to assist in the active management of your treatment including helping assisting with medication and attending upon treaters. I am concerned however about their ability to keep an eye on you when they are not home if you continue to have access to computers.
105 Mr Norton conceded that ordinarily for offences such as this, the predominant sentencing purpose is general deterrence and he is of course correct. He urged, however, you were not an appropriate vehicle for an application of general deterrence relevant to sentencing.
106 He urged that specific deterrence had a very limited role to play. I, however, disagree with that. This was repeated offending by you not explained by your mental health.
107 Mr Norton urged a non-immediate custodial disposition was appropriate, either a Recognisance Release Order or a Community Correction Order.
108 The prosecutor, Ms Curmi, conceded a term of imprisonment, given your mental health issues, would not be appropriate and that you could be appropriately dealt with by either a Community Correction Order and a Recognisance Release Order or Community Correction Order in relation to both the Commonwealth and the State offences. Can I say I am somewhat surprised by that prosecution's generous concession regarding sentencing for this offending.
109 I turn to offending generally of this type. The seriousness of it should not be underestimated and the maximum penalties, particularly in the case of the Commonwealth offence, indicates its inherent gravity.
110 In order to produce this material, children must necessarily be subjected to criminal acts involving their sexual abuse and exploitation. All decent and human societies regard children as precious and seek to protect them from harm, including sexual abuse and exploitation.
111 These are not victimless crimes, these are real victims in the videos and images. Because of the nature of the internet, a medium that has global reach, the abuses perpetrated on these children, including very very young children, may linger in cyberspace for as long as those children are alive and beyond.
112 Our Federal and State Governments have introduced this legislation in an endeavour to stop exploitation of children around the world.
113 Whilst I shall not refer in detail to the following authorities, relevant considerations when sentencing for these offences are set out in cases including DPP v D’Alessandro[4], R v Gent[5], R v Fulop[6], R v Smith[7], R v Liddington[8]. This list is by no means exhaustive or current.
[4] (2010) 26 VR 477
[5] (2005) 162 A Crim R 29
[6] (2009) 236 FLR 376
[7] [2010] VSCA 215
[8] [1997] 18 WAR 394
114 As well as matters personal to you, including your prospects of rehabilitation as I find them to be, I have moderated that in light of the evidence before me. You are not, in my opinion and given the concession by the prosecution, an appropriate vehicle for general deterrence when sentencing.
115 I must also consider the need for specific deterrence when sentencing you and I remain of the opinion that is a relevant sentencing consideration.
116 I must also consider the question of protection of the community and bear in mind the likelihood of your re-offending.
117 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment relevant to the State offence.
118 When sentencing you for Commonwealth matters, in particular Charge 1 before me, I am obliged to and have taken into account s16 and s17 of the Crimes Act (Cth).
119 In sentencing in respect of the Commonwealth offence I must impose a sentence that is of a severity appropriate in all the circumstances of the offending. I am also obliged to take into account all matters known and relevant to you and your offending.
120 For both the Commonwealth and State offences prison is a sentence of last resort. Further, whilst I am not looking at the specific matters identified in the Crimes Act (Cth) (s16 and s17), when sentencing on State offences these matters nevertheless arise under State law. That is same or similar matters need to be considered.
121 I arranged to have you assessed for a Community Correction Order. I received that report prepared by Anna Radywonik dated 16 June 2017. You have been assessed as a low risk of re-offending.
122 You are assessed as suitable for a Community Correction Order with a number of conditions recommended, I note consistent with conditions I was considering prior to that assessment.
123 You were advised of the terms and conditions of an order and you consented to such an order being made in her presence. You advised Ms Radywonik that your father would assist in you meeting your Community Correction Order obligations.
124 The author noted the psychiatric material tendered at your plea hearing, that had been forwarded to her by my Associate and would be used to assist Corrections in the assessment of you, I understood.
125 So I propose to sentence you as follows so just listen very carefully. As I say, I propose to sentence you as follows. I am going to set it all out first and then we are going to find out if you agree.
126 Charge 1 (Commonwealth offence), convicted and placed on a Community Correction Order for a period of 2 years and 6 months to commence today.
127 Charge 2 (State offence) convicted and placed on a Community Correction Order for a period of 2 years and 6 months to commence today, i.e. they run concurrently.
128 I direct that those two orders run concurrently, that is the order on Charge 2 with Charge 1 if that is not at all clear. It might be two orders in paper but it is to run concurrently.
129 The same conditions apply to each of the two orders. So ditto in relation to each of the two orders.
130 I must tell you what those proposed orders are to find out if you consent to such orders being made, albeit they are concurrent.
131 Core conditions apply to all Community Correction Orders and they apply to both these orders, even though they are running concurrently.
·You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.
·You must report to the Community Corrections Centre at Box Hill within 2 clear days, that is by 4.00pm on 16 June 2017. This Friday 4 pm 16 June, you have to report to the Community Corrections Centre at Box Hill. Do not forget.
·You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee, Corrections workers.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
132 There will also be a number of special conditions attached to each of those two Orders, albeit they run concurrently, and each of these will apply to you:
· You must be under the supervision of a Community Corrections Officer for the entirety of that 30 months. Two years and six months is 24 plus 6, equals 30.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s48D(3)(e)).
· You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager, and I specifically refer to the Sex Offenders Program and offender behaviour programs (s48D(3)(f)).
· You must attend for review of your progress and compliance or otherwise with conditions of this Order. You have to come back before me in six months' time, Wednesday, 13 December 2017 at 9.30am (s48K).
· I direct that I be advised by your Corrections Officer of any non-compliance of these conditions (s48(1)) and I will then determine if the matter should be brought back before me.
133 I can only impose a Community Correction Order if you agree to that Order being imposed. Orders in this case they are running concurrently so I just need to tell you more about that.
134 I should advise you that if you contravene or breach either order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).
135 You can also be re-sentenced for the two charges that are before me. One of the options available includes a term of imprisonment (s83A(s)).
136 So you have got to be extra careful within the next 30 months. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the Court and you will be re-sentenced on these two charges that are before me. You have got to be extra careful.
137 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, worker if you like, as part of these orders, a substantial fine can be imposed (s83A(e) and A(f)).
138 Now, being aware of all those conditions and penalties for breach, do you consent to both those Orders being made in those terms and all those conditions?
139 OFFENDER: Yes, I do.
140 HER HONOUR: Did you want to go and explain it to him or are you happy he understands?
141 MR NORTON: No, I'm happy, Your Honour. I will obviously explain it to him in detail post the order being made but I have discussed it with him prior to the matter being called on. I am content that he understands.
142 HER HONOUR: So he is under no misunderstanding about what those conditions are?
143 MR NORTON: No.
144 HER HONOUR: And the ramifications because I have to tell him about breach.
145 MR NORTON: Yes, Your Honour.
146 HER HONOUR: So now I ask you, you consent to both those orders being made, is that correct?
147 OFFENDER: Correct.
148 HER HONOUR: Nice loud voice into the microphone?
149 OFFENDER: Correct.
150 HER HONOUR: You agree, yes. So therefore I formally sentence you as follows. Now, am I correct, as I was told last time, that it has to be two separate orders and they run concurrent?
151 MS CURMI: That's correct, Your Honour.
152 HER HONOUR: Right. Charge 1 (Commonwealth offence), convicted and placed on a Community Correction Order for a period of 2 years and 6 months to commence today.
153 Charge 2 (State offence), convicted and placed on a Community Correction Order for a period of 2 years and 6 months to commence today.
154 All the conditions that I previously referred to will form part of both Orders.
155 As stated, I propose to make the same Order with the same conditions in relation to both Charges 1 and 2. The Orders are to run concurrently, that is the commencement for both is today, 14 June 2017. Before I go on, is it clear what I want?
156 MR NORTON: Yes, Your Honour.
157 MS CURMI: Yes, Your Honour.
158 HER HONOUR: Because it is a Commonwealth matter, I am asking the Commonwealth. This is correctly structured, is that so?
159 MS CURMI: Yes, it is, Your Honour.
160 HER HONOUR: From the Commonwealth perspective?
161 MS CURMI: Yes, thank you. All looks very clear.
162 HER HONOUR: Good. Pursuant to s18(4) Sentencing Act 1991, I note you have not served any days by way of pre-sentence detention. I want that confirmed but I only mention this should I need to revisit this sentence in the future, which I hope I do not. I just want to know to save me going through all the paperwork you have not spent any time in custody if I have to re-sentence you in the future.
163 MS CURMI: No, he hasn't spent any time in custody.
164 HER HONOUR: So I was right, good. Agree, yes.
165 Pursuant to s6AAA Sentencing Act 1991 the sentence that would have been imposed if you had been convicted of these offences after trial, in other words if you had pleaded not guilty to them, I would not have imposed a Community Correction Order or Orders, rather in total I would have sentenced you to a total effective sentence of 4 years’ imprisonment with a non-parole period of
3 years.
166 The prosecution submitted pursuant to the Sex Offenders Registration Act 2004, that a finding of guilt in relation to the charges before me meant you are required to be registered pursuant to that Act, such being mandatory and for a period of 15 years, and they are both Class 2 offences. Mr Norton agreed such classification and duration applied to you and I make that order.
167 My associate will in a moment come back to where you are now with three documents to sign. Two are the Community Correction Orders because, as I have said, there will be two copies (one represents Charge 1, one represents Charge 2). So there are two orders but they are running concurrently. You will also be asked by her to sign an acknowledgment of the paperwork relevant to the Sex Offenders Registration Act. So that is a third thing you will be asked to sign. You are not being asked if you want to be on the Sex Offenders Register. I have made that order. You are simply being asked to sign for acknowledgment of the paperwork. That is what Ms Jackson has to ask you to do. If you do not want to sign it, matter for you, but she has her job to do, she has to ask. Three things that you will be asked to sign.
168 Any other orders sought?
169 MS CURMI: No, thank you, Your Honour.
170 MR NORTON: Your Honour, might I just approach the dock?
171 HER HONOUR: Sure. Ms Jackson has to go down there and make sure that she asks about that Sex Offenders Register, so part of her job.
172 MR NORTON: Thank you, Your Honour.
173 HER HONOUR: Mr Campbell, I will be seeing you on 13 December of this year at 9.30 for judicial monitoring. If I see you before then, that means you have not been complying with the order.
174 OFFENDER: Okay.
175 HER HONOUR: Anything further?
176 MR NORTON: No, Your Honour.
177 HER HONOUR: Thank you both.
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