Director of Public Prosecutions v Canavan

[2017] VCC 1109

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-00966

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID CANAVAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	10 August 2017
CASE MAY BE CITED AS:	DPP v Canavan
MEDIUM NEUTRAL CITATION:	[2017] VCC 1109

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton
For the Accused	Mr J. Anderson

HIS HONOUR:

1David James Canavan, you have pleaded guilty to one charge of using a carriage service for child pornography material, and one charge of possession of child pornography.  Those crimes carry maximum penalties of 15 years and ten years respectively.

2Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, should you refuse to provide such a sample, police may use reasonable force to take it from you, and that order is made and handed down.

3Secondly, pursuant to the convictions which I will be imposing in a short period of time, you will become subject to the Sex Offenders Registration Act, and I advise you the reporting period will be for a period of 15 years, and I will ask you to sign the acknowledgement of the receipt of those document now, if you do not mind going down with my associate, please Mr Anderson?

4You are now 48 years of age.  You pleaded guilty at the earliest reasonable opportunity, and you made frank admissions to police when apprehended.  You now are able to show appropriate victim empathy, and I accept that you are now at least able to express appropriate remorse in relation to the offending.  Those matters go very much in your favour.

5You must also of course get the utilitarian benefit of that plea of guilty.  You have no prior convictions, and that is a matter of real significance, though in these particular types of offending, it seems to be unfortunately often the case.

6A summary of the offending can be given in brief terms.  Because of you having a discussion with an undercover police officer, as I understand it, in Queensland, police attended your premises on 16 June 2016 and executed a warrant.  A number of articles were seized, computers and the like.  Ultimately those materials were examined, and you were found to have in your possession something in the order of 20,000 illegal images.  A very significant number of the still images were no sexual activity, but I note that insofar as the video is concerned, which ran for some 98 hours, I am told, the greater proportion of that was child-adult penetration. 

7You had, during the course of the preceding at least couple of years, on the indictment that I received, engaged in transmitting pornography and having conversations with others, you both received and sent.  I accept in your circumstances that I have seen far worse examples of it than yours. 

8Your counsel has properly pointed out in admirable submissions that you were not selling any of this, and you are a low risk in terms of any contact offending, and I accept those matters. 

9The situation is that trying to delineate in great detail between the nature of the material does not really help in ascertaining the objective aspects of it all.  In my view, a custodial sentence is inevitable for the transmission.  The offence has to be regarded as serious, and general deterrence must play a very significant role in sentencing for that offence.

10Insofar as specific deterrence is concerned, I am satisfied that that can be achieved by you participating in a sex offenders program, and you would appear to have had benefit from counselling since your arrest.  In any event, the crimes call for the applications of principles of denunciation, and of just punishment.  As I said, when interviewed by police, you made frank admissions.

11Insofar as matters personal to you are concerned in determining the nature of the sentence to be imposed, I look at the submissions on behalf of your counsel.  Tendered on your behalf were reports from Dr Lester Walton, who is of course well-known to me, and Simone Kelsey, a counsellor on whom you have been attending.  There has also been a letter of support from your current partner, who is indicative of giving you support through this period of time and upon your ultimate release.  Those matters in my view go, together with your lack of prior convictions, very much to your prospects of rehabilitation being good, and the risk of you reoffending in my view, certainly in this way or in a contact way, as being low.

12In simple terms, you are now 48 years of age with no prior convictions.  You joined the Air Force upon leaving school, and have an excellent work record over many years.  You are essentially a shy person, and as your counsel has pointed out, a non-drinker.  In those circumstances, I accept that you were devoted to your work, effectively, and had not had any long-term relationships until some relatively short period of time ago.  That, in effect, loneliness, which is often the situation, drew you to adult pornography, and inquisitiveness took you into child pornography. 

13In terms of possession of it, I am aware of the psychological aspects of obsessive-compulsive disorders and the like, I am not going to go into that.  The trouble is, Mr Canavan, that once you start sending it to other people and seeking it from other people, it takes it into a different regime, in my view.  This offending has now cost you your lifetime of employment working on aircraft, and you are endeavouring to find further employment.

14The situation is, as I have indicated, that you are undergoing treatment and in my view are showing a proper attitude towards turning your life around.  I have obviously taken into account that you yourself have not been sexually abused, which gives me confidence in terms of your capability of not offending again, and also that the paedophilic aspects of looking at child pornography in your particular situation are not the only - you are heterosexual and capable of having other sexual interests.

15I am aware of the decision of Garside, where it is only unusual, at least, circumstances where an active custodial sentence is not imposed.  I take very much into account the letter from your partner and the reports filed.  I will direct that those reports and that letter, together with the submissions of counsel, remain on the court file, and make it specifically very clear that I have taken all those matters into account.

16In your particular situation, as each of these cases has to be judged on its own, as I have said, there has to be an active custodial portion of that sentence, but I believe that a relatively short active period can fulfil all the sentencing requirements.

17Accordingly, if you agree, on Charge 1 of using a carriage service, you are sentenced to be imprisoned for a period of 12 months to be released on a recognisance of $500 having served four months, and that sentence is to commence today. 

18On the charge of possess pornography, if you agree, be placed on a community corrections order with conviction for a period of three years, with the only conditions being supervision and programs to reduce the risk of reoffending, which will be the sex offenders program. 

19Nothing else I need to say other than getting him to sign them?

20MR HUTTON:  No Your Honour.

21HIS HONOUR:  The recognisance will be $500, and I think in this situation, I will make it two years.

22MR HUTTON:  Yes.

23HIS HONOUR:  That should satisfy your instructor's needs, I think. 

24MR ANDERSON:  Your Honour, could I approach to ‑ ‑ ‑

25HIS HONOUR:  Yes, of course, I need to take this down to him anyway, to sign.

26MR ANDERSON:  I did not know if you wanted to do it in open court, or ‑ ‑ ‑

27HIS HONOUR:  No, no, the signing will be done in open court, it has to be.

28MR ANDERSON:  Yes.

29HIS HONOUR:  Yes.

30MR ANDERSON:  I will just explain it.

31HIS HONOUR:  Yes, yes.  Assuming he agrees.  All right, those orders are made.  Mr Canavan, I need to explain to you that with a recognisance, they will let you out, but for a period of two years you have to be of good behaviour.  If you are not, you get brought back, and you get resentenced on the recognisance.  You lose the $500, but if you were found with any of this sort of material again in the next couple of years after you are released, you get resentenced, and it would not be four months, all right?

32OFFENDER:  I understand that, Your Honour.

33MR HUTTON:  Did Your Honour make the disposal order, I cannot remember if ‑ ‑ ‑

34HIS HONOUR:  Yes, I did hand it down.

35MR HUTTON:  Thank you.

36HIS HONOUR:  Section 464 has been done.

37MR HUTTON:  Yes.

38HIS HONOUR:  There is nothing else I need to do now, is there?

39MR HUTTON:  No.

40HIS HONOUR:  Yes, he can go now, thank you.  I do not do a s.6AAA on Commonwealth, no.  You can go down, if there is difficulties there,
Mr Anderson?

41MR ANDERSON:  Pardon?

42HIS HONOUR:  If there are any problems, you can go down.

43MR ANDERSON: Sorry Your Honour?

44HIS HONOUR:  I think he is all right, but if there are any problems, you can go with him.  Yes, thanks.

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