Director of Public Prosecutions v Carroll

[2018] VCC 1374

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02488

DIRECTOR OF PUBLIC PROSECUTIONS

v

DENNIS SHAY CARROLL

---

JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2018
DATE OF SENTENCE:	3 December 2018
CASE MAY BE CITED AS:	DPP v CARROLL
MEDIUM NEUTRAL CITATION:	[2018] VCC 1374

REASONS FOR SENTENCE
---

Subject:Access child pornography – possess child pornography – disadvantaged background – Autism Sprectrum Disorder – early plea of guilty – youthful offender – non- custodial disposition imposed.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Reid	Commonwealth Direction of Public Prosecutions
For the Accused	Mr R. Thyssen (Plea) Mr J. Lavery (Further Plea and Sentence)	Tony Danos Lawyers

Pages 1 - 14

 

 

HER HONOUR:

1Dennis Carroll, you have pleaded guilty to two charges.  Charge 1, using a carriage service to access child pornography, and Charge 2, possession of child pornography. 

2Charge 1 relates to a period between 23 May 2016 and 18 July 2017, and Charge 2 relates to one day only, being 20 July 2017.

3Both charges are serious, and that is reflected in the maximum penalties prescribed by Parliament.  In respect to Charge 1, that is 15 years' imprisonment, and Charge 2, ten years' imprisonment.

4You are currently 21 and at the time these offences occurred, you were aged between 19 and 20.  You are a youthful offender. 

5You have no prior criminal history. 

6I shall now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing, there being no issue taken to its contents by your counsel, Mr Thyssen.

7The offending commenced when you were living with your parents at 6 Chelsea Court, Burnside Heights, and continued following your move to a different residential address at 12 Avenham Court, Hillside. 

8During the period set out in Charge 1, you searched the internet using a browser and engaged in a number of online chats. 

9Police executed a search warrant at the Hillside residence on 20 July 2017 and during the execution of the search warrant, they seized three electronic items, a WD external hard drive, a HP laptop compact computer, and an Acer laptop computer.  You were arrested and charged on that day in respect to the charges.

10Charge 1 concerns you accessing the Tor-based websites at least two to three times per month, to search for child pornography, between the charged dates.  You viewed a number of child pornography videos and images, consisting of infants from the age of approximately one year of age to children aged 17, performing sexual acts.

11On or about 8 July 2017, you moved to the Hillside residence, and continued using your HP laptop computer to access Tor-based websites and view child pornography material.  Whilst doing so, you would either specifically select each individual video, and save them to your Western Digital (WD) External HDD, or they would automatically save.

12Between 1 June 2016 and 18 July 2017, you used your laptop, your HP laptop computer to log into online chat sessions, where you would chat with different people from around Australia or the world.  Sometimes they would show you child pornography images and videos, and those facts constitute Charge 1.

13Charge 2 arose following the analysis of your WD external HD drive, that showed that it contained child pornography images.  The results of the subsequent analysis of the seized items, showed that you had 1,006 images and 524 videos of child pornography material.  Those images and videos were classified according to the categorisation model for child exploitation material of the Australian National Victim Image Library (ANVIL) which is outlined at annexure 1 of the opening. The child pornography located on your devices, was categorised in paragraph 20 of the opening as follows:

Cat 1	Cat 2	Cat 3	Cat 4	Cat 5	Cat 6	Total CEM
Images	36	5	101	23	1	840	1,006
Videos	67	24	169	197	18	49	524
103	29	270	220	19	889	1,530

14In total, there were 1006 images and 524 videos of various classifications. 

15I shall now proceed to sentence you on the basis of the description of the images and videos that has been provided from the informant, as set out in paragraph 21 of the opening.  Both the prosecution and your counsel confirmed that those descriptions reflect a proper description of the images contained in the sample.

16Following your arrest, you were charged and the matter was the subject of a filing hearing and a committal mention was listed for 20 October 2017.  On that date, the matter was adjourned, so that material could be considered.  At the second committal mention on 8 December 2017, a plea of guilty was entered in respect to both charges as set out in the indictment.

17It is accepted that the plea of guilty was entered at an early stage in the proceedings. 

18When you were arrested, a record of conversation was recorded where you made fulsome admissions.  You were genuinely cooperative with police, you confirmed that you were aware it was an offence to view and download child pornography, and that you had not told anyone that you had done so, as you were ashamed.

19The principles governing sentencing for child pornography offences are well known. I have had regard to the decision of DPP v (Cth) and DPP v Garside[1], where Court of Appeal constituted by Redlich, Priest and Beach JJA, set out those principles. I refer to paragraphs [18] through to [25].

[1] [2016] VSCA 74

20Such offending is considered especially grave by the courts and also the legislation, and general deterrence is a paramount consideration in formulating the appropriate sentence[2].

[2] DPP (Cth) v D’Alessandro (2010) 26 VR 477, 483

21The objective seriousness of offending by using the internet as a tool through which to exploit children, even if you are not procuring such exploitation yourself, is considered to be grave, and ordinarily it must be the subject of substantial punishment.  The fact that an offender is charged only with accessing child pornography material does not mitigate the gravity of the offending[3].

[3] R v Porte [2015] NSWCCA 174 [66]; Saddler v R (2009) 194 A Crim R 452; R v Booth [2009] NSWCCA 89 [46]

22It is accepted for this sort of offending, that a person's prior good character is to be given less weight, although it is still a relevant mitigating factor. 

23In formulating the most appropriate sentence, I have had regard to the objective features of the offending. I consider this to be serious examples of both these offences. 

24I have had regard to the nature and content of the material, and in particular the age of the children depicted, and the nature of the sexual activity depicted, and that is set out in paragraph 21 of the Crown opening.

25I consider that your offending is representative of serious offending, but at the lower end of the scale seriousness, that is often reflected in these sorts of charges.  I do note, however, the time, i.e. the duration of which it is alleged the offending occurred for Charge 1, and I note that in respect to Charge 2, it is only on the date of your arrest.

26Nonetheless, there were a total of 1006 images located, the majority of them being in Category 6, which is the animated or virtual category, and that describes children engaging in sexual poses or activities using computer generated images, and also Category 3 images, which is non-penetrative
adult-child sex, and may include mutual masturbation, and other non-penetrative sexual activity.

27There is no evidence that shows that the child pornography material was for the purposes of sale or further distribution, or that you were to have profiteered from the offending.  Nevertheless, having regard to the number of images and videos, a number of children would have been depicted, and thereby victimised by your offending.

28General deterrence is an important consideration and that is because child pornography does occur on an international level, and is becoming increasingly prevalent with the advent of the internet and is very exploitative of those individuals who are depicted in the images or videos.  Such offending is difficult to detect, given the anonymity provided by the internet. 

29By possessing child pornography material, you are creating a market for the continued corruption and exploitation of vulnerable children. That is why there is a paramount public interest in promoting protection of the children, as the possession of child pornography is not a victimless crime; rather, children are being sexually abused in order to supply the market[4].

[4] R v Jones (1999) 108 A Crim R 50 at 52 [9]; DPP (Cth) v D’Alessandro (2010) 26 VR 477 at 484 [23]

30I have had regard to the mitigatory factors that have been emphasised by both Mr Thyssen and Mr Lavery.  Your plea has significant utilitarian value.  It was entered at an early stage of the proceedings at committal mention.  You spared the state the expense and inconvenience of a trial.  You have facilitated justice and your sentence will be discounted accordingly.

31I am satisfied that your plea of guilty is reflective of genuine remorse.  I have had regard to what you told police at the time of the field interview, that was conducted at your home upon your arrest, and also the fulsome admissions in the record of interview, conducted 20 July 2017.

32You are a youthful offender, and different sentencing principles apply, whereby your rehabilitation is a significant feature of your sentence[5]. 

[5] R v Mills (1998) 4 VR 235

33You voluntarily sought assistance in respect to your offending behaviour.  At the plea hearing, I heard evidence Dr Kah-Seong Lok, a psychiatrist, employed at the
Victorian Aboriginal Health Service.  He has been treating you since 27 October 2017, and has continued to monitor and treat you over regular monthly visits.

34He confirmed that you are a single, unemployed man who lives with his maternal uncle and wife, while supported by youth allowance.  He noted your difficult family background.  Both biological parents had significant issues and were not able to properly care for you as a young child.  They were abusive, both physically and sexually, with respect to their own children.  Aged three days, you were removed from their care and given to John Carroll, your paternal uncle and his wife, Sherri Lyle.

35You have been diagnosed with Autism Spectrum Disorder (ASD), a lifelong
neuro-developmental disorder that emerges at birth, and impacts all aspects of a person's development and functioning.  This condition, which is enduring in nature and outside your control, impacts upon your functioning, namely your behaviour and the way in which you interact with others, interacting with the environment and social communication skills.

36Dr Lok, in his evidence, confirmed that your social communication skills are in deficit, and you miss many social cues, and can be misunderstood by others.  He has diagnosed you with social phobia, agoraphobia, post-traumatic stress disorder primarily relating back to sexual abuse you experienced as a child, and a degree of trauma that you experienced from being bullied at school, Autism Spectrum Disorder, and morbid obesity.

37This diagnosis has been confirmed in the up to date report received from
Dr Joseph Sakdalan, psychologist, whose report dated 28 November 2018, was commissioned by the court from Forensicare. 

38I note that you have had little by way of formal education.  You left school half way through Year 11 in 2014.

39Insofar as the offending behaviour is concerned, Dr Lok considered that there were a variety of factors which determined your behaviour, including your Autism Spectrum Disorder, your obesity, and the fact that you are very
self-conscious about your appearance and weight, and also you were being treated for Major Depressive Disorder, social phobia, agoraphobia, post-traumatic stress disorder as well at the time.

40There were many stressors within your family.  You have a very small social circle, and no friendships external to your family.  You have very poor
self-esteem, and anxiety mood problems. Dr Lok's opinion was that perhaps your motivation to offend, related to trying to rationalise or minimise the severity of what you had been through by seeing worse cases of abuse, however, you knew it was wrong.

41He stated his belief that you are remorseful and embarrassed about what you have done.  He stated that people with Autism Spectrum Disorder in general have difficulty understanding the emotional impact or experience of another person in general.  His opinion was that your condition impaired your ability to empathise directly with the victims of exploitation.  You attempted to rationalise your behaviour to an extent, because you perceived that you were not responsible for the content of the child pornography, and therefore you did not think it was so bad- it had already happened.

42However, you now have had the opportunity of digesting the enormity of what your criminality actually involves.  He considered you to be very remorseful, and over the time that he has been treating you, you have continually expressed remorse to him.  You deny any sexual attraction to children, and based on your self-report, and also your mother's report, Dr Lok formed the opinion, that he did not consider that you are a paedophile.  However, he did acknowledge he was not qualified in this area.

43I have had the advantage of receiving Dr Joseph Sakdalan's report, who is a registered psychologist, who is considered an expert in this area. 

44Dr Sakdalan has more than 18 years of clinical experience, carrying out forensic psychology assessments for mentally disordered and intellectually disabled offenders.  He has extensive experience providing treatment to violent and sexual offenders, and offenders with developmental disorders such as intellectual disability and Autism Spectrum Disorder.

45He has provided a report to the court, which details your diagnosis consistent with the findings of Dr Lok.  He noted that in general, he considered that you have been appropriately treated; you are prescribed anti-depressant medication Lexapro, and that has helped improve your mood, and you are now feeling better since taking that medication.  That has helped you manage your social anxiety as well.

46He acknowledged the difficulties of assessing the risk of repeat offending of this nature, among people convicted of online sexual offending, as there are no risk assessment instruments that have been largely validated specifically for this purpose. 

47Overall, he said that you have evidence of a few of the 22 factors that he identifies related to risk of ongoing sexual offending, and overall, his opinion was that you carry a low-moderate risk of reoffending in a similar manner, as that which you have committed.

48He is of the opinion that your risk of engaging in contacting sexual offending is low. He referred in his summary and opinion to your background history, which he said was marked by neglect and abuse by your biological parents; that you had been largely brought up by your adoptive parents, who are supportive.  He noted you suffered childhood sexual abuse, which you kept to yourself.  He noted your longstanding mental health issues with depression and anxiety, social anxiety disorder, and agoraphobia, and also Autism Spectrum Disorder.

49He confirmed that it is likely that there was a nexus between your conditions and the offending.  He says,

"I am of the opinion that there appears to be a nexus between Mr Carroll's psychiatric condition and his index offending, and it appears that a confluence of mental health issues, especially at the time of the offending, when you were suffering from major depressive disorder, and the consideration that you have autism spectrum disorder, may have to some extent affected your ability to exercise appropriate judgment".

50He notes that your mental health does seem to have significantly improved since you have started receiving psychiatric treatment from Dr Lok in April 2018.  But he cautions that it would be likely you would experience significant stress if you received a custodial-based sentence, because that would result in a significant change to your environment and routine, and may result in a possible deterioration of your mental health.  Therefore, that needs to be taken into consideration.

51He says it is likely that you will experience significant stress, if you receive a term of imprisonment, and I have taken that expressed opinion into account. 

52He is of the opinion that you would not likely fulfil the DSM-V definition for any sexual disorders.  He opines that you do not have any history of any deviant sexual behaviours or interest.  You do not have any history of sexual offending, or any reported sexually inappropriate behaviours.

53He notes that your interest in viewing child exploitation material seemed to be circumscribed, and that since you had been charged for the offending, you have not appeared to show any ongoing interest to access such material, or encourage any deviant sexual interest or arousal towards children. 

54Overall, he considers you carry a low-moderate risk of reoffending in a similar manner as that for which you have been charged, and his opinion is your risk of engagement in contact sexual offenders is low.  In terms of prospects of rehabilitation, he is of the opinion you would likely benefit from receiving individual offence related and offence specific treatment.

55You have expressed a willingness to engage in treatment to address your offending issues, and it is respectfully recommended that individual treatment be provided to you, to take into account your various conditions. 

56I have had regard to Dr Sakdalan's expressed opinion, and I consider that each of the Verdins principles have been enlivened, such that the need to emphasise general and specific deterrence will be moderated, but not eliminated.

57You have been assessed as to your suitability for a Community Correction Order, and found to be suitable.  You are considered to be a low-risk of reoffending, according to the level of service inventory risk need and responsivity risk assessment tool.  If a Community Correction Order is imposed, the following conditions were recommended:  Mental health treatment, Offending Behaviour Programs including assessment, and participation in a sex offenders advice and treatment services program was recommended, as well as supervision.

58You have been assessed for the Specialised Offender Assessment and Treatment Services (SOATS), and that is also the findings of that report has been made available to the court.  You are assessed as falling into the low risk category also.  You are recommended for case management, intervention in consultation with SOATS.

59I have had regard to all of the contents of those reports and I consider that their recommendations are appropriate in all the circumstances.  You are fortunate in that your adoptive parents remain very supportive of you.  They are aware of the offending, and are very protective of you.  They will ensure that your treatment with the Victorian Aboriginal Health Service is ongoing and they are keen to assist you to have further support and treatment, to deal with the triggers for your offending, and to deal with your psychological and other conditions.

60In terms of disposition, Mr Thyssen sought an order, that would involve a disposition that did not involve an immediate custodial disposition.  Ms Reid, on behalf of the prosecution sought an immediate custodial sentence, and provided to the court with a comprehensive, revised further Crown submission on sentence.

61In regard to an aspect that is referred to in the pre-sentence clinical assessment report about there being an observation made by the author, that you were faking good in terms of the Paulhus Deception Scale.  I prefer the expressed opinion of Dr Sakdalan in relation to that.

62In particular, he refers to that in paragraph 43, where he says that another possible explanation for that finding, could be explained by reason of some of your characteristics; that is, cognitive rigidity, and black and white thinking, which may be associated with your Autism Spectrum Disorder. 

63In terms of the motivation for the offending, there is no reason why I ought not accept your explanation.  It is unusual but having regard to your particular individual circumstances that are comprehensively detailed in the report of Dr Sakdalan, I consider that those explanations that you have provided are what you truly believed.

64I note that Dr Sakdalan says that you struggled to make sense of your offending.  You denied any history of accessing child exploitation material.  You indicated that you did not have any intention of engaging in contact sexual offences.  Importantly, you did acknowledge the wrongfulness of your actions, and that you committed the crimes.  You intimated to Dr Sakdalan that you accept responsibility for your actions and that you did not appear to be minimising your offending to him.

65You indicated that you felt terrible with what you did.  You could now relate to the victims, referring to the children who were involved in the child pornography, and you intimated that this experience put things into perspective, realising that some children have suffered more serious sexual abuse than you have done. 

66So it is important that the disposition that the court imposes reinforces those messages to ensure that your likelihood of future offending in the future, is minimised.

67Overall, I am satisfied that this is not a case where you were accessing or using the material for your own sexual gratification.  Having regard to all of the mitigating factors that I have highlighted, together with the material from
Dr Sakdalan and the other report writers, I consider that the most appropriate disposition is one that marks the seriousness of the offending, by recording convictions, but that ultimately, you are able to remain in the community whilst undergoing treatment for the underlying offending behaviour, in a manner that is going to be most appropriate for your particular mental health condition.

68You are a person who has struggled over the years, and I have had regard to your particular family circumstances, and the principles of Bugmy v R[6] apply.  I have also read the comparable cases provided by the prosecutor.  I consider that they are each important, and they reflect comparable sentencing decisions from intermediate appellate courts that are used as a yard stick against which to examine your sentence.

[6] [2013] HCA 37

69However, ultimately each case turns on its own individual facts and circumstances. 

70In your circumstances, I propose to record convictions in respect to both charges but to impose a sentence that does not involve immediate gaol.

71In respect to Charge 1, you will be convicted and sentenced to one year imprisonment to be released forthwith, upon entering into a recognisance, by giving security of $1000 and the condition is that you be of good behaviour for two years from today's date.  That starts from today's date, that sentence.

72In respect to Charge 2, the possession of child pornography, you will be convicted and placed on a Community Correction Order for two years, and that commences on today's date.  That is subject to supervision and treatment and rehabilitation for mental health conditions, as well as offending behaviour programs, including the - given the nature of the offending, a condition for assessment and participation in a sex offenders advice and treatment services.

73I will provide to Community Corrections, the report Dr Sakdalan with the request that they give consideration to developing an individual offence-specific and
offence-related treatment program for you, having regard to your particular needs. 

74You have had explained to you, both the Commonwealth recognisance release order and also the state Community Correction Order. You understand what those orders mean, and it has been explained to you by
Mr Lavery, what would happen in the event that you did not keep to the conditions of those orders, and you consented to those orders being made.

75I have now signed those orders and they will be provided to you, for you to sign.  The only other matter that I need to refer to is s.6AAA declaration, in relation to Charge 1.  Is that correct, Ms Reid?

76MS REID:  Yes, Your Honour.  That is correct.

77HER HONOUR:  Yes.  But for your plea of guilty, I would have imposed a term of imprisonment of 18 months, to serve nine months.  Now in respect to the second charge, the Community Correction Order, I do not have to do a s.6AAA declaration as I understand it.

78MS REID:  I think you do, Your Honour.

79HER HONOUR:  Yes, all right.  The final matter is you have pleaded guilty to two registrable class two offences, as identified in schedule two of the
Sex Offenders Registration Act 2004 Victoria. Pursuant to s.34(1)(b)(ii) of the Act, you are required to comply with your reporting obligations for 15 years, and a notice setting out the reporting obligations has been prepared and signed by me. If you could adopt that, that would be the final matter that needs to be attended to this morning. All those forms have been prepared, Mr Lavery. If you assist my associate in getting the relevant ‑ ‑ ‑

80MR LAVERY:  Yes, Your Honour.

81HER HONOUR:  ‑ ‑ ‑ signatures, that would be appreciated.  Sorry, is there a matter?

82MS REID:  Your Honour, just in relation to your query about whether you needed to make a declaration under 6AAA for the Community Correction Order.  Because it is two years or more, you do need to make a declaration in respect of that.

83HER HONOUR:  All right.  In respect to Charge 2, s.6AAA, but for your plea of guilty, I would have imposed a Community Correction Order of three years duration on the same terms.

84MS REID:  Thank you, Your Honour, and can I raise one other matter,
Your Honour?

85HER HONOUR:  Yes.

86MS REID:  I believe Your Honour said in your sentencing remarks that the Crown had asked for an immediate custodial term?

87HER HONOUR:  Yes.

88MS REID:  In paragraph 4 of the revised Crown's submission on sentence, we were submitting that imprisonment was required, but how that term was to be served, was a matter for the court.

89HER HONOUR:  All right.  I will amend my sentencing remarks to reflect that.

90MS REID:  Thank you, Your Honour.

91HER HONOUR:  Which is in effect, what I have done.

92MS REID:  Yes.  Thank you, Your Honour.

93HER HONOUR:  All right, sorry about that oversight.  I had a few other things going on this morning.  We have got those all signed, they can be provided as copies.  Otherwise, we can adjourn the court.  Thank you all for your assistance.

‑ ‑ ‑