Director of Public Prosecutions v Chilton

[2017] VCC 1372

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 17-01427

THE QUEEN

v

LOUIS CHILTON

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:	22 September 2017
DATE OF SENTENCE:	22 September 2017
CASE MAY BE CITED AS:	DPP v Chilton
MEDIUM NEUTRAL CITATION:	[2017] VCC 1372

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr D. O'Doherty
For the Accused	Mr P. D'Arcy

HER HONOUR: 

1Mr Chilton, you can remain seated until I tell you to stand, thank you.  Louis Alexander Chilton, you have pleaded guilty before me to one charge of using a carriage service for child pornography material.

2The facts underlying your offending are as follows.

3In January 2015, the Australian Federal Police received a notification of two exploitation material images being uploaded to an IP address registered to your mother.  Eventually a search warrant was executed at your address on 20 December 2016 and you were arrested. 

4Initially you denied offending, but then told police you had been accessing child exploitation material until the middle of 2015, and had been accessing it until you were 16.  You said stopped but then started again, and told police you believed there was something wrong with you.  You then told police where some of the items they were looking for would be located.

5Police seized a number of items, for example an iPad, a laptop, a mobile phone, and a USB.  Ultimately, 47 videos of child exploitation material were discovered, all involving prepubescent females.  Your actions in downloading this material underlie the charge on the indictment.

6The items were analysed.  The downloads were found to have occurred between 13 and 18 December 2016.  Most of the videos fell into categories 1, 2 and 3 of the Australian Child Exploitation Material Classification Scheme; 1 of the 47 in category; and one at 4 in category 4.  Most of the videos involved prepubescent females displaying vaginas and breasts without touching themselves, or where there was solo masturbation and digital and object penetration.  The category 4 videos were oral penetrations between same age girls, and there was one category 5 video of a canine oral penetration of a vagina.

7When you were interviewed on 20 December 2016 you admitted, as you had already told police, that you began accessing this material when you were about 16 and had always thought it was wrong.  You provided police with the websites you went on to locate this material to download onto your computer, as well as the email addresses, usernames and passwords that you used.  You told police you needed help.  You have expressed remorse and said you would never act on anything.  You admitted trading with people and trading email accounts and using Cloud-based storage.

8There were times, you said, when you had deleted all this material, then would not access for about six months, but then would start using it again.

9The maximum penalty for this offending is 15 years' imprisonment.

10I now turn to your personal circumstances.  You are 20 years of age and you have no prior convictions.  You are the only living son of your parents; a second son died during birth.  When you were about five your parents separated for about 18 months but then reunited and have been together since.  Your father was a manager for a large process food distributing company and is now a salesman.  Your mother is retraining after running a business for some years involving children's parties, in which you participated as a balloonist until your arrest for these matters.  It is clear that your arrest affected your mother's business, which she now no longer operates.

11You completed year 12 at Brower College, where you excelled academically, and psychological testing by psychologist Harvey Abbott revealed that you have a superior intelligence.  You are not interested in sports, but were inclined more to performance, music and the arts.

12You described particularly long-term, distressing experiences of bullying at both primary and secondary school, which you said occurred daily.  You told Mr Abbott that you hated school, that the bullying included being spat on, tied to a tree, being whipped with an electric cord and so forth.  You grew up, it seems, distanced and isolated from your peers as a result.  You became inordinately close to your parents, particularly your mother, with whom you spent and do spend a great deal of time.  You have reported to Mr Abbott really only one good friend.

13You have never had a sexual or romantic relationship with a girl.  You spend much of your time in solitary pursuits.  You have a large movie collection, you watch TV, or you participate in family activities.

14You never disclosed the extent of the bullying to your parents.  You described to Mr Abbott periods of high anxiety and distress whilst attending both primary and secondary.  Mr Abbott wrote:  "It seems he may have used online porn to replace sexual intimacy".  I note that you began accessing this material when you were about 16.

15Mr Abbott continued:  "It appears that over time in the context of recurrent bullying, he completely withdraw from social interaction", and that this was the context in which your offending took place.

16Testing revealed, and I might say that Mr Abbott, on whom you have attended 12 times since April 2017, conducted an extraordinary number of tests, that generally over the years you have lived with high anxiety and low mood.  He said you are likely to be plagued with worry and hence were, "Likely to display a variety of maladaptive behaviour patterns aimed at controlling anxiety".  Again, I regard this as some sort of explanation for the offending in which you engaged.

17You also present as having problems with obsessive thinking and compulsive behaviours.  Again, this would appear not to be unusual in the context of the extreme anxiety you have lived with for so many years.

18You also reported to Mr Abbott a couple of traumatic, early sexual events which were not wanted by you, and which were forced upon you by same-age peers when you were in primary school.  You reported to Mr Abbott that you watch a lot of television and movies as a psychological escape from the general anxious condition that you appear to suffer from, more or less all the time.  Ultimately, internet pornography became part of this escape mechanism. 

19Mr Abbott wrote: 

"His use of internet porn followed a process of deindividuation, allowing for the development of behaviour contrary to his typical pattern of behaviour".

20In other words, the online world allowed you to behave in a way you would not have done in the real world.  The real world meant that you were unable to develop the normal social behaviours, particularly sexual behaviours of adolescents, because of the isolated road you chose to take in the background of immense difficulties at school, which it appears you told no one about.

21Mr Abbott wrote: 

"Online disinhibition is characterised by dissociative anonymity, invisibility, dissociative imaging and a reduction of response to authority".

22He also wrote: 

"Mr Chilton was able to separate his actions online from his in-person lifestyle and identity, which allowed him to feel less vulnerable about self-disclosing and acting out.  He believed that whatever he says or does cannot be directly linked to the rest of his life".

23He went on:  "He splits or dissociates online fiction from online fact”, so that you would leave that behaviour behind when you switched off your computer.  You told Mr Abbott, as you told police, that you would never act out the sort of fantasies that were contained in the videos that you watched, and that you would never hurt anyone.

24You did admit an attraction to ten to twelve year-old, prepubescent girls.  This is considered a form of deviancy by Mr Abbott.  It would appear that at this stage, and again, this is not something unusual to the courts, it is quite common to see people who have had difficulties with their personal development, attracted to that sort of age group of girls because they appear less threatening than age-appropriate women.

25You made a full disclosure to police, then pulled back from those disclosures you made.  Mr Abbott in my view in assessing you and administering the tests, operated on the basis of what you told police, rather than your later recantation, where you said you believed someone had hacked into your computer.  It is not clear, according to your counsel, just how much of this offending you have come to deny, but I note you have entered a plea of guilty, and indeed entered a plea of guilty at an early stage in the proceedings before any committal proceedings took place.  At the end of the day, you are here, Mr Chilton, pleading guilty to all the allegations contained in the prosecution summary.

26In other words, once you plead guilty in this court and allow that prosecution summary to continue, it is accepted that you are accepting the actions that are described in that prosecution summary.

27I accept that it is likely that the horrors of your legal situation, the likelihood of you being imprisoned, (once you received legal advice), may have led you to protect yourself by retreating into denial, and I do note that you attempted suicide following you being arrested and charged for these offences.

28The effects upon you and your family as a result of this offending have been severe.  You have received a large amount of hate mail on social media.  Your parents have been forced to move house.  You no longer participate in your mother's business, and your mother's business has been significantly curtailed.

29Until recently you were a music teacher for primary schools.  You are no longer able to do this, and will no longer be able to do this because of your mandatory placement on the Sex Offenders Register.

30You have begun a diploma in hospitality and tourism.  I note that you regularly attend on a psychologist in addition to Mr Abbott.

31I received a raft of references, all from adult family friends, all of whom have been informed of your offending.  It is quite clear that many of those people struggle to accept that you have offended in this way.  You have obviously presented as a polite, respectful and caring young man to them.  It was my observation during the plea, it is likely that you have wider relationships and social relationships with your parents and their friends, than you do with your own age group.

32I need to make this observation about the nature of your offending, which I make in any cases of this kind, and it is this:  The viewing of child exploitation material is not a victimless crime.  Those children who are the subject of that material, are usually born into the poorest and most disadvantaged families in the world.  Already they would suffer unimaginable deprivation, both materially and emotionally.  They are the sort of children who you might see helping their parents earn a living by sorting out rubbish on vast rubbish dumps in the poorest cities in the world.  They are already extraordinarily disadvantaged children.  They would not have access to education, to food, to proper clothing.  They live lives, as I have said, of extreme deprivation.

33Add to that the utter betrayal that they experience when they are subjected for commercial gain, to be filmed, engaged in the most depraved and - the word seems too mild - disrespectful treatment at the hands of adults who then profit by this exploitation by placing this material online.

34The only reason those unspeakably evil people engage in this activity, is because there is a market for it.  And unfortunately, Mr Chilton, although you may not have realised at the time, you have, by viewing this material, formed part of that market which makes that appalling exploitation possible in the first place.

35That is why legislation has been enacted to ensure, as far as is possible, so that viewing of this material is regarded as a serious criminal offence, and is designed to ultimately discourage the exploitation of these already terribly disadvantaged children.

36Ordinarily, persons who engage in downloaded child exploitation material can expect a sentence of imprisonment to be imposed, which is ordered then to be immediately served.  The authorities have made it clear, the main purpose in any such sentencing is to deter others from engaging in this material; to spread the message that if you are going to watch child exploitation material, you can confidently expect a gaol sentence.  It is very important that any sentence that is imposed by the courts makes this clear.

37It is also important that courts utterly denounce this behaviour and the viewing of this material.

38If it were not for your relatively youthful age; if it were not for the fact that you have no prior convictions; if it were not the fact that you come from a totally law abiding and supportive family; if it were not for the fact that the extensive testing by Mr Abbott revealed you to be a person who is not antisocial, not insensitive, not suffering some psychological problems, who is generally a law abiding long man, the prospect of you being placed in incarceration today would be very real.

39I am satisfied that over a period of years you have dealt with ongoing and extreme bullying which has isolated you, delayed your normal relationships with the opposite sex, caused you to retreat to the unreal world of television, movies, and ultimately child pornography, and I accept that you have done this largely to control the various anxiety and depression conditions which Mr Abbott says he believes you have been suffering from for years, as what he describes a maladaptive way of coping with that condition.

40I do regard you as having fair prospects for rehabilitation.  You were assessed by Mr Abbott, and again I repeat, he performed an extraordinary number of specifically applied testing, as being a low risk of reoffending.  It was his recommendation that you continue to undergo therapy, in particular cognitive behaviour therapy, designed to address all the problems that in my view, and it seems in his view, have underlain your offending.

41Fortunately, because this offending arises under federal legislation, I have available to me federal sentencing, which allows me to impose a suspended sentence with conditions.  In my view, such sentencing allows me to abide by and pay proper attention to the dominant sentencing principles in this exercise before me, that is general deterrence and denunciation of your behaviour.  I do not regard you as a danger to the community.

42I do accept, despite your retreat from your position with police, that you are remorseful for your offending, and I do accept that your part in the exploitation of these children has been somewhat lost upon you.  I do regard you as the sort of person who ultimately can appreciate and accept what that viewing means.

43I therefore intend, and I note the prosecution does not submit that this form of sentencing is outside the range available to me, to deal with you by way of imposing a term of imprisonment which will be suspended effectively, upon you entering into a recognisance to be of good behaviour, but which will contain certain conditions.

44All right, sir, can you stand up, please?

45I also note that the material upon which this charge is based is relatively limited, and this is a salient factor according to the authorities in reaching the appropriate sentence for offending of this kind.

46On the charge, I sentence you to a term of imprisonment of 20 months.  I am going to order that it is instead to be served by way of you entering into a recognisance to be of good behaviour.  There will be a special condition, that you are to attend upon Mr Harvey Abbott as directed by him.  You are also to attend upon your psychologist, Ms Sue Clifton, as directed by her, and I am going to order your attendance upon the court every six months whilst this order is ongoing, for me to receive an update as to your progress with your therapy.

47And of course there is an underlying condition that you not commit any offending whilst you are on this order.  If you do, if you retreat back into use or viewing of this material, that will be a breach of this order and you will be ordered to serve this 22 months' imprisonment.  Do you understand that, Mr Chilton?

48ACCUSED:  Yes, I do.

49HER HONOUR:  All right.  Just have a seat whilst the proper form - it is normally done by?

50MR O'DOHERTY:  Your staff.

51HER HONOUR:  Not in Commonwealth matters.

52MR D'ARCY:  It's like the old days with the state, they used to do the bonds.

53HER HONOUR:  Yes.

54MR D'ARCY:  Your Honour, I think because it's Commonwealth legislation, there may be a requirement that Your Honour specify in the order that upon entering the recognisance, that he is to be released forthwith.

55HER HONOUR:  Yes.  I think you are absolutely right, and I do think my terminology was wrong.  You are sentenced to 22 months' imprisonment, but are to be released forthwith upon you entering into a recognisance to be of good behaviour, which will last for 22 months.

56There will be a surety of $3,000, but you will only have to pay this if you breach the recognisance.  Is that clear, Mr Chilton.  Thank you.

57MR D'ARCY:  Your Honour, there's one matter could I raise?  I apologise for doing this.

58HER HONOUR:  No.

59MR D'ARCY:  And I may have misled Your Honour.  My client's mother's business still exists.  It's been diminished in its size, and of course my client can't contribute to it anymore.

60HER HONOUR:  All right then.  Look, when I am revising the comments, I will note, and this will be on the transcript in any event, that your mother's business has been very much diminished as a result of your offending in terms of demand for her services, and you yourself cannot participate in the business as you once did.

61MR D'ARCY:  And I understand she has some loyal customers nevertheless.

62HER HONOUR:  Looking at the references, I am sure that is so.

63MR D'ARCY:  Thank you, Your Honour.

64MR O'DOHERTY:  We need the Sex Offenders'.  We need the other orders made.

65HER HONOUR:  We do not have a template for it.  All right.  Look, what we can do is, I can adjourn this.  It can happen in Melbourne.

66MR O'DOHERTY:  Yes, thank you.

67HER HONOUR:  It probably will mean that Mr Chilton has to ‑ ‑ ‑

68MR D'ARCY:  Could we do it via video-link from here, Your Honour?

69HER HONOUR:  He has got to sign it.

70MR D'ARCY:  Yes.

71HER HONOUR:  Look, I know it is enormously inconvenient, but I cannot let Mr Chilton leave today on the order unless he has signed the order.  The only way around seems to be - and there is no access.

72MR O'DOHERTY:  Adjourn it.

73HER HONOUR:  Is to adjourn it to Melbourne, and unfortunately it will mean, enormously inconvenient, the family will need to travel to Melbourne because I finish circuit today.

74MR D'ARCY:  Yes, I understand, Your Honour.  I warned them that there was a possibility because of this being the last day, that they may happen.

75HER HONOUR:  Yes, and often it is the case where sentence would not necessarily have been handed down on the same day in any event.

76MR D'ARCY:  No, indeed Your Honour.  They understood that.

77HER HONOUR:  Yes, all right.  I will adjourn it for a week to give the Crown time to get that form together, which is a public holiday.  I will adjourn this to 9 am.  I am also in the sex list, but it can just be part of it, so that on that date Mr Chilton can attend the County Court in Melbourne.  I am sorry, but it is the only way we can do it.  So he can sign the form and formally enter into the recognisance.  Do you understand everything I have said, Mr Chilton?

78ACCUSED:  Yes, Your Honour.

79HER HONOUR:  Pardon?  It is 28 September.  So that just gives the Crown some time to prepare that.

80MR D'ARCY:  Do I seek, Your Honour, that my client's bail be extended to that day?

81HER HONOUR:  Bail will be extended.

82MR D'ARCY:  Is that the best way of doing it, Your Honour?

83HER HONOUR:  Yes, bail is extended on the same terms and conditions.

84MR D'ARCY:  And then he'll enter the undertaking, and Your Honour's reasons will be the reasons that Your Honour's given.

85HER HONOUR:  They have been given, and it will be noted on my sentencing remarks in any event, that I have delivered my sentencing remarks but adjourned this matter in order for the proper documentation to be prepared.

86MR D'ARCY:  Thank you, Your Honour.

87HER HONOUR:  And then signed by your client.  I think I am required to make the 6AAA declaration?

88MR O'DOHERTY:  Yes, Your Honour.

89MR D'ARCY:  Yes.

90HER HONOUR:  Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of detention in a youth training centre for a period of 18 months.

91MR O'DOHERTY:  We had sought orders, Your Honour.

92HER HONOUR:  Yes.

93MR O'DOHERTY:  A disposal order and a ‑ ‑ ‑

94HER HONOUR:  The disposal order is fine.  I must say, I am not inclined to grant the s.464ZF application, partly because of his pride but also because of part of the nature of the offending.

95MR O'DOHERTY:  And the Sex Register.

96HER HONOUR:  Yes.  It is mandatory that you placed upon the Sex Offenders Register - I am sure you have already been informed about this, Mr Chilton - for a period of eight years, and Mr D'Arcy will have explained, or will explain to you your obligations on that order.

97MR D'ARCY:  He has to sign that.  Would that be best to do that next week as well?

98HER HONOUR:  Yes, all right.  Let's do that.  I will put that off until next week.  So we will hang on to that and you can sign that then.  Did you hand me up the orders?

99MR O'DOHERTY:  No, Your Honour.

100HER HONOUR:  I thought I had lost yet another set.

101MR O'DOHERTY:  We can do them next week.

102HER HONOUR:  All right, then.  Counsel are excused if they need to be.

103COUNSEL:  Thank you, Your Honour.

104MR O'DOHERTY:  Thank you very much.

105MR D'ARCY:  Your Honour, at the risk of being Oliver Twistish.

106HER HONOUR:  Not you, Mr D'Arcy.  What else do you want?

107MR D'ARCY:  Would there be a chance of a certificate for last Tuesday?  I come to Warrnambool on the Monday afternoon and found out it had been moved.

108HER HONOUR:  Yes, that is fine.

109MR D'ARCY:  I'm obliged, thank you, Your Honour.

110HER HONOUR:  Yes, we will give you an appeals costs certificate for that.  Sorry we could not accommodate you on that day, Mr D'Arcy.

111(At this stage the court proceeded with another matter.)

112(At a later stage.)

113You can come out of the dock, Mr Chilton and sit with your parents.  Thank you.

114MR D'ARCY:  Thank you, Your Honour.

115HER HONOUR:  Thank you very much.  Again, I thank counsel very much for their assistance in what, on the surface, appeared to have had a few twists and turns.  Now, you are excused, Mr D'Arcy.

116MR D'ARCY:  Thank you, Your Honour.

---