Director of Public Prosecutions v Clarke

[2014] VCC 1512

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

AT BALLARAT
CRIMINAL JURISDICTION

CR-13-01826

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEE CLARKE

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	9 September 2014
CASE MAY BE CITED AS:	DPP v Clarke
MEDIUM NEUTRAL CITATION:	[2014] VCC 1512

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 A Sprague
For the Offender	Mr J Harper

HIS HONOUR: 

1Lee Terrence Clarke, you pleaded guilty to an indictment which alleged that you accessed child pornography using a carriage service between 4 April 2012 to 30 October 2012 and that you made available child pornography material using a carriage service in the same period.  The circumstances of your offending are set out in a document entitled summary of facts, which was an exhibit on the plea, and will be retained on the court file for future reference.

2Briefly stated, you utilised a client server application on the internet to connect with other users and exchange electronic files.  Within the application, users can also exchange messages.  The application has the capability of identifying users, adding them as contacts, showing when those other users are online.  A user can designate chosen folders on their computer to be shared with other users and access their shared folders.

3On 25 July a Covert police operative was engaged in an online interaction with you, whereby he could access the files you had available for sharing.  You had child pornography in some 33 files, which were able to be accessed by the covert operative and saved this to his computer.  Of the 31 files which contained child pornography, 21 were images of children aged about ten years old, engaged in sexual activity with adults and other children; seven videos of children aged between seven and 14 years, engaged in sexual activity with adults or other children; and three videos of boys aged 13 – 14 years masturbating.  The internet protocol address was traced to an account in your name.

4In October 2012 a search warrant was executed upon your home in Wendouree.  You were arrested and cautioned.  You admitted accessing child pornography, including the previous night.  You told the investigators about an external hard drive in a bag in your lounge room where they could find child pornography.  You were interviewed and admitted sharing files with other users and exchanging passwords with them.  Files on the portable hard drive were available for sharing.  You told police you had 250 user contacts, though not all of them shared your files, but all of them shared child pornography.

5You described the contents of the files, videos, and photographs of children engaged in sexual activities, mainly boys.  You had been a member for six months, or perhaps more, you said.  The thousands of images you had , were organised.  An analysis of your laptop computer and portable hard drive, revealed a large number of images and video files containing child pornography.

6Tables were included in the summary, which identified and categorised the material located, on the basis of the child exploitation tracking system. The total number of such files were 14,934 and 388 videos. Although the largest number was in Category 1, where no sexual activity is depicted, these images are nevertheless of child nudity, sexually suggestive posing with explicit emphasis on genitals. There were over 2000 files of penetrative sexual activity between children and adults and over 300 depictions of sadism, bestiality, humiliation, as per the Criminal Code.

7Chat logs involving you were also accessed and extracted.  On many occasions between 4 April 2012 and 30 October 2012 you requested passwords of other users so you could share folders and you provided your password to over 150 users so they could access your folders.  You expressed an ongoing interest in child pornography material, with a preference for boys between 12 and 16 years' of age and discussed the grooming and sexual abuse of young boys.

8The summary of facts outlines five examples of such chats, including one in which you told another user that you had previously engaged in sexual activity with boys aged 13 - 16, who you had met at a shopping mall.  You discussed grooming and engaging in sexual activity with young boys.  You discussed the need to delete images to avoid police detection and you told another user that you never stopped looking to add to your collection.

9It was my unfortunate duty to view a sample of this material.  This task is repulsive, as it would be to any right thinking member of the community.  The images are revolting, extremely disgusting, and abhorrent.  A moment's sober and clear eyed reflection on the psychological, physical and emotional damage done to those young children depicted in the images is harrowing, and serves as a powerful and sad reminder that those depicted are not objects or fictional characters, they are exploited and abused young children, the unwitting victims of a vile trade in images that go to provide material for depraved and corrupt gratification of those who choose to access this material, thus creating a demand and a market which in turn fuels further expectation and abuse.

10However, apart from accessing such material, it is the intent of the law to capture those who use modern technology to spread this evil, by sharing it with like-minded individuals.  This facilitation, this making available, is the mischief intended to be covered by the second count and in my view this charge is the more serious of the two, despite their equal maximum in terms of years.  The community rightly looks to the court to denounce such behaviour, to deter like-minded individuals by the imposition of stern punishment, particularly in relation to offences, like these, in which the public interest is in protecting children from sexual abuse.  That interest is very significant and it must be a paramount consideration.

11The Crimes Act of the Commonwealth compels me to sentence you in accordance with Part 1B of that Act, in addition to any other relevant factors. I take in to account the matters set out in s.16A(2).  I have already mentioned general deterrence.  In assessing the nature and circumstances of the offence I note the increased penalty in recent years to reflect the pervasive power of the internet, which has made this material ever more available and even more depraved.

12I take into account, as I have stated, the fact that your actions have not just perpetuated the market but contributed to that perpetuation by retaining the images and making it available to a large number of people.

13I take in to account the nature and content of the material, as I have explained, above.  I also note the volume of material accessed and shared which is directly referable to the very large number of victims abused to produce such filth.

14Although I take into account the lack of a financial benefit, this does not mitigate your offence.  Indeed the swapping of images can properly be regarded as a commercial activity, because it fuels and facilitates demands for such material.  The images were downloaded and stored, not simply accessed and viewed.  The images were organised and placed in folders to be shared, to enable the use of an application which involved a collaborative network of like-minded persons for a substantial period of time.  This is a sustained course of conduct and is not isolated offending.

15I take in to account your guilty plea, which was entered at an early stage.  This I accept is your acceptance of responsibility and acknowledgement for your wrongful behaviour.  I will accord it an appropriate discount on your sentence, as I must do by law.

16I accept that it is also accompanied by regret.  Whether this is accompanied by genuine remorse is often difficult to assess.  The plea has a utilitarian value, though it was inevitable, of having avoided a costly trial.  I shall return to the issue of remorse in a moment.

17Having encouraged others to participate in sharing such material and having expressed your sexual interest in young children, not just by the access and making available by your chat sessions, in my view specific deterrence is also a relevant factor to be taken into account, given also the size of your collection and the period of offending.  In my view the adequate and appropriate punishment which must inevitably flow from such offending is imprisonment.

18I take into account your personal circumstances.  You are 42 years' old.  Although you have prior convictions for dishonesty in 1993 they were dealt with by a Community-based Order and there is no prior sexual offending.  To that extent your priors are of little relevance.  However, even a relative good character, which perhaps you could claim, in my view should be given less weight in such offending as presently before me.

19I take into account your cooperation and admissions.  You proffered to not understand your motivation for the offending, although you admitted an interest in young teenage boys.  In the interview with police you showed a lack of insight into the harm done by this material. 

20A report was tendered from a psychologist, Mike Lake, dated 18 March 2014, together with a June 2014 update.  You first saw Mr Lake on 15 November 2012 and most recently on 5 March 2014 over some 15 sessions.  He gave evidence during your plea.  You were initially referred to him by your GP, Dr Plange, with a diagnosis of anxiety and adjustment disorder, having just been charged at that time.  You were depressed and anxious and may have had stress related angina on the day of your arrest.

21In 2013 Mr Lake changed emphasis in his therapy and counselling, after consultation with your lawyer, to a more "offence specific" approach.  He introduced you to an addiction model of offending behaviour and looked for the first time at the consequences, such as the effect on the victims.  According to him you have shown a willingness to adopt a more appropriate behaviour.  He found you to be remorseful but he also indicated that you thought the viewing of this material was interesting but did not involve any sexual arousal.  This is a difficult stance to accept and in my view runs counter to the contrition and remorsefulness that comes from an honest and frank recognition of your wrongdoing.  It may be that such acknowledgment is too difficult for you.  I accept that you sought counselling to address your personal issues and in an endeavour to develop insight in to your behaviour, to deal with its consequences.  In this sense, given the delay which has occurred, you have at least endeavoured to engage in the management of your behaviour and asserted a reduction of any risk of re-offending.

22You are, according to the report, a passive and unassertive individual with communication and social difficulties, though of normal intelligence and cognition.  You were married at the time of the offences and have two sons from a previous marriage.  I take in to account these matters contained in the report of Mr Lake.  You are proceeding through a divorce and property settlement with your wife, to which these charges have probably contributed.

23More relevantly I take in to account that you have lost your employment at the Sebastopol College, where you have been employed for some time as a commanding officer of the army cadet unit.  Perhaps in view of the nature of the offences, this is a natural consequence of your action.  I accept that it is in the nature of extra curial punishment, but I see such consequences as totally appropriate.  In fact, you were recently reemployed by a company providing services to Telstra, which means you may have good prospect for future employment.

24In any event, together with your commitment to further counselling, and your work prospects, your prospects for rehabilitation may be guarded but not hopeless.  You have sought support and rehabilitative assistance, and the effects of that in the long term may mean that you are equipped to be a low risk of re-offending.

25A chronology of your life was tendered by your counsel and without reciting it I take this history into account.  It is demonstrative of the work you have done in the past with the Australian Defence Force cadets, for which you have been awarded for long service.  This is to your credit.  Such opportunity in this field will no doubt be denied to you in the future.

26There has been some delay in these matters, which I take into account, though not inordinate given the nature of the analysis of the material required.  However, I accept that your plea, in the same terms as the current plea, was offered in June of last year and refused by the Crown, and only more recently accepted.  There have also been a number of adjournments in the past year, which I accept have caused you ongoing stress.

27There are another two personal aspects, which I take in to account.  You now are not with your own immediate family and your closest family members are all overseas.  This will mean your reclusion will be relatively unsupported.  You also have sleep apnoea, recurring, and requiring a CPAP machine which may prove difficult in a prison environment.  I have taken in to account that, and the reference written by your sister, as well as the submission made by counsel on your behalf.

28Your counsel has argued for significant degree of concurrency in this sentence, while the Crown has submitted that there should be a significant degree of cumulation.  In my view the conduct which forms your criminality proceeds from the viewing of the material through to its access, to its enabling steps for sharing.  The first being a necessary step in the second, although the second not an inevitable consequence of the first.  In my view, to a large extent, the criminality here encompasses both forms of conduct and there should be only some cumulation to emphasise the different nature of the offending which relates to the making the material available.

29I have considered all other available sentences and am satisfied that no other sentence is appropriate in all the circumstances and have reviewed a large number of authorities tendered to me by the Crown in their reported form by way of a chart, in order to ascertain the  current sentencing practices.  Please stand Mr Clarke.

30On Charge 1 you are convicted and sentenced to ten months' imprisonment; on Charge 2 you are convicted and sentenced to 12 months' imprisonment.  I order that three months on Charge 1 be cumulative on Count 2, the base sentence, making a total effective sentence of 15 months.  You ought to be released after serving nine months, upon entering into a recognisance release order in the sum of $1000, to be of good behaviour for the period of 24 months.  But for your plea I would have imposed a total effective sentence of twenty four months with a non-parole period of 12 months.

31As a result of this sentence you become subject to the obligations under the registration of  sex offenders, pursuant to the Sex Offenders Registration Act.  You will be under those obligations of reporting for 15 years, having pleaded guilty to two registrable Class 2 offences.  That registration is not part of my sentence, it follows automatically upon your conviction, and it imposes upon you significant obligations of reporting in relation to a number of things, which I am sure Mr Harper will go through with you and explain.  There will be a document in relation to that handed to you in a moment and you will be asked to sign a recognizance release order.  You will be the subject of that order after you have completed your period of incarceration.

32Mr Sprague, are there any other orders that I need to make?  I need to probably declare that that sentence, both sentences, will commence today.

33MR SPRAGUE:  Your Honour, my understanding of Your Honour's intention is to make three months of the sentence on Charge 1 cumulative on the sentence on Charge 2, which would require Your Honour to stipulate a commencement date, five months.

34HIS HONOUR:  Sorry?

35MR SPRAGUE:  Five months from today.

36HIS HONOUR:  Why five, I am sorry?

37MR SPRAGUE:  The sentence on Charge 1 being ten months, to commence in five months' time, therefore giving a conclusion of that sentence after 15 months, which is three months cumulative on the 12 months imposed on Charge 2.

38HIS HONOUR:  That does not affect his release date in terms of it being after nine.

39MR SPRAGUE:  The commencement date for Charge 1 should be five months from today and the commencement date of Charge 2, the sentence on Charge 2, to be today.

40HIS HONOUR:  Yes.

41MR SPRAGUE:  I will have the recognizance release order drawn in the form that Your Honour ordered.

42HIS HONOUR:  Yes, thank you, I will work out the date of the commencement for Charge 1 in a moment.  I will make it 9 February 2015.

43MR SPRAGUE:  Yes Your Honour.

44HIS HONOUR:  The sentence on Charge 1 will commence on 9 February 2015.  The sentence on Charge 2 will commence from today.  Take a seat, Mr Clarke.

45MR HARPER:  Just custody management issues, which Your Honour has alluded to.

46HIS HONOUR:  Yes, I will make a notation in my orders in order to inform the correctional authorities that there is an important medical requirement in relation to sleep apnoea and that in terms of that management requirement they should endeavour to provide Mr Clarke with the assistance that he requires.

47MR HARPER:  He's actually brought in the little machine that he has, which costs $1500 or so, and it's unlikely that the prison authorities will be able to get one immediately, so I wonder if Your Honour's notation could just include the request that he be able to access his CPAP unit.  It may or may not be agreed to by the authorities, but at least ‑ ‑ ‑

48HIS HONOUR:  I do not know.  I can indicate that he has the machine and that he has ready use of it when required.  I can't order the correctional authorities to take a particular view about that, but hopefully it will be taken on board.

49MR HARPER:  Hopefully if they do not agree with it, it will encourage them to get one as quickly as possible.

50HIS HONOUR:  Certainly, yes.

51MR HARPER:  The further thing was just, I'm not sure if Your Honour thinks it's appropriate to note the medication that he is on at present.

52HIS HONOUR:  What's that?

53MR HARPER:  Atorvastin, which is for cholesterol.  Nexium, for gastric reflux.  He's also on aspirin for blood thinning, but that doesn't require prescription necessarily.  Thank Your Honour.

54HIS HONOUR:  Yes.  Well I'll make appropriate notations on the orders.

55MR SPRAGUE:  Your Honour, I've prepared the recognizance release order for signature by Your Honour and then by the accused in the presence of Your Honour's associate.

56HIS HONOUR:  Yes, thank you.

57MR HARPER:  Your Honour can I just clarify, after nine months he would be released and he'd then be on a $1000 recognizance for ‑ ‑ ‑

58HIS HONOUR:  Two years.

59MR HARPER:  ‑ ‑ ‑ two years from that point?

60HIS HONOUR:  Correct.

61MR HARPER:  Thank you.

62MR SPRAGUE:  Your Honour, if I can raise one other matter at this point, pursuant to s.16F(2) of the Commonwealth Crimes Act, where a recognizance release order is imposed the court must explain or caused to be explained, often by the offender's counsel, the purpose and consequences of the recognizance release order, including the consequences of a breach.

63HIS HONOUR:  I was waiting for that to be signed, but once that's done I'm sure that Mr Harper will be able to do that.  I'll say a few words to Mr Clarke about that and invite Mr Harper to give a fuller explanation.  Thank you Mr Harper, perhaps you can get your client to sign these documents.  Mr Clarke, your recognizance, which you have signed, means that you essentially have to be of good behaviour during the time after your release.  If you commit any other serious offences you will be brought back for breaching this order and you will be dealt with for that breach and you may well be asked to serve the remaining time on this sentence.  The obligations under the Sex Offenders Registration Regulations you will see from this document are quite significant.  You will be subject to those obligations for a period of 15 years and the document goes in to quite some detail as to what your obligation under that registration is to be and you will find that it is quite onerous, and you should be very conscious of the fact that it is properly policed and any breaches will mean that you will come back to court to be dealt with.  I will ensure that you will have a copy of both of those documents.  Thank you.

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