Director of Public Prosecutions v Collins (a pseudonym)
[2021] VCC 2046
•10 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONAH EDDISON COLLINS (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE M SEXTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7th July 2021 |
DATE OF SENTENCE: | 10 December 2021 |
CASE MAY BE CITED AS: | DPP v Collins (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2046 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Possessing or controlling child abuse material obtained or accessed using a carriage service – Exceptional circumstances
Legislation Cited: Crimes Act 1914 (C’th)
Cases Cited:DPP (C’th) v Garside (2016) 50 VR 800 – McEwen v Simmons [2008] 73 NSWLR 10 – R v Edwards [2019] QCA 15 – R v Porte [2015] NSWCCA 174 – Worboyes v R [2021] VSCA 169 – R v AWF [2002] 2 VR 1 – R v Reid (unreported) Court of Criminal Appeal, NSW - Fedele v R [2014] NSWCCA 286 – R v Verdins [2007] VSCA 102
Sentence:TES: 12 months imprisonment but released forthwith on a Release Recognisance Order for 2 years with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. McDonald | CDPP |
For the Accused | Mr J. Taaffe | Doogue and George |
HER HONOUR:
Introduction
1 At the outset I apologise to you, Mr Collins[1], for the time it has taken for me to be able to deliver the sentence today. I acknowledge that you have symptoms of depressed mood and anxiety and the time that has passed before today when you ascertain the outcome of your case will not have been easy.
[1] A pseudonym
2 Next, I advise any journalist, or other person listening to these sentencing remarks, that I have ordered suppression of the identity of the accused person until further order and there has been an application made today that I will turn to later.
3 I will now proceed to my sentencing remarks.
4 Jonah Eddison Collins, you have pleaded guilty to a charge of, on 16 September 2020, possessing or controlling child abuse material obtained or accessed using a carriage service. This is an offence under the Commonwealth Criminal Code with a maximum penalty of 15 years' imprisonment.
5 On your behalf your counsel conceded that a sentence of imprisonment has to be imposed, but submitted that a term of imprisonment of less than three years is within range, and that it was open to me to impose a significant fine with a period of imprisonment and direct that you be immediately released[2]. In other words, if I agree with that submission you would not serve any time in prison.
[2] Section 20(1)(a) Crimes Act 1914 (C’th)
6 Because the offence involves a Commonwealth child sex offence I cannot direct that you be released immediately if a sentence of imprisonment is imposed unless I am satisfied that exceptional circumstances exist[3]. Your counsel submitted that I should be so satisfied.
[3] Above, s20(1)(b)(iii)
7 The prosecutor submitted that a sentence involving some period of immediate imprisonment is required and that I should not be satisfied that exceptional circumstances do exist in your case.
8 I have decided that your circumstances are exceptional. So, having considered all other sentences available, while I find that a sentence of imprisonment is the appropriate sentence to impose[4], I will be directing that you be released immediately. I have also decided, having had regard to your financial circumstances, that a significant fine should be imposed in addition to the sentence of imprisonment.
[4] Above, ss16A(1), 17A
9 I now set out my reasons. I will announce the details of the sentence at the end.
The offending
10 I sentence you on the basis of the prosecution opening read out on the plea[5]. I will briefly summarise your offending.
[5] Exhibit A – Prosecution Submissions
11 In November 2019 the Australian Centre to Counter Child Exploitation, ACCCE, received information from a government department in New Zealand regarding suspicious links to a New Zealand-based website. Analysis of the data by ACCCE identified an account on that website downloading child exploitation material with a user name and email address for which you were found to be responsible.
12 On 16 September 2020 police executed a search warrant at the place you were living with your partner and located and seized three devices belonging to you: a mobile phone, a hard disc drive and a USB flash drive. Preliminary analysis of these devices revealed child exploitation material, and the material was then reviewed and classified into categories as appears in the table on page 4 of the prosecution opening.
13 The charge you face is based on what was located in your possession on the date of the execution of the warrant as accessed by a carriage service. Largely from your frank admissions in the field interview conducted at the time the warrant was executed, it can be seen that you had access to child exploitation material (CEM) for some time, such that possession on that day was not an isolated event. However, while that provides context and background, you are only to be sentenced for the charge of possession on that day, as it is framed.
Seriousness of Offending
14 While over 35,000 files were found on the three devices nearly 24,000 of those were not child exploitation material, being classified in categories 7, 8 and 9 as either “non-illegal/indicative”, adult pornography or “ignorable”. The majority of those images - 17,083 - were classified as adult pornography.
15 Within the CEM there were 11,493 categorised as follows:
· the vast majority of 7,457 files in category 6 (animated material);
· 2,256 files in category 1 (no sexual activity but real children in various stages of nudity and sexually explicit poses);
· 1,008 files in category 4 (real child/adult penetration);
· 409 files in category 2 (solo or sexual acts between real children);
· 296 files in category 3 (adult with real child non-penetration); and
· 58 files in category 5 (sadism/bestiality/abuse of real children).
16 On any view, possession of nearly 11,500 CEM files is a significant quantity. Offences involving child abuse material are to be considered especially serious[6] and I do so consider this offence.
[6]DPP (Cth) v Garside (2016) 50 VR 800, [19]
17 With respect to the two-thirds majority of the CEM images being animated, the prosecution referred me to authorities[7] where the court “rejected any notion that graphic representations, computer generated figures or animations are harmless or victimless”[8], and submitted that, as the images in this case were very lifelike and required close inspection to confirm animation, the court should not treat the material in this category “in such a way as to make the risk more palatable to offenders”[9].
[7]McEwen v Simmons [2008] 73 NSWLR 10, [25]; R v Edwards [2019] QCA 15, [71]
[8] Exhibit A – Further Crown Submissions on Sentence dated 6 August 2021, [5] - [8]
[9] Above, [10]
18 Your counsel conceded that “high gravity material” was found in your possession and that all CEM possesses “significance and gravity regardless of categorisation”[10]. It was further conceded that the animated material was depraved and is therefore on a level very close to the other categories, but it was submitted that as an important distinction is that no children were harmed in the making of the animated images, this, it was submitted, did lessen the seriousness of possession of the vast majority of the CEM[11]. The possession of the animated material was also submitted to be relevant to consideration of whether in your particular circumstances you suffered from impaired mental functioning at the time of the offending.
[10] Exhibit 1 – Defence Supplementary Submissions on Sentence, [9] citing R v Porte [2015] NSWCCA 174, [75]
[11] Transcript of plea, 11
19 I will return to that second aspect later as it applies to subjective factors concerning you, but as to the consideration of the animated material in my assessment of the objective seriousness of the offending I note the following:
20 First, the category 6 CEM consists of lifelike animations of children ranging from very young infants to teenagers involved in sexual acts, including penetration of all types.
21 I have carefully read the authorities[12] relied on by the prosecution to submit that any notion that graphic representations, computer generated figures or animations are harmless or victimless is to be rejected.
[12] See footnote 6
22 In the relatively recent decision of Edwards[13], Morrison JA endeavoured to explain that while category 6 material is different because the other categories involve real persons, it is not victimless or harmless[14]. To the extent of that difference, the submission by your counsel - that no children were harmed in the making of the animated images - is not at odds with the case of Edwards, in that real persons were not involved.
[13]R v Edwards [2019] QCA 15, [71]
[14] Above, [69]
23 In assessing the objective seriousness of your offending I accept the risk of exploitation of others from possession of animated material as set out by Morrison JA[15] is to be taken into account in your case other than (a), the people appearing as ‘performers’, because in animated material there are no ‘performers’ in that sense. As I will come to later, that risk of exploitation was realised in your personal case, when as a child and underage teenager you were “affected in the sense of preyed upon or groomed by [a person] who actually [looked] at the [animated] material[16].
[15] Above, [71], and as set out in the Further Crown Submissions on Sentence dated 6 August 2021, [7]
[16] Above, [71](d)
24 I do note, however, that the expert evidence I heard in this case gives rise to a question as to the extent to which “those who view [animated] material may be[17] encouraged by what they see”[18]; and material - including cartoons - …”can[19] fuel demand for material that does involve the abuse of children”[20].
[17] Emphasis added
[18] Above, [73]
[19] Emphasis added
[20]McEwen v Simmons [2008] 73 NSWLR 10, [26]
25 Dr Davis, an experienced and published consultant forensic and clinical psychologist who gave evidence before me on the plea, said that while:
'a child pornography collection is a good indicator of a paedophilic disorder…it's not a good indicator that they're going to molest children because the vast majority don't.'[21]
[21] Transcript of plea, 51
and:
'even amongst those child pornography offenders…more than 96 per cent don't even download the material again.'[22]
[22] Above, 62
26 Further, in answer to a specific question from me about whether research showed that if viewing animated material does not satisfy an offender that can produce the effect of them moving on to [view material with real] children, Dr Davis said, inter alia, that he has not found any evidence for that whatsoever; that watching child pornography most certainly does not lead to people then committing offences; the studies are very clear that very few go on to commit a contact offence whatsoever; and that the use of child pornography has exploded over the last couple of decades, yet the rates of contact sexual offending have reduced[23].
[23] Above, 80-81
27 Having said that, Dr Davis accepted, as do I, that in receiving animated material you were also offered, and on occasion received, other material involving real children.
28 To make it absolutely clear, I accept that the viewing of animated material is not harmless and may not be victimless in the ways described by Morrison JA in Edwards, but I also accept, as also described in Edwards, that animated material is different from other categories involving real children, although not substantially different[24].
[24]Edwards, [76]
29 Next in my assessment of the objective seriousness of your offending, I note that the remaining 4,036 images of CEM do depict real children who are thereby victimised and in some appalling instances are extremely distressed. I find you were in possession of a significant quantity of CEM involving real child victims over a range of ages from infants to teenagers subjected to shocking abuse.
30 Next, by your admission you had first come across this material at age 14 and last viewed the material two to three days before the warrant was executed when you were aged 27. There are two matters to note here.
31 First, I take this to mean that you came across this type of material and not necessarily that you had possessed for 13 years or so some of the material in which you were found in possession on 16 September 2020. Nevertheless, this lengthy period of possible possession of some of the material found on 16 September 2020 is relevant to show possession on that day was not an isolated event.
32 Second, related to that first point, I will soon describe the circumstances in which you ‘came across’ the material at age 14, which is part of the exceptional nature of your case as I have found it to be.
33 Lastly as to the assessment of the seriousness of your offending, I note that there is no information to suggest that any of the material was for sale, nor that you obtained any monetary gain from the possession of the material, although I recognise that there was some exchange of CEM with others.
34 As to victim impact, I acknowledge that these images remain online for all time, re-victimising the real children there depicted each time someone like you views the disgusting images, and it can only be devastating for the ‘live’ victims once they are of an age to realise that they have been so abused, or come to recognise that what was perpetrated upon them is vile abuse. You, much more than most, will understand the impact that realisation can have.
35 Taking all of these factors into account I treat the possession of all the material, including the animated material, as at a significant level of seriousness.
Factors in Mitigation
36 I now turn to the factors in your favour to which I have regard.
Plea of guilty
37 I take into account that you have pleaded guilty and that you indicated your intention to plead guilty at the earliest opportunity. Because of your plea of guilty the community was saved the time and cost of a trial, and that utilitarian benefit is taken into account.
38 I also give actual and palpable value to your plea in the context of COVID-19, and the greater utilitarian benefit that arises from your plea in these times[25]. Further, you pleaded guilty to an offence that would see you going to prison during the pandemic, where you did not know if the exceptional circumstances test for immediate release would be met.
[25]Worboyes v R [2021] VSCA 169
Contrition
39 I treat your early plea of guilty as a sign of remorse for your crime.
40 I also accept as signs of contrition your conduct and frank admissions in the interview with police, the remarks you made to Mr Cummins in your sessions with him, “repeatedly expressing guilt, shame, embarrassment and remorse”[26], and your partner's description in her reference[27] of you showing remorse daily.
[26] Exhibit 2 – Report of Jeffrey Cummins, 01/07/2021
[27] Exhibit 4 – Reference from the partner
Cooperation with Authorities
41 I take into account that you were extremely frank and forthright in your field interview with police, providing them with a lot of information about your offending, and assistance as to locating the subject matter of your offending, even to the extent of explaining why no password was required where that was the case, or supplying all the possible passwords you could think of.
42 You admitted your connection to the relevant email addresses and accounts, despite the period of time over which some of these had been or were no longer in existence, and conceded that your memory as to the timeframe of use of these accounts could be inaccurate.
Personal sCircumstance
43 I acknowledge that your parents are hearing these sentencing remarks, with your father present in court, and your mother viewing proceedings online, both thereby showing support of you. It may be difficult for them to hear what I am about to say, but I say this to them: this is information which provided the foundation for the expert evidence that I accept and which I take into account in deciding the appropriate sentence for your son on this serious offence.
44 Your childhood was described by your counsel as unpleasant and challenging, marked by physical, sexual and emotional abuse.
45 Your parents were unhappy in their own relationship and took this out on you and your siblings, including physical punishment. Your father was generally absent and when he was around he was mentally and physically abusive to you. He beat you badly when you were aged seven or eight. In her reference provided to the court[28] your mother says she was unaware of this abuse until later, but noted that you were a happy child until about the age of seven.
[28] Exhibit 5 – Reference from the mother
46 When you were aged five or six a male neighbour came into your life and became close to your family, becoming like a father figure to you as your father was often absent. The neighbour later spoke to you about sport, alcohol and sex. While you were still aged five or six that neighbour began touching you and hugging you. The touching eventually progressed to him kissing you on the lips and touching you on your genitals.
47 From your early teens the neighbour began showing you pornography, including child pornography, and he masturbated in front of you. He masturbated you and had you masturbate him. You eventually engaged in oral sex with the neighbour on three or four occasions, including when you were over the age of 18. This abuse by the neighbour is the aspect of your personal circumstances on which your counsel relied, together with the expert evidence, to submit that your moral culpability for possession of the child exploitation material should be reduced. I will return to this aspect shortly.
48 Your parents separated when you were around 12 or 13 and you were relied on heavily by your mother to assist in caring for your two brothers and sister as your mother worked two jobs and undertook tertiary education. She describes you as being her right-hand man, with the role of an adult from the age of 14 years, with great and heavy responsibilities, including cooking, cleaning and looking after your siblings[29]. The burden on you was very significant as your intellectually impaired sister developed a severe seizure disorder.
[29] Above
49 Your mother describes[30] how you began to ‘retreat’ between the ages of 13 to 14, appearing somewhat aggressive and depressed, struggling to go to school or even leave the house. In Year 10, it seems you did not attend school until the second half of the year when, with minimal attendance, you were able to catch up and complete the year.
[30] Above
50 At the age of 16 or 17 you made an attempt at suicide due to feeling overwhelmed by assisting your mother in running the household, in conjunction with spending time with the neighbour who provided the attention and affection that you did not receive from your father, but who was simultaneously sexually abusing you. This was extremely confusing for you. The sexual activity with the neighbour continued until three years ago, ending in 2018. Mr Cummins described[31] how it was not until you commenced therapy with him that you began to understand that what the neighbour had done to you was truly abusive and even as at July this year (2021) Mr Cummins said you were still struggling to comprehend this.
[31] Exhibit 2 – Report of Jeffrey Cummins
51 Following your diagnosis of depression you completed Years 11 and 12 through distance education while still caring full-time for your sister and your younger brothers, all without much maternal supervision. Your mother describes[32] how you even brought ‘troubled teens’ home when you were aged between 15 and 17, saying they needed a safe place. Further, you had to continue to shoulder the burden of family responsibility as during this period your mother was apparently twice diagnosed with cancer.
[32] Exhibit 5 – Reference from the mother
52 Despite all of this, you then completed Certificates III and IV in Accounting[33], although I note that according to Dr Davis you reported dropping out halfway through the Certificate IV. That education was also on a home learning basis because of your continuing issues with anxiety and depression, and also were continuing to care for your sister.
[33] According to Dr Davis, Mr Collins reported ‘drop[ping] out halfway through’ the Certificate IV – Exhibit 3, p7 [21]
53 You moved into employment from 2015 first in warehousing, then as a pick packer and then in logistics, until in 2020 you were employed as a clerk and fleet controller in another logistics company. The COVID-19 pandemic led that company to restructure and you lost that employment. You have not been employed since.
54 During that last employment you met a woman with four children then aged under 9. After she separated from her husband, you commenced a relationship with her. She also became your sister's carer and travelled a considerable distance from her home to the home you share with your mother and sister.
55 Your partner and your family are all aware of your offending and continue to provide support for you. This is illustrated by the references your mother and partner provided to the court[34], by the presence of your family members and partner at this hearing, and by the fact that your partner has remained in the relationship with you despite your arrest, resulting in her then three year old son being removed from her permanent custody to live with her ex-husband.
[34] Exhibits 4 and 5
56 While her children live with their father, they spend a minimum of two nights per fortnight at her home at which you were residing until your arrest. It then became a condition of your bail not to have contact with children and so you returned to live at your mother's home.
57 Shortly before the plea hearing in July 2021, you and your partner discovered that she is pregnant with your child.
58 I note that you are about to turn 29 next week and have no criminal history.
Expert Evidence
59 Jeffrey Cummins, clinical and forensic psychologist, provided a report[35] and gave evidence. Mr Cummins began seeing you in February 2021 on referral from your GP via a mental health care plan. I note that it was your intention in seeing a GP about 12 months earlier, to seek a mental health care plan and that was months before your arrest in September 2020.
[35] Exhibit 2
60 At the date of the plea hearing Mr Cummins had seen you on 13 occasions. At the initial consultation you told him you had some sexual experiences as a young child and that your partner had said, in effect, that was sexual abuse of you as a child and teenager. Mr Cummins said you struggled over the next few sessions to see that what had been done to you by the neighbour amounted to what can be described as masterful grooming and sexual abuse. While you now think that perhaps you with friends saw some child pornography in your early teens it was the neighbour who introduced you to both adult and child pornography, including animated material, with regular viewing of this in conjunction with the neighbour masturbating you and you seeing him masturbate. It is Mr Cummins' view that your sexual development was markedly interfered with as a result and your psychosexual development very significantly adversely impacted.
61 Mr Cummins said the primary focus of offence specific treatment was helping you separate your offending from your own history of abuse. Put another way, the primary focus has been on assisting you to ascertain how your thinking and perception about the viewing of child pornography has been systematically distorted. While there has been some focus in treatment on cognitive distortions which allow a person to consider the CEM as victimless, you think that even by your mid-teenage years you knew that viewing CEM was in some way wrong. Mr Cummins is of the opinion that your difficulty in considering what the neighbour did as sexual abuse, because he was kind, gentle and would desist if you said stop, has unquestionably contributed to your difficulty in appreciating the harmfulness of the CEM.
62 Put in simple terms, Mr Cummins said your whole sexual development was contaminated with the involvement of both adult and child pornography at a very early age, and with that material being linked with someone you regarded as a loving, caring adult role model there were multiple distortions in terms of your developmental process. Your normal psychosexual development was occurring simultaneously with you being frequently sexually abused by someone you respected as an adult male role model.
63 Mr Cummins said it would be extremely difficult to disentangle or unlearn the distortion of the development process without professional assistance, particularly given that the sexual abuse by the neighbour continued until the last couple of years. Mr Cummins agreed with the proposition that through your own experiences, childhood sexual activity, including with adults, was normalised, as was the viewing of pornography alongside sexual activity between the children and adults.
64 Mr Cummins' opinion is that all of this has had a very significant impact on your ability to make a judgment in a consistent and reliable manner or appreciate that it was wrong to seek out child pornography. He found a genuine nexus between you suffering from a trauma and stress or related disorder in response to being sexually abused and, as a consequence, suffering from impaired perception, judgment and reasoning ability which has been of direct relevance to your offending behaviour.
65 It is Mr Cummins' opinion that even from your mid teenage years you were concerned about your interest in and focus on child pornography, but you had not appreciated the significance of that in a much broader context he said. You had not appreciated how that focus resulted from you being sexually abused, nor how having that focus could potentially disturb your ongoing psychosexual development. He said what is occurring now is that you are moving to another stage of psychosexual development and general psychological development with a more integrated approach and level of insight.
66 As at the date of the plea hearing you were at a relatively early stage of treatment but moving towards the middle phase, with more focus on offence specific treatment further down the track. Mr Cummins considered two years of treatment was required. Mr Cummins thought then that you were absolutely not viewing CEM and you had expressed no current desire to use CEM in any form. He did not think that your admission to having accessed this type of material for around 13 to 15 years told against your prospects of rehabilitation as he was of the opinion that you are moving on with your life.
67 Using recognised assessment tools, Mr Cummins assessed your risk of reoffending as low. He did not assess you as currently having a specific sexual deviance or preference for children, but considered you definitely did have in the past. You presented with symptoms of anxiety and depression and Mr Cummins said that he expected your mental health would inevitably deteriorate if you were imprisoned.
68 Dr Michael Davis, consultant forensic clinical psychologist, also provided a report and gave evidence. He diagnosed you as having an adjustment disorder with mixed anxiety and depressed mood, features of post-traumatic stress disorder, indications of autism spectrum disorder and a mixed personality disorder with borderline avoidant and dependent features.
69 While you meet the criteria for Paedophilic Disorder, Dr Davis stressed that does not mean that you are likely to sexually abuse children, but simply indicates that you have a sexual attraction to children. His opinion is that attraction does not reflect your current sexual preference, and he does not believe it was ever your primary sexual interest. He based that on the fact that your adult pornography collection was much larger than your collection of CEM. He considered you were a sexually naïve and inexperienced young man who was now exploring with an age appropriate partner where your sexual interests lie.
70 Dr Davis said in his report that your own sexual abuse likely played some role in your interest in CEM and in evidence said that seems to be the most likely explanation and he believed that you had to some degree sexualised your own abuse. He thought that was the only logical explanation for why you focused in one particular instance on being the child in the CEM image rather than the abuser which is more usual. He accepted that was not an explanation for everything that you possessed as you had a degree of sexual interest in males and females and pre-pubescent as well as early pubescent children.
71 Dr Davis considered that you being shown child and adult pornography and animated CEM in the course of your early sexual encounters with the neighbour would have normalised that sort of behaviour, and being shown that material at that age you would have been looking at children of a similar age to you. Dr Davis considered normalisation to be the most destructive part of child sexual abuse as children can conceptualise themselves more easily as a victim if the abuse is violent and aggressive. It was not in your case. He said all this may well have contributed to you not viewing the CEM as being as harmful as it is.
72 Dr Davis said that one often finds in CEM cases where someone reaches some modicum of understanding that what they are doing is wrong, and the thinking that what they are doing is not hurting anyone begins to break down, that they will try to get rid of the material. In your case you turned instead to possessing and accessing mostly animated CEM which in your mind took away the idea that someone was being harmed to create the material.
73 Dr Davis gave evidence that you having a deviant sexual interest is not a risk factor for contact offending as there is no evidence that you have ever acted on the interest in that way. As I mentioned earlier he said that the vast majority of people who download CEM do not go on to commit contact offences afterwards and his report described the scientific evidence for that proposition. He also said that even amongst CEM offenders more than 96 per cent do not download the material again.
74 Dr Davis assessed your risk of reoffending and found you had two out of seven risk factors which led him to conclude you are a low risk of contact sexual offending against children and low to moderate risk for further CEM offending. If you were to reoffend, Dr Davis thought that would most likely be by downloading animated CEM.
75 In terms of lowering your risk even further, Dr Davis considered focusing on your own experience of abuse, which Mr Cummins said you were, will be a very important thing in that understanding why you were drawn to the CEM might mean that you are not drawn to those images in future. Dr Davis expressed the view that your acknowledgement of the error in thinking that what you were doing was not victimless occurred around the time you first approached your GP for a mental health care plan which, as I have said, was months before your arrest.
76 Asked by your counsel in what way would your underlying personality problems and provisional diagnosis of autism contribute to your offending behaviour, Dr Davis said that it is harder for people with these difficulties to gain an understanding of how accessing CEM might be affecting other people. Dr Davis said there was more of a gateway for these deviant interests to be pursued by not offering up a huge amount of empathy as an inhibitory mechanism and most certainly would have contributed to the thinking error that no one is being harmed. He agreed most definitely that your ambivalent feeling towards your own abuser would have contributed to your failure to apprehend that people were being harmed and that this was morally incorrect.
77 In cross‑examination, Dr Davis said he considered that your clinical difficulties and underlying vulnerabilities most certainly impaired your judgment earlier on in that you were unable to appreciate the impact on the children depicted in the CEM, but by the time you decided you were not going to use it again and began seeking help you certainly appreciated the wrongfulness of it. Dr Davis thought that you saw the animated material as a victimless way to indulge your interest, but said you were no longer trying to convince yourself of that.
78 Dr Davis is of the opinion that you would cope quite poorly with a sentence of imprisonment with time to serve, with the potential risk of victimisation, and that group sex offender treatment in prison would be so contraindicated that it may well increase your risk of reoffending. In terms of treatment, Dr Davis recommended first stabilising your mental health, then addressing your own victimisation and understanding of that, making sure the thinking errors do not recur, and if you became hypersexual again that may need to be treated as well.
79 There is material before me which shows that before the date of your arrest you had decided to take steps to deal with your addiction to child pornography and to receive professional help in doing so.
80 First, you tried your own version of self-therapy which you described to police in your interview as part of your long answer to Question 246[36].
[36] Page 47ff of the Record of Interview
81 In summary, as I read it, you said that when you viewed the material there were two mental states. The first was looking at the CEM for an erotic purpose where you were “sickened but aroused”, and “flooded with worry but excitement”; and the second was when you finished looking at it, put it away and then felt sick, depressed, remorseful, disgusted, thought about your family and where you went wrong, think you are a broken person and there is nothing that makes you whole; you know you should not [look at the CEM] but when you are battling you cannot help it. You said that you had got to the point where you were not aroused by the material, had not masturbated to the material since January 2020 [about nine months] and that in the last several months you had viewed it every so often as a way to keep a check on yourself, a reality check, and remind yourself of the consequences, being the potential loss of your partner and family, if you continued down that path.
82 Second, you also said in that answer that you needed help and tried to get it. Your mother confirms that you sought assistance from your doctor in early 2020, seeking a Mental Health Care Plan, but any further progress was prevented by the institution of COVID restrictions.
83 I accept that these steps show that you had begun to have some insight into the wrongfulness of looking at CEM, but I also accept the evidence of Mr Cummins that this was not ‘integrated’ insight, that because of the connection of your own childhood sexual abuse to the initial viewing of CEM, your whole sexual development was contaminated, and without professional assistance, which you had sought some months before the warrant was executed, it was difficult to untangle the connection, even more so as the sexual abuse by the neighbour was a continuum from your early childhood to only two to three years ago when you were a young adult.
84 Further, the evidence of Dr Davis shows that you had begun to recognise viewing CEM was wrong and this was demonstrated by you accessing animated material in large quantities where your cognitive distortion was that this was harmless.
Applicability of Verdins and Other Principles
85 Relying on the expert evidence, your counsel submitted that your moral culpability is reduced in circumstances where you were sexually abused over a lengthy period as a child and into your young adulthood, and exposed to child exploitation material by your abuser while yourself still a child, such that CEM and adult child sexual activity was normalised. This experience in your formative years is submitted to have impaired your ability to appreciate the wrongfulness of possessing and accessing the CEM. As a result your counsel submitted that deterrence as a sentencing purpose, both general and specific, should be moderated in your case because of the connection between your offending and your own childhood sexual abuse and exposure to CEM in the course of that abuse.
86 The prosecutor submitted that the evidence did not establish such a connection and that your personal circumstances and mental health were relevant to take into account only in the usual way in mitigation.
87 I am not persuaded by the prosecution's submissions that having some insight and recognition of the wrongfulness of your conduct means that your judgment was not impaired.
88 I find that the expert evidence from Mr Cummins and Dr Davis, which I have set out at length, does establish that your history of sexual abuse as a child provides an explanation for, and has contributed to, your own criminality and has impaired your ability to appreciate the wrongfulness of your conduct. Although you had begun to develop that appreciation by a correction of the thinking error that CEM is not victimless, with a focus on animated CEM, I am satisfied that it was not until after the date of your arrest, and therefore after the date of your offending, that you were able with professional assistance to begin to unravel the impact of your own sexual abuse. The fact of your impairment is to be given weight in reducing your moral culpability[37].
[37]R v Reid (unreported), Court of Criminal Appeal, NSW, 24 July 1998
89 The existence of your abuse has not been disputed and I have accepted the expert evidence that connects your own abuse with your subsequent offending. This is not an automatic reduction of sentence arising from an unfortunate childhood experience, but is a reduction in moral culpability that I find arises from the consequences that have flowed from your own childhood sexual abuse[38].
[38]R v AWF [2002] 2 VR 1, 6
90 Therefore, your moral culpability is reduced, the need for general and specific deterrence as a sentencing consideration is somewhat moderated, and denunciation is less relevant as a sentencing objective than would be the case for an offender without your impairment and personal circumstances[39].
[39]R v Verdins [2007] VSCA 102
91 I accept the evidence of Mr Cummins and Dr Davis that because of your clinical difficulties and underlying vulnerabilities a sentence of imprisonment would weigh more heavily on you, and there is a risk that serving a term of imprisonment would have a significant adverse effect on your mental health.
Other Sentencing Principles
Prospects for and objective of rehabilitation
92 In determining the sentence to be passed or order to be made for a Commonwealth child sex offence, I must have regard to the objective of your rehabilitation[40].
[40] Section 16A(2AAA) Crimes Act 1914 (C’th)
93 Because you are an intelligent hardworking person, committed to your family, your partner and her family, all of whom provide ongoing vital support, and because you have no criminal history, I find that with the therapy you have been undergoing for some months with Mr Cummins, and likely will continue to undergo, together with your developing insight, your prospects of rehabilitation are good.
94 However, to promote the objective of rehabilitation, and having regard to Mr Cummins' evidence about the length of time you require treatment[41], I will make it a condition of your recognisance release order that you undergo treatment as an additional condition with Mr Cummins or his nominee for two years or such period as he thinks fit.
[41] Exhibit 3
95 As you will be immediately released it is not necessary for me to include sufficient time within the term of imprisonment for you to undertake a rehabilitation program within a prison. I note, in any event, that the evidence of Dr Davis was that a group program, which I understand is all that is offered in prison, may be contraindicated for you. Dr Davis' report will be available to Corrections authorities because of the contraindication of group treatment.
General and specific deterrence
96 While deterrence is usually a most important factor in sentencing for Commonwealth child sex offences, in your case, as I have said, deterrence as a sentencing consideration is somewhat moderated and your risk of reoffending is low. However, deterrence as a sentencing consideration is not eliminated and I have taken into account that there remains a need for my sentence to deter others from reoffending, and to a lesser extent, to deter you.
Conclusion as to exceptional circumstances
97 The section of the Crimes Act (C’th) relied on is a recently legislated provision and no authority was put before me as to its use and interpretation. However, the concept of ‘exceptional circumstances’ is not a new one.
98 The Sentencing of Federal Offenders in Australia, February 2021 edition, says at footnote 938:
“'Exceptional circumstances is not defined. In R v Tootell, [citation supplied], the Queensland Court of Appeal adopted the following observation:
“We must construe 'exceptional' as an ordinary familiar English adjective and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.” “
99 Using that description, and on the basis of the reasons I have set out, I am satisfied that your circumstances are exceptional. In summary, they are your personal history of clinical difficulties and underlying vulnerabilities, and challenging childhood and home life, against a background of ongoing sexual abuse from the age of five or six to your early 20s, with the perpetrator of that abuse introducing you to child and adult pornography in your sexually formative years, and normalising your abuse and that depicted in the child exploitation material. This conclusion permits me to consider releasing you immediately from the sentence of imprisonment that I will impose[42].
[42] Section 20(1)(b)
Comparative cases
100 I have carefully considered the table of comparative cases provided by the prosecution, and the submissions of counsel. Because s20(1)(b)(iii), as to the need for exceptional circumstances, has only recently come into force as I have said, and because of my findings that exceptional circumstances exist, and that general and specific deterrence have been modified somewhat in your case, other cases without these features are of less assistance in the comparative sense. Nevertheless, I have had regard to the principles that were espoused in the cases I was referred to and have taken into account the dispositions in those cases and the features that were similar to this case.
Adequate punishment and sentence of severity that is in all the appropriatescircumstance
101 Because of the number of images you had, the fact that this was not isolated possession or access to CEM, and bearing in mind that intermediate Courts of Appeal have repeatedly affirmed that a term of immediate imprisonment is ordinarily merited for offending involving child abuse material, having considered all other available sentences, I do not consider that there is any alternative to imprisonment.
102 I have considered the appropriate term of imprisonment and then, having found exceptional circumstances, I have considered the alternative to full‑time or immediate imprisonment and whether that alternative should be utilised having regard to the objective seriousness of your offending, including whether such an alternative fulfils the purpose of punishment[43].
[43]Fedele v R [2015] NSWCCA 286
103 As I indicated at the outset of these remarks, having considered all other available sentences, while I find that a sentence of imprisonment is the appropriate sentence to impose[44], on the basis of the exceptional circumstances I have found I will be directing that you are to be released immediately. I have also decided that a significant fine should be imposed in addition to the sentence of imprisonment. In combination that reflects the objective seriousness of the offending, fulfils the purpose of punishment, whilst recognising your exceptional circumstances.
[44] Above, ss16A(1), 17A
104 Before I finally turn to the sentence there is one further matter I must deal with. It is agreed by counsel that as a result of my sentence today you become a registrable sex offender. You will be required within seven days to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to that Act for the period of eight years. Because the court is operating under COVID conditions I do not require you to sign the acknowledgement of receiving the form advising you of reporting obligations. That form will be provided to you through your counsel.
Sentence Order
105 On the charge of possessing or controlling child abuse material obtained or accessed using a carriage service you are convicted and sentenced to 12 months' imprisonment. That sentence starts today. You are also convicted and fined $2,000.
106 Having found exceptional circumstances I direct that you be released immediately under s20(1)(b) of the Commonwealth Crimes Act on a recognisance release order on conditions that you give security by recognisance of $1,000, on conditions to be of good behaviour for two years and to undergo treatment, and to continue treatment as an additional condition with Mr Jeffrey Cummins, or his nominee, over that period or for so much of the period as Mr Cummins, or his nominee, thinks fit.
107 I have made that additional condition because of the expert evidence about the need for you to continue specific counselling and the benefit of the counselling with Mr Cummins.
108 Mr Collins, if you do not reoffend in that period and complete the condition and the treatment you will not serve any time in prison. If you do commit an offence, or fail to complete a condition, you will forfeit $1,000 and you will go to prison to serve the sentence of imprisonment of 12 months. So that will happen if you reoffend at any point. So even if you have nearly finished the two‑year period of the release order and reoffend at that point you will go to prison. So, first of all, do you understand the conditions of the order?
109 OFFENDER: I do, Your Honour.
110 HER HONOUR: Do you agree to abide by those conditions which allow for your release, that is, to be of good behaviour for two years and those conditions to undergo treatment?
111 OFFENDER: I do, Your Honour.
112 HER HONOUR: I do not require you to sign the recognisance release order because of the health restrictions we are under. I have observed your acknowledgement and agreement and you will have been recorded doing so. I have signed the order myself.
113 In the event that it becomes relevant in future I note that you have not served any time in pre-sentence detention.
114 Lastly, I will not indicate what my sentence would have been but for the plea of guilty, until legislation specifically requires it for federal offences or an authority binding on me, states that it is required. You can take a seat again, Mr Collins.
Suppression order
115 At the hearing of the plea on 7 July 2021 I made an interim order prohibiting publication of your name pursuant to s17 of the Open Courts Act.
116 By the date of sentence, application was made on your behalf for an order suppressing your identity for a period of five years. I heard evidence from Dr Davis on this topic on 7 July and received written submissions dated 4 August 2021[45].
[45] Exhibit 6 – Suppression Order Submissions
117 The prosecutor also provided written submissions[46] objecting to the making of the suppression order on the basis that it did not meet the test.
[46] Exhibit C – Prosecution Suppression Order Submissions
118 In the course of the findings that I have made, I have referred to your own sexual abuse for many years from the age of six to your young adulthood. The Judicial Proceedings Reports Act prohibits publication of any information likely to lead to the identification of a victim of sexual abuse. While on the face of it you are protected by that legislation from information of your abuse and identity being made public, the submission is that a report of your case and my sentencing remarks would necessarily be redacted to avoid identifying you which would mean that a full understanding of why the particular sentence was imposed would not be publicly available and understood.
119 It is submitted that this is inconsistent with the principles of open justice, particularly where, as here, I have found exceptional circumstances that mean that you are not going to serve a term of imprisonment that otherwise would be required.
120 There is also the danger that as you appear in this case as an offender some in the media may not recognise that the reference to your own sexual abuse is covered under the Judicial Proceedings Reports Act and identify you. Dr Davis said in evidence that publication of your identity would be very, very detrimental not only for your mental health but also for any risk of you engaging in the offending behaviour again.
121 I am satisfied that the order to prohibit publication of your name is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by any other reasonably available means. I therefore make the order prohibiting publication of your name for five years under s17 of the Open Courts Act.
122 In the published sentencing remarks you will be referred to by a pseudonym, but no other redaction will be required as I have identified no other people than the expert witnesses.
123 And I so rule.
115 COUNSEL: If the court pleases.
116 HER HONOUR: Are there any other orders required, Ms McDonald?
117 MS McDONALD: No, thank you, Your Honour. Am I able to confirm with Your Honour the conditions explained to the accused were in addition to the mandatory conditions?
118 HER HONOUR: Yes, I should have done that. Thank you. So if you could just stand up again, Mr Collins. I need to confirm with you that you are sentenced to 12 months' imprisonment, but you are being released on the condition that over the next two years you are of good behaviour. And these are the conditions: that you be subject to the supervision of a probation officer and obey all their reasonable directions, that you do not travel interstate or overseas without the written permission of the probation officer and that you undertake such treatment or rehabilitation programs that the Community Correctional Services reasonably direct.
119 So pausing there, that's the overlap with the additional condition that I've indicated, but I should have indicated to you that you will be subject to the provisions in respect of the probation officer and they are mandatory. So you understand that?
120 OFFENDER: Yes, I do.
121 HER HONOUR: Next, you are required to report to the Reservoir Community Corrections Centre within two working days of today's date. So that means by Tuesday of next week. You are to report to and receive visits from a Community Corrections officer and notify them of any change of address or employment within two clear working days of the change. So again they are mandatory conditions. Do you understand those?
122 OFFENDER: I do, Your Honour.
123 HER HONOUR: And you are to attend for assessment and if assessed as suitable attend for treatment for sex offender programs as directed by the Community Correctional Services and undertake and complete a sex offenders program within a period of two years. Again that is a mandatory condition and that will be again an overlap with the additional condition that I have already gone through, but once again you need to understand that that is a mandatory condition and that you need to abide by that.
124 So that further condition is that you are to continue treatment with Jeffrey Cummins or his nominee for a period of two years or as he thinks fit. The Correctional Services people will no doubt assess and discuss with Mr Cummins about that and as they have limited programs available, and as an individual program is not suitable for you, I have no doubt that you will simply be able to continue your treatment with Mr Cummins, but that is actually a matter for Correctional Services.
125 OFFENDER: I understand.
126 HER HONOUR: So do you understand all of those conditions?
127 OFFENDER: I do, Your Honour.
128 HER HONOUR: And do you agree to abide by those conditions?
129 OFFENDER: I do agree. I will.
130 HER HONOUR: Thank you. Yes. I apologise for not having made that clear.
131 COUNSEL: I beg your pardon, Your Honour, a moment ago you clarified and I just would seek to clarify for the sake of the record that Your Honour said an individual treatment program is not suitable. Does Your Honour mean a group treatment program is not suitable?
132 HER HONOUR: Yes, that is so.
133 COUNSEL: Thank you, Your Honour.
134 HER HONOUR: Yes. Yes, you can take a seat again, Mr Collins. And again that's based on Dr Davis' report which I will have provided to the Correctional Services. Yes, thank you. Could I thank everyone for their assistance and also attendance in the court. I apologise again for the length of time it has taken to get to this. It would have been clear to everyone that this was a most complex sentencing exercise and I did say I wanted to take the time to deal with it appropriately. I did not anticipate that it would take that long, but as we all know it has been a very strange period of time. Yes, thank you very much. Mr Collins may be released from the dock and I will now adjourn sine die.
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