Director of Public Prosecutions v Costas (a pseudonym)
[2023] VCC 1093
•23 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 21-01328
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RILEY COSTAS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2023 | |
DATE OF SENTENCE: | 23 June 2023 | |
CASE MAY BE CITED AS: | DPP v Costas (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1093 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Possess or control child abuse material obtained or accessed using a carriage service, contrary to sub-section 474.22A(1) of the Criminal Code (Cth)
Legislation Cited: Criminal Code (Cth)
Cases Cited:R v Verdins & Ors [2007] VSCA 102
Sentence: 12 months’ imprisonment subject to a 2-year recognisance release order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Skoblar | Office of Public Prosecutions |
| For the Accused | Ms A. Hancock | Ms A. Sutherland Greg Thomas Barrister & Solicitor |
HIS HONOUR:
1Riley Costas[1], you have pleaded guilty to one charge of possession of child abuse material which was accessed or obtained using a carriage service. You entered your plea of guilty after I had given an indication that if you did plead guilty, I would not impose immediate imprisonment, but rather the term of imprisonment would be subject to an immediate release on recognisance.
[1] A pseudonym.
2As I said, in providing reasons for the sentence indication, this is a most unusual example of the always serious crime of accessing child abuse material over the internet. Ordinarily, accessing and possessing thousands of very disturbing child abuse images and videos would result in a substantial sentence of immediate imprisonment. In fact, given recent changes to the Commonwealth sentencing laws for this offence, a sentence of some imprisonment must be imposed unless exceptional circumstances are established. A broad overview, and as I said in my reasons for the sentence indication that I gave, in your case, the catalogue of mitigatory matters well and truly establish exceptional circumstances, justifying not requiring you to serve any period of immediate gaol.
3
The prosecution very fairly conceded this point. Your counsel went further and submitted the mitigatory matters meant that a sentence less than imprisonment, that is a Community Corrections Order was the just and appropriate penalty.
As to that submission, after anxious consideration I decided that the proper sentence was a term of imprisonment with immediate release on recognisance.
4The very unusual or exceptional circumstances and the many matters in mitigation arise in the main from your personal circumstances. However, before elaborating on those matters, I will briefly outline the circumstances of your offending.
5On 13 July 2020, the Australian Federal Police acting on information executed a search warrant and seized two laptop computers, two phones and a digital camera device from your residence. You were completely cooperative and provided all passwords on request. The subsequent forensic interrogation of your devices revealed that child abuse material was stored on two laptops and one phone and in a Dropbox account. There were a total of 4,701 child abuse images and videos. A closer analysis reveals that many of the images and videos were copies. In total, there were 1,734 unique images and videos. There were images and videos in all of the well-known categories used to scale child abuse material. This means there were images or child abuse material involving very young children all the way to teenagers, male and female images of what might be described as masturbation, penetration and animations.
6I do not need to describe what is plainly disturbing child abuse material further in these public reasons for sentence. I have, for the purposes of the sentence indication and again for the plea and this sentence, read carefully the prosecution opening and in particular the appendix setting out examples from each of the categories.
7It is not in issue that the nature of the offending is serious. What can be said is you did not possess and download the vast volumes or virtual libraries of child abuse material that is sadly seized too often in other cases. That said, each and every image or video of an actual child involves the depraved sexual violation of that individual child. That is, the sexual penetration or cruelty involved is of a child and thousands of images that you had involved thousands of children. We should never lose sight of the fact that these images are of vulnerable children who are likely to be adversely affected for a long time, if not life-long. The fact that it is on a computer, or available on the internet, looked at and downloaded in the privacy of an offender's home should not be used to somehow immune anyone to the gravity of what is being done to a child, or the fact it is done as part of a depraved industry.
8The users, by their use, promote, encourage and make viable this vile industry. The courts on behalf of decent members of our community should emphasise the gravity of each and every image, the degradation involved and the complete intolerance that all have for this type of offending.
9I should interpose here in brief terms that the evidence, especially your own letter, makes it clear you well and truly understand all the matters I have just spoken of. I will speak further of your commendable insight and commitment to do the right thing from now on when I move to your subjective or personal circumstances.
10To return to those matters that touch on the gravity and nature of the offending. What is clear enough is ordinarily public denunciation, punishment and general deterrence loom large in the sentencing synthesis for this offence. None of what I have said thus far is controversial or exceptional. What makes this example of the offending unusual and establishes exceptional circumstances is why you looked for, downloaded and possessed the child abuse material. That, as I have indicated, is a product of your subjective personal circumstances.
11My analysis of your personal circumstances was informed by the rigorously compiled psychological reports from your treating psychologist, Dr Bounds and now Mr Mooney, the medicolegal psychologist Dr Gee, and the well-respected forensic psychiatrist Dr Sullivan whose report was obtained by the Commonwealth Director of Public Prosecution.
12
I have also benefited from the letter from your mother and from you. I will endeavour to deal with the detailed and, at times, complex expert psychological evidence and psychiatric evidence in a way that hopefully you and other
non-experts can understand. Thus, I will move straight to the conclusions, held by all, that you are neurodiverse. You are on what is understood to be the autism spectrum. It is enduring. Most importantly for the purposes of sentencing, it is a factor that is directly relevant, indeed in my view causative, of you committing these crimes.
13
A brief quote from Dr Bounds' report dated 26 January 2021 gives insight into how you think and how this led to the offending. Dr Bounds noted that all assessments of your intellectual scales or your IQ had you in the very low levels of IQ of 74.
You were most compromised in memory and processing speed. I should note that these assessments occurred through 2006, 2011 and I think, 2020. Testing you on your social responsiveness which was done in late 2020 was particularly insightful. Overall, your responses and behaviours revealed you had great difficulty in every social domain and you resorted to repeated and repetitive behaviours.
14In citing some of your difficulties and obsessiveness, Dr Bounds gave some examples to illustrate the severity of your difficulties. She wrote,
In terms of social awareness, examples of his difficulties are that:…
-He struggles to be aware of how others are feeling…
-He doesn’t realise that some of his actions bother others
In terms of social understanding, examples of his difficulties are that:
-He takes things too literally and misunderstands the real meaning of something said
-He has trouble with understanding chains of causation and how events are related to one another
And she went on:
In terms of social motivation and anxiety, examples of his difficulties are that:
-He tends to be uncomfortable in social situations
-He avoids starting social interactions with other adults
In terms of repetitive behaviours, examples of his difficulties are that:
-He engages in inflexible behaviours, especially when he is stressed
-He gets stuck in thinking about certain things over and over
-He does not like a change of routine
-He has a repetitive movement he does with his fingers
-He holds onto hurts from others for a long time
-He has a few interests he gets obsessed over. He has had a few different obsessions over time.
15She gave examples which I do not need to recite. All the other aspects write in generally the same terms. Thus, for sentencing purposes, you have an impaired mental functioning, you are on the autism spectrum. Its role in causing you to do what you did is the next critical assessment I must undertake. You have been or were involved in the scouting movement since a very young age. It was not merely for you a club or a passing interest, it was extremely important to you. You were heavily invested in the daily affairs of your scouting group and the overall philosophy of being a scout. That is, to help others, make a contribution and do the right thing.
16You were moving up the ranks, so to speak, training for leadership roles as you moved out of your teens and into your 20s. In this context, you learnt, and were interested in, the references to those in the scouting movement who had sexually abused children. These matters became known to you through the media. You became anxious and unable to properly process this very concerning information. As part of your neurodiverse way of thinking, you internalised this information and concern. I think your letter explains this best of all the evidence.
17You explain in your letter that as you moved through adolescence you struggled with your own sexuality, that is, understanding your attractions, how you felt and what to do about all the emotions and social interactions that that involves. You point out there was very little available to help you navigate what is for everyone a difficult area of growing up and maturing. You became perhaps obsessed with these questions which coincided with the public controversies about paedophile adults who exploited children in the scouting movement. You say in your letter that, without resources to answer your questions, your anxieties grew and you did what you regularly did at the time and do when you need answers: you looked online.
18The experts agree that your motivation for this offending has, at its centre, your neurodiverse anxiety about whether you, like others in the scouting movement, were a paedophile, especially in light of your growing concerns about your own sexuality generally.
19You write in your letter the following:
I did what I had done previously when I needed answers. I looked online and this unfortunately eventually led me to accessing child abuse material. This process of distress and questioning went on for quite some time and affected my mental health quite significantly, however I felt I couldn’t stop as had an intense need to figure out my sexuality.
20You go on:
It is quite common for autistics to have intense interests in particular subjects, sometimes to the point where you could call it an obsession. Sometimes we can be so intensely focused on a topic we can end up in such a state we no longer really function properly as a human being. We can lose track of time, forget to look after ourselves for example to eat or sleep, or like in my case lose the ability to think on a critical and moral level.
21What is clear to me, from your own words and those of the experts, what is clearly is your motivation for engaging in child abuse material is very different to what is usually the case. Your autism, a deep involvement with the scouts and your anxiety about your own sexuality combined so that you acted in a way that is completely out of character. At the time, you did not appreciate, as others do, the wrongfulness of your actions. You did not appreciate, by reason of your impairment to your consequential reasoning, that what you were doing was not just morally wrong but very harmful. Your focus, in an obsessive way, was to get to the bottom of your anxiety-causing questions regarding paedophiles in the scouting movement and whether you were in fact a paedophile.
22The very nature of this question and your actions to look for answers in the dark recesses of the internet plainly establishes that your impaired mental functioning or your autism was the driving causative feature of your offending. Yours is one of, and in my view one of the few rare, cases in which there can be justifiably a reduction in moral culpability. In your case it is well-established. I refer here to the cases such as R v Verdins & Ors [2007] VSCA 102 and others that proceeded it.
23What this means is that I must view the weight to be given to denunciation and/or punishment in a far different light than I would for others who commit this offence and do so for their own depraved reasons, well knowing the harm it causes and how their downloading encourages the vile industry to expand and prevail. But, in your case, one of the most weighty sentencing considerations of denunciation and punishment is very much reduced. Further, the authorities are clear that, separate from considerations of moral culpability, a person who is different, by reason of, for instance, an intellectual disability, their neurodiversity, or their mental ill health, must be sentenced in accordance with their individual circumstances. That is, who they are.
24When a person's personal traits are of a very significant kind, as is the case here, then using that person to be an example to deter others who do not have their difficulties is an approach that just does not resonate with fairness in sentencing. In short, our community would not be comfortable if I used you as the one to send a message to the usual offender who accesses child abuse material for their own personal perverse gratification. General deterrence is very important in this sort of criminality, however, it is not a fixed approach. The weight to be given to general deterrence can and should be moderated if the individual’s circumstances makes them different, and especially if the differences are causative of the offending behaviour.
25Thus, in your case, the other primary sentencing purpose of general deterrence has been suitably modified to account for your very significant and causative impairments. As I made clear in my reasons at the point of sentence indication, the importance of denunciation and general deterrence with this crime were at such a level that, even significantly moderating for your individual circumstances, did not allow me to impose a sentence that was less than a term of imprisonment, but allowed for a sentence of imprisonment with immediate release. As I said, the important sentencing purposes of denunciation and general deterrence would be too diluted if there were not the sentence of a kind I indicated.
26I have mentioned at times how the community does or would respond to these crimes and to your own circumstances. One feature of the community's overall view of crime is to allow or even expect a full measure of mercy or to giving a young person a second chance. It is expected or should be allowed in the eyes of the community if that person has come to understand that what they did was wrong and they are determined to do what they can to reform and be a law abiding citizen. That describes you. First, you have come to understand the consequences of what you did. There are many references to this development in you in the material, but again I consider your own words to be the most valuable.
27You said:
Though my intention was never to hurt anyone, I understand now thanks to my sessions with my psychologists that by my actions I actively encouraged the creation of such material leading to the harm of innocent children. This thought haunts me every day as my intention was to ensure I wouldn’t hurt children, however the path I took to do this ended up doing exactly what I was trying to avoid.
Since my arrest 3 years ago I have had the opportunity to explore my sexuality in a safe and legal manner through my sessions with my psychologists leading me to eventually being able to publicly come out as Bisexual in October 2022.
Since coming out I have continued to explore my identity with my current psychologist and my boyfriend who are assisting me in feeling more confident in who I am as a bisexual autistic individual.
As mentioned before I deeply regret my actions and whenever i think about that part of my life there is so many things I wish I had of done differently. I wish I had gotten assistance from others earlier and was more open with those closest to me as I believe this would have meant I would not have felt the need to look for answers on my own. Unfortunately though I can’t undo what I did and I will have to live with it for the rest of my life, however what I can do is ensure no one else goes down the same path.
28Your mother's letter also gives me confidence your actions were out of character. She knows you best. She can see you have not just resumed your lawful ways, but have taken considerable steps to educate yourself as a disability advocate and then establish a consultancy business in this area, utilising appropriate platforms to communicate and help other neurodiverse people to find and use appropriate resources to navigate the more tricky life pathways that they face.
29You are still living independently. You are well connected via the National Disability Insurance Scheme (‘NDIS’) to appropriate psychological and other support workers. Your deep, genuine and insightful remorse is an important consideration on its own, but it is as I have said a solid foundation for your permanent reform. A targeted sex offenders program appropriate to your neurodiversity will assist further in respects of rehabilitation.
30Your plea of guilty is very important. It must attract an augmented utilitarian benefit. I have, in my sentencing synthesis, endeavoured to show the benefit in terms that are palpable or obvious to you and ensure that it is of a kind that encourages others who are guilty to plead guilty. The delay in this case has been long because of the need to explore every aspect of your mental state including a mental impairment defence, or your fitness to stand trial. Nonetheless, the delay is of a kind that significantly increased anxiety and stress on you.
31However, the other important aspect of delay, and the most valuable in my view in terms of mitigation, is what you have done. You have, in the long time since your arrest, done all you could to reform and reset your moral compass. Your supports from your family, your partner, your community, and now NDIS establish many guardrails to ensure you do not descend down the internet rabbit holes to your detriment. Your employment and your advocacy are important and impressive. Your own contribution to others is very much to your credit. I gave anxious consideration to the appropriate penalty and I have done that again.
32Your counsel's submissions were, as I said in the sentence indication reasons, of the highest standard, comprehensive and compelling. But, in the end, I concluded a gaol term with immediate release and with an opportunity to do a targeted sex offender course was the appropriate sentence as that term is expressed in the Commonwealth sentencing laws.
33The recognisance release must be of a length to permit appropriate levels of treatment for you. Thus the sentence that I impose is a sentence of 12 months' imprisonment and you will be released immediately on a recognisance of the period of time of two years and in the sum of $500. The reference to $500 means that if you breach the recognisance there will be a forfeiture of $500, you do not have to do anything about that right at the moment.
34Had you pleaded not guilty to this offence and been found guilty of it, I would have imposed a sentence of imprisonment that is two years eight months with immediate release after serving 14 months. Ms Skoblar, there are other orders that are sought in respect of registration, and I can't remember where we got to with that?
35MS SKOBLAR: Yes, Your Honour I understand that it's the registration - - -
36HIS HONOUR: There must be a registration, it's mandatory.
37MS SKOBLAR: Yes, Your Honour.
38HIS HONOUR: Mr Costas, there must be a registration with the Sex Offender Register that is compulsory, I have no discretion, I have no choice, I cannot take into account all the many, many things that I have already spoken about. And I would take them into account if I could. It's just a very blunt instrument, the Sex Offender Register, if you can discern in my expression of things that I am not too pleased about it, you would be right, but there is nothing I can do about it. Thus, I have to make an order that you register on the Sex Offender Register and remain registered a period of eight years. The lawyers that you have will explain to you what that all means. And so far as I can make it clear through gritted teeth, the consequences of not registering and doing what is required of you under that register and there are many things. The consequences of not meeting the responsibilities are quite serious. That would involve you committing other offences and it may have impact upon this recognisance release that I have spoken about. So, go through with your lawyers, keep asking if it is unclear, what do I have to do to make sure I stay within the bounds of this registration. That is what happens. I think for the reasons that are difficult for me to also understand, I have to get a form signed in court. The form that has to be signed is simply that I sign a form saying I have given you a document, and you sign a form saying that you have received it. But that is all. It is the content of the document that counts and that is something that you have to go over with your lawyers as you head away, is that a satisfactory explanation in the circumstances, Ms Hancock?
39MS HANCOCK: Yes, Your Honour.
40HIS HONOUR: Thank you. So that document might take some time. There is another document that has been signed, that's the important sentencing recognisance release document. Ms Skoblar help me with whether I have him if he consents to various things like that?
41MS SKOBLAR: No, Your Honour, but to explain the effect of the order.
42HIS HONOUR: Yes. Just explain, and I've done that, thank you.
43MS SKOBLAR: If it assists, I can hand up - - -
44HIS HONOUR: Can you hand that up, thank you? And with the Sex Offender Register do we - got that to print? There is a need for you probably to understand things. It's probably if you come out of the dock there and sit behind your lawyer so, just let Mr Costas come out. Is there an electronic version of this forward and recognisance under paragraph 21(b)?
45MR SKOBLAR: There is, Your Honour.
46HIS HONOUR: Can you send it to my associate now?
47MR SKOBLAR: I'll try to, sorry, Your Honour I do - - -
48
HIS HONOUR: No, if it's not possible, don't worry. Just pause on all that Ms Skoblar. We might explain as best as I can to Mr Costas. The purpose in effect of the order is that you have a sentence of imprisonment but it is not to be served, it just hangs over your head, if that makes sense, for - or is there if you are
not - don't do what you're supposed to do. And that means if you come back before me because you haven't done what you're supposed to do, then the time that's said to be that a term of imprisonment could be imposed.
49So, if you fail without reasonable excuse to comply with the conditions of the order then there is - what would occur is that you'd come back before me. Now, the order is that you, for 12 months and for the next two years, are under a recognisance. That is, you have to comply with the condition to be of good behaviour for two years and do a treatment and rehabilitation with respect to your mental health, to assist you insofar as sex offending is concerned. So, exactly what it says here Ms Skoblar, but is that what we're getting at?
50MS SKOBLAR: Yes, Your Honour. Is it Your Honour's intention that there be a special condition indicating that Your Honour said available sex offender treatment targeted at neurodiverse persons.
51HIS HONOUR: Yes. That's exactly what - yes.
52MS SKOBLAR: I'll include that as a special condition.
53HIS HONOUR: Yes, individual treatment.
54MS SKOBLAR: Yes.
55HIS HONOUR: Targeted at his particular needs, as he is a neurodiverse person. And that term of imprisonment was 12 months, decided to release him forthwith. A recognisance amount is $500. I don't know why they make it so complicated.
56MS SKOBLAR: Sorry, Your Honour, just in terms of the wording for the special condition.
57HIS HONOUR: Yes.
58MS HANCOCK: I'm just - obviously we want to make sure that it is precisely what Your Honour intends, so comply with a further condition, undertake treatment or rehabilitation program - sorry, I'll rephrase that. Undertake individual sex offender treatment for neurodiverse individuals - - -
59HIS HONOUR: Are you happy with that?
60MS HANCOCK: Yes, Your Honour I just wonder whether as directed by - - -
61HIS HONOUR: As a general one.
62MS HANCOCK: Yes.
63HIS HONOUR: Yes.
64MS HANCOCK: Just in case Your Honour there is no such program available.
65HIS HONOUR: If there's no such program then they just monitor him. If they want to come back and talk to me about that condition, fine. And I encourage whoever it is that takes management of that part of it, speak to his current psychologist about doing what they're doing now. Because that seems to me to be where that's heading, I might be wrong but he spoke about what benefits he's received from talking to her presently. That's Ms Delaney I think.
66MS HANCOCK: Sorry, Your Honour, sorry, I apologise to Your Honour I'm a little bit distracted by the orders, was that a question for me, Your Honour?
67HIS HONOUR: Yes, my fault, yes. No, it was more a general sentiment hopefully not into the wind but just asks that those who manage this program, this order, be in close communication with his current NDIS supported psychologist, Ms Delaney. She has speciality in neurodevelopmental conditions, LGBTQI+ populations. She confirms she's consulting him through the assistance of NDIS. She's solely targeted on supporting him to achieve goals, not considered treatment, talk to them about what it is. I'm not fixed on treatment, I'm fixed on him doing - continuing the work that he's already started.
68MS HANCOCK: Yes, Your Honour.
69HIS HONOUR: If there's someone else, so be it.
70MS HANCOCK: Your Honour we have an order reflecting Your Honour's stated order. It's handwritten would Your Honour prefer that I type - - -
71HIS HONOUR: No, that's fine, I you don't mind. One of the most important sentencing decisions that I constantly refer back to emphasises that the sentencing process should be at times rough and ready, so that ordinary people understand it.
72MS HANCOCK: Yes, Your Honour.
73HIS HONOUR: I think we go a long way from that when we're asking whether a beautifully handwritten document is insufficient to get the job done.
74MS HANCOCK: Thank you, Your Honour.
75HIS HONOUR: It is. All right, I've signed that and so too must Mr Costas. I'm also signing a document relating to his Sex Offender Registration obligations. As I say, you will be required to comply with these reporting conditions for eight years, signed by me and the whole point of me signing it and giving it to him, is that he has to sign that he's got it. I don't know why the transcript can't do that. All of this has to be signed - has to be done in front of my associate will put her initials on it. Not inclined anymore that associates have to put their names on Sex Offender Registration documentation that goes to registered sex offenders.
76MS HANCOCK: As Your Honour pleases.
77HIS HONOUR: Not that I'd be troubled about Mr Costas much but I am troubled a lot and the quicker that's fixed the better. The same with the document that he signs relating to the recognisance release, it says in front of my associate, she has to put her initials on it.
78MS HANCOCK: As Your Honour pleases.
79MS SKOBLAR: Yes, (indistinct words) with that.
80HIS HONOUR: All right, I can see your signature's on there thank you very much. Is there anything further required Ms Skoblar?
81MS SKOBLAR: No, Your Honour I did confirm that - - -
82HIS HONOUR: I thank you very much for your very considerable assistance appointing and then explanations of complex Commonwealth sentencing that befuddled everyone. And Ms Hancock thank you again, for ongoing considerable assistance as I've described and then again today. Thank you.
83MS HANCOCK: As Your Honour pleases.
84MS SKOBLAR: Thank you, Your Honour.
- - -