Director of Public Prosecutions v Crawford

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION
CR-17-01122

COMMONWEALTH
DIRECTOR OF PUBLIC PROSECUTIONS

QUINTON CRAWFORD

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	25 July 2017
DATE OF SENTENCE:	28 July 2017
CASE MAY BE CITED AS:	DPP v Crawford
MEDIUM NEUTRAL CITATION:	[2017] VCC 1012

REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Access child pornography material using a carriage service -

knowingly possess child pornography
Legislation Cited: Sentencing Act 1991 (Vic), Sex Offenders' Registration Act 2004 (Vic), Crimes Act 1914 (Cth), Criminal Code (Cth)
Cases Cited:Boulton & Ors v The Queen [2014] VSCA 342
Sentence:6 months’ imprisonment: to be released forthwith on recognisance of $2,000, plus a 2-year Community Correction Order
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms. N. Kohn	Commonwealth Director of Public Prosecutions
For the Accused	Mr. C. Wareham	Victoria Legal Aid

Pages 1 - 1

HIS HONOUR:

Quinton Crawford, you have pleaded guilty to two charges, each concerned with child pornography. The first charge, Charge 1, is that on 7 August 2016 you accessed child pornography material using a carriage service contrary to s.474.19(1) of the Criminal Code (C’th). The maximum penalty for this offence is 15 years' imprisonment.
The second charge, Charge 2, is that on 8 March 2017 you knowingly possessed child pornography contrary to sub-s.70(1) of the Crimes Act 1958 (Vic). The maximum penalty for that offence is 10 years' imprisonment.
You are presently 23 years of age, having been born on 29 June 1994, and you were aged 22 when the offending occurred.
At the time of the offending you resided at your family home in Churchill, Victoria.
You have no prior convictions and nothing pending.
The circumstances of your offending are set out in detail in the prosecution summary tendered on your plea. In summary, the charges reflect you engaging in on-line ‘chatting’ with a Trevor Sutcliffe via the Smartphone “Kik” program. The two of you were unknown to each other. You were each using pseudonyms.
You purported to be a 16-year-old male and subsequently indicated that you were in fact 14 years old. You transmitted images of a young male of approximately 14 years of age, which you purported to be yourself.
The two of you engaged in a sexually explicit conversation discussing engaging in various sexual acts and fetishes. You requested images from Sutcliffe, for example in the following excerpt you stated:
You:            "So I send live pic and what do I get"
Sutcliffe:      "A few thousand pics you’d like ;)"
You:             "Oh really can I have 1"
The analysis of the Kik conversation revealed the presence of child pornography.
The forensic analysis of the Kik chat revealed that a total of 45 images were uploaded to the Kik conversation on 7 August 2016.
The large majority of images were not of child pornography, but were images indicative of child pornography and adult male pornography. There were three images of child pornography involving nude or erotic posing but with no sexual activity.
The three images of child pornography were classified in the accordance with the Child Exploitation Material (“CEM”) scale created by the Australian National Victim Image Library as Level 1. The material transmitted was of pornography images depicting males in the age range of between 12 to 16 years old. An example of a Level 1 image depicted an approximately 14-year-old male wearing underwear with his erect penis exposed.
As to Charge 1, use a carriage service to access child pornography material, the Kik messenger chat revealed that on 7 August 2016 you accessed three pornography images uploaded to the conversation by Sutcliffe.
As to Charge 2, possess child pornography, this charge relates to you possessing a total of 26 child pornography images. The analysis of your mobile phone revealed the presence of 26 child pornography images that were stored.
The child pornography images were again classified in accordance with the CEM scale. The overwhelming majority were classified as Level 1, being images of underage persons with emphasis on genital areas, nude or erotic posing, but with no sexual activity. There were five classified as Level 2, being images of solo masturbation or performing other sexual acts solo or in the presence of another child of similar age, and two images of Level 4, being penetrative sexual activity between children and adults.
The majority of the child pornography depicted male children in the age range of 10 to 16 years. An example of Level 4 image depicted a male child aged between 14 and 16 being penetrated by a male.
Examination of your mobile phone and Apple iPad Mini revealed a large amount of search histories related to teenagers engaging in sexual activities.
On 9 March 2017, you participated in a record of interview in relation to the offending. You were cooperative and made appropriate admissions assisting the police investigation. You were arrested on 9 March 2017 and a filing hearing proceeded at the Morwell Magistrates' Court on that date.
You pleaded guilty at the first committal mention hearing on 1 June 2017. You were committed to the County Court at Morwell for a plea hearing. The prosecution accepts that the plea of guilty was entered at the earliest opportunity.
I turn now to your personal circumstances.
As I noted earlier, you are now aged 23 and you have no prior convictions. You grew up in the Churchill area, attending both primary and secondary schools. You have two siblings and two half-siblings. You have a good relationship with your parents, although because of your shame you have not told anyone, including your parents, about these charges.
You have reported a history of chronic bullying whilst at school, with the effect of this being to undermine your self-confidence, body image and self-esteem and causing social anxiety. You have virtually no friends and no social life and in this context ventured into the online world for sexual gratification and friendship.
Ms Carla Lechner, forensic psychologist, has provided a report noting this background and other personal matters. In Ms Lechner's opinion, you present with Major Depressive Disorder in the context of exhibiting features of a socially and emotionally immature young man who is still struggling to establish sexual identity and orientation, largely in a vacuum. Whilst a diagnosis of depressive disorder is partly reactive to your present circumstances, it is reflective of earlier and longstanding critical issues.
Whilst your offending can properly be regarded as being in the low range for offences of this type compared with other cases, the offending is nonetheless regarded seriously by the courts. There is a major public interest in protecting children from sexual abuse. Such offending involves the necessary creation and perpetuation of child exploitation material. It also enables the perpetuation of a market. Without such a market there would be no need for children to be exploited, degraded, violated or abused in order to supply the market.
By accessing and possessing this material, you have contributed to that exploitative market. It is wrong, and the principle of general deterrence must be seen as the prominent sentencing factor. Specific deterrence and emphasis on denunciation by the courts remain applicable in striking the balance with the mitigating matters and personal circumstances of the offender.
In considering this matter, I have taken into account the matters set out in the provisions of s.16A of the Crimes Act 1914 (C’th) and also in particular s.17A of that Act. I have also taken into account the provisions of the Sentencing Act 1991 (Vic), in particular the guiding principles set out in that Act. I note that the guideline judgment of Boulton[1] and the Victorian provisions which regulate Community Correction Orders are not applicable to sentencing for Federal offences.
[1]Boulton & Ors v The Queen [2014] VSCA 342
In mitigation, I take into account the matters urged on your behalf by your counsel, including:
·Your early plea of guilty and your cooperation with investigation officials. I accept that you have demonstrated shame, genuine remorse and a subjective acceptance of responsibility by seeking appropriate counselling. The objective utilitarian benefit of the plea of guilty should also be applied.
·Your emotional and mental health issues which have been longstanding and exacerbated by your exposure to these charges.
·Your age of 22 at the time of the commission of the offences and 23 now at the time of sentencing.
·Your history of regular and continued fulltime employment which reflects your capacity for commitment and prospects of rehabilitation.
·Your general prospects of rehabilitation which I assess as good.
·The fact that the level and volume of material can be considered as being in the low range of culpability for offences of this type. Whilst the absence of significant material in the higher levels of categorisation does not minimise the objective gravity of possession or access of lower levels, the assessment of the material is to be considered in the context of the offending as a whole in order to determine the objective gravity.
On balance, in the particular circumstance of this case I am persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your confinement in prison whilst at the same time giving appropriate expression to general and specific deterrence in striking a balance with your prospects of rehabilitation.
Whilst a sentence of imprisonment to be immediately served should ordinarily be expected for this type of offending, in my view the community, as well as you, will ultimately benefit more from the availability of appropriate programs for you in an atmosphere which is more conducive to your rehabilitation than if you were sentenced to imprisonment, even for a short period, in combination with other non-custodial orders.
In light of the particular extenuating circumstance of this case, a Community Correction Order together with a Commonwealth Recognisance Order would, in my view, fall within appropriate sentencing range. You have been assessed as suitable for such disposition.
Mr Crawford, could you please now stand.
On Charge 1 I propose to sentence you to a term of imprisonment which I intend to offset by way of a Commonwealth Recognisance Order. Before I make the order, I will explain to you the purpose and effect of the proposed Recognisance Order, the consequences that may follow if you, without reasonable excuse or cause, fail to comply with the conditions of the proposed order and that any recognisance given in accordance with the order may be discharged or varied under the Act.
The purpose and effect of the Recognisance Order is to grant you conditional freedom from its commencement. The condition is that you be of good behaviour for a period of 24 months.
If you breach the Recognisance Order you will be brought back before the court, and most likely that will be back before me, to be dealt with for that breach and to be re-sentenced. The Order may be extended or revoked and you may be required to serve the remaining term of imprisonment. A breach would also mean that the sum of $2000 would be forfeited.
You should also bear in mind that, having given your recognisance, either you or the Commonwealth Director of Public Prosecutions may apply to vary or discharge that Order. Do you understand that, Mr Crawford?
ACCUSED: Yes, Your Honour.
HIS HONOUR: On Charge 1, the Federal offence of accessing child pornography material using a carriage service, you are convicted and sentenced to six months’ imprisonment.
I order that you be released under sub-s.20(1)(b) of the Crimes Act 1914 (C’th) forthwith, upon you giving security by way of recognisance of $2000 to comply with the following condition:- to be of good behaviour for 24 months.
Mr Crawford, do you understand the terms and conditions of the Recognisance Order?
ACCUSED: Yes, Your Honour.
HIS HONOUR: Shortly, I will have the appropriate form for that Recognisance Order passed to you.
I declare that the sentence on Charge 1 commences today and goes for a period of two years from today.
On Charge 2, the State offence of knowingly possess child pornography, you are convicted and ordered to serve a Community Correction Order for a period of two years.
The Community Correction Order commences today and ends on 27 July 2019. The Corrections Centre you will attend is the Morwell Community Correctional Services at 25 Ann Street, Morwell, and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm next Tuesday 1 August.
All the mandatory terms of a Community Correction Order apply and the additional conditions I impose are that:
·   you be under the supervision of a Community Corrections officer;
·   you perform 75 hours of unpaid community work as directed by the Regional Manager;
·   you undergo mental health assessment and treatment as directed by the Regional Manager; and
·
you participate in programs and/or courses that address factors relating to your offending behaviour as directed by the Regional Manager, with particular recommendation of the Sex Offender Program.
I further order that all hours of treatment and rehabilitation which you satisfactorily undertake are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
I will now explain the mandatory orders of the Community Correction Order. The mandatory terms are that you must not commit another offence for which you could be imprisoned during the time that the order is enforced; you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Corrections Centre, such things as not attending drug- or alcohol-affected. Do you understand that?
ACCUSED: Yes, Your Honour.
HIS HONOUR: You must report to and receive visits from a Community Corrections officer; you must report to the Community Corrections Centre, that is the Morwell Centre, within two clear working days of the order starting and as I've already indicated that is next Tuesday; you must notify a Community Corrections officer of any change of address or employment within two clear working days after the change; you must not leave Victoria without first getting permission to do so from a Community Corrections officer, and you must obey all lawful instructions from, and directions of, Community Corrections officers - such directions may be given either orally or in writing.
Do you understand and agree to those conditions, Mr Crawford?
ACCUSED: Yes, Your Honour.
HIS HONOUR: Now if you get sick, or if there are exceptional circumstances, the order may be suspended for a period of time and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case, you must notify the Morwell Community Corrections Centre and I recommend that if any of those matters occur, you obtain legal advice.
However, I just warn you that if you breach any condition of this order, you will be brought back before me. One of the options open to me is to cancel the Community Correction Order and re-sentence you on the original charge, and I may also deal with you for the breach, which is an offence in itself, by sending you to prison for up to three months. Do you understand the consequences of breaching the State Community Correction Order?
ACCUSED: Yes, Your Honour.
HIS HONOUR: I will ask you sign that Correction Order shortly with the assistance of your counsel. There is a further matter that I first need to attend to. You may take a seat for the moment, Mr Crawford.
The charges to which you have pleaded guilty are registerable offences pursuant to the provisions of the Sex Offenders Registration Act 2004 (Vic) and by reason of your being sentenced for these offences, you are a registerable offender obliged to comply with the reporting obligations imposed by that Act.
Pursuant to s.50 of that Act, I am required to give you written notice of your reporting obligations, and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of the reporting period which, in your case, is for 15 years.
My associate will shortly hand to you the Notification of Reporting Obligations form which I have already signed. Your representative in court today will ensure that you understand the requirements set out in that form and I will ask you, once it is given to you, to sign the Acknowledgment that you have received the Notification form and to return the Acknowledgment to my associate.
At this stage, the various forms for the Recognisance Order, the Community Corrections Order and the Notification of Reporting Obligations form can be passed to Mr Wareham, and can I ask that you discuss those and have them signed please. Mr Crawford, you may leave the dock for that purpose.
All right, I have countersigned the Community Correction Order so those documents are completed.
I just want to make one further note that pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed is a total effective sentence over all charges of two years’ imprisonment with 12 months to be immediately served.
Is there anything else from either counsel?, Mr Wareham, do you have issue?
MR WAREHAM: Only administratively, Your Honour, which I might be able to raise with Your Honour's clerk about payment of the $2000.
HIS HONOUR: Yes. I have ordered a stay of that. I beg your pardon. That doesn’t come into play unless it is breached.
MR WAREHAM: Yes.
HIS HONOUR: I am thinking of the sentence I did yesterday.
MS KOHN: Yes ,Your Honour, that's correct.
HIS HONOUR: Yes, it is a Recognisance to be of good behaviour and if there is a breach, then it is forfeiture of the $2000 but that is not a fine. Yes.
MR WAREHAM: If Your Honour pleases, I was confused by that.
HIS HONOUR: Yes, all right, thanks. Ms Kohn, do you have anything further?
MS KOHN: No, Your Honour.
HIS HONOUR: Thank you very much.
Mr Crawford, just one matter in passing. If you apply yourself conscientiously to the psychological counselling that you can get, you're going to find this of enormous benefit to you, and you won't find yourself back here or in trouble again.
ACCUSED: Yes, Your Honour.
HIS HONOUR: Do you understand that?
ACCUSED: Yes.
HIS HONOUR: Thank you, I'll leave the Bench.
- - -

[2017] VCC 1012

28 July 2017