Director of Public Prosecutions v Dalton
[2015] VCC 1102
•14 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00684
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN DALTON |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 August 2015 | |
CASE MAY BE CITED AS: | DPP v Dalton | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1102 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Sewell | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr M. G. O’Connell SC Mr R. Stary | Stary Norton Halphen |
HIS HONOUR:
1 Alan Dalton, on 3 August 2015 you pleaded guilty to two charges of use a carriage service to access child pornography material, and one charge of knowingly possess child pornography. In respect of the first charge of use a carriage service to access child pornography, the maximum penalty is 10 years’ imprisonment. In respect of the second charge of use a carriage service to access child pornography, the maximum penalty is 15 years’ imprisonment. In respect to knowingly possess child pornography, the maximum penalty is 5 years’ imprisonment.
2 It should be noted that there are two charges of use a carriage service to access child pornography because of a change in the maximum penalty during the course of your offending. This change of penalty reflects Parliament’s attitude to the seriousness of this offence.
3 Tendered as Exhibit A on the plea and read aloud in court was the summary of prosecution opening. In summary, on 22 January this year, police executed a warrant at your address. Police seized a number of computers and hard drives as well as a number of USB devices. Child pornography material was subsequently located on these devices. You were interviewed under caution, and made full admissions in relation to accessing and possessing child pornography material. It is to be noted that your accessing and possessing of the child pornography did not involve sale, purchase or intentional dissemination of that material. Rather, you were a user of the material, and it was not asserted that you shared the material or participated in chat or other like groups for the purposes of disseminating this material.
4 During the course of the record of interview you said that your offending probably commenced in the “late nineties”; and that it was a “psychological psychosexual addiction”; that you were “a decent person, I’ve had a good teaching career unblemished but I’ve just fallen into this awful terrible addiction”; and that you were “totally ashamed and disgusted” with yourself. In respect to your offending you said “you just got into a hole and forgot about the world, you know”.
5 Using the CETS classification, the total number of child pornography images/material in Categories 1–6 numbered 18,269. The earliest date of a downloaded image located on the computer material was 1 April 2006. The majority of the images located on the computers and the other devices were of females who appeared to be under the age of ten years. A large amount of these images were of females who appeared to be aged between four and eight years of age. The images depicted oral and vaginal sexual penetration of girls by adult males. The images included photographs of young girls displaying their genitals, children performing sexual acts with each other, adult males urinating on girls, sexual acts between animals and children, as well as girls being tied up and sexually penetrated. The material seized included 688 videos that were classified in Categories 1–5. I viewed a sample of the child pornography material as part of the plea proceedings.
6 You are sixty-two years of age, and the youngest of three children born to a working-class family. Your parents separated when you were about five, because your father, who was a veteran of World War II, suffered severe emotional problems and was a heavy drinker. Your father died when you were about thirteen years. Your mother remarried soon after her divorce from your father, to a man who was a Holocaust survivor and suffered serious emotional problems. He died when you were in your early twenties. Your mother repartnered, and you have enjoyed a positive relationship with that man.
7 You attended Tottenham Technical School from Years 7 to 11 and matriculated out of Braybrook High School. You initially undertook training as a psychiatric nurse but discontinued these studies, and after a period of time you studied to be a teacher. You qualified in the early eighties, and pursued a teaching career within the State education system that spanned approximately 30 years. At the time of your arrest you were retired but still doing some limited teaching.
8 During the course of your long teaching career you undertook the role of school counsellor and guidance officer, and particularly enjoyed the support that you provided to your students who needed it. You have worked as a volunteer for the Adult Migrant Education Service and also worked as a tutor to teach refugees English. You are devoted to the Footscray Football Club and were involved in the drive to stop the amalgamation of that club with the Fitzroy Football Club. You are the author of the book ‘Too Tough to Die’, that concerns the struggle to keep Footscray, now the Western Bulldogs, an independent football team within the AFL.
9 Tendered as Exhibit 1 on the plea was the report of Patrick Newton, psychologist, dated 29 July 2015. Mr Newton was called on the plea and confirmed the contents of his report. At about the age of eight you engaged in sexualised play with a group of friends. This experience seems to have caused you considerable shame and sadness. You were first exposed to pornography when you were aged about twelve. From about the age of fourteen your experience with pornography became an obsessional interest. At that time it focused on hard-core magazines which you used for masturbatory purposes. With the relatively recent availability of the internet your use of pornography became much more intense. You accessed internet pornography regularly. The materials that you accessed became increasingly more deviant. You began to search deliberately for child pornography. You found this material sexually arousing.
10 Mr Newton reported that you consulted several mental health professionals over the years but did not discuss your use of pornography with them for fear that it would be reported. It is unsurprising, then, that you received no treatment in respect of your deviant behaviour, and gained little benefit from the treatment that you did receive.
11 You have had a number of adult heterosexual relationships, but have found it difficult to commit to partners, maintaining your own independent living arrangements when you lived with partners from time to time.
12 Mr Newton reported that you have been anxious since childhood and you display some symptoms of obsessive compulsive disorder. You have been treated with anti-depressants in respect of your obsessive compulsive disorder, which you have found to be beneficial.
13 You have a lengthy history of heavy drinking, as well as being an abuser of cannabis since the age of seventeen. You told Mr Newton that your use of internet pornography was closely linked to your drinking and drug use, and that you were particularly prone to search for illegal material when you were drunk. You reported to Mr Newton that since your arrest you have ceased using cannabis and have reduced your alcohol consumption. You reported to Mr Newton that you have been obsessed with gambling at various times in your life.
14 Both in his report and in evidence, Mr Newton was satisfied that you had an orientation towards sexual interactions with adult women, and that you were not a paedophile, and that you had a capacity to compartmentalise the virtual world of pornography from the real world in which you lived. In his report Mr Newton opined that:
“The deviant nature of material he accessed, together with the extended duration of his involvement with it and the progression of his behaviour to include prepubescent individuals, all point to the presence of a wide-ranging diverse and entrenched deviant sexual cognition. These were integrated with deviant arousal patterns and intensified by the broader behavioural problems (drug and alcohol abuse and problem gambling) which pervaded Mr Dalton’s life.”
15 Mr Newton assessed your risk of reoffending as at the “moderate risk” range overall.
16 During his evidence, Mr Newton opined that there was little chance of you transitioning from the online to real-world offending.
17 It is plain that you needed a crisis like your arrest to desist from your offending.
18 Mr Newton opined that the risk factors that he assessed in your case were dynamic and therefore capable of treatment, which, if entered into positively, would reduce those risk factors over time.
19 Tendered as Exhibit 2 on the plea was a bundle of documents that included the report of Dr Mathew Barth dated 30 July 2015. Dr Barth has been treating you in a sex-offender treatment program setting. You have attended eight treatment sessions from 1 May 2015 to 24 July 2015. You had requested participation in this treatment before May this year; however, the demands on available services were such that your treatment was delayed. You have expressed considerable shame, disgust and remorse for your offending behaviour to Dr Barth. You presented to Dr Barth as being very motivated and committed to participate in the sex-offender treatment program. He opined that you have gained good insight into your offending and that you have improved your coping and communication skills and knowledge regarding the normative sexual development of female children. However, Dr Barth noted that your treatment has been of relatively limited duration, and it was the opinion of Mr Newton that you would require lengthy treatment in order to reduce your risk of reoffending.
20 The day after your arrest you attempted to take your own life by carbon monoxide poisoning in your car. You were found by police and taken to the Footscray Emergency Department for treatment. You were subsequently referred to a CAT Team for follow-up. It is plain that you were overwhelmed by feelings of shame and anxiety and decided to end your life (see Exhibit 2).
21 You have been treated with anti-depressants since about November 2013, according to the report of Dr Le dated 31 July 2015 (see Exhibit 2).
22 Mr Newton opined that you would have difficulty adjusting to a custodial setting and that you would require relatively intensive professional support during the initial period in custody. Because of your attempt on your life, you would have to be monitored in respect of self-harm. Mr Newton opined that you would be vulnerable to intense bouts of mood disturbance in a prison setting, and that your naivety to a prison environment would add to the factors that would make your time in custody more burdensome than it would be for a normal person.
23 Also called on the plea was a lifelong friend Dr James Doughney. In a reference dated 29 July 2015 that formed part of Exhibit 2, he opined that you understood the deep level of moral and legal gravity of the crimes with which you stand charged. He was of the view that this manifested itself in your attempts at self-harm. Dr Doughney was willing to support you because he believed that your capacity for redemption had been demonstrated by your cooperation with police and the court, and by your truthful and insightful engagement with treatment. He was confident that you would continue to receive treatment.
24 As part of Exhibit 2 there is a reference from Suzanne Sigg dated 3 August 2015. She wrote that you were genuinely ashamed and remorseful for your conduct, and in her view this was reflected in your attempt at your own life. She wrote that as a consequence of your offending conduct becoming public within your family there are members of your family who have excluded you from their lives, whilst others have been supportive of you. She wrote that you have always been a hard worker, working as a taxi driver to supplement your income while studying to be a teacher, and referred to the many matters that Dr Doughney referred to in respect to you being a successful and passionate teacher who took on responsibilities over and above the norm, being a student welfare coordinator and helping students and families in the schools in which you taught in the western suburbs of Melbourne.
25 Mr O’Connell of Senior Counsel submitted, that a sentence of imprisonment with immediate release on a recognisance release order coupled with a disposition directed towards treatment and rehabilitation was the appropriate sentencing disposition in the circumstances of your case. Mr O’Connell submitted that there was an absence in your offending of some of the factors that would make your offending more grave. Whilst this is so, your offending is still a serious example of offending of its kind. Your offending lasted for nine years, there is a large volume of material, there are many children depicted in the images, many of the children are clearly identified, and you frequently accessed the internet in order to view and download the images. The nature of the material I have already described. Each of the children depicted in the images are victims of the most appalling crimes.
26 As against that, you are a man of good character who has contributed to his community. You have taken steps towards rehabilitation. In my view I must and do take those matters into account. But, as Mr Sewell for the Crown correctly submitted, prior good character and steps taken towards rehabilitation should not be allowed to overshadow the objective seriousness of your offending nor the application of the principles of general deterrence, and public denunciation of crimes of this kind. Indeed general deterrence is the paramount sentencing consideration in crimes of this kind.
27 I am of the opinion that the fact you were a school teacher during some period of your offending is not an aggravating feature of your offending. It is not suggested that your conduct left the confines of your home. Having said that, by your offending you did contribute to the international market for the exploitations of the victims depicted in the images in your possession.
28 You are sixty-two years of age. You were a man of good character. You cooperated with the police and made full admissions in your record of interview. You pleaded guilty at the earliest opportunity and are entitled to the benefits that flow to you from your plea, being that it facilitates the course of justice and is evidence of your remorse, of which I am satisfied. You have commenced the road to rehabilitation by consulting Dr Barth. I must, by this sentence, foster your rehabilitative process. However, the characteristics of your offending and its seriousness demands an immediate custodial sentence with subsequent release on recognisance.
29 Would you please stand up.
30 By this sentence I must punish you, publicly denounce your conduct, and deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, with your personal circumstances and antecedents, endeavouring to produce a sentence that reflects and promotes the purposes and principles of sentencing in a manner appropriate to you and your offending, I sentence you as follows.
31 In respect of Charge 1, I sentence you to 15 months’ imprisonment.
32 In respect of Charge 2, I sentence you to 18 months’ imprisonment.
33 In respect of Charge 3, I sentence you to 6 months’ imprisonment.
34 I order that Charges 1 and 2 commence two months after the commencement of the sentence imposed on Charge 3.
35 My intention is that these sentences result in an overall sentence of imprisonment of 20 months.
36 I order that you be released on a recognisance release order in respect of Charges 1 and 2 after having served 8 months of the sentence imposed on Charges 1 and 2.
37 I declare that you have spent eleven days by way of pre-sentence detention, including today.
38 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 36 months’ imprisonment with a non-parole period of 20 months' imprisonment.
39 I declare that you are subject to the provisions of the Sex Offenders Registration Act 2004 for life.
40 You may be seated.
41 MR STARY: Can I just clarify that, Your Honour, in terms of the paragraph that Your Honour showed to us, paragraph 35.
42 HIS HONOUR: Yes.
43 MR STARY: To be released after eight months or twelve months, Your Honour?
44 HIS HONOUR: After eight months of the sentence imposed on Charge 1 and 2, which means in Melbourne terms, it's effectively a non-parole period of ten months.
45 MR STARY: Ten months?
46 HIS HONOUR: Yes.
47 MR STARY: Thank you, Your Honour.
48 HIS HONOUR: So in Victorian terms, it's a total effective sentence of 20 months with a non-parole period of ten.
49 MR STARY: That's clear, thank you, Your Honour.
50 HIS HONOUR: Mr Sewell, do you have the appropriate recognisance release order document there?
51 MR SEWELL: Yes, Your Honour. It's just a draft, it doesn't have the figures that Your Honour has referred to.
52 HIS HONOUR: Thank you.
53 MR SEWELL: The draft contains conditions relating to a sex offender management if Your Honour is so inclined.
54 HIS HONOUR: Yes. Do you have a draft of the recognisance order dealing with paragraph 2? Dealing with a Victorian sentence; if a person was released upon or received a term of imprisonment together with a community corrections order, then the order is expressed in terms of upon release, you must report within 48 hours or the like.
55 MR SEWELL: Yes.
56 HIS HONOUR: Paragraph (d) is not expressed in those terms.
57 MR SEWELL: Yes, Your Honour.
58 HIS HONOUR: I can simply hand them in that. Are you bearing in mind where Mr Dalton lives, are you able to inform me where the appropriate - - -
59 MR STARY: It'd be the Sunshine Community Corrections Centre, Your Honour.
60 HIS HONOUR: Thank you very much. I'll hand down the amended document to both parties so they can peruse it to see that it conforms with the intention of my sentence.
61 MR STARY: As apprehensive as I am about Commonwealth sentences, Your Honour - - -
62 HIS HONOUR: Yes.
63 MR STARY: - - - I think that that's appropriate, Your Honour.
64 HIS HONOUR: Thank you very much. Now, Mr Dalton, what's going to - you may be seated, Mr Dalton, there's no need for you to stand. What's going to happen now is my associate is going to bring down to you two sets of documents. The first set of documents relates to you acknowledging the order that - or the fact as a matter of law because of your convictions that you're now subject to the Sex Offenders Registration Act for life. By signing the documents, you are acknowledging receipt of the documents. You are also obliged to sign the document in respect of your release upon recognisance, and my associate will bring that down to you and Mr Stary, if you wish to speak to Mr Dalton while this is being done.
65 MR STARY: Thank you, yes, if I may, Your Honour.
66 HIS HONOUR: Certainly.
67 (Sex Offenders Registration Act order and recognisance release order signed and acknowledged.)
68 MR STARY: Thank you, Your Honour.
69 HIS HONOUR: That's perfectly fine, Mr Stary. Now I've signed those documents in respect of the provisions of the Sex Offenders Registration Act. I note, Mr Sewell, that there are no ancillary orders sought for the destruction of material? Does that act operate per force of statute, does it?
70 MR SEWELL: Your Honour, that's a matter that can be dealt with between the parties.
71 HIS HONOUR: That's fine, I just needed to touch base with you in respect of that. What's happening now is that I'm having these documents copied and I'll provide copies to both parties and to the prisoner for his personal records. Mr Stary, would you want some time with the prisoner before he's - - -
72 MR STARY: If I may, Your Honour.
73 HIS HONOUR: Yes, certainly.
74 MR STARY: Yes, thank you.
75 HIS HONOUR: And if you'd provide your email addresses, both of you respectively to my associate, I think in the circumstances of this case, both parties will have the draft reasons.
76 MR STARY: Thank you, Your Honour.
77 HIS HONOUR: Bearing in mind the submissions that were made to me.
78 MR SEWELL: Thank you, Your Honour.
79 HIS HONOUR: So I'll remain on the Bench whilst - did you want me to remain on the Bench while you're speaking to Mr Dalton?
80 MR STARY: I think the - - -
81 HIS HONOUR: I think it's a - I think - - -
82 MR STARY: - - - the officer will allow him to remain there while Your Honour - after Your Honour adjourns.
83 HIS HONOUR: It's my preference to remain on the Bench, Mr Stary; I don't want to cramp your style in the least.
84 MR STARY: No. No, no, thank you, Your Honour.
85 HIS HONOUR: I'm content to remain on the Bench.
86 MR STARY: If I might have a brief moment, thank you, Your Honour.
87 HIS HONOUR: Yes, thanks very much.
88 MR STARY: Thank you, Your Honour.
89 HIS HONOUR: Thank you very much, Mr Stary. I'll stand down till the next matter is ready, would you remove the prisoner please.
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