Director of Public Prosecutions v DAVIES
[2013] VCC 1671
•15 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01358
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN DAVID DAVIES |
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JUDGE: | His Honour Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 November 2013 | |
DATE OF SENTENCE: | 15 November 2013 | |
CASE MAY BE CITED AS: | DPP v DAVIES | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1671 | |
REASONS FOR SENTENCE
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Catchwords: Access child pornography using a carriage service – Possess child pornography – previous good character – vulnerable offender
APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms. L. Skoblar | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr. S. Norton | Robert Stary Lawyers |
HIS HONOUR:
1 Alan David Davies, you have pleaded guilty to two charges of accessing child pornography material using a carriage service and one charge of knowingly possessing child pornography. Your offending occurred between 1 March 2005 and 14 April 2013. You have no prior convictions.
2 The facts were opened in detail by Ms Skoblar, who appeared to prosecute, and are contained in the summary of prosecution opening, Exhibit A. Briefly, when police executed a search warrant on your premises on 14 March 2013 they located a computer and an external hard drive that contained some 314,884 files likely to be child pornography. A proportion of the files were not, due to resource restraints, analysed and categorised however there is no suggestion that those files not so analysed and categorised did not contain child pornography. On the contrary, those not analysed and categorised fell into Charge 3, together with a number of files downloaded by you prior to the commencement of the commonwealth legislation which frames Charges 1 and 2.
3 Child pornography is classified according to six levels of severity:
Level 1 – Images and videos depicting nudity or exotic posing with no sexual activity;
Level 2 – Images and videos depicting solo masturbation by a child;
Level 3 – Images and videos depicting non penetrative sexual activity between adults and children;
Level 4 – Images and videos depicting penetrative sexual activity between adults and children;
Level 5 – Images and videos depicting sadism, bestiality or humiliation with children;
Level 6 – Animated or virtual anime images and video, cartoon comics and drawings depicting children engaged in sexual poses or activity.
4 The files in your possession and categorised were substantially in the first category, although a significant number were in the fourth and sixth categories. The prosecution produced a sample of each category on a stand-alone computer which, with the consent of the parties, I viewed in my chambers. The content was grossly exploitative of very young children, some of whom were toddlers. The pictures and videos showed children being masturbated, penetrated, assaulted and otherwise molested and manipulated in what can only be said to be in cruel, vile and degrading circumstances. The technology used to locate and download this material was detailed in the summary and does not need to be repeated here.
5 When interviewed by police you said that you were the only user of the computers, that you had accessed child pornography on the internet for 15 years, that you stored it using encrypted software, that you were particularly interested in pornography depicting 12 to 13 year old females, that you downloaded such material on a daily basis, and that you knew it was illegal. You also said that you did not upload images or videos, did not share any of the material with anyone else and did not participate in live chat. It was conceded that you downloaded this material for personal use only.
6 By way of background, you are now aged 62 years. You did not complete secondary schooling and then embarked upon an apprenticeship as an electrical fitter. You worked with the tramways for 22 years and conducted your own business in electronics for 30 years. You have had some brief encounters with age appropriate women, which have been categorised as purely platonic. You lived at home with your parents until your thirties and then moved into your own house where you have lived alone since. Mr Norton, who appeared for you, said that you were essentially a loner. He described you as socially isolated and essentially cocooned. He said there was no one in court for you and that you had only told your brother about your situation the evening before your arraignment. Mr Norton said that apart from your business interest, you did volunteer work which was referred to in the character references, Exhibit 4.
7 I received in evidence a report of Mr Patrick Newton, forensic and clinical psychologist, dated 5 November 2013, Exhibit 1. He said that, in his opinion, your personality traits warrant a diagnosis of Schizoid Personality Disorder. He noted that although you were experiencing elevated symptoms of anxiety and depression as a result of your pending court hearing, these symptoms did not amount to a diagnosis of a psychological disorder. He said that you were an extremely introverted and socially detached man with little desire for closeness and you tended to maintain a considerable distance in your interactions with others. He reported that you said to him that “I found some of the [child pornography] erotic, some of it held a sort of ghoulish fascination for me” and you acknowledged that you used it as part of your masturbatory practices. He said that from a young age you used pornography as a means to escape to a space where you could experiment with, and explore, a wide variety of sexual behaviours and fantasies without the need to connect with the individuals depicted in them. He conducted a series of psychological tests and concluded that you were in the moderate risk range of reoffending in this way. He said the risk would reduce with appropriate treatment, supervision and support.
8 In his evidence, Mr Newton said that whilst you had not initially believed that what you were doing was contributing to the exploitation of young children, you now have an understanding that demand creates a market. He said you now have insight into the impact that such conduct has on the child. He said that you will continue to learn more about this in therapy. Mr Newton said there were no specific programs to treat personality disorders such as yours in custody. He said you would require at least two years of therapy. He said that your personal and sexual development was immature and that you had immersed yourself in pornography for most of your adult life. He said that you recognised this was a problem but had not known what to do about it. He also noted that you will have difficulty fitting into a custodial environment.
9 I received into evidence three character references, Exhibit 4. The letters speak of your charity and volunteer work, and how your friendship is valued by the authors. One also speaks of your difficulties dealing with the deaths of your mother, sister and uncle. Each letter highlights that you are a person of otherwise good character.
10 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society. The Crimes Act 1914 (Cth) sets out in section 16A the various matters to be taken into account in sentencing Commonwealth offenders. In addition to the matters to which I have already referred, I am required to make an order that is of a severity appropriate in all the circumstances of the offence, and specifically takes into account your physical and mental condition, your plea of guilty, your contrition such that it is, and the deterrent effect any sentence may have upon you.
11 Mr Norton conceded in his submissions that your offending would ordinarily attract a sentence of immediate imprisonment. He argued that I could, in the circumstances of your case, wholly suspend that sentence by releasing you immediately on a recognisance release order together with conditions to assist with your rehabilitation.
12 Accessing child pornography via the internet must be regarded as a most serious offence, carrying as it does, a maximum penalty of 15 years. Adults who access child pornographic material can ordinarily expect a term of immediate imprisonment. General deterrence is regarded as the paramount sentencing consideration because of the high public inertest in stifling the provision and use of child pornography and the protection of children from sexual abuse. Limited weight is given to prior good character because it is the case that these offences are frequently committed by persons otherwise of good character.
13 The gravity of your conduct is to be assessed firstly by the nature and content of the material, in particular the age of the children and the sexual activity depicted. In your case, many of the children were very young and as I have already said the sexual activity was, in many of the examples I viewed, most depraved. Secondly, I take into account the number of images and the length of time over which they have been collected and stored.
14 Care must be taken not to allow the views formed of the makers of these vile images from impermissibly infecting sentencing considerations in cases such as yours. However, as Harper JA said in DPP v Smith, “The criminality involved in creating these images reflects the lowest depths of human depravity. The courts must be very mindful of that fact even when dealing with offenders who as is the present [case] merely the consumers of the image makers’ work.”[1] It is sometimes said that crimes such as yours are victimless and that accordingly stern punishment is unnecessary. As Harper JA reminds us, nothing is further from the truth. The consumption of child pornography by people such as you provides a market and the environment for the exploitation of children world wide. It is a scourge and must be defeated. Governments and courts in all countries must by their statutory provisions and sentencing practices make that clear.
[1]DPP v Smith [2010] VSCA 215 at 32.
15 I take into account your early plea which was considered to be given at the earliest time. I also take into account your cooperation with investigating police in making readily available all of the material and by making full admissions in your record of interview. For these reasons, your plea of guilty attracts the maximum discount available. I also accept that you are remorseful and are accepting of the need for ongoing treatment, which you promptly commenced shortly after your arrest. It is substantially in your favour that you did not possess the material for the purposes of sale or further distribution, and that you did not profit from your offending. As I have already noted you did not upload any content and did not participate in any chat room activity. I accept and take into account that your detention in custody will be difficult having regard to your particular vulnerabilities.
16 For the reasons I have stated, a term of actual imprisonment in your case, if not strictly speaking inevitable, is highly necessary. The community cannot, and will not, tolerate the sexual abuse of children, and the courts must, by the imposition of stern punishment, make that clear to all. The requirements of general deterrence and denunciation must play the most prominent role in your sentencing. Accordingly, I do not propose to release you as requested. I will, however, fix a lower than usual period of time to be served immediately. I do so principally because of the fact that I am satisfied that you will be vulnerable in custody, and because you will benefit from treatment available in the community upon your release. The sentence I impose will facilitate your prospects of rehabilitation whilst at the same time reflect the seriousness of your offending and the abhorrence with which this community treats such offending. I also take into account the fact that this will be your first time in custody.
17 You are convicted on each count and on Charge 1 sentenced to be imprisoned for 18 months, on Charge 2 for 24 months and on Charge 3 for 12 months. On Charge 3, you are sentenced as a serious sex offender. I have not been asked, and have not imposed, a sentence which is longer than that which is proportionate to the gravity of the offence in light of its objective circumstances.
18 I direct that the sentences on Charges 1 and 2 commence on 15 May 2014. I intend by this to cumulate six months of the sentence on Charge 3 with the sentences impose on Charges 1 and 2. The total effective sentence is therefore 30 months imprisonment.
19 I direct that you be subject to a Recognisance Release Order in the amount of $1,000.00 for a period of 24 months commencing six months after the commencement of the Commonwealth sentence. As a condition of the Recognisance Release Order I direct that, upon release, you attend Corrections and participate in a Sex Offender Program. To avoid doubt, I make it clear that I intend that you be released 12 months from today.
20 You are subject to the provision of the Sex Offender's Registration Act 2004 and are required to comply with its provisions for life.
21 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non parole period that I would have imposed had you pleaded not guilty and been convicted. If you had been convicted after trial, I would have sentenced you to four years imprisonment with a non parole period of three years.
22 I also make the orders in relation retention and disposal of the items as sought by the prosecution and note that it is by consent.
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