Director of Public Prosecutions v Davies
[2013] VCC 900
•18 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK DAVIES |
---
JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Davies | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 900 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Field | |
| For the Accused | Mr P. Morrissey |
HIS HONOUR:
1 Mark Davies, you have pleaded guilty to one charge of accessing child pornography material using a carriage service and one charge of making available child pornography material using a carriage service. These offences were committed between June 2012 and 31 August 2012. A comprehensive prosecution opening was tendered on the plea as a statement of material facts and will be retained on the court file. I append that summary to this sentence.
2 I will summarise the salient matters briefly. Your IP address was found by investigators in the US on 14 June 2012 and by accessing the relevant peer to peer file sharing networking they were able to monitor the access you had had to child pornography.
3 On 31 August 2012 police attended your home with a search warrant. You were present during the search and police seized a number of items of computer hardware. The data retrieved from this hardware was examined and classified. It contained images, videos, emails and text files. Material identified as child pornography was identified and categorised according to six categories of severity, and non-child pornography files were identified and categorised into two additional categories.
4 Category 1 includes depictions of children with no sexual activity but with emphasis on sexually suggestive posing. 5394 images and one video fit into this category.
5 Sixty-two image files fit into Category 2, which include sex acts between children and the use of penetrative sexual toys.
6 Thirty-six image files fit into Category 3, which includes non-penetrative sexual activity between children and adults.
7 Twenty-three image files, one video and seven text files fit into Category 4, which includes penetrative sexual activity between children and adults.
8 Eighty-five image files and one video file fit into Category 6, which includes cartoons depicting children in sexual poses and activity.
9 There were no files which included sadism, bestiality or humiliation.
10 139,076 images and 70 videos were non-illegal child material, though forming part of a series which contained in part child pornography.
11 Category 7, consisting of 167,450 image files and 110 videos were adult pornography not considered child pornography.
12 Summary descriptions of the contents of the files in each category were contained in the presentation of the prosecution opening, which I will not repeat here. Suffice to say that Category 1 contained prepubescent and teenage girls seen posing in sexually suggestive ways with emphasis on their genitals, and later categories contain adult males engaging with children in vaginal, oral and anal sex. These images are repugnant to the viewer and are abhorrent to right thinking members of our community. You have downloaded these files and texts.
13 A peer to peer file sharing program was installed on your computer and configured to share files with other users. One partially downloaded file was named as ‘paedophilia compilation file’. The download folder of the file sharing program contained 13 files of previously downloaded files, nine of which have been deleted. The peer to peer file sharing program had been previously connected to another user, who was making available over 300 child pornography files. In excess of 1500 Torrent files were located on the computer with a large percentage of those files categorised as indicative of child pornography. A USB stick contained 206 deleted files, categorised as child pornography and another 1159 deleted files, categorised as being indicative of child pornography.
14 When the police executed the search warrant you told them you did not think there would be any child pornography present but you admitted using Torrent and the peer to peer file sharing software. You told police you had downloaded pornography but only unintentionally accessed it. You told them you knew that the files you downloaded were accessible to other users via the peer to peer network.
15 On 14 September 2012 you attended voluntarily at the Australia Federal Police office and participated in an interview. You said, amongst many answers, that you had unintentionally shared files but admitted researching how to set the share folder for the peer to peer software and that you had set the program to share two folders. You acknowledged that all files downloaded by peer to peer would be shared with other users in part or in full. You admitted using the peer to peer software to access and search for child pornography.
16 It was admitted by the prosecution that by having to configure the peer to peer program in effect that limited the material available to others. However, by your plea and answers in the interview, the ‘make available’ part of the charge is accepted by you.
17 I sought to clarify this aspect because in my view it is the more mischievous allegation of the two charges, though they each carry 15-year maximums or 900 penalty units or both, as penalties. I consider the second charge particularly serious, as it expands the potential for access to others beyond yourself. It is bad enough that people use computers to access this despicable and evil material, it is repugnant that this access then enables others to access it via your computer. This enabling act is pernicious and represents a widening of this insidious access beyond the personal and private to a wider realm, a market in effect, facilitated by you on your computer. The maximum penalty indicates the serious nature of these offences. It must be acknowledged, however, that this enabled access was in fact limited to two folders, which would have contained a number of files. Perhaps it is fortunate that this availability was limited in scope, and this to my mind, affects my ultimate disposition.
18 After I sought some clarification on this issue, ultimately it was agreed that on the scale of responsibility in making this material available, while you are not at the very bottom end of the rung, you are somewhere near that range. You could have denied access to others, but you did not do so. You do not fall into a completely passive category.
19 There was a secondary folder which you could have taken steps to not share, but you did not do so. Shareaza has apparently a default setting which is to share, but that setting can be disabled. You included some material to share and put material in these few files as available to be shared. You may have felt that you had unintentionally shared this material, but ultimately you had to concede that the settings you had chosen did enable others to access some material you had stored.
20 The vast majority of the images downloaded, it appears, are at the lower end of the gravity, and that by comparison to that, the number of images in the higher categories are relatively few. Few as they may be, the higher end images are nevertheless, by their description, repulsive. However, as is often noted, the categorisation of this material enables one to distinguish levels of criminality. There are scales of pornography, and by comparison, your high-end files are relatively low in number.
21 These offences are not victimless. These images are created by a destructive process; destructive of the innocence of children. It is difficult to imagine the experience of these children being abused in the most profound and abhorrent way, causing often irreparable damage.
22 The court must extend its protection to children from injury and exploitation, and a just society would look to the court to denounce this behaviour in accessing and making available child pornography in strong terms. Deterrence for those who would cause damage of this kind to children must be paramount. The availability of this material by way of the Internet demands that general deterrence must be a paramount consideration. In this context an offender's prior good character, like yours, has limited weight.
23 However, the objective seriousness of the offences must be considered. I have mentioned the relative small number of high category images and the nature and contents of the material which is primarily at the lower category end. Your possession was not for sale, you did not profit from your offences. I have already commented on the situation pertaining to the ‘making available’ aspect. Your criminality is not at the high end of the scale. You are not a middle-aged man with a psychosexual history manifested in offences or a difficult personal history. In your case the material indicates to me that your relative youth, immaturity and naivety are at the foundations of your lack of insight and incapacity for empathy. Nevertheless specific deterrence must still be a consideration. The other concepts which I must bear in mind are rehabilitation and protection of the community.
24 You are 26 years of age and have no prior convictions. You are the youngest of two children born to professional parents. Your sister and parents have a close bond to you and have always been your social contacts. You have had relatively few friends your own age. Your parents reside in Canada and have done so since your early 20s when you and your sister have remained in Melbourne living in the family home. You have maintained contact with them via the Internet. They are very supportive of you and have been present in court on all occasions that this matter has come before me; now the third occasion.
25 Your educational and occupational history is unexceptional, but your peer relationships were repeatedly disturbed by family moves. However, you completed your VCE. You have attempted tertiary education in the past in various disciplines but have not completed any course. You have a very limited work history. A psychological report was tendered on your behalf. Patrick Newton, an experienced forensic and clinical psychological, wrote the report and then gave evidence on your behalf. You described a very limited history of interpersonal intimacy. Your use of Internet pornography escalated and became obsessional and compulsive.
26 At the time of the first assessment, you had considerable difficulty discussing your motivation. But the most important aspect has been the impact of extended treatment with Mr Bath, an associate of Mr Newton. Therapy has been offence-specific counselling. I allowed a period of time to elapse between the plea and my sentence, upon a further plea, to gauge both your progress, the benefit of such treatment to you and to the community, and to evaluate its impact on prospects of rehabilitation, specific deterrent and punishment. I accept firstly that you are regretful of your actions and that you have expressed adequate and sincere remorse. While you rationalised your conduct at first as victimless, the therapy has brought about a bitter realisation that your crime is not victimless.
27 Your cognition distortions have been and are being addressed with significant benefits, not just to you personally. Given that they have generated genuine insight, guilt, shame and disgust and appropriate remorse, these benefits accrue to the community as well.
28 You are of normal intelligence, but you are immature for your age. At the time of the report, you were unsure about most major life issues. You remain dependent on your parents for income, without much direction in life. You presented as shy and socially introverted. You have withdrawn as a default position from the very experiences necessary to provide a context for the development of social skills. You had felt powerless to overcome these problems and have, as a result, felt frustrated, lonely and disappointed. All of these issues are now being addressed.
29 Your sister has turned to you and is assisting you with a social life, which you were not experiencing before. The therapy has allowed you to develop new goals by way of courses you have completed and an enrolment in tertiary education of your interest.
30 I was shown certificates in occupational health and safety and training assessment from HBA Learning Centres and you have enrolled to recommence an Arts Anthropology degree. I note that the therapy has been at your family's expense of about $130 per session, and this level of family support and continuing into the future is important.
31 Mr Newton frankly acknowledged in his first report that the nature, duration and context of the offending, raised concerns about your sexual adjustment, pointing to deviant sexual cognitions about under-age and prepubescent females. In my view, the undertaking, in effect, of a sex offenders treatment program, which you have been undertaking for a significant period of time, is a very important component, both of deterrence and rehabilitation. This is the aspect which would likely prevent recidivism on your part. I accept that these dysfunctional patterns, highlighted by Mr Newton, are almost entirely related to your use of the Internet, and other virtual offending, rather than any risk to children. However, such risk assessment must always be cautious. Though you express clear orientation towards adult women, there is no doubt, as Mr Newton said in evidence, that the treatment undertaken must be assiduous and may be long term.
32 A significant aspect of this, which he gave in his evidence, is the fantasy management program which the treatment comprises. This is crucial to relapse prevention and it is providing you with tools and insight into how to progress into the future. Healthy pro social relationships do not come easily and life lessons are vital to replace autistic fantasies lived out on line in a virtual life rather than a real life. I accept this level of immaturity will also render any reclusion difficult and you would be vulnerable to the negative influence of hardened criminals in a gaol. The installation of a filter on your computer is a welcome addition to the panoply of tools at your disposal.
33 I received a letter from your father which expressed your family's support. In particular, he highlighted your interest and commitment to workplace health and safety, which you have identified as a keen professional interest and capability. This highlights that part of you which is directed towards others in a helpful manner. I take this into account.
34 Although the Crown took up a position that immediate incarceration here was the only option to the court; in my view, the Commonwealth sentencing scheme recognises that this option must be of last resort. I have endeavoured to take into account all the matters submitted and the factors which are outlined in s.16A of the Act.
35 In my view, the long term protection of the community, while according significance to general deterrence, can be achieved in this case by the imposition of a sentence of 12 months and release upon a recognisance release order in the sum of $1000, requiring you to be of good behaviour for a period of two years, and that you continue to attend upon Mr Patrick Newton for integrated treatment for the duration of the recognisance as a condition of your release.
36 In reaching this decision, I have considered the authorities and submissions of counsel. In particular, it seems to me that addressing this type of offending, that if progress is genuine and potentially transformative, and evidence of its impact is able to be secured as in your case, the intuitive conclusion appears to me to favour a sentence to enable that progress to continue without affecting or offending the important principals which are relevant in sentencing which I have mentioned.
37 I take into account your pleas, which you offered at the earliest opportunity. But for your plea, I would have sentenced you to 15 months imprisonment.
38 I have drafted and signed the orders, Mr Field, and I will hand that copy down to you and Mr Davies can be brought forward to sign the recognisance.
MR MORRISSEY: As the court pleases.
HIS HONOUR: Are there any ancillary orders in relation to any of the material that was seized?
MR FIELD:We have been provided, Your Honour, by the defence, with a consent to surrender a retention of the hardware that was seized. On the basis, I am not sure than an order of forfeiture is actually required as Mr Davies effectively said that he agrees not to seek the return of the following items, which are listed. I can hand up a copy of this document if it assists Your Honour.
HIS HONOUR: Thank you. I think that I should incorporate into my sentencing remarks that Mark Davies has agreed not to seek the return of the items concluded in the schedule to this document and has agreed to the retention and/or destruction of those items by the Federal Police by this note, dated as of - it is dated 15 March 2013, so an earlier date than today, and encompasses the laptop computer, the USB drive and a 1.5 Terabyte external hard disk drive.
MR FIELD:Your Honour, there is one further matter.
HIS HONOUR: Yes.
MR FIELD:That relates to Sex Offenders Registration.
HIS HONOUR: What is the circumstance in relation to that?
MR FIELD:My note is as follows, Your Honour. In relation to the Sex Offenders Registration Act, which is a piece of State legislation, my understanding is that Mr Davies, having been found guilty of two Class 2 offences, will need to be registered, and as those offences occurred over a period greater than 24 hours, they will not be deemed one offence. The effect of which is that pursuant to s.34(1)(b)(ii), his obligations will continue for 15 years.
HIS HONOUR: Is that a matter that I have any discretion over, Mr Field?
MR FIELD:I believe not. I can confirm that, Your Honour. I will just check that.
HIS HONOUR: Yes, thank you. I mean I do not think that I do but I - - -
MR FIELD:I do not think you do either, Your Honour.
HIS HONOUR: No, and I think Mr Morrissey agrees. I will move on to that in a moment. Has Mr Davies signed that document yet? Yes, ask him to sign it, please.
MR FIELD:Your Honour, the section says, "A registrable offender must continue to comply with the reporting obligations imposed by this Part 4". Then I go to the 15 years. "If he or she" - sub-paragraph (2) - "has ever been found guilt of two Class 2 offences". So there are certainly - well (indistinct).
HIS HONOUR: Yes, thank you.
MR FIELD:Your Honour, I have not seen the recognisance yet but as there are two charges here my submission is, strictly speaking, Your Honour is required to give an individual sentence - I suppose they both arise under the same section. Yes.
HIS HONOUR: Yes. If there is any doubt about that I will indicate that on each charge I have imposed a 12 month sentence which is concurrent with the other.
MR FIELD:To commence today, Your Honour.
HIS HONOUR: To commence today.
MR FIELD:I think that should cover the situation, Your Honour. My only concern was the offences fall under the same sub-section, but I understand - - -
HIS HONOUR: They do.
MR FIELD:Not the same sub-paragraph.
HIS HONOUR: Yes.
MR FIELD:In some ambiguity, but I think Your Honour has covered that situation now.
HIS HONOUR: Yes. I will, if there is no objection, I have recited the contents of this note. I will hand it back to you, Mr Prosecutor. Mr Davies, I should indicate to you that - but this is not part of my sentence - I do not have any discretion over this matter, I am sure Mr Morrissey will explain this matter to you, but upon you being convicted of these charges, pursuant to a State Act you have become subject to registration as a sex offender. The period of your registration is for 15 years. I repeat, I do not have any discretion in relation to that.
The obligations that arise out of that registration are significant, and they are onerous in the sense that they are monitored, they involve a lot of facets of your life including from the change of your phone numbers to a change of address, to you leaving the State for any particular reason, on holidays or otherwise, and you needing, on a yearly basis, to advise the authorities of changes in relation to a number of aspects and then it will cover your employment and things of that nature. If they involved, for example, children or otherwise. They are important obligations and there are a number of them. It is important that you maintain an eye over what those obligations are and that you fulfil them, because otherwise you will be breached on those obligations and that has consequences of itself. Do you understand?
OFFENDER: Yes.
HIS HONOUR: Right. The recognisance means that you will be released straight away but I should warn you that it holds a sword over your head for that period of time. I have accepted that you have made good and significant progress in the last months, together with your family, but particularly through the treatment that you are receiving, the therapy that you are receiving through Mr Newton's office. It is important that I have made it a condition that you will continue to receive that treatment for the entire period of your release. Do you understand?
OFFENDER: Yes, Your Honour.
HIS HONOUR: If you do not attend appointments or continue with that treatment you will in fact be in breach of this recognisance. Do you understand?
OFFENDER: Yes, Your Honour.
HIS HONOUR: The other thing is that it requires you to be of good behaviour. That particularly applies to how you use a computer. I advise you to be very careful in relation to that particular aspect or any aspect that means that you may be committing a criminal offence. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: I do not think you are going to get another chance. I have signed the papers in relation to the Sex Offenders Registration Regulations and you will get a copy and you will be asked to sign that particular material. Thank you, gentlemen, for your assistance.
COUNSEL:Thank you, Your Honour.
---
0
0
0