Director of Public Prosecutions v Dawe

[2015] VCC 1218

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00424

THE QUEEN

V

JOHN PHILLIP GEOFFREY DAWE

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2015
DATE OF SENTENCE:	28 August 2015
CASE MAY BE CITED AS:	DPP v Dawe
MEDIUM NEUTRAL CITATION:	[2015] VCC 1218

REASONS FOR SENTENCE
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Subject:Use of carriage service to access child pornography – Knowingly possess child pornography.

Sentence:Total Effective Sentence 2 months imprisonment (Federal) – Released forthwith by way of $500 recognisance bond of good behaviour for 18 months – Sex offender registration for 15 year period – 18 months Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kerlin	C.D.P.P
For the Accused	Ms A. Stephanides	Dooge & O’Brien

HIS HONOUR: 

1John Phillip Dawe, you have pleaded guilty to one count of using a carriage service to access child pornography material contrary to s.474.19(1) of the Criminal Code (Commonwealth) and one count of knowingly possessing child pornography contrary to s.70(1) of the Crimes Act (Victoria).  The maximum penalty for the first offence is 15 years' imprisonment, and for the second is five years' imprisonment.

Circumstances of the offences. 

2The circumstances of the offences were set out in the Crown opening, Exhibit A, which was read in open Court on the plea and which I incorporate by reference.  In essence, as a result of information obtained from Greece, police identified an ISP account in your name that had been downloading or accessing child pornography material.  As a response to that, the police executed a search warrant at your house out in Tarneit on 22 October 2014, and seized a black Compaq computer.

3In a conversation, you denied that there was any child pornography on the computer, but admitted that you had been accessing a web application called Gigatribe, which is a peer to peer pornography sharing site.  You admitted you had been doing that and you may have unwittingly downloaded the occasional picture, but said that most of the stuff on your laptop would be legal.  You admitted that you came across underage material, but refused to go any further.  You admitted you used an account name, Hollywood14, which was identified to you.  You gave the police your password for your laptop.

4You weren't arrested at that stage, but subsequently the computer was accessed and investigated and found on it were 39 images and two video files classified as pornographic material.  They were loaded under various subfolders within the Gigatribe user folders, including some with names like Pornlike, Pornoholic, Hollywood and Pornotta.  The computer records indicated that those files had creation dates between 19 November 2012 and 28 September 2014, which is the spread dates for the first count.  The last time the program had been used on the computer was on 11 October 2014.

5Of the 39 pornography image files, six were deleted and not ready accessible without specialist software.  All of them were then accessed by the police and classified under the uniform classification scheme; 20 were found to be Level 1, 15 Level 2, 11 Level 3, three were Level 4 plus two videos, making a total of 39 pictures and two videos.  In addition to that, the police accessed some chat logs, which are not part of the charge and well indicated that you had been discussing with other online users the question of younger girls and child pornography material.

6Subsequent to that, you were arrested on 17 November and gave a “no comment” record of interview.  The charges cover the period 19 November 2012 to 28 September 2014; Count 1 for accessing a total of 39 picture files and two videos, then the second charge is knowingly possessing child pornography on the date when the computer was seized on 22 October, which was the 33 images and two videos that had not been deleted when the computer was searched.

7You were committed for trial on 13 March 2015 and you entered a plea of guilty at that stage.  No prior convictions are alleged against you and you have been on bail since 17 November 2012.

Seriousness of the offences.

8In sentencing you in this matter, I have been greatly assisted by comprehensive written submission by your defence counsel and a similarly comprehensive response submission by the learned Crown prosecutor.  As the plea unfolded, defence counsel indicated that on many issues, the parties were effectively in heated agreement.  As a result of these submissions, my reasons will be shorter than normal and will incorporate by reference many of the matters that have been referred to in counsels' submissions.

The appropriate way to assess seriousness of the offences. 

9The appropriate way to assess the seriousness of this type of offending was not in dispute on the plea.  Due to the lower number of images and videos involved, this offending was in the lower range of offending of this type of offence, which comes before this court.  As pointed out by the learned prosecutor however, nearly half of the images were in Category 1, although many of them were in a higher grade of pornographic material within that category.  In addition to that, as set out in Paragraph 19 of the prosecution's submission and not contested by the defence, the two Category 4 videos are serious examples of that most serious of material, and some of the material on the videos involved children from age five to teenagers, but the majority depicted girls around the age of puberty or slightly post-pubescent.

10In the light of the classification of the material, under the common classification scheme and his description by the learned prosecutor set out in Paragraphs 17 to 20 of his submission, I have not found it necessary to review the material myself and I refer to the comments of Priest JA in Commonwealth Director of Public Prosecutions vZarb [2014] VSCA 347 at [73]. In assessing the seriousness of the offending, the learned Crown prosecutor emphasised the period over which the offending occurred; namely a period of a year and ten months. This is a matter that does go to the seriousness of it because this was not an isolated incident.

11Although the number of actual images downloaded is, as I have indicated, in the lower range, the period means that it is over a longer period and this goes to increase your culpability for the offending.  Some of the explanation for the period of the offending is contained in your counsel's submission that you would access the material, regret your behaviour, delete the file sharing application and then at a later date, relapse and
re-access the material.  It was common ground that you had not shared the material with other people, nor had you paid for it.

12So overall, given the number of images and videos involved and the fact that around half of them were in Category 1 as distinct from the higher categories, I place your offending in the lower range of seriousness of all this offending.  I further note that the two charges relate to actually accessing the images and the second charge relates to the same images on the single date of possessing them or storing them under the State offence and six of the images from the first offence had been deleted, so the number of images stored for Count 2 is six less than for Count 1.

Matters in mitigation.

13I turn now to matters in mitigation.  I have taken into account your early plea of guilty.  The matter was resolved at the committal mention on 13 February 2015.  You are entitled to the utilitarian benefit of the plea.  You have facilitated the course of justice and accepted responsibility for your action.  I also do regard your plea as some evidence of remorse.  There is also evidence of remorse in the reports of Dr MacKenzie and Dr Godfredson.  I have taken that into account in your favour.  There is also evidence of remorse in the references from your parents and your parents in law.

14I turn now to your personal circumstances. Your personal circumstances were set out in the submission presented by your counsel.  They are also set out in great detail in the history provided to Dr MacKenzie and Dr Godfredson, which I incorporate by reference.  There was also something of your history in the three references provided your parents, your parents in law and by your wife.  I incorporate all of those by reference.

15You are aged 36.  You were brought up in Adelaide and were the subject of some bullying at the schools that you attended.  You are the youngest of a family of three.  After leaving school during Year 11, you worked in a number of different occupations and undertook a diploma in hospitality.  You then went to the Gold Coast to work and were on an unemployment benefit for a time.  You worked in a car dealership and as a service advisor as well as in an Italian restaurant. 

16When you were aged around 25, you joined the Royal Australian Navy, signing up for a six year period and trained as an electrical engineer.  You flourished in that environment and this also included a period where you were posted to Western Australia.

17In 2008, you were subject to an incident of bastardisation that left you emotionally scarred and your mental state deteriorated.  In 2010, you left the Navy and decided to pursue a career in policing.  You were accepted into the Victoria Police force, but as a result of some differences during the course, you did not graduate.  You attempted to re-join the Navy but were unsuccessful, then had a number of jobs in the period thereafter.

18From 2011, you commenced working with a multinational defence contractor and are now an assistant project manager with that firm and remain in that job.

19You met your wife, who was in Court to support you on the plea, in 2005 and married in 2008.  In 2012, after an earlier miscarriage, your first child, Kylie, was born.  Your wife continues to support you after these matters came to light.

20After you were arrested, the Department of Human Services intervened in your household and you were forced to leave the family home for a period between November 2014 and February 2015, and you remain under requirement to only have supervised interaction with your daughter.  I have taken that imposition under the terms of the bail conditions into account in sentencing you.

Response to offending. 

21The major thrust of the plea was that since you were arrested, you have taken significant action to address the underlying psychological matters that gave rise to your offending.  In evidence was a report from Dr Godfredson, who is a well-known clinician in this field and who has been your treating psychologist since December last year.  He indicates that you have developed excellent insight into your paranoid tendencies and unhelpful behavioural responses.  He indicates that you have had some history of drug use and he has found a PTSD diagnosis following the event whilst you were in the Navy.

22He found that your response to treatment was genuine and enthusiastic.  He also found you were prepared to link relevant treatment conversations to your offending behaviour.  You were also able to identify certain problematic attitudes and develop insight into the impact of your offending behaviour.  He was unable to provide an estimate as to your risk of reoffending, however you have demonstrated a commitment to therapy and to apply the learning strategies he has identified.

23You have developed an awareness into a number of personality factors and he notes that, "Overcoming a chronic sense of victimisation, feelings of paranoia and self-defeating behaviours is usually a longer term endeavour."  He says that you appear prone to anxiety and depression and may have difficulty coping with perceived victimisation.  He recommends that you continue with long-term psychological therapy and he is prepared to continue that therapy.

24Defence counsel also tendered a report from another well-known clinician in the area, Dr Bridget MacKenzie.  She indicates that you are currently suffering from stress and also from severe PTSD symptoms.  She is also of the view that you present as having a “low moderate” risk for sexual reoffending in a non-contact manner and a low risk of committing a contact sexual offence.  She does not find any evidence of you meeting the diagnostic criteria for paedophilia.

25She considers your risk of engaging in further internet based offences as low to moderate.  She noted the protective factors that will reduce your risk of offending.  She is of the opinion you would benefit from continuing specialist sex offender treatment.

Sentencing considerations.

26In sentencing, I am require to have regard to the matters set out in s.16A of the Commonwealth Crimes Act and s.5 of the Sentencing Act of Victoria.  I am required to regard imprisonment as a sanction of last resort.

27The various considerations that I am required to consider under s.16A which are essentially mirrored in s.5 of the Sentencing Act, are set out in the competing submissions that I have referred to.  I will not refer to them all, but I will refer to the most salient ones.  The first consideration is general deterrence.  The appellate courts have emphasised on numerous occasions that general deterrence is to be a paramount consideration in sentencing for this type of offending.  I accept that general deterrence is an important consideration in all cases and in this case in particular.  It particularly applies given the pervasive availability of this material and its ease of access and difficulty of detection.

28Also specific deterrence I regard as having some salience given the 22 month span of the downloading offending.  Denunciation is also an important consideration.  It vindicates the unknown victims of all this offending.  Your rehabilitation into the community is also an important consideration.  Having regard to the steps you have taken in undertaking psychological counselling with Dr Godfredson and the positive assessment from Dr MacKenzie, as well as the support from your wife and your parents and parents in law, I regard your prospects of rehabilitation as good.

29It is common ground you have no prior convictions alleged against you and nothing outstanding.  That does not carry great weight in this type of offending, although you are entitled to the benefit of that prior good character, including the fact that you have served this country and I have taken that into account.

30In sentencing you, I have taken into account all the matters set out in the responding submissions and addressed the issues in s.16A of the Crimes Act.  I have also regarded imprisonment as a sanction of last resort and taken into account my assessment that this offending is in the lower range of seriousness for these offences.

31The learned Crown prosecutor submitted that in most cases involving this offence, considerations of general deterrence call for a sentence of imprisonment.  The Criminal Code does not make a sentence of imprisonment mandatory, however as I have indicated, the appellate courts have stressed the importance of general deterrence.

32Although you are relatively psychologically fragile and have had PTSD since the incident in the Navy, I do not regard that as reducing the importance of general deterrence.  Your moral culpability is not reduced.  This applies particularly given that your offending took place over a 22 month period.  I accept the submission, however, that your psychological fragility and PTSD is relevant to the type of disposition.

33The learned Crown prosecutor did not submit a sentencing range, but did not dissent from the submission by your counsel that a sentence of imprisonment followed by immediate release on recognisance would be an appropriate disposition in relation to the offence under the Criminal Code.

34Having regard to the efforts that you have undertaken since this offending came to light and the reports of Doctors MacKenzie and Godfredson and your remorse and your prior good behaviour, I regard it as appropriate to emphasise in my sentencing disposition your rehabilitation.

35Having regard to all these matters and given the relatively limited numbers of images involved, I am of the view that considerations of general deterrence can be addressed by the imposition of a term of imprisonment followed by your immediate release upon a recognisance.  This will send a signal to the community that the community regards this offending as very serious and that a sentence of imprisonment to be immediately served is usually called for.  In this particular case, I am not satisfied that it is so called for and that a recognisant release after the imposition of a sentence of imprisonment and a community corrections order on the State charge will allow your rehabilitation to be advance and for the community to be protected.

36I therefore propose that combination of sentence, provided you are prepared to enter into a recognisance release order and a community corrections order.

Sentence.

37The sentence of the Court will be as follows: on Count 1, you are convicted and sentenced to two months' imprisonment.  I order that you be released forthwith upon the entry of a $500 recognisance to be of good behaviour for a period of 18 months.

38On Count 2, the State count, you are convicted and sentenced to an 18 month community corrections order, to commence this day.  In addition to the usual terms of such order, you will be required to undergo treatment and rehabilitation for your mental health as well as treatment and rehabilitation programs to reduce your risk of reoffending.  In addition, you are required to be under supervision for the period of the community corrections order.  The sentences are concurrent.

39As a consequence of the convictions that I have imposed, you will be required to be registered as a sex offender and subject to the mandatory requirements of that Act for a period of 15 years.

40Pursuant to s.6AAA of the Sentencing Act, I am required to declare what would have been imposed had you not pleaded guilty.  I declare that had you not pleaded guilty, I would have imposed a two month sentence of imprisonment to be immediately served on the Commonwealth charge and a two community corrections order on the State charge.

41I assume that your client is prepared to enter that.

42MS STEPHANIDES:  He is, Your Honour.

43HIS HONOUR:  I will have the two documents engrossed, have them perused by counsel and if they are in order, I will ask for counsel to explain them to Mr Dawe and then I will reconvene.  Is there anything I have not addressed, Mr Prosecutor?

44MR KARLIN:  No, Your Honour.

45MS STEPHANIDES:  No, Your Honour.

46HIS HONOUR: Mr Dawe, I am required to explain the sentence that I have imposed on you to you.  On the first count, I have convicted you and sentenced you to two months' imprisonment, but I am releasing you forthwith on you entering into a recognisance or a good behaviour bond in the sum of $500 for the next 18 months.  You do not have to pay the $500 now, but you are on a bond, if you commit an offence or are not of good behaviour in the next 18 months, then that will breach the bond, you will come here, you will forfeit the $500 and you will be dealt with again for the offence and you may be required to serve the term of imprisonment.

47On the second charge, I have imposed a community corrections order with a conviction for a period of 18 months.  That requires you to comply with the usual conditions of a community corrections order which includes that you have to report at the Werribee Community Corrections Centre within two business days.  You have got to not commit an offence for the next 18 months.  You have got to comply with any directions by the manager of the Community Corrections Centre there:  receive visits at your home, if they require you to do that;  advise them of a change of address, advise them if you go interstate and in addition to that be under the supervision of a person from the Community Correction Office, and undergo any mental health assessment or treatment, including psychological, neuropsychological or psychiatric treatment that they direct by the regional manager and participate in any programs that they ask you to go to, which will include the sex offender program.

48So they are the terms that I am imposing on the community corrections order, and again, if you breach the Community Corrections Order you will be brought back here and dealt with for that, that carries a term of imprisonment, the breach itself. 

49So I am giving you this opportunity to try and right your life, not relapse into accessing this child pornography.  Down the track, in terms of getting therapy from Dr Godfredson, and I encourage you to keep that, because obviously, given the problems you have had in the past, you are mentally fragile.  You have got the support of your wife and I commend her for continuing that support, you have got your child that you have got to look after, so I do not want to see you back in this Court or any Court again.

50There is nothing else, Mr Prosecutor?

51MR KARLIN:  No other matters, Your Honour.

52HIS HONOUR:  I want to thank Counsel for their very helpful assistance on this plea and the submissions.

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