Director of Public Prosecutions v Deksnis

[2019] VCC 1461

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00814

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUDOLF DEKSNIS

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2019
DATE OF SENTENCE:	6 September 2019
CASE MAY BE CITED AS:	DPP v DEKSNIS
MEDIUM NEUTRAL CITATION:	[2019] VCC 1461

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr D. Sagnelli	Commonwealth Director of Public Prosecutions
For the Accused	Ms G. Connelly	Greg Thomas Barrister & Solicitor

HIS HONOUR:

1.Rudolf Deksnis you have pleaded guilty to the following offences which carry the following maximum penalties.  Charge 1, access child pornography using a carriage service, carries a maximum of 15 years imprisonment.  Charge 2, knowingly possessed child abuse material, carries a maximum penalty of 10 years imprisonment.

2.In addition, your plea of guilty to these offences requires you to be registered pursuant to the Sexual Offenders Registration Act for a period of 15 years.  The Act imposes restrictions and reporting requirements which you will have to comply with after your release for that period. 

3.You have one prior conviction, but I place very little weight on that matter.  You have no subsequent matters and nothing outstanding.

4.The Crown tendered a summary of prosecution opening as Exhibit A.  A summary of your offending is as follows.

5.Charge 1 relates to a seizure of a HP Desktop Computer by Victoria Police, which was directly connected to the modem you used to access the internet through a subscription in your name.  Digital Forensic Analysis of the computer revealed that ‘Shareaza’ had been used, to access online materials matching a total of 341 search strings.  A number of these search terms were located in names of files located on the computer, indicating that at least between
15 November 2017 and 10 October 2018, you had used those search terms to access child pornography material through the internet.  There is no doubt from the search strings that you used, that you were targeting images of very young female children; as was found in your possession.

6.Charge 2 relates to a Victoria Police search of your premises that resulted in the seizure of five external hard drives, two USB drives, as well as a second desktop computer and a laptop.  The devices were forensically analysed.  It was estimated that they collectively contained in excess of 1 million files, containing a combination of legal and illegal files. 102,641 files of both still images and videos were identified from those 1 million files, as containing child pornography material.

7.An overall analysis and categorisation of the images indicated your preference for child pornography material as belonging to Category 1, (child pornography not involving sexual activity), predominately involving females between the ages of five and ten years of age. 

8.The next significant areas of interest was Category 4 material, (depicting adult /child penetration) and females under the age of five.  Over 22,000 images were categorised as being at Levels 3 and 4. 

9.The description of images provided to me, of a selection of the images found in your possession, show that the images found in your possession spanned the six levels of the Automation Child Exploitation Categorisation Scheme (ACECS).  As the courts have pointed out previously, however, it does not go to your credit that the vast majority of images found in your possession were categorised as Level 1 images.

10.You were charged on 23 October 2018 and released on bail.  You entered a plea of guilty at the earliest possible time.

11.In a frank and honest record of interview, you admitted, among other things, that you:

(a) were the only person having access to the computer;

(b) Were knowingly downloading both images and videos onto a location on your computer, leaving them stored on those devices;

(c) Occasionally renamed files if you encountered a difficulty in saving them onto the hard drive;

(d) Might have transferred files to the external hard drives;

(e) Viewed child pornography from home, and whilst you could not say how often, you have admitted that you had done so the night before your arrest;

(f) Had not shared child pornography with anyone, nor had you ever had the desire to do so;

(g) Had an interest in child pornography purely as a visual thing, and not as something that you turned into direct contact; and

(h) Would not attempt to groom or have direct contact with minors, whether through the internet or in person.

12.Your cooperation with police was extensive.  Indeed, it was stated by
Mr Sagnelli, on behalf of the Commonwealth, that there was little more that you could do.  It was by your admission that the period of offending for Charge 1 was particularised.  The interim Crown evidence, (without further extensive investigation and analysis), revealed the eleven month period of offending that I have outlined earlier.  You must be given credit for your candour and your cooperation.

13.Ms Connelly submitted that the following factors affect the gravity of the offending:

(a) That the material was obtained for personal use only;

(b) The material was not downloaded by you for sale or for further distribution;

(c) It follows that you did not actually and did not intend to profit from the offending;

(d) The set up was not calculated to avoid detection: you used your own software, in your own name, on your own subscription, in your own room.  There was no encryption or sophistication in the method used to download and store the pornographic material; and

(e) There is no suggestion of any attempt to contact either electronically or in person, any child for any purpose whatsoever.  The consumption of pornography was not associated with actual or prospective offending by contacting children.

14.The courts have held at the following factors bear upon the seriousness of these types of offences:

(a) The nature and content of the pornographic material, including the age of the children and the gravity of the sexual activity portrayed;

(b) The number of images or items in possession of the offender;

(c) Whether the possession or importation was for the purpose of sale or further distribution;

(d) Whether the offender would profit from the offence;

(e) The number of children depicted and thereby victimised; and

(f) The length of time for which the material was in the offender’s possession.

15.Looking at the submissions of Ms Connelly, I accept each of the submissions made by her, in respect to the gravity of the offending.  By reference to the principles I have just outlined, it is also apparent that you did not distribute the images yourself, nor did you possess them for the purpose of sale or profit. Nevertheless, these remain very serious examples of this offending.  The period of time over which the material was accessed, that is, the basis of Charge 1, and the staggering volume of images found in your possession, make your offending serious.  Moreover, as I have already adverted to, although your overwhelming interest, at least as indicated by the amount of material downloaded was in Category 1, yet there are still over 10,000 images in Category 3 and over 12,000 images in Category 4.  There were 762 images or videos in the most serious Category 5.  And I say category 5 is the most serious category because Category 6 is anime. 

16.The exploitation of children, both by having them engage in sexual activity and the filming, and a distribution of that material to others, is insidious, depraved and highly criminal conduct.  Your role was not as a distributor, but as an accessor.  One need only make the quickest scan of the selection of images provided to me, to appreciate the depravity of this type of offending.  The image which I described to the court, from within the material in your possession on the plea date, was an image of cruelty, humiliation and objectification and dehumanisation of a young child.  The creators of this image can probably only be described as evil.  Your accessing of such as this one and another 102,640 images beside that, through all levels of the spectrum of seriousness, (according to the scale), must be condemned.  Access and possession of these images shows a complete disregard for the rights and dignity of the children depicted in them.  It also encourages the creators, because your conduct fuels the demand, offending involving the seeking out, accessing and possession of these images, must be met by principles of deterrence, denunciation and protection of the community. 

17.In other words, your offending must be met by stern punishment.

18.I turn now to your personal circumstances.

19.You are 63 years of age and you were born in April 1956.

20.After you completed Year 10, you worked briefly before going into the army fulltime for 20 years.  You moved all around Australia with your work in the infantry.

21.You were married in 1980 and had two children, but separated from your wife in 1989.  You then commenced a relationship with a woman called Carol, who you met in the army.  You both moved around Australia together and finally ended up living in Caloundra, Queensland, but regrettably you broke up in about 2013.  You returned to Victoria to live after the breakup of this relationship

22.For the last four or five years, you have lived in shared accommodation in Broadmeadows.  You rented a self-contained room that had most amenities in it.  It was in that room that you committed your offending.  You were the only one to have access to your computer and to the storage devices.

23.Since leaving the army, you have worked until recently as a dispatch and dangerous goods officer for a paint company.  You were made redundant at the end of May 2019.  The material provided on your plea indicates that you were a hard worker, modest, friendly and well liked.  As Ms Connelly aptly observed in her able plea on your behalf, you were perfectly normal in your functioning during the daytime.  However, after a lifetime of being used to being in the company of others, your life outside work since 2013, has been extremely lonely and isolated.

24.After you were apprehended by the police, Ms Connelly stated that you simply stopped using the internet for illicit purposes altogether.  You have not sought any psychological intervention or counselling.  You were permitted by your bail conditions to use electronic devices for everyday functions, such as banking or retail, but otherwise I was told you do not use that technology.

25.Ms Connelly points out that at the age of 63 you have no effective priors.  It was submitted that your prospects for rehabilitation are good.  You demonstrated insight into the wrongfulness of your offending and as I say, you have now stopped, she submits.  Ms Connelly submits that through a combination of the Sex Offenders Behaviour Program, which you will inevitably participate in whilst in custody, and the regime of the Sex Offenders Registration, you have a supervised structure which will augment your rehabilitation on your return to the community.  It was conceded that you have no family support.  You have a difficult relationship with your son and you are unsure where your daughter now lives.  It was also conceded that you may need some medical or psychological counselling in the future, but so far, you have remained determined to lead a law abiding life.

26.Ms Connelly further submitted that the following factors should mitigate the sentence I am to impose upon you:

(a)  The plea of guilty was made at the earliest opportunity.

(b)  As I have said, you cooperated with the investigators and made immediate full and frank admissions.

(c)  You call into age, your previous and otherwise good character to the age of 63, with only one stale and irrelevant prior conviction.

(d)  You have good prospects of rehabilitation.  You were able to comply readily with your bail conditions restricting access to the internet to only use it for legitimate purposes throughout the bail period.

(e)  It was submitted that I should avoid double punishment.  Although there is some separate criminality reflected in the different elements of the offences. 
Ms Connelly submitted the offending largely overlaps, therefore the presumption of concurrency applies. 

(f)    And lastly, Ms Connelly submitted I should have regard to the principle of totality, which means in effect, I ought not impose a sentence disproportionate to the overall offending.  I must not impose a crushing sentence.

27.Ultimately, whilst Ms Connelly conceded that a period of imprisonment was the only appropriate sentence, she submitted that it should not be so high as to warrant the imposition of a non-parole period.  In other words, Ms Connelly submitted that I should impose a recognizance release order, as part of the sentence I impose upon you.

28.Mr Sagnelli for the Commonwealth DPP, submitted that your plea of guilty and cooperation must be given recognition.  Beyond that, however, the Commonwealth submitted that:

(a)  There must be a measure of cumulation between the sentences on Charges 1 and 2, as they are in fact separate and distinct offences;

(b)  By reference to the large number of images in your possession, (for which the Commonwealth had difficulty finding a comparative case) and the types of images, these are objectively serious charges;

(c)  Your offending warrants a sentence with the imposition of a non-parole period;

(d)  Your prospects for rehabilitation are somewhat difficult to determine in the absence of any independent or professional assessment of your psychological state.

29.The Commonwealth provided a table of comparative cases which included the Victorian cases of O’Connor and Garside, and the NSW cases of Porte and
De Leeuw.

30.The parties focused upon the observation in O’Connor, where at paragraph [16], the court observed that a sentence of four years imprisonment would have been a merciful sentence, if the maximum period of imprisonment at the time of offending, had been increased (as it is now) to ten years imprisonment.

31.There are differences between your case and that of O’Connor.  Whereas O’Connor made denials to downloading the material, you made full admissions and cooperated entirely.  On the other hand, you had in your possession almost double the amount of material of O’Connor, and you face an additional charge of accessing the material which extends over a four year period.

32.In the end, the sentence I impose upon you, must not disproportionately reflect what has happened in the past in other cases.  Rather, I must take account of all of the circumstances of your offending and, at least to some extent, the matters personal to you, to determine the appropriate sentence for your case.  With that in mind, I take into account your directness in admitting your guilt, your acknowledgement of the wrongfulness of your offending and I accept that you had stopped accessing illicit pornography altogether, once you were apprehended by police.

33.Nevertheless, I consider that there must be a real consideration given by the authorities, as to what programs and structure will best help you to achieve your rehabilitation, once you are released back into the community.  I consider that your prospects for your rehabilitation are probably good, but the community will want the assurance of professionals that you no longer have a predilection for this type of material; especially as you have no family structure or support. Further, whilst I consider that you have shown considerable determination to return to a law-abiding life, one of the factors I must consider, in the sentencing process, is protection of the community.  In my view, this is best achieved in this case, by imposing a parole period for you to serve after your release from prison.

34.In any event, I consider that your offending is sufficiently serious to warrant a sentence for which a non-parole period is applicable, rather than a recognisance release order. 

35.On Charge 1, the charge of using a carriage service to access child pornography, I intend to impose a sentence that you are convicted and sentenced to three years and three months imprisonment.

36.On Charge 2, possession of child pornography or child abuse material,  I intend to impose a sentence that you are convicted and sentenced to two years and six months imprisonment.  The law requires me to set a non-parole period for the sentence on Charge 2 and I intend to impose a non-parole period of fifteen months.  I intend, as the law presumes under the Sentencing Act, that the sentence on Charge 2 commences today.  Because you will still be serving a federal sentence at the expiration of the non-parole period, that is the sentence on Charge 1, you would not be released on that non-parole period.  I must nevertheless set one.

37.I propose to order that the sentence on Charge 1 commences in nine months from today.  That would be 6 June 2020.  I intend to order that you serve a non-parole period on Charge 2 of fifteen months.  I intend to achieve an overall total effective sentence of four years, with a non-parole period of two years.  I would reckon the period of eight days, pre-sentence detention, not including today, as reckoned as already served.  I would not intend to make a 6AAA declaration in respect to Charge 2, as to do so in isolation, would fail to take full account of totality and the overlap of criminality.

38.The sentence that I impose will be on Charge 1, on the use of a carriage service to access child pornography, you are convicted and sentenced to three years and three months imprisonment.  On Charge 2, possession of child abuse material, you are convicted and sentenced to two years and six months imprisonment.  You are ordered to serve a non-parole period of 15 months on that sentence.  That sentence commences today.

39.I order that the sentence on Charge 1 commence in nine months, that is
6 June 2020.  I order that you serve a non-parole period on that sentence of 15 months.  That achieves an overall sentence of four years with a non-parole period of two years before you are eligible for release on parole.  I declare the period of eight days, excluding today, pre-sentence detention reckoned as already served.  I do not make a 6AAA declaration.  I order your name be registered on the Sex Offenders Registration list for a period of 15 years.   

- - -