Director of Public Prosecutions v Donaldson
[2022] VCC 129
•11 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01474
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS JAMES DONALDSON |
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JUDGE: | HIS HONOUR JUDGE COISH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 11 February 2022 |
CASE MAY BE CITED AS: | DPP v Donaldson |
MEDIUM NEUTRAL CITATION: | [2022] VCC 129 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Botros | Office of Public Prosecutions |
For the Accused | Mr A. Pyne |
HIS HONOUR:
1Thomas James Donaldson, could you stand up please. You pleaded guilty to one charge of use a carriage service to transmit child pornography material, Charge 1. One charge of use carriage service to cause child pornography material to be transmitted to self, Charge 2; two charges of use a carriage service to transmit child abuse material, Charges 3 and 4, and one charge of use a carriage service to cause child abuse material to be transmitted to self, Charge 5.
2These offences carry the maximum penalty of 15 years' imprisonment. It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, Summary of Prosecution opening upon plea. That opening was accepted by you through your counsel. I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.
3As so much of the material relied upon by the prosecution is sexually explicit, violent, graphic and extraordinarily repugnant, I shall only provide a brief sanitised summary.
4On 17 February 2021, a search warrant was executed at your home and you were arrested. You had used phone, Telegram and Facebook accounts involving child abuse material. Your offending spanned the period from 6 November 2017 to 12 February 2021.
5As the relevant provisions of the Criminal Code (Cth) were amended with effect from 21 September 2019, Charges 1 and 2 concern conduct prior to those amendments and Charges 3, 4 and 5 concern the post-amendment period.
6Charges 1 and 2 relate to sexualised conversations with another on 6 November 2017, 25 February 2019 and 24 August 2019, amounting to the transmission of child abuse material.
7On 7 December 2017, you caused child abuse material to be transmitted to you from another. You were sent a child abuse image and videos and there was a text exchange. On 24 August 2019, you transmitted text and video-based child abuse material in a Telegram group.
8You continued to post in the, 'Dirty, dirty chat' group in October 2019, but these posts form part of Charge 3, rather than Charge 1.
9Charges 3, 4 and 5 relate to post-amendment offending. Between 18 October 2019 and 12 February 2021, you engaged in 46 different chats on Telegram involving the transmission of child abuse material in the form of images, videos and text.
10Charge 3 relates to text-based child abuse material describing children under 18 engaged in sexual activity. The children ranged in age from newborns to eight years old.
11You regularly described violence against children, including their rape and murder. You also regularly described infecting children. In some cases, the child described was hypothetical; in other cases the child was known to you or the other user. In seven different chats you shared images of a child you said was your nephew and you created text-based child abuse material around that image.
12Charge 4 relates to the transmission by you of child abuse material that was images or videos. Within the Telegram chats you transmitted 34 child abuse videos and 12 child abuse images between 25 October 2019 and 19 January 2021. You transmitted the same images and videos on more than one occasion. There were five unique images and ten unique videos.
13The material depicted the following, and I quote from the prosecution opening:
'9.1: Male children being anally penetrated by the penis and/or finger of adult males; 9.2: An adult male licking the anus of a minor male child; 9.3: An adult male masturbating the penis of a male child; 9.4: A female child being vaginally penetrated by the penis of an adult male; 10: The children depicted in these images and videos are aged between 0 and ten years of age. Some of the children depicted are crying and appear to be in distress.'
14Charge 5 relates to causing other users of Telegram chats to transmit child abuse material to you. You continued to engage in sexualised conversations with the other user and the child abuse material was in the form of either images, videos or text. The text-based material correlated with the material you transmitted and which forms part of Charge 3. You caused to be transmitted to you 107 child abuse images and 131 child abuse videos.
15These depict, and once again I quote from the prosecution opening:
'13.1: Close ups of the genital area and/or anus of male and female children; 13.2: Male and female children engaged in self-masturbation and inserting objects into their genitals and/or anus; 13.3: Male and female children performing oral sex on the penis of adult males or touching, masturbating the penis of adult males; 13.4: Male and female children being anally or vaginally penetrated by the penis and/or finger of adult males or by objects held by adult males; 14: The children depicted in these images and videos were aged between 0 and 15 years of age. Some of the children depicted are crying and appear to be in distress.'
16You made full admissions in your record of interview with police. The details of those admissions have been summarised in paragraphs 15 and 16 of the prosecution opening.
17I state to you that I have taken into account the following matters in mitigation of sentence. You have no prior convictions. I sentence you as a person of previously good character. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial.
18In accordance with the principles enunciated in Worboyes case, I accept there is greater weight to be attached to a plea of guilty during the COVID-19 pandemic than a plea of guilty in non-COVID times. You pleaded guilty at an early stage. You cooperated with authorities. I find your cooperation with authorities was significant. You not only provided an affidavit to the Australian Federal Police, you also gave evidence on behalf of the prosecution in a contested plea hearing on 24 January 2022.
19I accept on all the material before me that you are genuinely remorseful. I accept that you have demonstrated a high degree of contrition. I accept the submission made on your behalf that, in the words of Bayliss's case, you recognise the wrongfulness of your conduct, you are genuinely regretful for having done it and you are determined to not only do what can be done to right that wrong, but also to avoid a repetition of it.
20I accept the submission made on your behalf that your actions in cooperating with police, entering an early plea of guilty and assisting police with their inquiries including the provision of an affidavit and evidence at a contested plea hearing, is conduct a court would hope an offender would engage in, having regard to all the circumstances.
21I have been told something of your personal circumstances and these matters are set out in the defence outline of submissions and the psychological report of Mr Newton.
22You are 28 years of age. You are a single man with no dependants. You had a stable childhood and you have a supportive family although your actions have created division within your family which I shall describe in more detail shortly. You completed secondary education. You have obtained and maintained stable employment and several relationships.
23You are now 28 years of age. I do place some weight on your relative youthfulness at the time of the offending. However, in all the circumstances of this case, I only attach very limited weight to the principles governing the sentencing of youthful offenders.
24A detailed psychological report has been prepared by Mr Patrick Newton, Psychologist, dated 20 January 2022. I accept Mr Newton's opinions that:
25(1) You have a normal mental state with no features of any psychological disorder; (2) Your intelligence is in the high end of the normal range; (3) You have prominent traits of histrionic and narcissistic personality disorder; (4) You are a moderate risk of recidivism to sexual offending and (5) Prison will be somewhat more burdensome than is typical for a first-time prisoner.
26You have been receiving psychological counselling from Dr Sam Minge. He has provided a report dated 3 February 2022. He has seen you approximately 30 times from 24 February 2021 to 2 February 2022.
27I accept Dr Minge's opinion that you have pronounced difficulties in the sexual and personality domains. I accept his opinion that you have features of an unspecified paraphilic disorder; that is, deviant and problematic sexual arousal patterns that do not neatly fit into existing categories. I also accept his opinion that you meet the DSM-5 criteria for histrionic personality disorder.
28It is to your credit that you have engaged in appropriate treatment with Dr Minge. It is not submitted that any of the well-known principles enunciated in Verdins case apply. I have, however, taken into account the material provided by the psychologists, Mr Newton and Dr Minge as part of your overall personal circumstances.
29A number of powerful references and testimonials were provided on your behalf. Your parents describe your childhood, past good character, remorse, distress and harm caused within your family. They also describe your attempts to rebuild your life. The nature of your offending has been profoundly shocking for your parents however it is to your credit that you have their continued support. Your aunt and uncle describe your personality, remorse and ongoing family support. Close long-term family friends describe your past good character.
30I do not accept the prosecution's submission that there is a high risk of you reoffending, rather, as stated, I accept Mr Newton's opinion that the risk of reoffending is moderate. In all the circumstances, particularly having regard to your post-arrest conduct in seeking treatment, I assess your prospects of rehabilitation as being good.
31Against these matters in mitigation however, your actions were very serious indeed. I am familiar with and I have regard to the principles to be applied in sentencing in respect of child abuse material and child sex offenders. These principles have been summarised in both the prosecution and defence submissions.
32Your conduct involved the transmission and receipt of texts, videos and images. This material is shocking and abhorrent. The content of the texts was deeply disturbing. Your conduct was deplorable.
33Whilst the actual number of videos and images was relatively low in the context of offending of this nature, the nature and content of the material, age of the children and evidence of children crying and in distress is an important consideration.
34The overall offending occurred over more than three years from November 2017 to February 2021 and you communicated with at least 47 individuals during the offending period. Your role was not passive. Some of the children, the subject of the child abuse material, were known or proximate to you and others.
35This case highlights not just the potential harm and exploitation of vulnerable children, but also the harm to others, as there is a victim impact statement from a person close to you. It describes the distress caused to him, his wife and their sense of a loss of their child’s innocence. His victim impact statement is a powerful reminder of the impact your conduct has had upon others, particularly persons close to you. He describes feelings of anger, stress, anxiety, depression and insomnia, together with a deleterious effect upon his relationship with his wife.
36In dealing with the family he concludes:
'Our personal relationships are now fractured because of Tom.'
37I have had regard to the victim impact statement but it must not overwhelm other relevant sentencing considerations. I have had regard to the principle of totality. There is no pre-sentence detention.
38As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence. Specific deterrence is less relevant as you have no prior convictions and I assess your prospects of rehabilitation as being good. General deterrence is of considerable importance in a case such as this. Courts have consistently emphasised the importance of general deterrence in cases of this nature. This type of offending must be discouraged. I have had regard to the comparable cases provided by the prosecution.
39In all the circumstances I am satisfied that I have no alternative but to impose an immediate custodial sentence. Charges 1 and 2 involved a limited amount of material. I intend to make the sentences on Charges 1 and 2 wholly concurrent with the sentence on Charge 3.
40Charge 3 is the most serious charge having regard to the extreme nature of the content, the number of users, the incorporation of a known figure and racial remarks. The sentence on Charge 3 will therefore be the base sentence.
41In respect of Charges 4 and 5, the content of the images and videos is serious although as stated the numbers involved are not relatively high, considering other cases of this nature. There ought, however, be some degree of cumulation between Charges 4 and 5 and Charge 3.
42Charges 3 to 5 are rolled-up counts encompassing several instances of offending conduct. I have taken this into account.
43Pursuant to s16A of the Crimes Act I must impose a sentence of a severity appropriate in all the circumstances. I have taken into account the factors in s16A insofar as are relevant.
44I sentence you as follows:
45Charge 1, convicted and sentenced to six months' imprisonment to commence on this date;
46Charge 2, convicted and sentenced to six months' imprisonment to commence on this date;
47Charge 3, convicted and sentenced to two years' imprisonment to commence on this date;
48Charge 4, convicted and sentenced to 18 months' imprisonment to commence 12 months from this date.
49Charge 5, convicted and sentenced to 18 months' imprisonment to commence 12 months form this date;
50The total effective sentence is therefore two years' and six months' (30 months.)
51I make a recognisance release order whereby I order that you be released after serving 15 months' imprisonment from this date, upon entering into a recognisance release order in the sum of $3000 to be of good behaviour for a period of 24 months thereafter. If you breach the undertaking to be of good behaviour within the 24 month period, you will be brought back to court and the order may be revoked or cancelled. In such a case, you will forfeit $3000 and face the prospect of a further period of imprisonment.
52There are additionally mandatory conditions attached to the recognisance release order, that you be subject to the supervision of a probation officer for a period of two years, obey all reasonable directions of the probation officer, not travel interstate or overseas without the written permission of the probation officer, undertake such treatment or rehabilitation programs that are directed. You must report to the Heidelberg Community Corrections Centre within two clear working days of your release from custody, report to and receive visits from a Community Corrections officer and officers and notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change.
53In addition, you must attend for assessment and if assessed as suitable, treatment for Sex Offender programs or program to reduce reoffending as directed.
54Sex Offender Registration: By virtue of my sentencing you today, you become a registerable offender under the Sex Offenders Registration Act. All charges are Class 2 offences. You will be required within 28 days of your release from custody to report your personal details and begin arranging of annual reporting required by the Sex Offenders Registration Act, and be otherwise subject to the Act for the remainder of your life.
55Pursuant to s6AAA of the Sentencing Act I state that the sentence and non-parole period I would have imposed but for the plea of guilty is four years' and six months' and a non-parole period of three years.
56Mr Pyne, I will just ask my associate to hand you the recognisance release order and then I will just ask you to have your client sign that please.
57MR PYNE: If the court pleases, yes Your Honour.
58HIS HONOUR: Whilst that is being done, it is incumbent on me to explain the effect of the sentence in clear terms. The total effective sentence is two years and six months. That is 30 months. The prisoner is to be released upon entering into a recognisance release order after 15 months, and the terms of the recognisance release order are set out in that document. Thank you.
59MR BOTROS: As the court pleases.
60HIS HONOUR: Now just in terms of the mechanics of the sentence. The order ‑ ‑ ‑
61MR BOTROS: Yes, Your Honour, I do not see any issue with it. I will just confirm, it is a (indistinct) matter that the RRO, the single RRO attaches to Charges 3, 4 and 5. Is that correct?
62HIS HONOUR: Yes.
63MR BOTROS: If they are to be separate RROs then Your Honour will need to make a separate one for 4 and 5 for him to be released no later than three months.
64HIS HONOUR: No, it covers all of them.
65MR BOTROS: Yes, (indistinct words) as much as any, and no issues from my perspective.
66HIS HONOUR: No, and so the commencement dates, it is all clear.
67MR BOTROS: Yes.
68HIS HONOUR: It will clear in the orders. If there is any issue, notify my associate immediately once they come back.
69MR BOTROS: Certainly, Your Honour.
70HIS HONOUR: The mechanics are all clear?
71MR PYNE: No, I agree. Just as long as it is clear that it applies to all three of those sentences otherwise there is three months overlap.
72HIS HONOUR: Yes. We will double-check that Andrew when we do the orders. We will adjourn sine die.
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