Director of Public Prosecutions v Dow
[2016] VCC 1959
•13 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-02265
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM DOW |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September, 21 November 2016 | |
DATE OF SENTENCE: | 13 December 2016 | |
CASE MAY BE CITED AS: | DPP v Dow | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1959 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Possession of child pornography, accessing child exploitation material via a carriage of service
Legislation Cited:
Cases Cited:
Sentence: Charge 2 (State Offence) – 12 months’ imprisonment with 6 months to be served before becoming eligible for parole; Charge 1 (Commonwealth) – 20 months’ imprisonment with 4 months to be served with the State sentence and released on a Recognisance Release Order on condition that a security of $500 be given and to be of good behaviour for two years and complete a Sex Offenders Program and be under supervision; Sex Offender Registration for 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Breckweg for plea Ms O. Go for sentence | CDPP |
| For the Accused | Mr J. McLoughlin | VLA |
HER HONOUR:
1 Adam Dow, you have pleaded guilty to one charge of using a carriage service to access child pornography, which is a Commonwealth offence with a maximum sentence of 15 years’ imprisonment (Charge 1). You have also pleaded guilty to one charge of possessing child pornography, which is a Victorian offence with a maximum sentence of 5 years’ imprisonment (Charge 2).
2
I proceed to sentence you on the basis of the Prosecution Opening, an agreed summary which was read out on your plea[1]. In brief, between 27 April and
5 August 2014, a period of just over 3 months, you accessed child exploitation material using an IP address registered in your name (Charge 1). A search warrant was executed on your flat on 27 August 2014 and a number of computers and electronic storage devices were found, containing child exploitation material. On analysis, you were found to be in possession of nearly 30,000 images, and 1300 movies (Charge 2).
[1] Exhibit A
3 As to this large quantity, I accept your counsel’s submission that the material on the external hard drives and CDs and DVDs was replicated on the Seagate external hard drive, and so there is some duplication; however, it is still a large amount of child exploitation material. Further, you had viewed sufficient footage of each of the images and movies to categorise them and ascribe descriptive headers. I accept the prosecution’s submission that it is a reasonable conclusion to draw that you opened the files to sort, categorise and store them according to the age group of the child victim, and that this activity is an aggravating feature of both charges.
4 I viewed a sample of the images at the request of the prosecution, including some stills from the movies. What I viewed was identified in a statement dated 13 October 2016 by D/S/C Baldwin, filed by the prosecution after the plea for that purpose[2]. Based on that sample, the descriptions in the statement just referred to, and the Prosecution Opening, I agree with the prosecution’s description that the child exploitation material in numerous of the movies was ‘extremely disturbing and horrific’. I will not go into further detail. Just over a third of the images involved no sexual activity but still depicted children in sexually suggestive or explicit ways (category 1[3]), and the balance were in categories 2-6, the most being in category 4, which involves penetration of children. For the movies, the vast majority were in category 4.
[2] Exhibit B
[3] Australian National Victim Image Library schema
5 On execution of the warrant, you voluntarily supplied the police with a list of sites visited and passwords used, which I take into account in your favour. You were interviewed by police on 27 August 2014, after the execution of the warrant, and exercised your right to silence.
6 Despite the relatively short period of offending nominated in the charges, the overlap or duplication of some images, and the fact that there is no evidence of you making any profit from the activity, I nevertheless view your offending as very serious. This is because of the number of images and movies; their nature and content; the number of victims; and the fact that this was not isolated offending, as you told Professor Ogloff when he assessed you that you had been accessing this material since 2013, a year earlier. Further, your conduct in both charges facilitated the repulsive trade in child exploitation material, as you actively engaged in that trade as a consumer.
7 It was put on your behalf that your offending falls into the mid-range of seriousness. The prosecutor submitted that it was very serious offending. I find that the factors I just referred to make this offending towards the high end of the range.
8 While there are no identifiable victims, these are not victimless crimes. Every child depicted in the images you accessed and possessed, ranging from six months to 16 years, is a victim, not just during the appalling abuse suffered at the time of the creation of the pornography, but forever, as these images cannot be wholly removed from the internet. As they grow older and learn the real significance of what was done to them, if they were not old enough to realise it at the time, they will have to live for the rest of their lives with the awful knowledge that at any given time someone like you will be looking at them, thereby perpetuating their abuse.
9 Against this there are the factors pointed out by your counsel which mitigate the very serious nature of this offending.
10 The first of these factors is your plea of guilty. You pleaded guilty at the earliest possible opportunity. I find that the plea of guilty reflects your level of contrition, your acceptance of responsibility and your willingness to facilitate the course of justice by avoiding the need for a trial, and I acknowledge that it did in fact avoid the cost to the community of a trial. As a result, the sentences I will impose will be less than would have been imposed after a trial.
11 The next matter I take into account is that you are about to turn 41 years, and were aged 38 at the time of the offences. You have committed no further offences in the two years since these offences occurred, and your criminal record consists of theft and drug matters in NSW and the ACT from more than 16 years ago. You have not been dealt with for sexual offences of any kind before now. I do recognise however that this factor is to be given less weight in cases of child pornography.
12 Next, I take into account in your favour the 12 months’ delay between the execution of the warrant, and you being charged. That was apparently due to a backlog of work in the Victoria Police E-Crime Unit, and was no fault of yours.
13 I was told something of your personal circumstances, and your background and its impact on you was relied on as a significant mitigating factor. I accept that and treat it as such.
14 You had a traumatic and disrupted childhood. You did not know your father until you were about 15. Your mother had psychiatric issues and abused you, and your grandmother was an alcoholic. With your mother, you moved between Victoria and NSW, and so your education was disrupted. There was a period of time between Grades 2 and 5 that you were in foster care in Victoria, where you apparently felt safe, but you were eventually returned to your mother, who re-partnered. You report suffering sexual abuse from your stepfather, including being forced to engage in simulated sexual activity with a female family friend who was slightly older than you, and you report also being sexually abused and controlled by another male for a number of years.
15 When you were 15 a sister was born to your mother and stepfather. Because of your mother’s mental health issues, you were effectively your sister’s carer until at the age of 16 when you left home in NSW and moved to Canberra in an attempt to live alone and finish your schooling. However, you did not complete the year and became enmeshed in what is described as the ‘Canberra heroin culture’, consuming large amounts of heroin daily. It was during this period that you committed the offences on your criminal record. You eventually returned to Melbourne and ceased your drug use and lived for a time with your father. As you had had little contact over the years, and as he had a new family, you did not stay there long. After your mother died about 10 years ago, you moved into her Ministry of Housing flat to care for your sister, who was then still at school.
16 Professor Ogloff provided a report to the court[4] and on 21 November gave evidence before me. From testing he conducted and from his clinical assessment, together with the background supporting information[5], he formed the opinion that you have a long history of psychiatric illness, consisting of a chronic and serious anxiety disorder with co-occurring persistent depressive disorder, features of obsessive compulsive personality disorder and characteristics consistent with features of borderline personality disorder. You had a relapse into drug use in 2004 and have been treated at a Community Mental Health Service since then[6] and at the time of the plea, were prescribed medication for anxiety, for opiate dependence, and anti-psychotic medication.
[4] Exhibit 6
[5] Exhibits 2, 3 and 4
[6] Exhibit 2
17 You have some contact with your remaining family members, (your sister, father, stepbrother and grandmother) but your social circle is mostly online. You have been on the disability support pension for some time because of your mental illness, but you previously worked sporadically including helping bands setting up their gigs. At the time of the offending you were living alone in a Ministry of Housing flat which was in a chaotic state[7].
[7] Exhibit 4
18 Your explanation for your offending is to be considered against all this background. The female friend of the family with whom you report you had been sexually abused when you were children, but with whom you had no recent contact, contacted you through Facebook in August 2013. I was provided with some of these messages[8]. You told Professor Ogloff that this contact reignited your own thoughts about your abusive childhood. It was then that you began accessing the images and movies.
[8] Exhibit 7
19 You told Professor Ogloff that you expressed a range of emotions while viewing these, which you said you spent considerable time doing, and on viewing images depicting children being controlled in some way, you imagined yourself to be the victim, but also admitted to being sexually aroused. At the same time you were angry and upset about what happened to you, and what happened to the children you were viewing.
20 Professor Ogloff formed the opinion that you have paedophilic tendencies, which you deny, and that it is likely that your early ongoing adverse and disorganised childhood experiences contributed to your longstanding mental health problems and social anxiety. He considered that your reports of being sexually abused helped to explain your cluster of psychiatric symptoms and personality features.
21 He formed the further opinion that you are confused about your sexuality and ended up accessing and downloading the child exploitation material partly as a result of sexual arousal and also as a result of your own experiences and curiosity, which behaviour was exacerbated by your obsessive compulsive features. In his vast experience, he said he had rarely heard of an offender becoming aroused imagining themselves as the victim in the material they watch. He thought this was likely in your case to be the product of the controlling nature of the abuse you report experiencing, and your confusion about your sexuality.
22 When giving evidence before me, Professor Ogloff said that because of your longstanding mental health problems, you struggle to function, and have done so for a long time. He thought that your mental state, especially the severe social anxiety and personality features, contributed to the possession of the child exploitation material. However, he said that as you have had these mental health issues for a long time, but have shown no sexual interest in children before 2014 on the charges or 2013 on your information, he thought that there was not a direct connection.
23 In cross examination, Professor Ogloff said that your severe anxiety disorder is a mental impairment, and that it contributed to your offending, but he was of the view that it was not the sole cause, did not affect your ability to know that what you were doing was wrong, and limited but did not impair your ability to make rational choices.
24 Despite this evidence, your counsel submitted on the basis of Professor Ogloff’s report and his evidence that I should apply the principles in a case called Verdins[9]. The prosecutor conceded that two of the principles were applicable, but submitted that the rest were not, and that this was clear from Professor Ogloff’s evidence.
[9] (2007) 16 VR 269
25 I have decided that there is not a sufficient causal connection between your mental health issues and the offending to reduce your moral culpability, to have a bearing on the kind of sentence to be imposed, and to moderate or eliminate general or specific deterrence. However, I am satisfied that the report and evidence of Professor Ogloff, and the supporting information he referred to, provides important background material which I take into account in deciding the appropriate sentence. Further, I accept that the existence of these issues at the time of sentencing means that a term of imprisonment will weigh more heavily on you than on a person with normal health, and that the serious risk of a term of imprisonment having a significant adverse effect on your mental health mitigates your punishment for these very serious offences.
26 I have taken into account the matters to which I must have regard under the Commonwealth Crimes Act, many of which I have referred to in these remarks.
27 Your counsel submitted that the sentencing principles could be met without the imposition of a term of imprisonment to be actually served. He submitted that an appropriate disposition was either immediate release on a Recognisance Release Order on Charge 1, and a community correction order on Charge 2, or a community correction order on both. If a term of imprisonment is imposed, he submitted that it should be structured between the Commonwealth and State charges such that you are released on a Recognisance Release Order for Charge 1 with a condition to complete a Sex Offender program, and a non-parole period for Charge 2 no longer than the period before release on the Recognisance Release Order.
28 The prosecutor submitted that only an immediate term of imprisonment was appropriate in all the circumstances of your case.
29 Cases from higher courts make it clear that in most cases of this nature, a term of imprisonment must be imposed. At the end of the second hearing day for the plea, I announced that you would be serving a term of imprisonment and I remanded you into custody. I take into account that you are in gaol for the first time, that your mental ill health may be aggravated by the term of imprisonment, and that your Ministry of Housing flat may not remain available to you, raising more anxiety as to where you would live on release. I note that since being remanded you have told your sister of your situation and she is present in court today, the day of sentence.
30 These circumstances, however, are not out of the ordinary. Sentencing for the very serious crimes that you committed must have as the primary purpose the need to deter others from committing such crimes. This is known as general deterrence and is the paramount consideration for such offences.
31 Professor Ogloff said it was difficult to assess your risk of re-offending, but based on research he thought it was very likely low. He was of the view that you require treatment, but thought that the nature of your problems would make treatment fairly challenging and difficult, and involve the probability of reversals. I take into account that you are willing to undertake treatment. I agree with Professor Ogloff’s assessment that your risk of re-offending is likely to be low, but I also find that treatment is necessary for your rehabilitation because of the unusual features of your offending and multiple mental health issues.
32 As a result of this finding I am of the view that there is still a need for my sentence to deter you from re-offending, although I recognise that your passage through the criminal justice system may have already had some deterrent effect.
33 You are convicted and sentenced as follows and I do not require you to stand:
34 On State Charge 2, you are convicted and sentenced to 12 months’ imprisonment. I direct that you serve six months before becoming eligible for parole. That sentence starts today.
35 On Commonwealth Charge 1, you are convicted and sentenced to 20 months’ imprisonment. That sentence starts four months before the expiration of the State non-parole period. I direct that you be released under section 20 Commonwealth Crimes Act after serving four months on a Recognisance Release Order on condition that you give security by recognisance of $500 to be of good behaviour for two years, and that you complete a Sex Offender program.
36 I declare that you have served 24 days in pre-sentence detention and that these are to be deducted administratively from the sentences.
37 To make it clear, you will today begin serving 6 months’ imprisonment on the State charge. After two months, you will begin serving the Commonwealth sentence. After six months, you will be eligible for parole on the State charge and if released on parole, you will also be released on the Commonwealth charge after serving four months of that sentence. You will have 16 months’ imprisonment of the Commonwealth sentence effectively suspended for the following two years on conditions, and you will be on parole for the State sentence for the balance of the State sentence.
38 If you do not reoffend and complete the conditions of the recognisance release, you will not serve any more time. If you do offend or fail to complete the conditions you will forfeit $500 and will be returned to gaol to complete the balance of the Commonwealth sentence, 16 months. If you re-offend, you will also be in breach of your State parole.
39
MR McLOUGHLIN: No, I don't think he is hearing, Your Honour. I think
Your Honour's tipstaff turned the sound down.
40 COURT OFFICER: We can't hear this way.
41 HER HONOUR: Can you tell me how long it is that you have not been able to hear the sentencing remarks?
42 MR McLOUGHLIN: No.
43 HER HONOUR: Mr Dow, can you wave your hand if you can hear me? It is extraordinary that in 2016, nearly 2017, we cannot get the electronics correct. I assumed that that would be possible, the technology would suit the purpose when I agreed to not have Mr Dow moved from custody and he was moved in any event, and it is most unsatisfactory.
44 Apparently they had it turned down at his end, but he should have been able to hear me, so I do not know whether he has heard any of my sentencing remarks. I might just leave the Bench while we make a telephone call to the prison to see what on earth is going on. I will just stand down.
45 ##A:S# (Short adjournment.)
46 MR McLOUGHLIN: Contact has been re-established by Your Honour's tipstaff. Mr Dow, with the assistance of the officer at the other end, we were able to work out that the point at which the sound dropped out was where Your Honour was talking about the fact that these are not victimless crimes, and Mr Dow said he tried to wave but nobody was watching him.
47 HER HONOUR: I look up frequently and I must have missed it.
48 ACCUSED: We have the court officer come in.
49 HER HONOUR: I saw them come in and I heard noise but I didn't hear anything said.
50 ACCUSED: We didn't have any volume on our end. You couldn't hear on your end as well so, sorry, they rang through.
51 HER HONOUR: Mr McLoughlin, do you want me to read the entire sentence again or just from that point which was right - relatively at the beginning?
52 MR McLOUGHLIN: I don't see any need for you to read the whole lot again, Your Honour. In fact assuming that at some stage there is a copy of your sentencing reasons are available in writing I'm happy to undertake to go through them with Mr Dow because they have been delivered in public now, so that part of the process has been undertaken.
53 HER HONOUR: Yes. They will be available very soon after they have been delivered.
54 MR McLOUGHLIN: I will go and see Mr Dow and go through them with him.
55 HER HONOUR: Thank you.
56 MR McLOUGHLIN: There is two other things I should mention which may not just have been got to. There is a 6AAA declaration.
57 HER HONOUR: Yes.
58 MR McLOUGHLIN: My learned friend thinks that it is 23 days PSD, not 24.
59 HER HONOUR: Yes, two of the things I was going to check was the pre-sentence detention. So 23 days, that is not including today, is it?
60 MS GO: Starting 21 November, including today's date.
61 HER HONOUR: I see, that is just my arithmetic. Thank you. I will amend that. The other thing is that having said what the sentence is going to be have you had an opportunity to see whether my intention is correctly recorded in the way that I have phrased the sentence?
62 MR McLOUGHLIN: I believe so. In Victorian terms the effect of your order is 22 months with a six month non-parole period. So Mr Dow, assuming he is granted parole, would serve six months and then be subject to a Recognisance Release Order for 16 months and concurrently for the first six months Victorian parole.
63 HER HONOUR: Yes.
64 MR McLOUGHLIN: So Your Honour has not made any errors that we can see.
65 HER HONOUR: So far.
66 MR McLOUGHLIN: In combining the two systems.
67 HER HONOUR: Thank you.
68 MS GO: Your Honour, just another matter with the Sex Offender Registration declaration.
69 HER HONOUR: Yes, so what I have proposed is that - and I had not yet come to those aspects - was that I will be providing to you, Mr McLoughlin, the Sex Offender Registration material to provide to your client.
70 MR McLOUGHLIN: Yes.
71 HER HONOUR: I will not require him to sign that. The Recognisance Release Order does need to be signed in the presence of my Associate and I need to sign it. I had already made arrangements for that to be emailed to the Metropolitan Remand Centre and provided to Mr Dow before we finish the sentence, and that would then be emailed back for my Associate to, having witnessed him sign it, to sign her part of it.
72 MR McLOUGHLIN: Once that became clear before Your Honour came on the Bench I was able to explain to him in broad terms what was required of him, so that should not present any difficulty.
73 HER HONOUR: Thank you very much. The final thing is that having just looked at the Recognisance Release Order I do propose to add a further condition of supervision which I should have added before. So it is the Sex Offender Program and supervision.
74 MR McLOUGHLIN: As Your Honour pleases.
75 HER HONOUR: Just pardon me a moment. Thank you, Mr Dow, coming back to you then I will now recommence my sentencing remarks at the point at which the sound dropped out at your end.
76 (Her Honour's sentencing remarks repeated.)
77 HER HONOUR: Mr Dow, do you understand what will happen if you do not complete these conditions or you re-offend?
78 ACCUSED: Yes, I do.
79 HER HONOUR: I understand from Mr McLoughlin that he will when he receives later today a copy of these sentencing remarks, he will come and see you and explain these further to you.
80 Because of this sentence, you have become a registrable sex offender. The charges are class two offences, and so you will be required within seven days of your release from custody, to report your personal details and begin a regime of annual reporting and be otherwise subject to the Sex Offenders Registration Act for a period of 15 years. I will provide that to your legal representative, the notice of your reporting obligations, and he will give that to you in due course. As you are appearing on video link I do not require that you acknowledge receipt of that material.
81 You will, however, need to sign a document showing your agreement to abide by the conditions which allow for your release from imprisonment after four months on the Commonwealth charge. That will now be prepared and finalised and will be sent to the prison electronically and given to you for you to sign and that needs to be done on screen so that my Associate can witness that signature. I will just complete that order now and have that scanned and sent to you, or to the prison, Mr Dow.
82 MS GO: Your Honour, just to clarify that the period applicable to the undertaking and completion of the Sex Offenders Program is also two years?
83 HER HONOUR: It is, yes, thank you. Just while that is happening, Mr Dow, I will just continue with the balance of my sentencing remarks.
84 If you had not pleaded guilty to the State charge, but had been found guilty after a trial, the sentence I would have imposed on that offence alone is 20 months’ imprisonment with a minimum of 12 months.
85 In respect of the Commonwealth charge, I will not state the sentence that would have been imposed if you had not pleaded guilty, although I have imposed a lesser sentence because of your plea of guilty. Until the Commonwealth legislation specifically provides for this, or an authority which binds me states that the Victorian law applies in this instance to a Commonwealth sentence, I do not propose to state the sentence I would otherwise have imposed.
86 ACCUSED: The sound has gone again just again.
87 HER HONOUR: The sound has gone again?
88 ACCUSED: Yes, I can hear again.
89 HER HONOUR: You can hear again now? Yes, thank you.
90 MR McLOUGHLIN: Your Honour, I wonder if in relation to the sentence on Charge 1 it might be clearer if it was expressed to commence rather than four months from the expiration of the State non-parole period be four months before the expiration. It just occurred to me as Your Honour was re-reading it that it might be regarded as ambiguous in the sense that it might commence four months after or four months before.
91 HER HONOUR: I have taken it directly from the Commonwealth DDP paper. The only other way I could do it would be to say that it starts two months after the commencement of the State sentence, but it would mean the same thing, but this particular phrase I have taken directly from the paper that recommends these things.
92 MR McLOUGHLIN: Then it will be understood then.
93
HER HONOUR: I expect so, and you will be notified if it is not. Thank you.
Mr Dow, we understand that the document has now been emailed and there apparently is somebody waiting to receive that, to print it out and then provide to you. So this document when you receive it contains the conditions on which you are to be released after four months on the Commonwealth charge of accessing child pornography, and it contains the conditions.
94 So if you just read through that, I have signed it, and then you sign to acknowledge that you agree to be bound by these conditions, and obviously let us know if you have any questions. I am multi-tasking.
95 MR McLOUGHLIN: Yes, I appreciate that, Your Honour. Unfortunately the video linking system cannot manage that.
96 HER HONOUR: Yes, so it seems.
97 ACCUSED: So is it ten months' imprisonment, Your Honour?
98 HER HONOUR: No, so you - - -
99 ACCUSED: It has been put as ten months here, it is filled in as ten months' imprisonment and then "released after four months".
100 HER HONOUR: That is right, released after four months. So on Charge 1 it is 12 months' imprisonment with eligible for parole after six months, but on the charge you have in front of you, which is the Commonwealth charge - - -
101 ACCUSED: Yes, that is the four.
102 HER HONOUR: Yes, it is 20 months' imprisonment but released after four months on these conditions.
103 ACCUSED: I see, I can see that.
104 HER HONOUR: So it is a total of 22 months on the two charges, but release after six months if eligible for parole.
105 COURT OFFICER: Your Honour, do you need to sight this on the screen?
106 HER HONOUR: No, that has been signed. Although we couldn't see the table on which Mr Dow was signing I am satisfied that he was signing it and it was in front of him, thank you very much. Thank you for your assistance there, that can now be scanned and emailed back to my associate for her to sign, and as I said, I have already signed that order.
107 Mr Dow, as I said, Mr McLoughlin will be coming to see you and go through the sentence with you further and my apologies for the breakdown in communication, both as to your transport from Ararat, as that was not originally intended, and also the breakdown in communication with the conference link today.
108 I thank everyone for their patience and I will now adjourn the court.
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