Director of Public Prosecutions v Dunn

[2014] VCC 2228

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01633

DIRECTOR OF PUBLIC PROSECUTIONS

v

CLIVE DUNN

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November, 5 & 12 December 2014
DATE OF SENTENCE:	17 December 2014
CASE MAY BE CITED AS:	DPP v Dunn
MEDIUM NEUTRAL CITATION:	[2014] VCC 2228

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:      Access child pornography material using a carriage service -    

make available child pornography material using a carriage service -

knowingly possess child pornography

Legislation Cited:     Sentencing Act 1991 (Vic), Sex Offenders' Registration Act 2004 (Vic), Crimes Act 1914 (Cth), Criminal Code (Cth)

Cases Cited:

Sentence:Overall total effective sentence of 15 months’ imprisonment: to be released after serving 4 months on recognisance of $5,000

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Skoblar	Office of Public Prosecutions
For the Offender on 14/11/14,           5/12/14 and 17/12/14	Mr P. Higham	Pica Criminal Lawyers
For the Offender on 12/12/14	Ms L. Line

HIS HONOUR: 

1Clive Dunn, you have pleaded guilty to three charges, all concerned with child pornography.

2The first charge, Charge 1, is that between about 16 February 2012 and 11 May 2014 you accessed child pornography material using a carriage service, contrary to s.474.19(1) of the Criminal Code (Cth). The maximum penalty for this offence is 15 years' imprisonment.

3The second charge, Charge 2, is that between about 26 March 2014 and 6 April 2014 you made available child pornography material using a carriage service, again contrary to s.474.19(1) of the Criminal Code (Cth). The maximum penalty for this offence is 15 years' imprisonment.

4You also pleaded guilty to Charge 3 of knowingly possess child pornography, contrary to s.70(1) of the Crimes Act 1958 (Vic). The maximum penalty for this offence is 5 years' imprisonment.

5You are aged 66 years, having been born on 3 February 1948. 

6Your offending persisted over a considerable period and embraced three aspects: accessing, making available to others and retention by possession.  While your offending on each charge overlaps, each has distinctive features.  The software used to access the material provides access for others to acquire the content as you are downloading.  By downloading images you are also possessing, and the possession charge embraces the storage of files on numerous of your devices as well as your computer, including compact discs, a laptop computer, portable hard drive and USB. 

7The volume of material both accessed and possessed is very high: a total of over 30,000 child pornography files including 813 videos.  There were also over 300 duplicate files.  The scale of degree of child pornography exhibited as represented in the Copine classification is overwhelmingly in level 1, the lowest level of classification, being images and video depicting erotic posing of children with no sexual activity.  The total range, however, included significant numbers of depictions in the higher categories including nearly 800 in category 4 involving images of children engaged in penetrative sexual activity between children and between adults and children. 

8The total number of child pornography files in relation to Charge 1 is 26,063. 

9The total number of child pornography files in relation to Charge 2 is 38. 

10The total number of child pornography files in relation to Charge 3 is 30,452. 

11Following the execution of a search warrant, you participated in a record of interview and made full admissions to accessing, making available and possessing child pornography.  In particular, you admitted that:

·    you had been accessing child pornography material over a number of years since you had dial-up internet;

·    you both downloaded and made child pornography available through peer-to-peer applications and that you used “Torrent” applications to download child pornography;

·    you believe children between eight and ten years old are beautiful and searched for images of them;

·    you became interested in young females after seeing pictures of two girls whilst your daughter was looking for school uniforms on the internet - after seeing pictures of these girls on the internet you searched for other photos of these specific girls;

·    you were sexually abused yourself around the age of 14 to 15 when living in New Zealand but you did not report it;

·    you got sexual gratification from looking at images of young girls but this sexual gratification decreased over time;

·    you had used search terms such as "young girls" and "9yo" to locate child pornography through Torrent websites;

·    you had moved child pornography videos and videos from your Toshiba laptop to external storage devices and occasionally looked at the images stored on the external storage devices but you planned to delete images you had moved. 

12I now turn to your personal circumstances. 

13As I noted earlier, you are now aged 66.  You have no serious prior convictions.  You were born in New Zealand.  Your parents separated in your pre-teen years and you were mostly raised by your mother, who was an alcoholic.  You had minimal contact with your father until you moved to live with him for 12 months when you were around 17 or 18.  He also was an alcoholic. 

14You were sexually abused by an older male when you were between the ages of 12 and 15. 

15You remained at school until completing year 10 at age 16.  Thereafter you have maintained employment throughout your life in various occupations, including ten years as a tram and bus driver and instructor.  You were retrenched in 1994, worked subsequently at a service station and later doing deliveries. 

16You have married twice and have one daughter from your first marriage and three daughters from your second.  Two of your daughters remain very supportive of you and have provided written character references. 

17A report from Mr Cummins, psychologist, was tendered on your plea.  When interviewed by Mr Cummins you frankly admitted that you did have an interest in viewing images and video material, particularly of girls aged approximately eight and ten.  You stated that you would become sexually aroused whilst viewing this material, although you stated that you knew at all times it was unacceptable to you to engage in any contact sexual offending with an underage person.  You were assessed as having a rather passive and dependent interpersonal style, shy and socially inhibited, and as someone who was in need of emotional support and nurture.  In hypothetical situations you are able to correctly identify what is meant by the concept of victim empathy and you are able to provide appropriate empathetic responses.  You specifically acknowledge that you require treatment for your interest in viewing child pornography and that you would fully cooperate with a treatment program and with associated supervision.  You are adamant that you would never have allowed your interest in child pornography to progress to you participating in any contact sexual offending with minors. 

18Based on Mr Cummins' assessment, your risk of reoffending was considered "low-moderate" and you presented as being very motivated to receive offence-specific treatment. 

19The most relevant aspect concerning your personal circumstances is your health. 

20For most of your life, like your parents you have managed mostly as a functioning alcoholic.  You were hospitalised in a psychiatric ward in New Zealand in 1970.  You stayed for three months for detoxification, thereafter you have received psychotherapy in an attempt to control your addiction.  Whilst under control in recent years, you still regard yourself as a "dry alcoholic" although you no longer consume alcohol.  You have also struggled with periods of obsessive gambling. 

21Your physical condition has deteriorated markedly and you are on a vast range of medication, principally for cardiac and lung conditions. 

22You underwent coronary bypass surgery in July 2013 for triple-vessel coronary artery disease.  This has been successfully managed post-operatively by appropriate pharmacology and your condition is stable. 

23The main concern in considering your medical condition is the management of your pulmonary condition following your bilateral sequential lung transplant in 2009.  This issue is vital as it raises the question as to whether the appropriate medical care and treatment will be available to you whilst in a custodial setting.  Your condition and how it affects you has been set out in two reports tendered, Exhibits “2” and “7”, from Dr Paraskeva, respiratory physician. 

24Whilst your lung function is described as excellent and has remained stable, you are highly susceptible to infection.  This is increased in the setting of large groups of people, in particular the risk of transmission of respiratory infection if anyone in close confines with you is so infected.  This includes simple illnesses such as gastroenteritis, common colds and influenza which could be catastrophic in the setting of a lung transplant.  The management of infection following lung transplant differs significantly from respiratory infection in the general community and requires very specialised care.  If it occurs, you are likely to require immediate hospital admission and intravenous antibiotics as well as medication of your immunosuppressant regimen. 

25Your treatment would need to be under the multidisciplinary supervision of the transplant team at the Alfred Hospital.  The team at the Alfred remains the only medical unit in Victoria with experience in the management of lung transplantation.  This aspect is critical because according to Dr Paraskeva you are unlikely to remain stable, and any significant decline in your lung function that is not treated appropriately could result in death.  Because immunosuppression must be administered at the same time every day without exception, the maintenance of your exact medication regimen is critical to your stability, as are regular reviews at the Alfred Hospital at three-monthly intervals.  If you were to become unstable you are likely to require more frequent reviews, which could be as frequent as weekly, or as an inpatient.   

26Victorian lung transplant recipients are managed only at the Alfred Hospital and the transplant unit does not offer satellite care, that is, they do not review patients at other hospitals nor direct other hospitals or physicians to manage such patients.  When lung transplant recipients present to alternate hospitals in Victoria they are usually stabilised prior to being transferred to the Alfred for the continuation and completion of their medical treatment.  Dr Paraskeva doubts that medical professionals not trained in lung transplantation would be able to provide appropriate advice on aspects of allograft rejection.  Any deterioration in your condition will require urgent investigation which may include blood tests, spirometry, radiological imaging and bronchoscopy. 

27In Dr Paraskeva's opinion, your ability to access the necessary care to maintain your graft function would be significantly compromised if it was not provided by the Alfred Hospital multidisciplinary team.  Regular views will be necessary, any decline in your condition will need to be promptly addressed with appropriate medical treatment, and any hospital admission would need to occur at the Alfred.  According to Dr Paraskeva, it would be impossible for the Alfred unit to provide sufficient support for an alternative unit to manage you in the event of a deterioration. 

28In addition, your physiotherapist Ms Fuller has outlined the necessary daily cardiovascular training required to maintain your health. 

29In response to Dr Paraskeva's and Ms Fuller's concerns, the prosecution tendered a letter from Ms Larissa Strong, Director, Justice Health (Exhibit “B”).  Justice Health is a business unit of the Department of Justice and is responsible for overseeing the delivery of all healthcare services to prisoners in the Victorian corrections system.  Ms Strong reports that primary healthcare is supported by a multidisciplinary model which includes access to general practitioners, nursing and allied health services, and that patients requiring more complex and specialised care are referred for an outpatient appointment.  The patient may also be referred for more advanced diagnostic services only available in a tertiary hospital.

30For prisoners requiring prison-based in-patient services, St John’s Ward at Port Phillip prison, operated by St Vincent's Correctional Health, provides medical services 24 hours a day, 7 days a week.  For more complex and specialised care, tertiary care is provided by St Augustine's Ward at St Vincent's Hospital Melbourne, which is a purpose-built secure in-patient unit. 

31With respect to accessing specialised post-operative treatment at the Alfred Hospital, the Sentence Management Branch has advised that special arrangements to medical appointments outside normal systems require individual assessments on safety and security in respect of the prisoner, staff and the community.  In the event of an emergency, the patient will be transferred to the closest and most appropriate emergency facility to be stabilised.  Subsequent decisions about ongoing management and treatment will be based on advice from the treatment team.  Prisoners who have received transplant surgery have been managed in correctional facilities in the past.  There have also been prisoners on strict medical regimes which have been carefully monitored. 

32I have now been provided with a further letter from Ms Dong, dated 16 December 2014 in response to confirmation of further questions that I have raised  That letter has been read into transcript and I am satisfied on the basis of the material now tendered, being Exhibits “B” and “C”, that Justice Health has been fully informed of the very special circumstances that attend your medical condition, and that Justice Health is confident that whilst you are in a custodial setting, you will be carefully monitored, that any deterioration in your health will be observed and acted upon immediately, and that any required transference to tertiary outpatient care, including to any unsecure unit at the Alfred Hospital, can be arranged in a timely, and if necessary urgent, way.

33These crimes are serious.  When considering the gravity of the offences to which you have pleaded guilty, general deterrence must be the paramount consideration along with denunciation.  Furthermore, it is legitimate for a court to give less weight to good character as a mitigating factor.  Positive personal antecedents and a reduced need for specific deterrence are relatively commonplace among offenders in possession of child pornography.  The authorities require that I take into account those who are harmed by the production of these images.  The fact that persons are prepared to possess and access child pornography necessarily creates a market for the corruption and exploitation of children. 

34The accessing of child pornography and its possession quite rightly outrages the Australian community, and usually calls for condign punishment by way of immediate imprisonment.  We live in a global community, and the internet being what it is superficially masks the deep personal viciousness of this from of exploitation of children.  Children anywhere in the world should be afforded protection, and any notion of apparent justification by a sense of removal by distance or effect of the internet is misconceived and in essence simply an exercise in wilful blindness. 

35I have had careful regard of the sentencing considerations contained in s.16A and s.17A of the Crimes Act 1914 (Cth) and s.5 of the Sentencing Act 1991 (Vic) and listened closely and given full consideration to the submissions of counsel for the Director of Public Prosecutions and to your counsel.

36I accept in mitigation the matters submitted by your counsel, including that:

·    your previous convictions have little relevance to the current offending,

·    you pleaded guilty at the earliest stage,

·    you have expressed remorse and shame by both your cooperation with police enquiries and your plea of guilty and by expression to others,

·    your demonstrated insight and willingness to engage in rehabilitative therapy,

·    you have otherwise been of good character for many years and have the support of your daughters who speak well of you in the family environment,

·    your community service through Meals on Wheels,

·    your assessment as a low-moderate risk of re-offending,

·    your multi-faceted medical condition which will mean imprisonment for you will be felt more severely by you than by a person in normal health.  It is most likely that you will be kept at the St Johns Ward at Port Phillip Prison, which, although facilitating your better care, will isolate you from greater freedoms and educational programs within custody.

37I accept that your prospects for rehabilitation are reasonably favourable and will be greatly enhanced by a specific sex offender program. 

38Notwithstanding the mitigating circumstances and, in particular, your very vulnerable medical condition, having considered all other available sentences I am satisfied that no sentence other than a sentence of imprisonment is appropriate within the Commonwealth considerations, and that in the case of the State considerations I am satisfied that the purpose or purposes for which the sentence is imposed cannot be achieved without a sentence of immediate imprisonment.

39I have, however, given very full consideration to the fact that the prison environment will not allow you to have the comparative isolation that you would otherwise have from groups of people who may facilitate even minor contagious diseases.  Being in a hospital ward may even increase this risk.  I appreciate even these could become highly problematic and that there is a serious risk that your condition may deteriorate very quickly.  I have, accordingly, viewed your medical circumstances as exceptional and have reduced the sentences, both individually and in totality, that I would otherwise have imposed.

40

Mr Dunn, could you now please stand?   

41Under the serious offender provisions of the Sentencing Act 1991 (Vic) on your conviction and sentence to a term of imprisonment, whether suspended or not, on two sexual offence counts, I am required on the sexual offence counts thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence. 

42This means that the sentencing task in respect of Charge 3 on the indictment is to be undertaken on the basis of the protection of the community from you is the principal purpose for which the sentence is imposed, and to achieve that purpose a sentence may be imposed longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.  However, because of the mitigating factors in your case, I do not propose to do so. 

43Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charge 3, the sentence I impose is to be served cumulatively. I note here that the prosecution did not call for a disproportionate sentence or for the cumulation contemplated by either s.6D or s.6E of the Sentencing Act. 

44For the purposes of s.6F of the Sentencing Act (1991), you are sentenced as a serious sex offender with respect to Charge 3 and that will be entered into the records of the court.

45On Charges 1 and 2, I propose to sentence you to a term of imprisonment which I intend to partially offset by way of a Commonwealth recognisance order. 

46Before I make the order, I will explain to you the purpose and the effect of the proposed recognisance order, the consequences that may follow if you, without reasonable excuse or cause, fail to comply with the conditions of the proposed order and that any recognisance given in accordance with the order may be discharged or varied under the Act. 

47The purpose and effect of the recognisance order is to grant you conditional freedom from its commencement.  The conditions are that you be of good behaviour for a period of 24 months and attend for assessment and programs as ordered.  If you breach the recognisance order you will be brought back before the court, and most likely that will be back before me, to be dealt with for that breach and to be re-sentenced.  The order may be extended or revoked and you may be required to serve the remaining term of imprisonment.  A breach would also mean, in this case, that the sum of $5,000 would be forfeited. 

48You should also bear in mind that having given your recognisance, either you or the Commonwealth Director of Public Prosecutions may apply to vary or discharge that order.  Do you understand that, Mr Dunn?

49OFFENDER:  Yes, I do.

50HIS HONOUR:  These matters will be explained in more detail to you by your counsel if you have any queries. 

51I now proceed to sentence.

52On Charge 3, the State offence of possessing child pornography, you are convicted and sentenced to a term of imprisonment of four months.  I declare the sentence on Charge 3 commences today. 

53

On Charge 1, the federal offence of accessing child pornography material using a carriage service, you are convicted and sentenced to 12 months’ imprisonment.  I declare that the sentence on Charge 1 commences on 17 January 2015, that is, one month after today. 

54On Charge 2, the federal offence of making available child pornography material using a carriage service, you are convicted and sentenced to six months’ imprisonment.  I declare that the sentence on Charge 2 commences on 17 September 2015. 

55For the federal charges, Charge 1 is the base sentence.  I direct that two months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. 

56I order that you be released under sub-s.20(1)(b) of the Crimes Act 1914 (Cth) after serving three months of the federal sentence upon you giving security by recognisance of $5,000 to comply with the following conditions:

a)    to be of good behaviour for 24 months,

b)    to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 24 months, and

c)    to attend for assessment and if assessed as suitable, attend treatment for sex offender programs as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management, or his or her nominee. 

57Mr Dunn, do you understand the terms and conditions of the recognisance order?

58OFFENDER:  I do, yes.

59HIS HONOUR:  The total sentence is 14 months’ imprisonment for the federal offences and the effect of the commencement of the sentences is that one month of the state offence is also cumulated, giving a total effective sentence of 15 months overall. 

60Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed is a total effective sentence over all charges of 24 months with 12 months to be immediately served.

61The recognisance order will have to be written up and acknowledged.

62There is a further matter to which I also need to attend.  You may be seated for the time being.

63The offences to which you have pleaded guilty are registrable offences pursuant to the provisions of the Sex Offenders' Registration Act 2004 (Vic) and by reason of you being sentenced for these offences you are a registrable offender obliged to comply with the reporting obligations imposed by that Act. As required by sub-s.5(2BC) of the Victorian Sentencing Act, in sentencing you I have ignored any consequences that may arise, and in this case do arise, under that Act from the imposition of the sentence today. In other words, the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence.

64I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.  I am also required to inform you of the length of the reporting period, which in your case is for life.  My associate will shortly hand to you the Notification Of Reporting Obligations form, which I have already signed. 

65Your representative in court today, Mr Higham, will ensure that you understand the requirements set out in this form, and I will ask you, once it is given to you, to sign the Acknowledgement that you have received the Notification form and to return the Acknowledgment to my associate. 

66I will now have the appropriate forms for that recognisance order and sex offenders' registration material passed to you. 

67The signed Consent to Surrender and Retention order has been received, that'll remain on the court file.  Thank you.  We're just going to get the recognisance order signed now.

68MR HIGHAM:  Can I go with your associate, Your Honour. 

69HIS HONOUR:  Thank you.  Mr Higham, you can just confirm with Mr Dunn - I don't mean to do it now but when I leave, those custody medical management issues will be attached to the order.

70MR HIGHAM:  Yes.

71HIS HONOUR:   And I'm going to endeavour to have copies of his lung transplant physician's report attached and provided to the custodial officers, and he should make it quite clear to Mr Dunn that he notifies anyone very quickly, I'm sure he will ‑ ‑ ‑ 

72MR HIGHAM:  Yes, Your Honour.

73HIS HONOUR:   ‑ ‑ ‑ of any issues that develop.

74MR HIGHAM:  And, Your Honour, the custodial office and the corrections officer in Your Honour's court is already alert to the matters that we're requesting through your associate to have a copy downstairs, just in terms of ‑ ‑ ‑ 

75HIS HONOUR:  And is the medication that he needs today available with him?

76MR HIGHAM:  He's brought in the medication, Your Honour, to last him into the new year.  Certainly all the crucial ones.  (Audio malfunction) the custody officer in court, and that will go with him downstairs.

77HIS HONOUR:  All right. 

78MR HIGHAM:  So that - and I'll go downstairs to hopefully add whatever I can.  And obviously - I say obviously, nothing's obvious.  A crucial time may be what happens to him before he is actually able to get to St John's Ward.

79HIS HONOUR:  Yes, well soon as Mr Dunn goes into custody, he's got to make it clear that he has got these issues and that if there's any doubt about anything, they should refer to the court orders which will be provided to Corrections and that there are very, very specific medication regimens required. 

80MR HIGHAM:  That will be followed through.  Thank you very much for everything, Your Honour. 

81HIS HONOUR:  I thank you both for your attention to the detail, it was necessary in this matter.  All right, ten o'clock tomorrow, thank you.

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