Director of Public Prosecutions v Edwards
[2012] VCC 1087
•20 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01310
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN EDWARDS |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 June 2012 | |
DATE OF SENTENCE: | 20 July 2012 | |
CASE MAY BE CITED AS: | DPP v Edwards | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1087 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – sentence – plea of guilty to possessing child pornography – 70 images of various levels of gravity – prior convictions for dishonesty but not for this type of offence – importance of general deterrence – sentenced to 3 months’ imprisonment as part of a CCO with treatment conditions, including attendance at a sex offenders program.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms R. Sleeth | OPP |
| For the Offender | Mr S. Anger (plea) Mr R. Martini (sentence) | Rainer Martini & Associates |
HIS HONOUR:
1 Alan Derrick Edwards, you have pleaded guilty to one charge of possessing child pornography on 19 February 2010, for which the maximum penalty is five years’ imprisonment. Your plea hearing followed a 13 day trial, when you were acquitted of various offences of sexually penetrating a child under 16 and supplying a drug of dependence to that child. You originally stood trial on those matters in October last year, but the jury was discharged without verdicts.
2 You pleaded guilty to the present matter at the first trial, and before me at the retrial. Obviously you are not to be sentenced in respect of any of the contested allegations made at trial, and I make clear that I have not drawn any adverse conclusions against you concerning those disputed allegations.
Circumstances of offending
3 The circumstances of the offending can be shortly stated. On 9 February 2010, a 15 year old boy made allegations to police that on the previous day, you had given him alcohol and cannabis, and then sexually penetrated him at your home. It was not disputed by you that you had met up with this child, and that he had stayed overnight in your home. In light of the complaint, police conducted a raid at your premises on 19 February. You were living at that time with your son, aged 14, and daughter, aged 10.
4 Police executed a search warrant and seized your computer because the complainant had alleged that following the sexual offending, you had shown him images of child pornography on your computer. Later analysis of your computer revealed the existence of 70 images of child pornography. These images had been downloaded on various dates between 17 March and 13 October 2008. They had been accessed on eight occasions over a period of one year and nine months between May 2008 and 10 February 2010.
5 I reviewed the relevant material. It was agreed between the parties that the vast majority of the 70 images involved boys and girls between the ages of 10 to 13, and that they depicted male and female children being anally and vaginally penetrated by adults; oral sex with ejaculation; full frontal naked shots of the genitals; male to male oral sex; groups of three or four persons involving oral or penetrative sex; ejaculation shots; girls masturbating; and various photos of girls posing lasciviously involving sexual activity and masturbation. Neither party produced any better analysis as to the different categories of gravity, or the specific number of images which fell into each particular category, as frequently occurs now in cases of this kind. There was also adult pornography found, which is not relevant for present purposes.
6 You were arrested on 19 February 2010 and interviewed by police. You denied the sexual allegations, or showing such images to the child. You falsely denied possessing any child pornography. For reasons which remain unexplained, you were not charged with this offence or concerning the other allegations until March 2011. You conducted a contested committal in July that year, including on this offence. You remained on bail up to the present.
Background and personal circumstances
7 I will turn to your background and personal circumstances. You are now 40, and were 38 at the time of offending. Your counsel relied on your background as set out in a psychological report from Ian Joblin, dated 26 May 2012.
8 You were born in the UK, but came to Australia with your parents when you were one. You have an elder and a younger brother, with whom you have little or no contact. Unfortunately, your parents separated when you were ten, and your father returned to the UK, where he remains. You have no contact with him. You remain close to your mother, and presently live with her, acting as her carer to assist her with both mental and physical ailments.
9 You had significant difficulties at school being deemed uncontrollable at times. Apparently you had ADHD and were active and impulsive. Ultimately, your mother was not able to cope alone with her three sons, and you were made a ward of the state and placed in a boys home at the age of 12 or 13. At this time, you were barely literate. However, you had a particular musical talent, and ultimately learnt to play eight different musical instruments, to teach singing and to play in hotel bands.
10 At 15 you left the boys home and went to work in a factory, thereafter as a butcher for 14 years. Following this, you became a joiner and worked for a lengthy period making window frames in a factory. This was your last job, which ended in early 2012, just before your retrial. Other than caring for your mother, you now have work again at a joinery factory.
11 In about 1993, you developed a relationship with a teenage friend. Eventually you married and bought a house together. Of that relationship there are the two children I mentioned. Your son is now aged 16 and daughter 11. You were described by a very close friend as a "normal, average family, two beautiful children and a mortgage." And by another as an excellent father. Unfortunately, your wife became seriously ill with cancer. She died on your son's birthday in February, 2007. It would appear there is still a degree of unresolved grief concerning your tragic loss.
12 You continued to live with and care for the two children, and to provide for them through your work. However, when you were arrested in February 2010, DHS became involved, and understandably, took the children away from you. Since that time they have been cared for by, and lived with, your wife's parents, with whom you have difficulties. You have had supervised access visits twice per week. You are in discussions with DHS about getting them back.
13 At the time of offending you also worked as a foster carer, providing respite care to others through a DHS program. You have now, rightly, lost the opportunity to continue this work.
14 You have a criminal history which runs from 1989, when you were 18, until 2006, when you were 34. Other than for some minor street and other offences, there are a significant number of convictions for dishonesty, for which type of offence you were sentenced by this Court in 1992, when you were 20, to a total of two years and eight months’ imprisonment, with a minimum of 18 months. In 1994 you received a further sentence of six months’ imprisonment, which was fully suspended for two years, which suspension was not breached by you. Your last dishonesty conviction was in 2002 when you were fined. There were some traffic matters in 2006. Significantly, you have never been convicted of any sexual offending, nor of possessing child pornography.
15 You have had long term problems with alcohol and cannabis abuse. You have also used amphetamines and cocaine intermittently in the past. Indeed, you shared illicit drugs with your wife from time to time. You stopped this habit when you had children, but returned to smoking cannabis together for some time before her death. After she died, a long time friend moved into your house to live with you, and the two of you resorted to the serious use of amphetamines. You found the drug assisted with your grief and mood swings into depression, and claimed that it enhanced your sex drive. In this context, you and your friend would spend time viewing pornography on the internet. This included child pornography and, as I have indicated, the 70 images were downloaded and knowingly stored by you on your computer.
16 The psychologist noted in his report that you said you had never had any sexual ambitions with children at all, although you acknowledged that you enjoyed watching pornography involving older teenage girls, but supposedly not girls under 18. He reported that it was very difficult to relate the child pornography in question to any particular psychosexual diagnosis, but the psychologist was satisfied you found it somewhat stimulating.
17 The psychologist's assessment was that you are a man of reasonable intellect, but you demonstrate a high degree of impulsivity. He stated that it is highly probable that your amphetamine use exacerbated predisposing impulse factors. Significantly he stated, "I am concerned about his history of drug use, particularly his history of amphetamine use. It is my opinion that drug screening tests would be particularly important in this case to verify that he is no longer using such drugs." This is a perceptive observation, particularly as a CCO report recently to hand records your admission that following your arrest you continued to take amphetamines on about five occasions, and claimed to have stopped only approximately six months ago. Although some drug screens have evidently been taken, none were produced to me, even after I received an assurance from your counsel that they would be forthcoming, and gave time for that to happen. The matter has been canvassed again today, and new counsel has indicated that no screens are forthcoming.
18 The psychologist concluded by expressing the opinion that you do not present with a psychosexual disorder per se. Rather, he suggested the offending related to a lifestyle issue at the time. He is confident that you are aware of that, and accepts that you have taken some steps to avoid this situation recurring. However, he noted that you did not tolerate boredom easily and had a low level of tolerance for frustration. He expressed concern if you remain idle and resort to further amphetamine use. Employment would be of benefit in this regard.
19 I note that DHS has sent you to a psychologist who is apparently making an assessment in relation to you and your children, but no report from that source has been produced. Nor has any report been produced from the psychologist whom you have apparently been attending in Boronia for the past twelve months. According to the CCO report, the writer contacted the psychologist, Dr Singh, however confirmation of your "attendance and progress in treatment had not been obtained."
Mitigating circumstances
20 There are a number of mitigating circumstances relied upon by your counsel which I accept. You are the product of a broken home, and sadly, this lead to significant schooling difficulties, and you being forced to go to a boys home at a very young age. You have had no contact with your father since he left the family and it would appear little close support from either of your brothers. Notwithstanding these difficulties, you have qualified in particular work courses and maintained full and productive employment over many years as an adult, and now have gone back to work.
21 You established a meaningful relationship from which there are two children, for whom I accept you have significant affection and for whom you have well cared for. The evidence suggests that you were caring well for the two children at the time of offending, and that you want them back. Tragically, you lost your wife to cancer, your drug use spiralled out of control and it was in this context that you offended. No Verdins issues were relied upon.
22 I also accept that you possessed a relatively small number of images, not hundreds or thousands as is common, and that none involved the most extreme category of bestiality or sadism. There is no question of you having distributed or swapped this material in any way, commercially or otherwise, nor of you profiting from your involvement in this matter. However, I note the CCO report records your admission that you personally opened the file containing the eight images approximately eight times, and that you showed them to a number of people, including friends, who advised you to get rid of the material. Obviously, you ignored them.
23 Although you have prior convictions, none of them are relevant for present purposes, except that you have been to prison before, and that you kept a wholly suspended sentence. You have no prior convictions for sexual offending or possessing child pornography, and you have not been diagnosed as suffering from any psychosexual disorder - certainly not as being a paedophile. Rather, it is suggested you are a person whose poor lifestyle allowed you to lapse into offending. I have some reservations about this explanation, and do consider you need further support and intervention. Many people take amphetamines. It has not been suggested by the expert this leads to an increased sex drive; let alone if it does, looking at pornography; let alone looking at and storing child pornography. In any event, the possession of child pornography has nothing to do with the pursuit of normal, adult sexual activity or drive. It reflects a serious personality dysfunctionality and depravity. If it has anything to do with sexuality, it constitutes abnormal sexual activity.
24 To these mitigating matters must be added the fact that there has been considerable delay in the laying of charges, during which time there has apparently been a cessation of your drug abuse, although I have not been assisted, as I say, with any drug screens to confirm this fact. Nevertheless, I am prepared to proceed on the basis that there has been some rehabilitation in the meantime. You have had to undergo two trials for very serious matters in respect of which you have been acquitted. But for the trial allegations it is agreed this offence would have been dealt with expeditiously in the Magistrates' Court.
25 You have pleaded guilty to the offence, thereby avoiding the time, cost and expense of having a trial in relation to this particular matter. It is difficult to assess how much time was saved, because of the nature of the other allegations, but some has. Your plea has been of utilitarian benefit. You have served the ends of justice thereby and should receive an appropriate discount for it. However, I am unable to conclude that your plea evidences any particular remorse, and none is suggested by the psychologist. The most that can be said is that you now understand that idleness and poor lifestyle choices involving drug abuse could lead to further offending.
26 Finally, I accept you have positive prospects for rehabilitation, because your lifestyle is now significantly more stable, having gone back to live with and care for your mother. You now have a job. You are said to be drug free, and you have a strong desire to re-establish a meaningful relationship with your children and live with them once again. You have been assessed as having a low risk of general recidivism. Certainly, you seem to be moving in the right direction, and, as conceded by the prosecution, it could not be said that your prospects of rehabilitation are poor. Obviously much will depend on your ability to refrain from drug abuse and to lead a positive lifestyle, whether with or without your children living with you, and undertaking appropriate counselling and a sex offenders program.
Other sentencing considerations
27 There are, of course, other important sentencing considerations. Even in the absence of the worst type of images, those you possessed were disgusting and disturbing. They involved the exploitation of young children of a tender age. The possession of such material fuels an international market, essentially via the internet, which encourages the further exploitation and corruption of children. Serious penalties are provided for such offending in the hope that adverse economic consequences will ensue for those who produce such child pornography.
28 The possession of child pornography is not a victimless crime, because children are sexually abused in order to supply the market. Such victims not only have to endure the abuse, but they must live with the consequences of their images being accessed, if not swapped and traded, perhaps perpetually, in the child pornography trade. The courts have frequently held that a sentence of immediate imprisonment would ordinarily be warranted for offending of your kind. But it is recognised that there are cases where the full suspension of a sentence may be justified.
29 The principle of general deterrence looms large in a case of this kind. Less or limited weight is given to an offender's prior good record, or to the absence of relevant criminal history, because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character or without convictions for this type of offending.
30 In DPP v Smith, Nettle JA said: "Offences of this kind frequently appear as manifestations of the depraved voyeurism of socially mature adults. Such offenders have the insight to comprehend the effects of child pornography on its victims, but they offend nonetheless. But in this case, as the judge found, the respondent's offending was the addictive consequence of curiosity on the part of a socially very immature human being living an extraordinarily lonely existence, and he lacked insight into effect of [sic] the victims until after he was arrested." [1] Clearly, you more closely mirror the description of the first, rather than the second type of offender described in Smith. Not only are you an intelligent person, not suffering from any mental illness, at the time of offending you were living in stable circumstances, you had a job, and were looking after your two school aged children. Indeed, the evidence at trial suggested you were well organised in preparing their meals and making sure they got to school in appropriate circumstances. Additionally, you had the trust of DHS as a carer for adolescent children. I have no doubt you well understood the effects of child pornography on its victims, as I have explained. Notwithstanding the loss of your wife three years earlier, you were not a socially immature man living an extraordinarily lonely existence. Hence, your moral culpability is high indeed.
[1][2010] VSCA 215, [26], cited with approval by the Court of Appeal in DPP (Cth) v Ison [2010] VSCA 286, [26].
31 Nor can I agree with the psychologist's statement that it would not appear you deliberately sought and downloaded sites involving child pornography. Clearly there is a difference between searching the net for adult pornography and doing the same for child pornography. Moreover, as I have noted, the images were downloaded on different dates, between March and October 2008, and they were accessed on eight occasions over a lengthy period of one year and nine months. None of this suggests haphazard and unintentional conduct. Clearly you knowingly possessed the images when raided by police in February 2010. At that time, you had met up with the child complainant and your friend was no longer living in the house. Indeed, you accessed the pornographic images on 10 February 2010; the day after the complainant had left your house.
32 Your counsel submitted that although the offending was serious, it would be appropriate to release you upon a community corrections order with appropriate treatment conditions.
33 The prosecution correctly submitted that the position as far as child custody is not yet resolved and that no drug screen tests had been produced. It also observed that you were not entirely forthcoming with the psychologist, in that you failed to reveal that you had accessed the child pornography by yourself, as was conceded by you and noted in the CCO report, and not just in the presence of the other man. On the other hand, it accepted that your prospects of rehabilitation could not be said to be poor, that you wanted to get back with your children; and you had no prior history for this type of offending which was partly drug-driven. In those circumstances, it was submitted, that a short term of imprisonment, two months, coupled with a community corrections order requiring attendance at a sex offenders program and other necessary treatment would be appropriate.
34 In those circumstances, I called for a CCO report and an assessment as to your suitability to undertake a sex offenders treatment program. I have now received that report. You have been found suitable to complete a CCO; and that you would benefit from a referral to Corrections Victoria's sex offender program; and that you should receive drug and alcohol and other counselling. I agree. But I also consider the seriousness of your offending warrants the imposition of a term of three months’ imprisonment as part of the CCO. Given that punishment, I would not propose that you engage in community work.
Explanation of and consent to community corrections order
35 Mr Edwards, please stand up. It is proposed, having been convicted for the offence of knowingly possessing child pornography, I would sentence you to a period of three months’ imprisonment, pursuant to s.44(1) of the Sentencing Act 1991, and upon your release from custody, you be placed on a community corrections order which will last for two years. It will commence on 19 October 2012, which will be the day of your release from prison, and it will end on 18 October 2014. Upon your release from custody, you must attend at the Ringwood Community Correctional Services office, the address will be provided to you, within two clear working days after the commencement of the order.
36 The mandatory terms that apply to all community corrections orders are as follows - you must not commit another offence for which you could be imprisoned during the time that the order is in force; you must comply with any obligation or requirement prescribed by r.17 of the Sentencing Regulations 2011; you must report to and receive visits from the Secretary or delegate; you must report to the nominated community corrections centre within two clear working days of the order starting: you must let a community corrections officer know within two clear working days of you changing your address or job: you must not leave Victoria without first getting permission to do so from the Secretary or delegate: and you must obey all lawful instructions from and directions of the Secretary or delegate.
37 Do you understand so far what I have said to you?
38 PRISONER: Yes, Your Honour.
39 HIS HONOUR: You will need to just speak up so that the - - -
40 PRISONER: Yes, Your Honour.
41 HIS HONOUR: All right, thank you. The conditions that apply in addition to those mandatory terms are as follows - you must be under the supervision of a community corrections officer for the period of two years; you must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager; you must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager; you must undergo mental health assessment and treatment including, but not limited to, mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility, as directed by the regional manager; you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager. Do you understand what I have said about supervision and treatment and rehabilitation programs?
42 PRISONER: Yes, Your Honour.
43 HIS HONOUR: There are two residual conditions. First, that you are to undergo the Corrections Victoria Sex Offender Program, and secondly, that you are to continue to receive treatment from your private psychologist. Do you understand those conditions?
44 PRISONER: Yes, Your Honour.
45 HIS HONOUR: And please note that the Community Corrections Order is to commence upon your release from prison, after serving a period of three months’ imprisonment. Do you understand that? Yes. Just excuse me for a moment, please. Just have a seat for the moment, would you, Mr Edwards?
46 Ms Sleeth, what is the section as to breaching a CCO?
47 MS SLEETH: I am yet to deal with it so far in the transitional provisions, Your Honour, but - - -
48 HIS HONOUR: It does not seem to follow on from those sections that deal with the CCO.
49 MS SLEETH: 83AS, I believe, Your Honour.
50 HIS HONOUR: “Powers of the court on finding of guilt for contravention of community corrections order”, yes, that is right. 83AS.
51 MS SLEETH: AS?
52 HIS HONOUR: AS, yes. Thanks. Just stand up again, thanks, Mr Edwards?
53 As I said, one of the mandatory terms that apply to the order is that you do not commit another offence for which you could be imprisoned during the time that the order is in force. I warn you that there are many such offences that carry penalties of imprisonment. But also that any breach of the terms of the order, either administratively, as to, for instance, supervision or treatment and rehabilitation or the residual conditions that I have indicated, would constitute a breach as well, that is, other than by the commission of other offences.
54 If you are found guilty of contravening the community corrections order, in addition to sentencing you for this original offence, you would be brought back to the Court and the Court would have the power to vary the order, confirm the order, or cancel that order and, as I say, to sentence you for the offence from the beginning all over again. Do you understand that?
55 PRISONER: Yes, Your Honour.
56 HIS HONOUR: Sorry?
57 PRISONER: Yes, Your Honour.
58 HIS HONOUR: Yes. All right, having said you understand the effect and conditions of the order, do you consent to it being made?
59 PRISONER: The community - yes, yes Your Honour.
60 HIS HONOUR: You do?
61 PRISONER: The community based order, was it?
62 HIS HONOUR: To the community corrections order that I have set out to you.
63 PRISONER: (Indistinct.)
64 HIS HONOUR: Yes? I cannot hear you.
65 PRISONER: Yes, Your Honour.
66
HIS HONOUR: All right, thank you. Just before I impose sentence,
Mr Edwards, I want to say on behalf of the community, I strongly denounce your offending
Sentence
67 On the charge of possessing child pornography, you are convicted and sentenced to a period of three months’ imprisonment and following your release from prison on that sentence, you will be released on a Community Corrections Order on the terms and conditions which I have outlined and to which you have consented. I will just ask your counsel to please deal with the signing of the CCO.
68 MR MARTINI: Yes, Your Honour.
69 HIS HONOUR: Just go through that with him, would you please, Mr Martini? Thanks.
70 MR MARTINI: Yes, of course, Your Honour.
71 HIS HONOUR: Thanks. You have now signed and I have now signed the CCO.
Sex offenders registration and disposal order
72 By reason of your conviction for this offence, you are to be recorded under the Sex Offenders Registration Act 2004 as a registrable offender for eight years. You must report your personal details to the Chief Commissioner of Police annually for the next eight years. You must first report within 28 days from your release from custody. Details in writing of these reporting conditions will be served upon you now by my Associate, and I would ask your counsel to attend to an acknowledgement of that notice and have you sign it.
73 MR MARTINI: Yes, Your Honour.
74 HIS HONOUR: All right, thank you. I will also make the disposal order which is agreed to, and I hand those orders down, thank you.
75 But for your plea of guilty, Mr Edwards, I would have imposed a sentence of 12 months’ imprisonment, to be served immediately. Just sit down for a moment, please.
76 I ask counsel, are there any difficulties with the mechanics of the sentence which I have imposed?
77 MR MARTINI: I do not believe so, Your Honour.
78 MS SLEETH: No, Your Honour.
79 MR MARTINI: No.
80 HIS HONOUR: Mr Edwards, you need to go with the prison officers now. Thank you, please remove the offender. [Offender removed and short discussion with counsel]
81 HIS HONOUR: Thank you. I will not deal straight away with the other matter; I will just go and get my papers. I do not have them here at the moment. I am sorry for the delay, we have been held up a little with other matters and that is all. Yes, I will just be a short time, thanks. Stand the court down please.
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