Director of Public Prosecutions v Flauta
[2011] VCC 1157
•16 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00850
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIESON EMMANUEL FLAUTA |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 July 2011 | |
DATE OF SENTENCE: | 16 August 2011 | |
CASE MAY BE CITED AS: | DPP v Flauta | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 1157 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Commonwealth matter – Import Tier 2 goods – Import prohibited goods (Summary charge)
Legislation:Customs Act 1901 (Cth); Crimes Act 1914 (Cth)
Cases: R v Verdins (2007) 16 VR 269
Sentence:Charge 1 – convicted to 3 months’ imprisonment to be released immediately on a recognisance release order $1,000 to be of good behaviour for 2 years; Charge 2 – Convicted and fined
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Brown | Commonwealth DPP |
| For the Accused | Mr R. Lawrence | Pica Lawyers |
HER HONOUR:
1 Jamieson Emmanuel Flauta, you have pleaded guilty to one count of importing tier 2 goods, being child pornography, contrary to s.233BAB(5) of the Customs Act 1901 (Cth). Further, you have pleaded guilty to the summary charge of importing prohibited imports, namely rape films, contrary to s.233(1)(b) of the Customs Act 1901 (Cth).
2 The maximum penalty for the first-mentioned offence is 10 years’ imprisonment, and for the summary offence, a fine not exceeding 1000 penalty units.
3 The circumstances of your offending were opened as follows:
4 On Saturday 26 February 2011, you arrived at Melbourne Airport on Philippine Airlines flight PR211.
5 You have dual Philippines and Australian citizenship, having been born here and living in Australia for two years before moving to the Philippines.
6 Upon arrival in Australia, you were required to complete an Incoming Passenger Card (IPC) which asked, amongst other things:
“Are you bringing into Australia:
Goods that may be prohibited or subject to restrictions, such as medicines, steroids, illegal pornography, firearms, weapons or illicit drugs?”
You answered ‘Yes’ to this question.
7 You were then directed to the Customs baggage examination area, where you produced your baggage, passport and IPC to Customs Officer Emin. Mr Emin asked you to produce the items that you had declared. You produced 5 DVD cases. When asked by Mr Emin if you had any more DVDs, you said that you did not. It was never clarified upon the plea as to whether the 5 DVDs which you produced contained offensive material which is the subject of any of the charges.
8 Mr Emin conducted a further examination of your luggage and found two discs entitled ‘Taboo’ and ‘Child Abuse’ respectively. The discs were taken into a separate room and viewed, in order to determine whether they contained child pornography.
9 The disc entitled ‘Taboo’ was found to contain child pornography films. The disc entitled ‘Child Abuse’ was too damaged to be played; however, images printed on the disc itself were deemed to be child pornography.
10 More discs containing child pornography were subsequently discovered in the baggage you had brought with you. Further, child pornography was found in thirteen DVDs, three Blu-ray discs, two memory cards, a Nokia mobile phone and a USB flash drive. Customs officers analysed the files and classified them according to the following five levels:
Level 1: Images depicting nudity or erotic posing, with no sexual activity;
Level 2: Sexual activity between children, or solo masturbation by a child;
Level 3: Non-penetrative sexual activity between adult(s) and child(ren);
Level 4: Penetrative sexual activity between child(ren) and adult(s); and
Level 5: Images depicting sadism or bestiality.
11 The child pornography films found in your baggage were categorised as follows:
12 Level 1: Videos depicting nudity or erotic posing, with no sexual activity.
There was one video in this category, which lasted for 30 seconds and depicted young girls dressed in school uniforms exposing and massaging their breasts.
13 Level 2: Videos depicting sexual activity between children, or solo masturbation by a child.
The one video in this category lasted for 8 minutes and 27 seconds, and depicted a young girl stripping and digitally masturbating herself.
14 Level 3: Videos depicting non-penetrative sexual activity between adult(s) and child(ren).
There were no videos in this category.
15 Level 4: Videos depicting penetrative sexual activity between child(ren) and adult(s).
Videos in this category were between 36 seconds to 1 hour, 9 minutes and 35 seconds in length. The average length of videos in the category was about 13 minutes. Videos depicted children between ages 7 and 17 engaging in various sexual acts, including but not limited to:
· Sexual intercourse between male adults and female children;
· Male adults masturbating/digitally penetrating female children;
· Female children performing oral sex on adult males;
· Male adults digitally penetrating male children;
· Male adults using vibrators on female children; and
· Sexual intercourse between children.
16 Level 5: Videos depicting images depicting sadism or bestiality.
There was one video in this category, which was an animated film depicting schoolgirls about 15 years of age being raped, drugged, gang-raped, restrained and sexually assaulted with a machine, and finally molested by half-human/half-animal creatures.
In addition, three images printed on the discs themselves were deemed to be child pornography. The images showed naked children and children holding adult penises.
17 Out of a total of fifteen films depicting child pornography, there was one film at Level 1, one film at Level 2, twelve films at Level 4, and one film at Level 5. From the child pornography images that were found, there was one image at Level 1, and two images at Level 3.
Re summary offence
18 In addition to the child pornography, there were discs which contained objectionable material – namely, films that depicted scenes of rape – which were found in your baggage.
19 The rape films depicted scenes including, but not limited to:
· Females that were shackled, chained, or otherwise restrained;
· Gang rape;
· Females that were physically assaulted, choked or slapped whilst being raped; and
· A female, restrained by a metal frame, being administered electric shocks whilst multiple penises were forced into her mouth.
The females depicted in these videos appeared distressed and crying.
20 The titles included ‘Rape of a Japanese Student’, ‘Russian Abuse’, ‘Rape because of Debt’, ‘X Gang Rape’ and ‘Rope and Rape 3’. The films were between 44 seconds and 1 hour, 46 minutes in length. The average length of the rape films was about 22 minutes.
21 After these items were discovered, you were arrested by Customs officers. You then participated in a taped record of interview with the help of a Tagalog interpreter. During the interview you made the following admissions:
· You declared illegal pornography on your Incoming Passenger Card;
· You handed both adult and child pornography to Customs officers when asked;
· You bought the child pornography at markets in the Philippines;
· You purchased the child pornography for 32 pesos per CD;
· You intended to purchase child pornography;
· You have viewed the child pornography about seven times per CD;
· You think the people in the pornography are 15 to 17 years old;
· You have possessed the child pornography for eight years;
· You purchased the child pornography for your own entertainment;
· You thought child pornography was illegal in the Philippines but did not realise it was illegal in Australia until you read the Incoming Passenger Card;
· You watched child pornography to cure your insomnia and for entertainment;
· In addition to the child pornography on the discs, you downloaded some child pornography onto your phone and a USB flash drive;
· You paid 50 pesos for each video you downloaded; and
· You have a group of friends in the Philippines that you discuss child pornography with.
22 In total, fifteen child pornography videos and three child pornography images were discovered in your luggage. A total of fourteen rape films were also discovered.
23 Upon the hearing of the plea, a sample of the material was tendered (Exhibit A) and I viewed the material. To say the least, the material was utterly repugnant and most distressing. It causes me grave concern that you would find such material entertaining and of assistance in dealing with insomnia. It would appear that although you have not sought to distribute such material, you have thought it fit to discuss such material – that is, child pornography – with a group of friends in the Philippines.
24 Your offending is indeed serious and deserving of denunciation and just punishment. Moreover, a strong message must be sent to others who wish to behave as you have behaved, that such behaviour will not be tolerated and will be met with appropriate punishment.
25 I have taken into account the report of Mr Cummins, who saw you on one occasion and purports to address Verdins[1] considerations in your case. In his opinion you were psychosexually immature at the time of the offending, which limited your ability to appropriately appraise the wrongfulness of your offending behaviour. He was also of the opinion that time in gaol would prove to be harsher upon you than someone without such immaturity.
[1]R v Verdins (2007) 16 VR 269.
26 I am satisfied that your mental state and needs in terms of treatment will be adequately addressed by the sex offenders program which you are to be undergoing by virtue of my sentence.
27 In terms of the opinion proffered by Mr Cummins, I reject that psychosexual immaturity is a relevant impairment of mental function which would reduce your moral culpability or moderate the principles of specific and general deterrence. Moreover, whilst there might be more serious examples of offending of this nature in terms of people who are more worldly-wise engaging in it, this does not mean that your moral culpability is thereby reduced.
28 You are 30 years of age, having been born on 17 November 1980. You currently reside in a one-bedroom apartment within a boarding house in Hallam. Having been arrested, you spent 66 days in custody before being released on bail. Whilst on remand you were visited by the prison chaplain and also by a Ms Rebecca Adrao, who was a neighbour to you in the Philippines. Ms Adrao apparently encouraged you to relocate to Melbourne in order for you to obtain employment. You have dual citizenship as between Australia and the Philippines. You are not a permanent resident, so I was told, because you have not lived in Australia for long enough; however, this is something that will eventuate. It is a dreadful shame that you chose to re‑enter your country of birth with such despicable material on board.
29 According to Mr Cummins, you are a very poor historian and have obvious difficulties with comprehension. Unfortunately your mother died whilst giving birth to your second brother when you were aged six years, in 1986. You were then looked after by your father until your father met a younger partner, which occurred when you were 24 years old. Your father then relocated to Malaysia, and shortly after this had a heart attack. Your father works as a naval architect and marine engineer. You have had minimal contact with your father, and have had no contact with your 29‑year-old brother, whilst you have had limited contact with your 25‑year-old brother, who lives at your father’s previous home in the Philippines.
30 You have never been the victim of any sexual assault.
31 You indicated to Mr Cummins that you were educated to the age of 27 years in the Philippines. You apparently had learning difficulties in your primary and secondary school years, and experienced bullying throughout school and thereafter. After leaving secondary school at the age of 19 you completed a 2‑year computer technician’s course, and in April 2008 you graduated from a 4‑year Bachelor of Science (Commerce/Computer Information Management major) from Roosevelt College in the Philippines.
32 You have had several factory jobs and several IT jobs. Between September 2008 and August 2009 you worked as a high school teacher, teaching computing. You were eventually asked to leave the school because you had a number of difficulties teaching. You then engaged in further production work until leaving the Philippines for Australia in February 2011.
33 You are currently registered with Centrelink; however, you will not be able to receive payments until 18 August 2011, as you are not a permanent resident.
34 You have never been prescribed anti-depressant or anti-anxiety medication, and you have never been hospitalised in a psychiatric hospital. You reported to Mr Cummins that you became depressed when you were dismissed from the teaching role in August 2009. Whether this is Mr Cummins’ expert opinion that what you suffered was depression, or whether this means lowered mood, is unclear from his report. You have never received any ongoing psychiatric or psychological treatment.
35 You have never engaged in drug-taking or abused alcohol.
36 You have never been in a relationship, and have never engaged in sexual intercourse. Further, it would appear that you have not engaged in any sexual activity whatsoever, according to you.
37 You have no prior convictions, either here or in the Philippines.
38 To your credit, you entered a plea of guilty at the earliest stage, which entitles you to a significant discount in respect of the sentence that you would otherwise receive. You have saved the witnesses the time and trouble of giving evidence, and you have saved the community the time and expense of contesting proceedings.
39 Whilst you were said to be very naive and childlike and to have an unsophisticated understanding of the law and of sexual matters, you were able to appreciate that the images which you sought to bring into this country would be upsetting to some people. It is indeed remarkable and disturbing that you also reported to Mr Cummins that you thought some people would view the material as being funny rather than offensive. Your appreciation that the material may upset some people, in addition to you failing to properly declare all of the material you were seeking to bring in, indicates to me that you had a sufficient awareness and insight into the seriousness of your offending, to be deceptive to an extent when apprehended by Customs officers. On the other hand, it was you who ticked the appropriate box on the Customs form which led to your own detection. This does tend to reveal a naivety on your part. However, as I have said, I am not satisfied that it reduces your moral culpability. On the other hand, your moral culpability and the seriousness of your offending is not as high as those who are more worldly wise and import such material for the purposes of distribution.
40 In terms of a mental state examination said to be conducted by Mr Cummins, you had no mental illness or disorder of any kind. Apparently the most overwhelming aspects of your presentation were your extreme immaturity and childlike presentation, your comprehension difficulties and apparent difficulties in realistically appraising the seriousness of your legal situation. I might add that such an appraisal by Mr Cummins occurred after you had spent 66 days in gaol, which is of concern in terms of your level of insight.
41 You presented to Mr Cummins as being mildly anxious and did not present as being obviously depressed. When Mr Cummins spoke to you about the prospect of incarceration, you indicated that you felt sad about this possibility.
42 Because of your offending behaviour, the one person who was going to support you in Australia, Ms Adrao, has distanced herself from you to some extent. However, I understand that she still provides some financial support.
43 You do not have family support in Australia, and lead a very isolated existence. Such isolation exposes you to the risk of reoffending. On the other hand, you have no prior convictions, and it is to be hoped that the sex offenders program stands you in good stead for the future. You have expressed the wish to form an appropriate adult relationship, and this is to be encouraged. In being able to obtain two tertiary qualifications, you obviously have some ability, and you ought to take advantage of the support that the sex offenders program will offer, together with the education with which you will be provided in this regard. Hopefully you will never reoffend.
44 Because you have difficulty in appreciating the seriousness of your offending, regarding what you have done as being “naughty”, I have some reservation about your prospects of rehabilitation. However, as you have no prior convictions, having reached the age of 30 years, in all the circumstances of your case I regard your prospects of rehabilitation as being fair.
45 In Mr Cummins’ view you are in much need of ongoing and relevant psychological treatment. In his view, because of your comprehension difficulties and low level of maturity, he regarded it as likely that you would not be assessed as an appropriate candidate to participate in a standard group-based sex offender treatment program as this operates via the Department of Justice within the present setting and via Carlton Community Corrections Office. Mr Cummins did not assess you as being a paedophile or a hebephile – this is on the basis of the information which you provided him. The sex offenders program pre-sentence report indicates that you are in need of moderate prioritisation in terms of managing any risk of re-offending. The report also indicates that it would appear that you may well suffer from autism, which would help explain your difficulty in appreciating the seriousness of your offending. But such diagnosis is yet to be confirmed.
46 Mr Flauta, the images which you tried to bring into this country were utterly abhorrent.
47 In assessing the objective seriousness of your offending, there are four principal matters which I must look to, as follows:
(a)the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;
(b)the number of images or items of material possessed by the offender;
(c)whether the possession or importation is for the purpose of sale or further distribution; and
(d)whether the offender will profit from the offence (R v Gent (2005) 162 A Crim R 29 at paragraph 99-10).
48 Assessing the seriousness of your offending in accordance with the principles in Gent’s case,[2] I make the following findings:
Nature and Content of the Pornographic Material – Including the Age of the Children and the Gravity of the Sexual Activity Portrayed
[2]R v Gent (2005) 162 A Crim R 29.
49 Re consideration (a):
50 Out of a total of fifteen films depicting child pornography, there was one film at Level 1, one film at Level 2, twelve films at Level 4, and one film at Level 5. From the child pornography images that were found, there was one image at Level 1, and two images at Level 3.
51 As the opening indicated the images which you accessed in respect of all of the charges were categorised by the AFP according to a sliding scale. The vast majority of child pornography which you possessed was in the second most serious category-out of the 15 films that you had, there were 12 in this category. Whilst the single film at level 5 was an animation, that which was depicted, was nothing short of evil. The only comfort was that no real child victims were used to make that film. The ages of the children were as young as 7 years old and went up to girls who were 15 and 17 years of age. It is not only what the children have been subjected to at the time that the images or films were taken, but the knowledge that their humiliation and degradation has been reproduced and distributed to so many others. You have assisted in this, by being a recipient of such material, which you were prepared to bring here.
52
53 Re consideration (b) The number of images or items material possessed by the offender:
Whilst the number of images or films is not nearly as large as in many other cases, and I take this into account in your favour, it is still to be remembered that the films and images do contain a number of victims- again, not as numerous as in many other cases, but numerous enough.
54 Re considerations (c) and (d).
In your case, it is not alleged that the material in your possession was for sale or further distribution, nor was it suggested that you engaged in such conduct for profit. If these factors were part of your offending, then the objective seriousness would be even greater than it already is.
55 Your offending is not victimless-far from it. You have taken advantage of the sexual exploitation of children which reflects a substantial level of moral culpability. Whilst it might be true that there are cases where more mature and insightful people engage in conduct such as yours, the fact of it is that you committed these offences, knowing that they were wrong.
56 In respect of the summary offence, the images in your possession were, again, positively evil. One can only hope that those filmed were actors, although, I very much suspect that they were not, at least in the material that I had the misfortune to view.
57 I was taken to two decisions of our Court of Appeal where it was said that, in the particular circumstances of those cases, community-based orders which had been granted to the offenders were not manifestly inadequate in all the circumstances. It appears to me that in relation to both the decisions to which your counsel referred me, the Court of Appeal heard the matter 12 months or so after the respective community-based orders had been operating, and this appeared to be a significant factor in the decision not to interfere with the sentence that had been imposed.
58 It would appear to me, from looking at a number of the decisions in respect of child pornography, offenders are often apparently naive and live isolated existences without the ability to form adult relationships. In your case, specific deterrence is a real consideration, as it would appear that you still lack an appreciation of the seriousness of your offending, notwithstanding 66 days in custody. It is also of concern, that you were prepared to discuss child pornography with others when you were in the Philippines. Whilst you were prepared to plead guilty at an early stage, your level of insight does not satisfy me that you have much in the way of remorse. I also have regard to the sex offenders program pre-sentence report, which refers to the fact that you demonstrate limited protective factors. On the other hand, you have no prior convictions, and it would appear that your time in gaol has had some impact upon you. I place some weight on specific deterrence, but not significant weight, in all of the circumstances. In light of the matters to which I have just referred, including matters personal to you, and the fact that you have little support in this community, I regard your prospects of rehabilitation as fair. It is to be hoped that you take full advantage of the programs and supports that will now be put in place in order to assist you in this regard.
59 Pursuant to sub-s.20(1)(b) Crimes Act 1914 (Cth), you are convicted and sentenced to 3 months imprisonment in respect of Charge 1, which is to commence today, but I order you be released forthwith upon giving security by recognisance of $1000.00 to comply with the following conditions:-
(a)that you are to be of good behaviour for two years;
(b)that you be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender management or his or her nominee for two years.
(c )that you attend, undertake and complete the Sex offenders Program within a period of two years
(d)that you report to the Carlton community corrections centre, by 4.00pm on Thursday 18th August 2011.
(e)that you report to and receive visits form a community corrections officer or officers
(f)that you notify a community corrections officer at the specified community corrections centre of any change of address or employment within 2 clear working days after the change
(g)that you not leave Victoria except with the permission of an officer at the specified community corrections centre
(h) that you obey all lawful instructions and directions of community corrections officers.
60 This order has been issued because you have been charged.
61 In relation to Charge 2, you are convicted and fined $1,000.00.
62 The orders have been issued because:
(a)you were charged with
(i) import tier 2 goods contrary to S233BAB(5) Customs Act 1901
(ii) import prohibited imports contrary to s233(1)(b) Customs Act 1901
(b)the Court has sentenced you to a term of 3 months' imprisonment; and
(c)the Court has decided that you be released forthwith if you comply with the conditions of this order.
I record that you have served 66 days in custody in relation to these matters.
This means that you will have a gaol term which you do not have to serve now but if you commit another offence in the next 2 years or if you breach any conditions of the recognisance which you are to enter into, you will be at grave risk of going to gaol for the balance of the 3 months after deduction of the 66 days (about 1 month), and have to pay a further $1000 for the breach of the recognisance, in addition to any other penalty, if it is the case that you breach the recognisance by committing any further offence.
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