Director of Public Prosecutions v Gibbs
[2017] VCC 716
•2 June 2017
| IN THE COUNTY COURT OF VICTORIA AT BAIRNSDALE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01778
Indictment No. G11018004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW RUSSELL GIBBS |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Bairnsdale and Melbourne | |
DATE OF HEARING: | 16, 17 and 23 May 2017 | |
DATE OF SENTENCE: | 2 June 2017 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Gibbs | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 716 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCING
Catchwords: Knowingly possess child pornography – use of carriage service to access child pornography
Legislation Cited: Section 70(1) Crimes Act 1958 (Vic); Section 474.19(1) Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic); Section 16A Crimes Act 1914 (Cth); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:DPP v Alessandro (2010) 26 VR 477
Sentence: 3 years’ imprisonment to be released on a 5 year Recognizance Release Order after 2 years’
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D O’Doherty and on 23 May 2017, Mr D Plummer | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J Fitzgerald | Victoria Legal Aid, Gippsland |
HIS HONOUR:
1 Andrew Russell Gibbs, you have pleaded guilty to one charge of possession of child pornography and one charge of using a carriage service to access child pornography material.
2 On 14 April 2016, police executed a search warrant at your home in Bairnsdale, seizing items which included a computer, a laptop computer, and a number of hard drive storage devices. A preliminary examination indicated the presence of child exploitation material and you were arrested.
3 Forensic examination of those items was undertaken.
4 You participated in a Record of Interview and made full admissions to possession of child exploitation material. You admitted to using a file-sharing network known as “Peer-2-Peer” or “eMule”, which allowed you to access child exploitation material from other computers around the world. Similarly, other persons around the world could access material stored in your hard drive and download it via the eMule system.
5 A considerable quantity of Child Exploitation Material was located on the equipment to which I have referred.
6 There were a number of images and videos that depicted children who appeared to be under the age of ten.
7 In total, there were over 900,000 files or images. It has been agreed between the parties that approximately 300,000 of those contained child exploitation material – that is, child pornography.
8 Although it was possible for others, worldwide, to access and download material by means of the Peer-2-Peer file-sharing network, there was no evidence that you actively transmitted child exploitation material to any other person.
Background
9 By way of background, you are currently aged forty-five. You grew up in the Bairnsdale area, attending primary school, and then Bairnsdale Technical School to Year 12. You have instructed your counsel that you had a loving family, got on well with your parents and two siblings, and that there was no drug or alcohol abuse in the family, nor any family violence.
10 After leaving school you worked for some years at a service station in Bairnsdale, and over the last 20 years as a delivery driver in the Bairnsdale and Lakes Entrance areas.
11 You have been a keen participant with a local cricket club.
12 Your financial position was said to be somewhat fraught, although it is not clear to me why this would be so. You pay $150 to your parents as weekly board. However, you have no family expenses of your own and no school fees to pay. Nevertheless you have incurred considerable debt on various credit cards.
13 I am informed that you have recently formed a relationship with a woman who resides in Malaysia and are said to be engaged to be married.
14 A report from Dr Leon Turnbull, psychiatrist, dated 1 May 2017 was tendered on your behalf. He has examined you on one occasion. He describes you as an unremarkable man, who has not been able to develop or sustain long-term intimate relationships until recently. He considered that you had had a happy, normal childhood.
15 He considered that you were not outwardly anxious or depressed and that you remained optimistic about your future following your recent engagement. He did not consider that you suffered from any psychiatric or psychological condition.
16 Dr Turnbull noted the absence of illicit drug use, no criminal history, an absence of violence and aggression, and that you had not been a victim of abuse. He thought that these all leant themselves to you not being likely to carry this offending over to what he described as “contact offences”. He considered that his opinions were reasonably favourable prognostically, however, if you were to continue drinking alcohol, the challenges of a new relationship could see you withdraw emotionally, and that would pose a risk for you returning to “the comforts of online pornography”. He suggested that you cut down or achieve abstinence of alcohol. He considered that you were a fairly ideal candidate to benefit from programs offered were your motivation to remain upbeat.
17 A number of character references were tendered from friends, your employer, and your brother-in-law. The authors of these references consider that you are a person of otherwise good character and that you are remorseful for the offences that you have committed.
Sentencing principles
18 I have taken into account the provisions of s5 of the Sentencing Act 1991 and s16A of the Crimes Act 1914.
19 The Sentencing Act 1991 provides that the only purposes for which sentences may be imposed are:
·To punish the offender to an extent and in the manner which is just in all of the circumstances; or
·To deter the offender, or other persons, from committing offences of the same or similar character; or
·To establish conditions within which it is considered by the Court that the rehabilitation of the offender may be facilitated; or
·To manifest the denunciation by the Court of the type of conduct in which the offender engaged.
20 Both Acts require me to take into account a number of matters including:
·The nature and circumstances of your offending;
·Your personal circumstances;
·The degree to which you have shown remorse or contrition for your offending;
·The fact that you have pleaded guilty to the offences;
·The deterrent effect of any sentence on the community and on you;
·The need to ensure that you are adequately punished;
·Your character, antecedents, age, means and physical or mental condition; and
·The prospects for your rehabilitation.
21 I am conscious of the provisions of s5(4) of the Sentencing Act 1991 and s17A of the Crimes Act 1914, which provide, effectively, that the Court shall not pass a sentence of imprisonment on any person unless the Court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of a case.
22 I consider that these offences are serious ones. This is reflected by the fact that the maximum penalty prescribed for the State offence is ten years’ imprisonment and the maximum penalty in respect of the Commonwealth offence is fifteen years’ imprisonment. These penalties reflect the views of State and Commonwealth Parliaments as to the seriousness of these offences.
23 I consider that your conduct involved the accessing and possession of what I consider to have been truly disgraceful pornographic images of children.
24 I have been referred to a number of authorities supporting the proposition that, in respect of child pornography offences, general deterrence is the paramount sentencing consideration. Prior good character is to be given less weight than usual.
25 The essence of those authorities is, in my view, captured by the following passage, which I quote from a 2010 Court of Appeal judgment:
“There seems to be unanimous support across jurisdictions for a number of propositions.
First, that the problem of child pornography is an international one.
Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration.
Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it.
Fourthly, that those who make up that market cannot escape responsibility for such exploitation.Fifthly, that limited weight must be given to an offender’s prior good character.
Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in the case pleaded guilty.” [1]
[1] DPP v Alessandro (2010) 26 VR 477 at [21]
26 I accept that, in your case, your offending was not predatory; it did not involve the sale of any of the material and you do not appear to have stood to profit from your offending.
27 I consider that the child pornography involved in your offending was exploitative of the children concerned. Many court authorities have stressed how destructive the creation of such material was on the child victims depicted.
28 The Court of Appeal, in the same judgment as previously referred to, expressed the importance of general deterrence in the following terms:
“The evil that is the making and distribution of pornographic images involving children is so great, and so comparatively common, and so readily facilitated by modern technology, that every attempt must be made to limit its scope and range – indeed, to eliminate it altogether if that is possible … hence the need for general deterrence.” [2]
[2] Alessandro at [19]
29 Although I accept that you did not create any of the images possessed by you or actively distribute those images to others, what must be clear to you is that other persons did exploit the children depicted by creating those images and distributing them to people, including yourself. It is important that my sentence deters others from engaging in internet-based, sexually explicit conduct that involves children in any way.
Mitigating factors
30 Your counsel has submitted, and I accept, that:
(a)You pleaded guilty to this offence at the earliest opportunity and have cooperated with police, evidencing some remorse on your part, although I consider that, in cases such as this, it is difficult to distinguish between a genuine regret for committing the offence and a regret for having been detected and having to face the legal consequences;
(b)That you have no prior convictions. Further, there is no evidence of any offending since these charges were brought against you;
(c)I accept that you have reasonable prospects for rehabilitation. You seem to enjoy the support of a strong network of friends and family, and have demonstrated some remorse and insight into your offending. Your prospects for rehabilitation strongly depend on you obtaining treatment in the future, including sex offender treatment programs.
Sentence
31 Taking all of these matters into account, I consider that the appropriate sentence for you is one where you are sentenced to a term of imprisonment in respect of both offences, but are released after you have served a period of two years’ imprisonment on a Recognizance Release Order pursuant to s.20 of the Crimes Act 1914 (Cth) with certain conditions.
32 The purpose of imposing a term of imprisonment on you is principally to denounce your conduct and to deter you and others from engaging in similar conduct. The purpose of releasing you on a Recognizance Release Order is to ensure that you will have the opportunity, having served that term, to continue to receive specific treatment in relation to your offending behaviour and to facilitate your rehabilitation.
33 However, I would only impose such a sentence if you were to consent to such a Recognizance Release Order being made.
34 Before I ask you whether you do consent, I should tell you of the total sentence I am intending to impose upon you.
35 With regard to Charge 1 - of possessing child pornography contrary to s.70(1) of the Crimes Act 1958 (Vic), I propose to sentence you to a term of imprisonment of 23 months.
36 With regard to Charge 2 - using a carriage service to access child pornography material contrary to s.474.19(1) of the Criminal Code Act 1995 (Cth), I propose to sentence you to a term of imprisonment of three years commencing today. I direct that, after you have served 2 years of that sentence, you be released upon a five year Recognizance Release Order pursuant to s.20 of the Crimes Act 1914 (Cth) upon you giving security by recognizance in the sum of $500, with an undertaking to be of good behaviour for the duration of that five year term.
37 In addition, there shall be further conditions to that order pursuant to s.20(1)(a)(iv) of that Act as follows:
· Firstly, that you are to engage in a sex offender treatment program as directed by Corrections Victoria;
· Secondly, that you undergo and receive mental health treatment as recommended by Corrections Victoria;
· Thirdly, that you are not to access, download or possess any image or video containing child exploitation material.
38 I propose to direct that the State and Commonwealth sentences proposed would be served concurrently.
39 Now, I don't know whether you want a moment to just talk things over with Mr Fitzgerald - perhaps I will give you the opportunity in any case. Do you want me to leave the Bench for a moment or do you want me to stay on the Bench?
40 MR FITZGERALD: I think, Your Honour, I should be able to have that conversation briefly while Your Honour is - - -
41 HIS HONOUR: All right, I'll remain here.
42 MR FITZGERALD: Thank you, Your Honour. Excuse me. Thank you for that opportunity, Your Honour, and if you ask my client directly I understand he'll consent to the - - -
43 HIS HONOUR: Yes. Do you consent to a Recognizance Release Order with those terms and conditions, Mr Gibbs?
44 OFFENDER: Yes, Your Honour.
45 HIS HONOUR: Thank you. Now, before I formally make those orders, Mr Plummer, and Mr Fitzgerald for that matter, Commonwealth - you can be seated, Mr Gibbs - Commonwealth sentencing being the minefield that it is, are you able to detect that I have wandered into judicial error by way of the sentences that I have imposed?
46 MR FITZGERALD: I don't believe you have, Your Honour. As I understand it the period of five years is I think the maximum period that can be imposed on a release. But that's within Your Honour's power and, so, no, I don't think - - -
47 HIS HONOUR: The relevance of the five years of course is that he's not detained or incarcerated for five years, that he's just got to behave himself for five years - - -
48 MR FITZGERALD: For that period of time. And comply with the conditions, I think - - -
49 HIS HONOUR: Well, the conditions are really - simply could be summarised by don't go near child pornography.
50 MR FITZGERALD: Yes, Your Honour.
51 HIS HONOUR: And behave yourself.
52 MR FITZGERALD: Yes, Your Honour.
53 HIS HONOUR: Mr Plummer, have you got anything to say?
54 MR PLUMMER: No, Your Honour.
HIS HONOUR: That being the case, I will formally make the orders that I read out before in those terms.
55 I should add that pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty to these offences, I would have sentenced you to a total effective term of imprisonment of four years’, with a non-parole period of three years’.
56 Under the Sex Offenders Registration Act 2004 (Vic), by reason of these conditions you are to be recorded as a registrable offender for a period of fifteen years. That is the right term, Mr Plummer?
57 MR PLUMMER: Yes, Your Honour.
58 During that period you will be required to report to police on a regular basis. Your reporting obligations are set out in a notice that will be given to you shortly by my Associate. The document in connection with the Sex Offenders Registration Act is relatively lengthy. I suggest that you do, at the earliest opportunity, read it carefully and if you have any doubt as to its meaning you should consult your legal representatives immediately. The reporting obligations will commence upon your release from prison. So you would want to know what they are at that time.
59 MR FITZGERALD: Your Honour, sorry, there is just one matter.
60 HIS HONOUR: Yes.
61 MR FITZGERALD: I'm sorry, I should have raised this when Your Honour invited me to before. The conditions under s.20(1)(4), as I understand that, they can only be imposed for a period not exceeding two years, as I read that. So the Recognizance Release Order can be for a total of five years on the condition that he be of good behaviour, so that condition would still - that, in that sense, is implicit in the order but - - -
62 HIS HONOUR: Just let me have a quick look at the Act.
63 MR FITZGEERALD: Yes, Your Honour.
64 HIS HONOUR: You may well be right.
65 MR FITZGERALD: In which case it's simply a matter of indicating that in the order, I don't think that's an insurmountable difficulty, Your Honour.
66 HIS HONOUR: Just give me the - - -
67 MR FITZGERALD: Section 20 of the Crimes Act 1914.
68 HIS HONOUR: Yes, and what sub-section - - -
69 MR FITZGERALD: Sub-section (1)(4), which is the section under which Your Honour proposed the additional conditions.
70 HIS HONOUR: Yes, you're absolutely right, Mr Fitzgerald - - -
71 MR FITZGERALD: (1)(a)(4), sorry.
72 HIS HONOUR: So I'll just re-word that in the following terms - effectively they will be - the extra conditions that I have imposed are to apply for two years from the commencement of the Recognizance Release Order.
73 MR FITZGERALD: Yes. Yes, if Your Honour pleases.
74 HIS HONOUR: And the actual order will make that clear, that he is to be of good behaviour for the five year term, to engage in sex offender treatment programs as directed by Corrections Victoria for two years, to undergo and receive mental health treatment as recommended by Corrections Victoria for two years and must not access, download or possess any image or video containing child exploitation material for two years. That is actually - - -
75 MR FITZGERALD: The law already prohibits it, Your Honour.
76 HIS HONOUR: At your leisure you might explain to Mr Gibbs that although it says two years, which would be an automatic breach of the terms of that order, in fact it's illegal - - -
77 MR FITZGERALD: It is, Your Honour - - -
78 HIS HONOUR: For everybody, not just him, for the rest of our respective lives.
79 MR FITZGERALD: Quite so.
80 HIS HONOUR: All right, thank you. And there is just one other matter. No, I think that's taken into account. Thank you.
81 I just want to say one further thing, Mr Gibbs. Just stand up for a moment.
82 You have undertaken by agreeing to this Recognizance Release Order to be of good behaviour for five years from the time of your release from prison. If that turned out not to be the case and you did offend again, and, may I say, especially if you were to commit offences that bore any similarity to the offences which you have been convicted of here then you will be brought before this Court again, in all likelihood before me, and you will be, in all likelihood, re-sentenced on these two offences for which you have pleaded guilty to. And I think I am not speaking out of turn to say your prospects of receiving a Recognizance Release Order in order to reduce your term of imprisonment, would be most unlikely.
83 I will also make the disposal order sought by the Crown in relation to the computers, the hard drives and the like. Just bear with me.
84 Now, an order pursuant to s.464ZF of the Crimes Act is sought. Is that a matter of consent, Mr Fitzgerald?
85 MR FITZGERALD: Your Honour, I apologise, can I just approach my client?
86 HIS HONOUR: Sure.
87 MR FITZGERALD: Thank you. Yes, Your Honour, that application is not opposed.
88 HIS HONOUR: Thank you. Mr Gibbs, the order sought under that s.464ZF of the Crimes Act is that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with Subdivision 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for the placement on the database.
89 I make that order, firstly, because of the seriousness of the circumstances of the offending behaviour. I consider they warrant the order being made. Secondly, that the order is not opposed. What it involves, as I understand it, is really a saliva swab to be taken so that there is a record of your DNA on the database. Notwithstanding that the order was not opposed, I should tell you that in the event that you do not consent to such a procedure being performed, then the sample of your blood may be taken and police may use reasonable force to enable such a sample to be taken. Do you understand that?
90 OFFENDER: Yes.
91 HIS HONOUR: There are a couple of documents you've just got to sign. First of all you've got to sign the document relating to the Recognizance Release Order, and secondly, you've got to sign a document related to the Sex Offenders Registration legislation.
92 Thank you. Anything else?
93 MR FITZGERALD: No, Your Honour.
94 MR PLUMMER: No, Your Honour.
95 HIS HONOUR: Yes, Mr Gibbs is to be taken downstairs, thank you.
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