Director of Public Prosecutions v Gibson

[2015] VCC 1279

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02132

DIRECTOR OF PUBLIC PROSECUTIONS

V

JAMES GIBSON

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2015
DATE OF SENTENCE:	15 September 2015
CASE MAY BE CITED AS:	DPP v Gibson
MEDIUM NEUTRAL CITATION:	[2015] VCC 1279

REASONS FOR SENTENCE

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Subject:Criminal law – Commonwealth charge - sentence  

Catchwords:   Plea of guilty to one charge of using a carriage service to access child pornography – early plea – offender was police officer in disaster victim identification – worked in Holland identifying victims of Malaysian Airlines flight MH17 crash – experienced sexual abuse as a child – PTSD and alcohol abuse – accessed 1523 child pornography images – irrationally searching for image of himself as a child when photographed by perpetrator – evidence by psychologist that this a rare case – significant mitigating factors – prison usually warranted – non-custodial disposition sometimes available as in this case.

Legislation Cited: Sex Offenders Registration Act 2004

Cases Cited:DPP v D’Alessandro [2010] VSCA 60; DPP v Smith [2010] VSCA 215; CDPP v Zarb [2014] VSCA 347

Sentence: 2 year RRO              

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Clelland (Ms L. Skoblar for sentence)	CDPP
For the Accused	Mr B. Galbally	Galbally Rolfe

HER HONOUR:

1Jason James Gibson, you have pleaded guilty to one charge of accessing child pornography material using a carriage service, an offence you committed between September 2012 and September 2014.  The maximum penalty for this offence is 15 years' imprisonment.

2In cases such as this, imprisonment is the usual disposition but in the circumstances of this case, it will not be necessary.  I turn now to those circumstances.

3You were a serving member of the Victorian Police force and had been for ten years when you were charged with this offence.  You used a method of file sharing called BitTorrent to gain access to the material.  In early 2014, the Australian Federal Police had begun an investigation into the sharing and distribution of child pornography by users of BitTorrent on the internet.

4The police gained access to the IP address you were using and identified a number of files indicative of child pornography.

5On 11 September, the police executed a search warrant at your home and seized a computer tower and two mobile phones.  During the search, the police found several search terms associated with child pornography on storage devices used by you.

6You participated in a conversation with the police which was recorded but you declined to take part in a record of interview.  You denied having had access to child pornography and said that guests and family members had had access to your computer at relevant times.

7You denied that you were attempting to divert suspicion towards others and avoid taking responsibility but such dissembling in your answers gave that impression and there is little other conclusion that can be drawn.

8An examination of the devices seized revealed deleted child pornography which was recovered by the police.  There were a total of 1,523 images six videos.  Most of the images, 1,445 of them and three of the videos were classified as category 1 images, that is, displaying no sexual activity but showing children in a sexual or sexually suggestive context.  I viewed a sample of these category 1 images and found them to contain images of a most disturbing nature.

9Thirty two images and one video belonged to category 2, generally related to masturbation but not involving adults.  In category 3, there were seven images and one video showing non-penetrative sexual activity between children and adults.

10Twenty five images and one video were classified as belonging to category 4, showing penetrative sexual activity between children or between children and adults.

11There were no category 5 images or videos.  That category includes material of the most degrading type, absent in this type and there were eight images and no videos in category 6, comprising cartoons or animation depicting children in sexual poses or activity.

12You had access to a large number of images but importantly, you did not transmit, share or distribute any of them; you deleted them.  The files that were downloaded bore titles indicating the nature of the content of the images in the files[1] and also located were internet search history records of webpage titles indicating child pornography[2].

[1] .“Pedofilia 8yo girl and penetration she fight th man and ask him to stop”“pedo erotic two girls 9 and 12yo.avi”

[2] “Pthc veronica bj and cum in mouth – Video Sex Archive

13The prosecution submission was that I should sentence you on the basis of a high number of images, with which I agree, although noting that there are often cases with far higher number of images.  It follows of course, that sadly, many children were exploited by the creation of the images you viewed.

14You were charged and entered a plea of guilty at the earliest opportunity at the committal in December last year.  The only delay has unfortunately occurred due to the court being unable to hear the plea when listed in March this year and an adjournment in May was necessitated by a pending decision in the Court of Appeal as to the availability of community correction orders in commonwealth prosecutions.  Each time, your family has been prepared for the plea hearing and the adjournment was through no fault of yours.

15When you were arrested and released on bail, you were not permitted to remain at home with your wife and children because of the nature of the charge and for six weeks, while a review was conducted by the Department of Human Services, you were only allowed to see your children with supervision.  Both the delay and this constraint on your personal life have contributed to the difficulty for you of this period of waiting, and I take it into account.  In addition you were suspended from the police force initially and later resigned, leaving you without an income and with your career brought to an end.  That brings me to your background which I shall deal with before turning to the main focus of the plea in this case.

16You are a 36 year old married man, the father of two young sons.  A serving police officer for ten years until your arrest, having had an earlier career in the hospitality industry.  You were born and educated in New Zealand, completing a university degree there, before coming to Australia with your wife who is a doctor and now supports the family.

17She continues to support you, although not unconditionally, depending upon your successful rehabilitation, as she explained in the letter she wrote to the court.

18In August 2014, you went to Holland to undertake duties with the disaster victim identification unit following the crash of Malaysian Airlines flight MH17.  The role involved processing body parts for DNA, fingerprints and dental examination and was very emotionally stressful.  No counselling was provided and you did not seek it.

19Since your arrest, you have been undertaking counselling and during it, you disclosed that you had been sexually abused twice during your childhood, once as a boy of six, together with two small girls in a caravan and later as an eight year old, when encouraged by older boys to perform a sex act.

20You have stated that the perpetrator in the caravan took photographs of you during the abuse.  You say that you would look through the accessed images of the pornography, looking for photographs of yourself and that this was the only motivation for accessing the material.

21This account was the focus of the plea on your behalf and it prompted the response by the prosecution that the explanation was not credible and that I should not accept it.

22

Mr Clelland submitted on your behalf that the reports of Dr Matthew Barth,

Dr Karen Owen and your treating psychologist, Ms Beatrice Raymond all support this explanation.  Ms Raymond saw you on three occasions late last year and early this year, focusing on your exposure to sexual violence as a child and the resulting post-traumatic stress disorder.  She considered then that your offending was a reflection of that disorder and not sexually motivated and that she formed this hypothesis during therapy which was confirmed when she read the other reports.

23Since then, she has seen you on a further five occasions and she states that over that time, there continued to be no indication that your offending was motivated by deviant sexual arousal.  She said that you acted irrationally and obsessively in searching the material, looking for images of yourself, motivated by a constellation of factors: your child abuse, the emotional numbness required of you in your job and disinhibition caused by alcohol.

24Ms Raymond referred you to Dr Owen for her to conduct validity testing and you were also sent to Dr Barth by your solicitors for a psychological assessment.  As a result of the tests she conducted, Dr Owen concluded that your overall capacity for deception is low, suggesting that your test results were valid.

25You told Dr Owen that you realised that finding the image you were looking for was unlikely but your desire to establish the identity of the perpetrator became an obsession.  As a policeman, you had avoided working in the sexual abuse unit because you were unsure as to how you would react if you found an image of yourself so you joined the disaster victim identification squad already referred to.

26Dr Owen noted that her exploration of whether you exhibited any cognitive distortions produced no significant concerns and no attitudes of interests supportive of sexual contact with children.  She said you demonstrated reasonable empathy for victims of sexual assault, and testing found no attitudes that support or condone sexual offending against children but instead, disclose a normal pattern of adult male arousal.

27According to Dr Owen, you blame yourself for the offending and you appear to have difficulty accepting the hypothesis she proposed, that your own history of sexual abuse was what she described as "…a significant, traumatic and a direct precursor", to the offending.

28She considered that the family circumstances which prevented your disclosure to your parents at the time and the family culture of avoiding emotional vulnerability led to emotional withdrawal, and prevented you from dealing with it over the years.

29The other factors Dr Owen identified as the causes of the offending were the continuation of the pattern of emotional withdrawal through your work, and reinforcement of your coping style, leading in turn to increased emotional detachment.

30Added to this was increasing reliance on alcohol as a coping mechanism which actually decreased your capacity to cope with intrusive memories of your abuse. She said,

"In addition, exposure to other people's traumatic events increased his thinking about his own abuse and his exposure to new technology in the context of work reinforced the possibility of an image ‘being out there’ and led him to consider further avenues to continue to search".[3]

[3] Dr Owen’s report dated 22/2/2015 at p.45

31She went on to say that these circumstances led you to search compulsively for images of yourself while failing to connect with the sexual content of the images.  This is consistent with you not having kept any images but moving on to the next.

32Finally Dr Owen summed up her opinion by saying your offending represents "… a discrete period of offending, rather than a pervasive pattern of sexual interest in children".  She said,

"… it should be noted that the motivation, pathway and alleged offending is not characteristic of sexual offenders including those who engage in contact with child abuse images".

33Dr Barth subjected you to some testing, and in combination with his clinical views he concluded that you were candid and motivated to discuss your experiences.  You told Dr Barth that your curiosity as to the existence of an image of yourself on the internet was prompted some years ago when you learned how photos could be downloaded and when highly intoxicated, you had begun searching for an image of yourself.

34

You said that despite the repulsion you felt, you became increasingly obsessed and disinhibited in searching and more desensitized to the material. 

Dr Barth's evaluation did not reveal any signs of sexual deviance and you denied to him that you had gained any sexual gratification from the material.  His clinical opinion was that your offending arises out of a

"… dysfunctional attempt to resolve the abuse he suffered as a child and was further exacerbated by his poor coping skills and alcohol abuse during a period of emotional distress[4] …".

[4] Dr Barth’s report dated 27/2/2015 at p,10, para 52(5)

35The opinions of these three experts is based on extensive testing, and clinical examination and assessment.  It is evidence which I accept on the balance of probabilities and from which I draw the conclusion that you were not seeking sexual gratification from the images, and that longstanding rumination over your childhood abuse motivated your access to the material.

36It does not directly explain your access to the videos, as there has been no suggestion that a video camera had been used by the perpetrator, and you were looking for an old style polaroid photograph, but it is likely that the irrationality of the search also applied to your viewing of video material for the sought-after image.

37That conclusion is consistent with the opinions of the experts and their reports and in the case of Ms Raymond, with her evidence in court.

38Ms Raymond also said that using child pornography in this way is a rare circumstance, underscored by the absence of any deviant pathology, an absence which in itself is unusual in these cases.

39Fundamentally, the prosecution position was that it is not credible that you were searching for your own image, leaving the inference that sexual deviance was your motivation.  However there is no evidence from which to draw that inference and it is not enough to assume that motivation from the very nature of the behaviour.

40The effect of this finding is to reduce your criminal culpability and commensurately elevate your prospects for rehabilitation so as to avoid the need for immediate imprisonment.

41I move now to consider the plea in mitigation and I have already referred to some of those factors early in these remarks.

42In addition to those, you pleaded guilty at an early stage and have avoided the need for a trial which is an important way of facilitating the criminal justice system and is deserving of a discount on your sentence.

43I also accept it as an indication of remorse which you have expressed by acknowledging that you understand the great harm that is done to children by the creation of the material in the first place.

44You have no prior convictions and for a decade, have made a positive contribution to society through your police work, that has been acknowledged in the letter to you from the then Deputy Commissioner of Police, Mr Ashton.

45You are an intelligent man, university educated and have the support of your parents and brothers.  Members of your extended family and others who have known you for many years all regard you highly and their letters to the court constitute an impressive appreciation of you.

46You have undertaken counselling to deal with mood regulation and the effects of trauma related to the abuse as a child, following the creation of a mental health plan by your general practitioner.

47Ms Raymond reported in her most recent letter that you have described a significant reduction of distressing and intrusive memories and there is no evidence of the use or abuse of alcohol.

48You lost your job, indeed your career, with the loss of a considerable income.  You have subsequently experienced isolation from work colleagues and friends and in addition to those matters, your loss of reputation is also significant and I give due weight to all of those factors, having taken into account the authorities in this regard.

49You have also suffered from observing the effects of your conduct, and being charged, upon your wife, and on your children, through your absence and the restrictions on your access to them.

50The psychological material suggests that you are to be categorised as at low risk of reoffending and that in combination with positive social and family relationships and support, you have good prospects for rehabilitation.

51For those reasons, specific deterrence does not loom large in this sentencing exercise.  General deterrence is a different matter because of the widely known fact that abuse by the creation of the material can and often does cause severe harm to children.

52It is something regarded with abhorrence by the community as being an extreme form of depravity and it must be understood that the courts will punish offenders severely.  In most cases, a prison term to be served immediately will be imposed but there are cases where a different disposition is warranted.

53I was referred to the decision in DPP v Smith[5] where it was observed that frequently the offenders in these cases have insight into the effects of their offending on its victims but offend nonetheless.  In that case however, there was un-contradicted expert evidence that the offending was an addictive consequence of curiosity on the part of a socially immature and extremely isolated person lacking such insight.  The court there was not persuaded that general deterrence demanded a custodial sentence.

[5] [2010] VSCA 215

54In the more recent decision of CDPP v Zarb[6], the need for exceptional circumstances to avoid a prison sentence was considered.  Drawing upon the decision in the case of Smith, it was held that each case depends on its own particular facts and custody might not be necessary if there are significant matters in mitigation.

[6] [2014 VSCA 347

55Your case comes into that category even though it does not precisely match the criteria identified in Smith.  I have referred to the expert evidence in detail and shall not repeat it but merely add that it reveals no pathology indicating sexual deviance and provides a very firm basis for confidence in your prospects for rehabilitation.

56The prosecution submissions as to the level of your offending rest upon the high number of images involved, your occupation as a police officer with full knowledge of the criminality of your actions and the two year period over which you offended.  Despite those incontestable factors, the significant mitigating circumstances lead to a more lenient disposition.

57Will you stand now, please, Mr Gibson.  Taking all those matters into account, I sentence you to 12 months' imprisonment but order you to be released forthwith upon the following conditions - that you give security by way of recognisance of $2000,  that you be of good behaviour for 24 months,  that you be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 24 months and that you attend for assessment and if assessed suitable, attend for sex offender programs as directed.

58I am obliged to tell you that if you were to breach the conditions of this order, you could be brought back to court to be dealt with again.  I also have to tell you that there is the power for this order to be varied or discharged.

59The other matters which I must attend to are these.  If you had pleaded not guilty to this charge, I would have sentenced you to two years' imprisonment, to serve three months before being released.

60You are required under the provisions of the Sex Offender Registration Act to provide your details to the police every year for the next eight years.  There will be a form provided for you to sign in a moment in that regard. 

61Are there any matters that I have neglected?  Ms Skoblar first.

62MS SKOBLAR:  No, Your Honour.

63HER HONOUR:  Mr Galbally?

64MR GALBALLY:  I think a forfeiture order was made or anticipated to be made.

65MS SKOBLAR:  It was forfeiture by consent, Your Honour so ‑ ‑ ‑

66HER HONOUR:  All right, I'll make that order.

67MS SKOBLAR:  Yes.  Mr Gibson has consented to the forfeiture of the relevant computers containing the materials.

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