Director of Public Prosecutions v Gladstones

[2016] VCC 432

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

AT MELBOURNE

CRIMINAL JURISDICTION   CR 15-01905

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN GLADSTONES

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	14 April 2016
DATE OF SENTENCE:	14 April 2016
CASE MAY BE CITED AS:	DPP v GLADSTONES
MEDIUM NEUTRAL CITATION:	[2016] VCC 432

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords: pleas of guilty to one charge of using a carriage service to access child pornography and one charge of importing goods prohibited under the Customs Act 1901 – whether risk assessment by psychologist is reliable – low risk of reoffending – good prospects for rehabilitation.

Sentence: Charge 1, 2 year RRO; charge 2, 2 year CCO      

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Ms R Verdon	CDPP
For the Accused	Mr P Tiwana	Dribben & Brown

1HER HONOUR:  Stephen Murray James Gladstones, you have pleaded guilty to one charge of using a carriage service to access child pornography and one charge of importing goods prohibited by the Customs Act 1901.  The maximum penalty for these charges is 15 years' imprisonment for Charge 1 and ten years for Charge 2. 

2A search warrant was executed at your home on 13 May 2015, resulting in the police seizing a computer hard drive tower and other items.  Later, the hard drive was forensically examined, but no child pornography material was found.

3However, in your interview with the police, you volunteered the information that you had accessed images of child pornography using TOR software, which does not leave any traces of such access.  You told the police that you had not saved or downloaded the images, but had only viewed them and that you had deleted TOR in January 2015.  These admissions led to Charge 1 on the indictment.  The other items found were a masturbatory device representing the vagina of a two to four year old child and seven pairs of small girls' underwear, as well as two nappies.  The device was the item you had imported, which is Charge 2.  The subject of the importation is of course of a most disturbing nature.

4Within a short time of being interviewed, you began seeing the psychologist Pamela Matthews and continued to do so until the present time, seeing her for a total of ten sessions.  At the time of writing her report for this plea hearing, you had seen her eight times.  She administered several tests in order to assess the risk of reoffending and she concluded that the risk is low.  Ms Verdon, who appeared for the Commonwealth DPP, took issue with Ms Matthews' opinion as to risk and as to your prospects for rehabilitation, expressing concern as to the weight which could be attributed to her opinion.  Ms Verdon identified a number of discrepancies between what you told Ms Matthews and what you told the police in the record of interview and submitted that the characteristics which Ms Matthews identified in your presentation may suggest a higher level of risk, but in the absence of an opportunity to cross-examine Ms Matthews, a proper risk assessment cannot be made.

5Ms Matthews is presently unavailable to attend court, as she is out of the jurisdiction and will not be available until May.  Ms Verdon submitted that I should adjourn the plea hearing until then and in addition, or in the alternative, I should consider ordering a Forensicare assessment to be conducted.  Having read Ms Matthews' report and considered the submissions by both parties, I concluded that neither course was necessary.

6What is necessary is a close examination of what you told police, what you told Ms Matthews and the basis upon which Ms Matthews drew her conclusions.  While that will not establish the validity of her risk assessment, it will help provide the basis for determining the appropriate sentence to be imposed upon you without the benefit of what might be called a more reliable risk assessment.

7To my knowledge, and indeed according to her resume, Ms Matthews is an experienced forensic psychologist who has a close familiarity with the tests to which she subjected you.  Moreover, her report was based not merely on one or two opportunities for assessment, as is often the case, but on the professional relationship that she established with you over eight sessions, conducted over as many months, or slightly longer.  She had all the relevant materials provided to her, including the record of interview.  For those reasons, I can be confident in placing a sensible degree of weight on her conclusions.

8Ms Verdon's main concern was that in your counselling sessions, you had sought to minimise your offending and that Ms Matthews did not adequately challenge you on assertions you made.  An example is said to be the description you gave Ms Matthews, set out on p.2 of her report, that you looked at images of nude people on the beach taken with a long lens camera, but became aware that this was wrong, because the people did not know they were being photographed.  Ms Verdon pointed out that that material did not fit the definition of child pornography.  In her report, Ms Matthews then quoted the references in your record of interview to your viewing of actual child exploitation images, indicating that she was aware of what you had admitted to having done.  At p.7 of her report, she reported what you had told her in terms of images you had looked at, which Ms Matthews noted without comment and in my view that is a degree of minimisation, which is apparent on your part.  However, the reality did not escape Ms Matthews' notice, because in the next paragraph, she stated that:  "Mr Gladstones' explanation is largely consistent with his police record of interview, although he admits to seeing some other sorts of images of children."

9Clearly Ms Matthews was aware of and took account of these matters she noted.  She summarised the content of each of the eight sessions with you, one of which focused on:  "…extending the examination of cognitive distortions on behaviour, seeking warmth, not affection", which is a reference to your memory of having, as a teacher's aide at a primary school many years ago, had the satisfactory emotional experience of seeking:  "warmth, not affection", from the children.  That focus by her suggests she challenged you by employing a strategy in which you examined how a cognitive distortion can arise and be dealt with.

10I commented earlier in these remarks that the item you imported is of a disturbing nature.  In her analysis of her concern with Ms Matthews' report, Ms Verdon noted the contents of lines 17 to 27 on p.3 of the report, that you had only used the device once, but found it revolting, because of the need to use lubricant and that you admitted a sexual interest in pre-pubescent girls, but that you would never touch a child.  It gives rise to the question, as Ms Verdon indicated in her submission, as to why a person would purchase such an item if it were not to simulate sex with a child.  The natural progression is to the question whether this increases the risk of re-offending in your case and whether Ms Matthews took adequate account of that.  She addressed your paedophilia, using it as one of the possible 22 characteristics contributing to her assessment.  There were three others: chronicity, some evidence of escalating sexual violence relating to the purchase of the prosthetic device and the underwear, and problems in intimate relationships.  She thought you had gained some insight and so problems with self-awareness was no longer a criterion.

11Having made this analysis, Ms Matthews listed 13 factors indicating diminishing risk of re-offending and I shall set those out: 

·That they were no-contact offences

·Your genuine shame and abhorrence of your behaviour

·your lack of environmental contact with girls of the relevant age

·your strong employment record

·your strong commitment to and support within your family, work colleagues and a small group of friends

·reasonable coping skills with external stressors

·no difficulties with planning and organisation

·feasible and realistic plans for the future

·lack of mental health issues or personality pathology

·your commitment to treatment

·your growing insight into the nature of your paedophilic interest

·your strong desire to change and finally

·your compliance with bail orders. 

Ms Matthews stated firmly what she considers you need to do to attend adequately to your rehabilitation.  Your access to the internet should be restrained through software protections.  Your access to and use of adult pornography in all formats should be restrained and you should continue to have sex offender therapeutic intervention.

12Returning to the question whether the purchase of the prosthetic device increases the risk of reoffending in your case and whether Ms Matthews took adequate account of it, it seems to me that she has clearly done so, including it as one of the four criteria which contributed to the risk in your case.  I can place sufficient weight on Ms Matthews' report to be able to have some confidence in the positive indications for your rehabilitation and in combination with other protective factors to regard your risk of reoffending as low.

13Putting that matter to one side for the moment, I turn to your background and personal circumstances.  You are aged 48, the father of a 14 year old son who is partly in your care.  You completed secondary school and gained a diploma in applied science and later a degree in the same field from Latrobe University.  You worked for 27 years until recently with the same employer as an orthotist.  You informed your employer of these charges and because your certificate for working with children was cancelled, you were provided, by him, with work which avoided dealing with customers, even though it did not involve working with children at all.  Your employer was keen for you to stay, but after taking some leave, you decided to commence your own business, making custom-made orthotic devices and you have already established that there is a viable market for your products.

14You have no prior convictions and you have never been in any sort of trouble with the law.  Your former employer has written to the court and described you as a person of integrity, about who he has never had any concern.  Your mother has also written in your support, referring to your remorse and deep regret for the hurt you have caused.  While it is very often the case that people charged with offences such as these are persons of otherwise good character, it carries some weight.

15You pleaded guilty at the earliest opportunity, having fully cooperated with the police and having admitted your actions, thus providing the only evidence available to the investigators in relation to Charge 1. For that, you deserve a considerable discount on your sentence and I also accept your plea as an indication of remorse, of which there is other evidence as well in the references and the report of Ms Matthews.  The minimisation that I referred to earlier in these remarks is not so marked as to diminish your acknowledgment of your wrongdoing and your remorse for it.

16Whilst still at school, you assisted the music teacher at a local primary school and helped organise the school concert.  Later, as a student, you were employed as a science teacher's aide at the school and you played in an amateur jazz band, performing at functions.  You married and had one son, as I said earlier, but the marriage did not survive and your son now lives with you for most of the week.  The marriage was unhappy for a long time and you attribute your resort to pornography as partly caused by your emotional state at that time.  You are close to your mother and two sisters and you spend your time on your new business, reading, walking and caring for your son.  In addition, you continue to see Ms Matthews.

17Turning now to the sentencing principles that apply in cases such as this, the principle of chief importance is that of general deterrence.  The availability of child pornography is encouraged by the access gained to it.  Hence, the existence and continuation of a market for the exploitation of children of all ages.  It is a crime that is difficult to detect and considerable resources must be spent in doing so and in bringing perpetrators to justice.  It is generally accepted that great harm can be done to the children who are exploited in this way.  The sentence imposed should reflect that in an effort to deter others.  Specific deterrence may be of less importance in cases where the risk of reoffending is low, but even if it were assessed as moderate, it could be regarded as safely reduced where it is adequately addressed by protective factors.

18Your counsel had urged me to have you assessed as to your suitability for a community correction order and impose that order.  Ms Verdon's sentencing instructions are that imprisonment is warranted, particularly if the risk of reoffending is considered to be moderate, rather than low.  I have not come to that conclusion, but in any event, I agree with the submission of Mr Tiwana, who appeared for you, that the mitigatory factors are significant and that in your case, there should be little difference in sentence based on whether the risk is assessed as moderate or low.

19As you know, you have been assessed as suitable for a community correction order and I shall impose that order in relation to Charge 1.  Through a sex offender program, you will be required to attend and through your continued counselling with Ms Matthews, the four criteria that she identified will be able to be addressed, with little or no interruption in the therapy you have already commenced.  As to Charge 2, you will be subject to a recognizance release order under Commonwealth legislation, but you will be released forthwith on the condition that you are of good behaviour for two years.  I fix the recognizance in the sum of $1,000, which is not a sum you have to pay now, but it is a form of security which might be paid in the event of non-compliance.  I also need to tell you that the terms of this order can be varied, or it can be discharged by you, or by those in authority, such as the Director of Public Prosecutions.

20I will ask you to stand now, Mr Gladstones.  I will explain the rest of the obligations under the community corrections order.  It begins today and it will last for two years.  You will be under supervision and you will have to perform 100 hours of unpaid community work over the first eight months.  I have allowed for some flexibility with that part of the order, given that you have your business to attend to.  You must be assessed for and participate in the sex offender program.  You must also continue with counselling, preferably with Ms Matthews, but if that does not continue to be possible, then this will be dealt with by the Corrections office.  An appointment has been made for you to attend the Corrections office at Box Hill at 9 am on Friday 15 April and the address there is 703 Station Street, Box Hill.  I understand that the conditions of the order have been explained to you and that you have agreed to them.

21It is mandatory that you be placed on the sex offender register and that will require you to report your details to the police every year for 15 years and you will be asked to sign a form with regard to that shortly.  If you had pleaded not guilty to these charges, I would have required you to serve three months' imprisonment before being released. 

22Are there any other matters, Ms Verdon?

23MS VERDON:  No Your Honour.

24HER HONOUR:  All right.

25MS VERDON:  I do have a bond form here for the recognizance order.

26HER HONOUR:  Thank you, yes.

27MS VERDON:  Is it an appropriate time to hand that to Your Honour's associate now?

28HER HONOUR:  Yes, you can hand that up now.

29MS VERDON:  Just before I strike out the inappropriate line, this was in relation to Charge 2, the import charge, so I can get rid of the access charge?

30HER HONOUR:  That's correct.

31MS VERDON:  There are two different versions of the orders in relation to the sex offender program.  One refers to assessment and if assessed as suitable, treatment for that program and the second just straight out says that the defendant undertake and complete the sex offenders program.  Did Your Honour have a preference as to which one remained?

32HER HONOUR:  No.

33MS VERDON:  They undergo assessment in any event.

34HER HONOUR:  That's right and he has to under the CCO anyway, as well.

35MS VERDON:  Yes.

36HER HONOUR:  Yes.

37MS VERDON:  They'll be done at the same time.

38HER HONOUR:  So that's all right.  It doesn't matter which one.

39MS VERDON:  I'll just make those final adjustments.

40HER HONOUR:  Thank you and while you're doing that, Mr Tiwani, anything from you that I've omitted?

41MR TIWANA:  No Your Honour.  I missed the period of the recognizance release order in the sum of $1,000.

42HER HONOUR:  Two years good behaviour.

43MR TIWANA:  A recognizance release order in the sum of $1,000, to be of good behaviour for a period of two years.

44HER HONOUR:  That's right, yes.

45MR TIWANA:  Thank you.

46HER HONOUR:  There was no pre-sentence detention period, was there?

47MR TIWANA:  No.

48MS VERDON:  No.

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