Director of Public Prosecutions v Gottaas-Hughes
[2023] ACTSC 85
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Gottaas-Hughes |
Citation: | [2023] ACTSC 85 |
Hearing Date: | 3 April 2023 |
DecisionDate: | 21 April 2023 |
Before: | Baker J |
Decision: | See [97]-[103] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possession of child abuse material – act of indecency without consent – sexual intercourse without consent – production of child exploitation material – unbeknownst to victim at time of offending – offender and victim close friends – whether reduction of moral culpability by way of paraphilic disorder – consumption of pornographic material as a youth – reduction of moral culpability by way of youth of the offender – application of youth sentencing principles – good prospects of rehabilitation – importance of rehabilitation to community |
Legislation Cited: | Crimes Act 1900 (ACT) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Crimes (Sentence Administration) Act 2005 Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing) Act 2005 (ACT) |
Cases Cited: | Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Grange v The Queen [2023] NSWCCA 6 Howard v R [2019] NSWCCA 109 Hudson v The Queen [2020] ACTCA 46 Jurj v The Queen [2016] VSCA 57 Kannis v R [2020] NSWCCA 79 Mertell v The King [2022] ACTCA 69 Minehan v R [2010] NSWCCA 140 R v Ali (No 4) [2020] ACTSC 350 R v Aroub [2017] ACTSC 187 R v Ballantyne (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014) R v Barber [2021] ACTSC 78 R v De Simoni [1981] HCA 31; 147 CLR 383 R v Honeyman [2016] ACTSC 2 R v Horner [2023] ACTSC 23 R v Hutchinson [2018] NSWCCA 152 R v Middleton [2023] ACTSC 50 R v Newby [2022] ACTCA 20 R v Porte [2015] NSWCCA 174 R v Porter (No 3) [2022] ACTSC 236 R v Walker [2019] ACTSC 172 R v Yardley [2021] ACTSC 2 Yildiz v R [2020] NSWCCA 69 |
Parties: | ACT Director of Public Prosecutions ( DPP) Angus Gottaas-Hughes ( Offender) |
Representation: | Counsel M Howe ( DPP) K Ginges ( Offender) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Lawyers ( Offender) | |
File Number: | SCC 337 of 2022 |
Publication Restriction: | No publication of any information which identifies the victim or from which her identity could be discerned. |
BAKER J:
Introduction
The offender has entered pleas of guilty for the following offences:
(a)CC 5061/2022 – between 11 September 2017 and 12 July 2018, using carriage service to access child pornography material, contrary to s 474.19 Criminal Code Act 1995 (Cth)
(b)CC 5062/2022 – between 3 November 2021 and 15 November 2021 using a carriage service for child abuse material, contrary to s 474.22(1) of Criminal Code Act 1995 (Cth)
(c)CC 11745/2021 – on 7 December 2021, possessing child abuse material obtained or accessed using a carriage service – s 474.22A Criminal Code Act 1995 (Cth)
(d)CC 3317/2022 – on 17 January 2020, committing an act of indecency without consent, contrary to s 60(1) Crimes Act 1900 (ACT)
(e)CC 3318/2022 – on 24 April 2020, committing an act of indecency without consent, contrary to s 60(1) Crimes Act 1900 (ACT)
(f)CC 3319/2022 – on 19 August 2020, engaging in sexual intercourse without consent, contrary to s 54(1) Crimes Act 1900 (ACT)
(g)CC 5065/2022 – between 16 January 2020 and 20 August 2020, using a child (over 12 years of age) for production of child exploitation material, contrary to s 64(3) of Crimes Act 1900 (ACT)
The charges relating to the possession of child abuse and pornography material each carry a maximum penalty of 15 years’ imprisonment. The two acts of indecency charges carry a maximum penalty of 7 years’ imprisonment. The charge of sexual intercourse without consent carries a maximum penalty of 12 years’ imprisonment. The charge relating to the production of child exploitation material carries a maximum penalty of 10 years’ imprisonment.
The offender has not spent any time in custody referable to these offences to date.
Background
The offences
There are two distinct series of offences. The first series of offending relates to the access of child abuse material and child pornography (“the Commonwealth offences”). The second set of offending relates to sexual offending committed against a specific victim (“the Territory offences”).
The Commonwealth Offences
On 27 May 2021, the Australian Federal Police (“AFP”) received information through the Australian Centre to Counter Child Exploitation Agency relating to the suspected access of child abuse material by an Australian based internet user. Subsequent investigation revealed that user to be the offender. On 7 December 2021, the AFP executed a search warrant at the offender’s home. The offender was at home asleep. He identified himself and was cautioned.
During that search, the AFP seized a number of electronic and storage devices, including a Toshiba laptop computer, an Apple Macbook laptop computer, an Asus laptop computer, and an Apple iPhone 11 Pro.
Examination of the Toshiba laptop found 325 video files (of these, 24 files were duplicated) and 5 image files of child abuse material. These files were located in the ‘Downloads’ folder within the user profile ‘angus’. Police viewed one image file, which depicted a prepubescent female child victim alongside an adult male with an erect penis and what appeared to be ejaculate on the child’s face.
Examination of the Apple Macbook laptop found 166 video files (of these, 12 files were duplicated) of child abuse material. These files were located in the ‘Downloads’ folder within the user profile ‘angusgottaas-hughes’. Police viewed one video file, which depicted a prepubescent female child victim, who exposes her genitals and anus.
Examination of the Asus laptop found 207 video files (of these, 11 files were duplicated) and 663 image files (two were duplicated) of child abuse material. These files were located in the ‘Downloads’ folder within the user profile ‘Angus’. Police viewed one video file, which depicted an adult female engaging in sexual activity with a prepubescent child. Those acts included cunnilingus, digital penetration and masturbation.
Police also located 13 video files and 2 image files of child abuse material within the offender’s Google Account associated with his email address.
The Toshiba laptop and Apple Macbook laptop each had Virtual Private Network (VPN) software and TOR Browsers installed. A VPN is a private network which protects and anonymises a user’s online identity and can be used to avoid detection from government and policing agencies. A TOR browser is software designed to enable anonymous communication and conceal a user’s location.
Across all devices seized and analysed, police identified 670 image files and 711 video files of child abuse material. 1381 files were found in total. 663 of these files were computer generated cartoon files. The video files ranged in duration from 1 second to 1 hour and 12 minutes. Some of the file names were indicative of what the images and videos depicted, and described the ages of the children and the acts involved in graphic terms.
The child abuse material depicted male and female victims, ranging in age from 8 months old to 14 years old. Excluding the computer generated files, police estimated that the remainder of the files were split 50/50 between pre-pubescent victims and pubescent victims. The files depicted the children’s breasts, genitals and anuses, and involved vaginal, oral and anal penetrative rape by male and female adults. The files included child victims being involved in bestiality, urination, defecation and ejaculation. It is estimated that no less than 200 different children were depicted in the files.
No analysis was completed to determine which files had been viewed or accessed by the offender, or how many times they had been viewed or accessed.
The Territory Offences
In July 2019, the offender and the victim met at the Canberra Institute of Technology (CIT), where they were both were studying hospitality. At the time, the offender was 19 years old, and the victim was 16 years old. The offender and the victim became good friends and would regularly spend time together at each other’s houses.
When the AFP executed the search warrant, they also found videos that had been taken by the offender which depicted the offender committing sexual offences against the victim in the period between January 2020 and August 2020. Those videos depicted the following:
(i)On 17 January 2020, the offender and the victim were at the offender’s house. Between 3.54am and 4:01am, while the victim was asleep, the offender used his hand to spread the victim’s buttocks, touch her vagina and spread her labia. He also pulled down her top and exposed her breast and nipple. This act forms the conduct for the first act of indecency (CC 2022/3317).
(ii) On 24 April 2020, the victim was asleep in a bed at the offender’s house. The offender pulled down the victim’s top to expose her breast and nipple. This act forms the conduct for the second act of indecency (CC 2022/3318).
(iii) On 19 August 2020, the victim was asleep in a bed at the offender’s house. The offender pulled down her pants to expose her vagina and anus. He proceeded to touch and digitally penetrate her vagina and then digitally penetrated her anus. The vaginal penetration was for four seconds. The anal penetration was for one second. This conduct forms the sexual intercourse without consent charge (CC 2022/3319).
The filming of the above conduct constitutes the charge of using a child for the production of child exploitation material (CC 5065/2022).
The offender’s interview with police
During the execution of the search warrant, the AFP conducted an interview with the offender.
In that interview, the offender acknowledged that there was child pornography on his computers. He said that he knew that accessing and possessing child abuse material and child pornography was illegal. He agreed that he has previously installed anonymising applications like a VPN on his computers.
The offender said that he first accessed child abuse material and child pornography about five years ago and said “I guess I haven’t broken the cycle”. He said that he preferred watching girls aged 13, 14, “maybe 16 sort of stuff, maybe a little bit younger” in webcam type settings, because he did not like “the rape stuff”. He explained that he uses specific live streaming platforms which are dedicated to filtering and showing webcam type child abuse material and child pornography. He said that he uses these platforms to watch child abuse material and child pornography about once or twice a week. He said that he had paid 20 Euro to download 4GB of child abuse material and child pornography about 4 months previously, during the COVID-19 lockdown.
In relation to the Territory offences, police informed the offender they had found a video on his iPhone of a female in his bedroom. The offender provided police with the name of the female depicted in the videos.
The offender said the female was a friend of his who he had a “friends with benefits” arrangement with. He said she “had a kink for, um, being touched while she was asleep”. The offender also stated that she was not actually asleep at the times the videos were filmed and that they had drunk alcohol before going to sleep. Each of these assertions was false, as the offender now acknowledges by his plea.
Following the execution of the search warrant, the offender was arrested.
Police interview with victim
The victim subsequently participated in two Evidence-In-Chief Interviews (EICI) with police. Throughout these interviews, the victim explained that she and the offender had become close friends since they met while studying at CIT two years prior in 2019. The victim said that she and the offender would regularly attend each other’s houses and on occasions would stay the night.
The victim said the first time she stayed there was when she was 16 years old. She would stay at his house maybe once a month, and they would sometimes drink alcohol together. The victim said they were close enough friends that they would share a bed, but that she would always wear pyjamas.
The victim stated that she had never engaged in any sexual relationship or sexual activity with the offender. She stated that neither of them had ever attempted to pursue anything with each other beyond friendship. The victim also said that for most of the time she had known the offender, she had been in a relationship with someone else. The victim stated that she has never given the offender permission to engage in any sexual activity with her or to film her sleeping.
The victim also explained that the offender knew that at the time of the offending, she was 16 years old. They were both enrolled in a hospitality course at CIT which involved serving alcohol and tasting cocktails. The victim was not allowed to participate in the sampling of cocktails due to her age. The victim was the only member of the class who was not allowed to participate.
Victim Impact Statements
The Court received a Victim Impact Statement from the victim, who read the statement aloud at the sentence hearing.
The statement eloquently outlined the devastating impacts the offender’s actions have had on her life. She described experiencing ongoing pain not only from the trauma of being sexually assaulted, but also from the betrayal of trust resulting from these acts being committed by her best friend, in a house that she regarded as a “second home”. She explained that she now suffers ongoing anxiety and interpersonal issues with friends and family because she can no longer trust those close to her. She said that although she has been praised by others for appearing strong, beneath the surface, she “was truly broken, a type of broken that unless you have felt, you could not comprehend” and has been surviving on “autopilot”. She told the offender that she is “forever wishing to have a day where I don’t think or feel the pain you have inflicted” and “the dreaded fear that this could happen again.”
The Court also received Victim Impact Statements from the victim’s mother, partner, and cousin. All three statements describe the emotional harm suffered by the victim as a result of the offending. All three statements make clear the offender’s actions have not only impacted the victim and will continue to impact her in future, but have also had harmful impacts on those who are close to her.
Subjective circumstances
The offender’s subjective circumstances are set out primarily in the Psychological Report of Dr O’Dea received by the Court dated 28 March 2023. The Court also received a Pre-Sentence Report in relation to the offender dated 28 March 2023, and a Treatment Report of Dr Torres dated 31 March 2023.
Background
At the time of the interview with Dr O’Dea, the offender was 23 years old. He has no prior convictions.
The offender was born and raised in Canberra. He is an only child. He has lived in the family home all his life and works at the business owned by his family. The offender has positive and supportive relationships with both his parents.
The offender did not have any significant problems in his early childhood development. However, the offender was bullied in high school. He told Dr O’Dea that the bullying had started in year 7, when he was new to the school. It was mostly cyber bullying, and continued until his later school years. The offender experienced anxiety when he was 14 years old and had subsequently engaged in a period of self-harm. He saw a school counsellor at that time. The offender did not have any close friends until year 12, when he was invited to play for the school’s rugby team. He made some friendships amongst this group, which he maintained until his arrest.
After completing high school in 2017, the offender enrolled in a Certificate 3 in Hospitality at CIT. He also worked at an Italian restaurant in 2019 before COVID-19, and after this, returned to work at the family business.
The offender reported using illicit substances in high school, including psychedelics, dissociatives (such as ketamine), cannabis and alcohol. The offender started drinking alcohol in Year 10 and engaged in binge drinking from his late teenage years to his early twenties. The offender told the Pre-Sentence Report author that his drug use became problematic, and he experienced mood swings and depressive episodes. The offender stopped smoking cannabis after his arrest and has also significantly reduced his alcohol consumption. He now only occasionally has one beer after work.
Background to the offending
The offender commenced gaming and accessing internet pornography on his iPad from when he was about 12 or 13 years old. He told Dr O’Dea that he would participate in gaming and accessing internet pornography from his younger teenage years for “as long as he could”. This was mainly on weekends, as he was not allowed to game mid-week. He said that he became “pretty addicted” to both activities.
The offender explained to Dr O’Dea that his goal was to connect with females and find friends. He said that he did not realise “at the time that a lot of the time it was older men posing as females”. The offender said he became interested in child pornography when he saw naked girls his own age. The offender said that as he got older, he would access internet pornography approximately every second day for 10 – 20 minutes at a time. The offender told Dr O’Dea that he had limited sexual experiences with females in real life.
In relation to the Territory offences, the offender told Dr O’Dea that at the time of the first offence he had known the victim for four or five months. He said that they both got “really drunk”, and he “gave in and sexually assaulted her” whilst she was asleep. In relation to the second and third offence against the victim, the offender said on both occasions they had been drinking and had possibly also taken drugs. The offender acknowledged that his statement to the AFP that he had a “friends with benefits” relationship with the victim was false. The offender explained to Dr O’Dea that he had “panicked and said some bullshit”.
Diagnosis
Dr O’Dea did not diagnose the offender as suffering from a major psychiatric illness. However, Dr O’Dea stated that the offender met the psychiatric diagnostic criteria for a paraphilic disorder and paedophilia. Dr O’Dea was also of the opinion that, based on the offender’s specific attraction to female children between 14 and 16 years, the offender also meets the criteria for heterosexual hebephilia (although Dr O’Dea noted this is not a formal psychiatric diagnostic classification).
Dr O’Dea also discussed a number of the offender’s subjective features including the offender’s history of substance use; of being a victim of bullying at school; his increasing engagement with internet gaming and pornography throughout his childhood; and his history of problems with social and sexual development. Dr O’Dea continued:
As is becoming increasingly recognised in clinical settings; the ready access to internet pornography and other technological facilities, by males through their formative sexual years, and into adulthood; can and does have significant, and often negative, impact on their developing and subsequent sexuality; particularly in more vulnerable individuals, such as [the offender].
In respect of the sexual offences against the victim, Dr O’Dea stated:
Whilst [the offender’s] conduct in relation to the index sex offences against the 16 year old female may be better understood in the context of more general sexual deviance, including a sexual interest in non-consensual heterosexual activity; this conduct may also have been precipitated by [the offender’s] history of extensive internet pornography access, with the filming of this offending behaviour by [the offender] facilitated by the ready access to mobile phone cameras.
Treatment
The offender told Dr O’Dea that he had attempted suicide by drug overdose about two weeks prior to his arrest. He explained that he was “in a really bad place”, and that he “didn’t understand why [he] was attracted to young girls and stuff.” He did not speak to anyone at the time about the overdose. The offender is currently prescribed antidepressant medication. Dr O’Dea reported that the offender did not have suicidal ideations at that time. However, he has become “isolated” after his offending was reported in the media, and has lost most of his friends.
The offender attended ten psychology sessions January 2022 during which he undertook Cognitive Behavioural Therapy (CBT). Since January 2023, the offender has also attended weekly sessions with another psychologist, Dr Torres for further treatment using CBT. Dr Torres noted that the offender “has been diligent about attending his consultations to date and completing all between session tasks, including when this has proven quite challenging for him.” Dr Torres described the offender as being “motivated to address his behaviours” and says that although the offender was initially guarded, he now engages “freely and openly during sessions.”
In his report, Dr O’Dea expressed the opinion that the offender’s psychosexual issues were “clinically significant” and appropriate for “ongoing community psychiatric treatment and risk management”. Dr O’Dea recommended that the offender remain abstinent from alcohol and substance use and pornography access. He further recommended that the offender continue with psychiatric and psychological treatment for his sexual deviance, pornography use, paedophilic and hebephilic tendencies, and his non-consensual sexual activity with females. Such treatment should assist the offender to manage and minimize the risk of engaging in further similar behaviour, on the internet or otherwise.
Dr O’Dea noted there are no effective treatment programs for these conditions in custody. He also stated that if the offender is sentenced to a term in custody, his risk profile and treatment needs will be “unlikely to have been altered on his release from custody”. For this reason, in Dr O’Dea’s opinion, a community treatment plan would be the most likely effective intervention to treat the offender’s sexual deviance and minimising his risk in the long term.
Dr Torres is of a similar view. In her opinion, the offender requires ongoing mental health intervention to address his treatment and criminogenic needs. Dr Torres said these needs can be addressed in the community “through continued therapeutic engagement with [herself]”.
The author of the Pre-Sentence Report similarly assessed the offender as having “a low risk of general reoffending” but “an above average risk of sexual reoffending”. The author noted the offender has protective factors in stable accommodation, employment, family support, and engagement with mental health professionals on an ongoing basis. The author noted that he would be suitable for a good behaviour order with a high level of supervision and was also suitable for a community service work condition.
Character References
The Court received three character references in support of the offender.
The first letter was written by the offender’s parents. The letter makes clear that the offender has a loving and supportive family who care for him deeply. His parents describe the offender as a “gentle, kind and somewhat shy boy” who was bullied at school and “withdrew into himself.” His parents say that since his arrest he has become reclusive, such that “in effect he has been in home exile for about 16 months”. His parents say that the offender has since expressed sincere remorse and has become suicidal “as the enormity of what he did has begun to sink in.” They describe his participation in psychological treatment, and their hope that he will be able to continue this treatment in the community. His parents express concern that a custodial sentence “will destroy him”, given his gentle nature.
The second letter was authored by a close friend and neighbour of the offender’s parents. The author has known the offender since he was born. The author states that his offences are “so out of character for the sweet, shy, unfailingly polite young person we have known since birth”. The author has spent time with the offender since his arrest and states that he “can imagine no clearer expression of remorse on [the offender’s] part”. The author writes that the offender has stable employment and the support of his parents and community, and is confident with that support he “can turn his life around”.
The third letter is authored by another close friend of the offender’s parents. This letter echoes that of the second. The author writes that the conduct for which the offender is charged does “not fit with the quiet, respectful and gentle child – and young man – that I have known”. She also describes the offender’s strong family and community support network.
Letter of apology to the victim
The Court received an apology letter written by the offender to the victim. This was read by the offender’s counsel to the victim at the sentence hearing.
In his letter, the offender apologised to the victim for the harm he has caused the victim, her friends and family. The offender unreservedly apologises for his conduct towards the victim. The offender recognises his actions were “a grievous betrayal of [the victim’s] trust” and states that he will “regret for the rest of my life what I did to [the victim]”. The offender explains that he has taken measures to ensure this behaviour does not happen again by working with a psychologist and that he is committed to doing this for years to come. The offender wrote that he hopes the victim can recover and live “the happy and fulfilling life that [she] deserves”.
Sentencing Considerations
Objective seriousness
The Commonwealth offences
It is well established that the objective seriousness of offences involving child abuse material and child pornography is ordinarily determined by reference to the following factors:
1. Whether actual children were used in the creation of the material.
2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.
5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
8. The proximity of the offender’s activities to those responsible for bringing the material into existence.
9. The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.
10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.
11. Whether the offender acted alone or in a collaborative network of like-minded persons.
12. Any risk of the material being seen or acquired by vulnerable persons, particularly children.
13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
14. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act (for State offences) or s 16A of the Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.
See Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 at [94], as summarised in R v Hutchinson [2018] NSWCCA 152 at [45], (noting that in the ACT, the reference at point [14] to the Crimes (Sentencing Procedure) Act 1999 (NSW) should be replaced with s 7 of the Crimes (Sentencing) Act 2005 (ACT)).
In assessing the objective seriousness of an offence of possession of child abuse material, it must also be borne in mind that the possession of child abuse material creates a depraved market for the continued corruption and exploitation of children: R v Porte [2015] NSWCCA 174; 252 A Crim R 294 at [67]; R v Middleton [2023] ACTSC 50 at [21]. The absence of sale, distribution or dissemination of material does not mitigate the penalty for a possession offence: Porte at [66]. The possession of child pornography is not a victimless crime. On the contrary, because the material remains in the community, the offence creates significant ongoing harm.
The prosecution submits that the Commonwealth offences of possession of child abuse material and child pornography are moderately serious versions of their respective offence types. I agree with this assessment. The material was possessed for the offender’s own sexual gratification and the nature of the material involved real children, who were aged between 8 months and 14 years. The files clearly depict the children's breasts, genitals and anuses and showed the vaginal, oral and anal penetrative rape of the children by adult male offenders and adult female offenders. The files depicted child victims involved in bestiality, urination and defecation and children being ejaculated on. The offender was in possession a large number of electronic files, consisting of 670 images and 711 videos. The total duration of the video files was over four days and no less than 200 real children were depicted in the material. The files were possessed on three different devices. On two of these devices, VPN and other software intended to conceal the location and usage of the user, were installed.
Territory offences
There are four Territory offences with which the offender has been charged. Those are two counts of committing an act of indecency without consent; one count of sexual intercourse without consent; and one count of using a child over the age of twelve years for production of child exploitation material.
The first act of indecency was a moderately serious form of this offending. It involved a serious breach of trust against the victim and a close a friend of the offender. The offender was particularly vulnerable at the time of offending. She was young (the offender knew that she was only 16 years old) and she was asleep. This offence involved touching the victim’s buttocks and vulva. The second act of indecency was less protracted in comparison to the first offence, and involved the offender touching the victim’s breast. I note that both occasions were filmed on the offender’s phone. However, I have borne in mind that this aspect of the offending is the subject of a separate charge and I have not double counted this aspect of the charge.
I agree with the prosecution submission that the offence of sexual intercourse without consent was in the mid-range of objective seriousness. As with the act of indecency offences, the victim was asleep in the offender’s bedroom and vulnerable. The offending involved a serious breach of trust. The offender was a close friend of the victim. This offending was not isolated, it was the third instance of sexual offending against the same sleeping victim. The offending was relatively brief, and involved digital penetration of both the victim’s vagina and her anus. Digital penetration is no less serious than penile penetration: Jurj v the Queen [2016] VSCA 57 at [80].
The production of child exploitation material offence is a ‘rolled-up charge’ incorporating three separate instances of offending where the offender filmed the victim who was asleep. I accept the prosecution submission that the objective seriousness of this offence is slightly below mid-range. This assessment is made noting that the material was produced unbeknownst to the victim who was asleep, the offender had possession of the material for between 15 and 23 months, and the material was less offensive than other material often captured by this provision.
Guilty pleas
Territory offences (ss 35 and 36 of the Crimes (Sentencing) Act 2005 (ACT))
The offender pleaded guilty to all charges in the Magistrates Court on 13 December 2022. The prosecution accepted that the pleas of guilty were entered at a relatively early stage, though noted this was after an initial plea of not guilty and after the provision of the brief of evidence.
In respect of the Territory offences, the prosecution accepted that there should be a discount to the sentence given the utilitarian value of the plea, which spared the victim from giving evidence at trial. However, the prosecution also submitted that the case against the accused was “overwhelmingly strong”, and that, for this reason, any discount afforded for the guilty plea must be moderate: see s 35(4) of the Crimes (Sentencing) Act 2005 (ACT); R v Newby [2022] ACTCA 20 at [28] – [49].
In response, Mr Ginges, who appeared for the offender, submitted that the reason why the case against the offender was overwhelmingly strong was because he had assisted police, in particular, by identifying the victim. He submitted that the offender should receive an additional discount under s 36 of the Crimes (Sentencing) Act for this assistance that he provided to law enforcement authorities. Mr Ginges also submitted that whilst the offender initially pleaded not guilty, he pleaded guilty following representations being accepted by the prosecution and so the plea was entered “at the first reasonable opportunity”.
I will afford the offender a 25% discount to the sentence to be imposed in respect of the Territory offences. Whilst the case against the offender was strong, I do not accept that it was overwhelmingly strong in the absence of the information that the offender provided, including his mobile phone access code and the victim’s name. Whilst I accept that it may have been possible for police to identify the victim using other investigative methods, those methods may have necessitated at least part of the video being shown to friends and acquaintances of the victim in order to identify her. The information provided by the offender avoided this additional trauma.
However, I do not accept that any further discount should be afforded under s 36 of the Crimes (Sentencing) Act for assistance to authorities. Whilst the offender provided the victim’s name, he also lied to police about the victim’s consent by stating that the victim had a “kink” for being touched whilst asleep. As the prosecution submitted, these lies are “antithetical to what would normally be considered assistance”.
Commonwealth offences (s 16A(2)(g) of the Crimes Act 1914 (Cth))
I am also satisfied that a 25% discount should be applied to the Commonwealth offences. The pleas were entered in the Magistrates Court and have a benefit to the community in avoiding the need for a trial (s 16(2)(g)(iii) of the Crimes Act (Cth)).
Reduction of moral culpability: mental illness and youth
As outlined above, Dr O’Dea diagnosed the offender with paraphilic disorder, paedophilia, and heterosexual hebephilia (the latter not being a formal psychiatric diagnostic classification). I accept that these diagnoses have some, albeit limited, relevance to the assessment of the offender’s moral culpability: Grange v R [2023] NSWCCA 6 at [84] – [86]; Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [205] and R v Porter (No 3) [2022] ACTSC 236 at [194] and [196]; Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194 at [187].
As Mr Ginges submitted on behalf of the offender, the offender’s youth is of greater significance in the assessment of his moral culpability for both the Commonwealth and Territory offences. It is well-established that young offenders “lack the degree of judgment and self-control that is possessed by an adult”: Director of Public Prosecutions v TY (No 3) (2007) 18 VR 241 at [43]. Young offenders may also fail to appreciate the nature and seriousness and the “real consequences” of their criminal conduct: Azzopardi v R [2011] VR 372 at [34], citing DPP v SJK and GAS [2002] VSC 131 at [61], per Vincent JA. See also Spinks v Director of Public Prosecutions (Cth) [2021] NSWCCA 308 at [28] – [36].
In other words, as Simpson AJA and N Adams J held in Yildiz v R [2020] NSWCCA 69 at [2] (citing Howard v R [2019] NSWCCA 109 at [13]):
… the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20s.
As Mr Ginges submitted, these remarks resonate with the circumstances of the offender, who was just over 18 years old when he committed the Commonwealth offences and 20 and 21 years old when he committed the Territory offences. He had no prior convictions and had frequent exposure to internet pornography from age 12. The offender’s frequent exposure to child pornography at a young age occurred when he was too young to fully appreciate the insidious effects of child pornography or the devastating harm that it causes to its victims. The offences were committed whilst the offender was still relatively young. As discussed further below, in these circumstances I am of the view that the offender’s youth and frequent exposure to child pornography contributed to the offending conduct, and that his moral culpability for the offences is accordingly reduced.
Rehabilitation (s 16(2)(n) and 16A(2AAA) of the Crimes Act (Cth); s 7(1)(d) and 33(t) of the Crimes (Sentencing) Act (ACT))
The offender’s youth is also relevant to his rehabilitation.
Generally speaking, where an offender has a history of lengthy and frequent exposure to child pornography, and a diagnosis of paedophilia, the offender’s prospects of rehabilitation will be reduced, such that greater weight will need to be given to the need for specific deterrence and protection of the community: Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [40]; Beattie at [205].
However, the law recognises the potential of young offenders to be “redeemed and rehabilitated”: R v McGaffin (2010) 206 A Crim R 188 at [69]. As young offenders are still in a stage of cognitive and emotional development they may be more open to influence designed to positively change their behaviour in comparison with adults who have established patterns of anti-social behaviour: Azzopardi at [35]. The offender has already voluntarily embarked upon an intensive program of treatment in the community, and he is committed to that program (s 33(t) of the Crimes (Sentencing) Act).
In view of the offender’s youth, family support, his remorse (which is addressed below) and, most importantly, his commitment to rehabilitation, I am satisfied that the offender has good prospects of rehabilitation.
Remorse (s 16A(2)(f) of the Crimes Act (Cth); s 33(w) of the Crimes (Sentencing) Act (ACT))
Mr Ginges submitted that the offender’s cessation of offending against the victim after three offences reflected an acknowledgment that the offender knew that his conduct was wrong. I do not agree. The offender kept the videos of the victim on his phone and took no action to apologise to the victim during this time, despite his continued close friendship with her. The offender also continued to access child pornography up until the time of his arrest.
However, I do accept that the offender now has genuine remorse for his conduct. He has expressed sincere regret for his actions to his family, his treating psychologists, to Dr O’Dea and in the letter to the victim which was read to the Court. In his letter to the victim, he states that she was the closest thing that he had to a best friend, and that he doubts he will ever have such a good friend again. His regret for the enormity of the pain that he has caused the victim has led to him to suicidal thoughts.
The offender also recognises the harm caused by child pornography offences. He has expressed determination to never engage in such conduct again and is actively engaged with treating psychologists to ensure that he does not reoffend.
Comparative cases
In relation to the Commonwealth offences, the prosecution drew my attention to the decisions in Mertell v The King [2022] ACTCA 69; R v Barber [2021] ACTSC 78; R v Yardley [2021] ACTSC 2 and R v Honeyman [2016] ACTSC 2. The offender drew my attention to R v Horner [2023] ACTSC 23 and R v Walker [2019] ACTSC 172.
The sentences imposed in these cases included wholly suspended terms of imprisonment (Honeyman and Horner), an Intensive Correction Order (Walker), and partially suspended sentences (the sentence imposed in Mertell was a term of imprisonment for 30 months, with a recognisance release order after 12 months, whilst the sentence imposed in Barber was a term of imprisonment of 30 months imprisonment to be released after serving 15 months). The sentence imposed in Yardley was a term of imprisonment of 15 months. However, the present offending is considerably more serious than the offending in Horner. The offender in Horner had accessed a very limited number of sites, in a context where he was attempting to come to terms with sexual offending that he had been subject to as a child. On the other hand, it is to be noted that the offender in Horner was not young. Indeed, the offenders the subject of each of these decisions were adult males ranging in age from 35 years to 68 years.
In relation to the Territory offences, the prosecution drew my attention to the decisions in R v Aroub [2017] ACTSC 187; R v Ali (No 4) [2020] ACTSC 350 and R v Ballantyne (Unreported, Supreme Court of the Australian Capital Territory, Murrell CJ, 1 April 2014). The decision in Ali (No 4) concerns quite different offending. The offender in Ali (No 4) continued to sexually assault the victim after she woke and told him to stop. The offender was found guilty by a jury and convicted of one charge of sexual intercourse without consent, and two charges of committing an act of indecency. The offender received a sentence of imprisonment of 2 years, with a 9 month non-parole period.
Aroub and Ballantyne involved young offenders, aged 25 years old and 19 years old respectively, and both concerned opportunistic digital penetration of a sleeping victim. Both offenders came from a disadvantaged background. Neither pleaded guilty. The offender in Ballantyne was immature and did not have a prior criminal history. The offender in Aroub had a previous criminal history and committed the offences whilst subject to a good behaviour bond. The offender in Aroub was sentenced to imprisonment for 2 years, which was suspended after 6 months. The offender in Ballantyne was sentenced to imprisonment for 18 months, of which 6 months was served by way of periodic detention.
In addition to these decisions, I note that R v MT [2014] ACTSC 162 concerned a 25 year old offender who engaged in penile-vaginal intercourse with the victim whilst she was asleep. He pleaded guilty and expressed remorse and empathy to the victim. He was sentenced to a term of imprisonment of 2 years, with a non-parole period of 9 months.
Totality
Section 19(5) of the Crimes Act (Cth) creates a presumption of accumulation in relation to the Commonwealth offences (which are Commonwealth child sex offences within the meaning of that provision). Section 19(6) provides that the presumption does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all of the circumstances.
The prosecutor properly accepted there should be concurrency in the sentences relating to the possession and access of child abuse material, as these offences relate to the same material. However, the prosecutor submitted that there should still be some accumulation between the possession and access offences to reflect “the separate criminality” involved in each offence: Mertell at [20]. I accept this submission.
I also accept the prosecutor’s submission that the Territory offences should be partially cumulative on the Commonwealth offence because “they are offences of a different nature that relate to a specific victim”. I also accept that there should be some accumulation as between the Territory offences, which involved discrete incidents which occurred months apart.
However, the extent of accumulation in respect of each charge will be moderated to ensure that the overall sentence is just and appropriate, taking into account each of the sentencing considerations I have discussed above: s 16A(2) of the Crimes Act (Cth); Mill v R [1988] HCA 700; 166 CLR 59 at 62–63. In particular, I will moderate the extent of accumulation so as to ensure that the offender is “not subjected to a crushing sentence that is not in keeping with his…record and prospects”: Atai v The Queen [2020] NSWCCA 302; 286 A Crim R 1, citing Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 304 and 340.
Determination
This is a difficult sentencing task. As Mr Ginges submitted, the offences call into sharp focus various sentencing purposes, which “pull in different directions”.
The offender is young. He was just over 18 years old at the time of the commission of the first of the Commonwealth offences. He was between 20 and 21 years of age at the time of the Territory offences. He is now 23 years old. The law recognises that rehabilitation must carry significant weight in the sentencing of young offenders. It is in the community’s interest that young people who commit offences are supported in their rehabilitation. Effective rehabilitation will protect the community from further offending: Azzopardi at [35].
Further, as Mr Ginges submitted, in the present case specific deterrence is “intertwined with the increased significance of rehabilitation”, both because of the offender’s youth and because of the need for psychiatric intervention to address his paraphilic tendencies. Regrettably, there are no appropriate programs available to address the offender’s risk of re-offending in custody. The offender has already embarked upon a course of intensive intervention in the community. The need for the offender to continue these intensive psychological and psychiatric interventions is an important consideration in the sentence to be imposed. I also bear in mind that imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated: Azzopardi at [36]. In particular, I bear in mind that the conditions of custody mean that offenders “have no real opportunity to learn to live as members of society”, and that the imposition of a lengthy sentence may seriously impair the offender’s personality: R v Dixon (1975) 22 ACTR 13 at 19 – 20.
Finally, for the reasons outlined above, I accept that the offender’s moral culpability for each of the offences has been reduced to some degree. As outlined above, the offender was first exposed to pornography when he was 12 years old. At the time, the offender was a child himself and was viewing pornography of girls his own age in chat rooms. He became addicted to pornography at an age where he had limited awareness of the harm that is wrought to the victims of those offences, or the risk to his own sexual and moral development that child pornography carried. As the offender matured into an older teenager and then an adult, his pornography consumption did not mature with him. I accept that there is some reduction of moral culpability that arises from this history, and that general deterrence carries less weight in respect of the offender than would be the case for an offender who first started accessing child pornography as an adult.
I also accept that there is some connection between the offender’s consumption of pornography as a child and the sexual offending against the victim. In particular, I accept that the offender’s attitude towards sexual relationships has been distorted by the child pornography that he first commenced consuming at a young age.
However, one cannot lose sight of the seriousness of the offences. The offending against the victim has caused significant harm. The offending was not isolated. He offended against the victim on three separate occasions. The offender’s acts constituted a significant betrayal of his close friendship with her. As the victim powerfully described, his acts have affected every aspect of her life. The offending, which occurred when the victim was only 16 years old, has profoundly impacted her relationships with friends and family. In particular, the knowledge that her faith in the offender was misplaced causes her to question every other relationship in her life. The pain that he has caused the victim has rippled throughout her family and friends. A sentence must be imposed which recognises the harm that the offender has caused and denounces the offender’s conduct. Although he is young, the offender must be held accountable for his conduct and the harm that he has caused: Azzopardi at [34].
The offences of possession of child pornography are also serious. The Commonwealth Parliament has recognised the gravity of offences of child pornography in both the maximum penalties imposed and in the requirement that a sentence of full-time imprisonment be imposed for all but exceptional circumstances. As stated above, offences relating to child abuse material and child pornography create a market for this material. The harm done to children exploited is profound, and is exacerbated every time the material is accessed.
Acknowledging the seriousness of the offences, Mr Ginges recognised that a period of full-time custody may be appropriate, but nonetheless urged me to consider imposing a sentence that did not incorporate a period of full-time custody. In my view, a sentence of full-time custody is required. No other sentence would meet the need for denunciation and recognition of the harm caused by each of the offences.
However, in view of the offender’s youth and history, I will order that the term of imprisonment be suspended after a period of full-time custody. The full-time custodial component of the sentence will reflect the minimum period that the offender should receive in custody having regard to all of the circumstances of the case: Kannis v R [2020] NSWCCA 79 at [311] (Johnson J, N Adams and Ierace J agreeing). This will enable the offender to renew his community based treatment after that period of custody, which will best meet the need for rehabilitation, and through this, best achieve the protection of the community and the need for specific deterrence.
Orders
It is necessary to impose separate offences for the Commonwealth and Territory offending. The Commonwealth sentences will commence first: Hudson v The Queen [2020] ACTCA 46 at [57]-[59].
The sentences for the Commonwealth offences are as follows:
(a)In respect of CC 5061/2022, using carriage service to access child pornography material, contrary to s 474.19 Criminal Code Act, I will impose a sentence of imprisonment of 12 months, reduced to 9 months, to take into account the offender’s plea of guilty, to commence on 21 April 2023.
(b)In respect of CC 5062/2022, using a carriage service for child abuse material, contrary to s 474.22(1) of Criminal Code Act, I will impose a sentence of imprisonment of 12 months, reduced to 9 months, to take into account the offender’s plea of guilty, to commence on 5 May 2023.
(c)In respect of CC 11745/2021 – possessing child abuse material obtained or accessed using a carriage service, contrary to s 474.22A of the Criminal Code Act, I will impose a sentence of imprisonment of 12 months, reduced to 9 months, to take into account the offender’s plea of guilty, to commence on 18 May 2023.
The sentences for the Territory offences will be as follows:
(d)In respect of CC 3317/2022 – act of indecency without consent, contrary to s 60(1) Crimes Act 1900 (ACT) – I will impose a sentence of imprisonment of 6 months, reduced to 4 months and 15 days, to take into account the offender’s plea of guilty, to commence on 21 December 2023.
(e)In respect of CC 3318/2022 – act of indecency without consent, contrary to s 60(1) Crimes Act 1900 (ACT) – I will impose a sentence of imprisonment of 2 months, reduced to 1 month and 15 days to take into account the offender’s plea of guilty, to commence on 12 April 2024.
(f)In respect of CC 3319/2022 – engaging in sexual intercourse without consent, contrary to s 54(1) Crimes Act 1900 (ACT) – I will impose a sentence of imprisonment of 2 years, reduced to 18 months to take into account the offender’s plea of guilty, to commence on 26 April 2024.
(g)In respect of CC 5065/2022 – use child (over 12 years) for production of child exploitation material, contrary to s 64(3) of Crimes Act 1900 (ACT) – I will impose a sentence of imprisonment of 6 months, reduced to 4 months and 15 days to take into account the offender’s plea of guilty, to commence on 6 September 2025.
The overall effect of those sentences is that there is a total term of 2 years and 9 months.
The sentences imposed for the Territory offences will be suspended on 20 February 2024 (that is, after 10 months of full-time custody), upon him giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the balance of the term. The conditions of:
(i)The core conditions in s 86 of the Crimes (Sentence Administration) Act 2005 (ACT); and
(ii)The offender is to report to ACT Corrective Services located at Level 1, 249 London Circuit, Canberra City, 2601 by 4pm within five clear working days of his date of release.
(iii)A probation condition that the offender accept supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person delegated to supervise him for the balance of the term of the sentence or for such lesser period as the person supervising him deems appropriate, including to undertake such treatment or rehabilitation programs that the probation officer reasonably directs, in particular, programs specifically designed for sex offenders;
I note that if the Commonwealth offences had stood alone, I would have ordered that the offender be released on a recognisance prior to the expiry of those sentences. However, at the time that the Commonwealth sentences conclude, the offender will still be serving sentences for Territory offences. In these circumstances, I decline to make a recognisance release order in respect of the federal offences (s 19AC(4) and (5) of the Crimes Act (Cth)).
I order that, pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Director of Public Prosecutions (and with consent of the offender’s counsel), the following items are forfeited to the Commonwealth:
(iv)Item 1: Toshiba laptop computer subject of Property Seizure Number 3642751/001
(v)Item 2: Apple Macbook laptop computer serial number FVFC406RM6KG
(vi)Item 3: Asus laptop computer serial number F9N0CV014737368
(vii)Item 4: Apple iPhone 11 Pro serial number C39ZG1W5N6Y5
| I certify that the preceding one hundred and three [103] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker Associate: A Gallagher Date: 21 April 2023 |
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