Director of Public Prosecutions v Gunatillake
[2017] VCC 1735
•22 November 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-01161
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMAL GUNATILLAKE |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 November 2017 |
| DATE OF SENTENCE: | 22 November 2017 |
| CASE MAY BE CITED AS: | DPP v Gunatillake |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1735 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Darby | |
| For the Accused | Mr A. Besiroglu |
HIS HONOUR:
1Amal Gunatillake, on 20 November 2017, you pleaded guilty to the following charges on the indictment; Charge 1, accessing child pornography material using a carriage service between 1 January 2016 and 29 December 2016. The maximum penalty for this offence is 15 years' imprisonment. Charge 2, knowingly possess child pornography on 29 December 2016. The maximum penalty for that offence is ten years' imprisonment.
CIRCUMSTANCE OF YOUR OFFENDING
2I turn to the circumstances of your offending. In September 2016, the Queensland Police identified an internet user who was suspected to be using a Russian file sharing website in relation to child pornography. The Queensland Police enquiry suggested the internet user was based here in Victoria and the matter was then referred to the Victoria Police.
3Victoria Police commenced an investigation. Checks on IP and email addresses identified you as the relevant internet user. On 29 December 2016, police executed a search warrant at your home. You were present during the search.
4A preliminary analysis of your personal computer revealed that it had been used to download both adult and child pornography and that it contained a large amount of adult and child pornography material. Police seized your personal computer and a number of external hard drives of varying brands and storage capacity.
5Subsequent forensic analysis of the seized devices revealed that child pornography was stored on your personal computer and an item called an ‘ICY BOX’ storage device, three external hard drives and an ASUS notebook.
6You were arrested and subsequently interviewed by police. In the course of the record of interview, you made the following admissions:
(1), that you had been viewing and downloading nude images of children on a daily basis;
(2), that you had downloaded the images from a nudism website and from other forums and using torrent software;
(3), that you viewed the child pornography on a daily basis, that after viewing images online you would save them on to your computer.
(4), there would be thousands of images on your computer.
(5), you mainly used torrent software to collect the soft stuff, being of nude children.
(6), that you had downloaded and viewed and saved ten child pornography files on the morning that you were arrested.
(7), that you had checked a nudism website two or three times a day for the new material and you would then save images of both adult women and of children from those websites.
7Sometimes in the forums you would click on links to explicit images of children, being aware of what those links would lead you to. You viewed child pornography to satisfy what you described as a sick craving in your head and you enjoyed looking at child pornography. The children depicted were usually between the ages of ten and 15 years old. You would masturbate whilst you were viewing that material and that you preferred nudist images and videos of children and would delete more explicit material and would not masturbate to it; however you still possess some files depicting sexual penetration of children on your computers.
8You had stored pornography in the folders called "P", firstly described as "for pictures or pornography" and you stored child pornography in a sub-folder called "C" which you said in your record of interview was for children.
9You have said in your record of interview, that you understood child pornography to be the obscene images of children exploited by adults and you felt urges to see young children in the nude but had never had the urge to touch or have sex with a young child.
10As I say and as I have said earlier, between 1 January 2016 and 29 December 2016, you regularly used the internet to access child pornography material. That is the basis for Charge 1.
11Charge 2, on 29 December 2016 you knowingly possessed a total of 167,739 images or videos of child pornography. The child pornography material and images were classified, according to the categorisation model for child exploitation material of the Australian National Victim Image Library, known as ANVIL. In total, the child pornography material possessed by you was categorised as follows:
12Category 1, which is non-sexual activity. There were 135,195 images.
13Category 2, which includes solo sex acts or sex acts between children. There were 32,065 images.
14Category 3, which is non-penetrative adult/child sex. There were 27 images in that.
15Category 4, there were 401 items in that category and that category includes matters of penetrative sexual activity between children only or adults and children and may include, but is not limited to, vaginal, anal intercourse, cunnilingus or fellatio, penetrative of sex toys and foreign objects.
16Thankfully, there were no items in Category 5 in your stored materials.
17Category 6, is anime or virtual imagery. There were 51 items in that category.
18In the course of the plea hearing, a representative sample of the child pornography material was handed up to me for the purpose of assessing the gravity of your offending. The sample showed very young children in sexualised poses and engaged in sex acts with other children or adults.
19The images are abhorrent and classically the abuse of children for the sexual gratification for people such as yourself. A civilised society demands the protection of children from this trade in images.
PERSONAL CIRCUMSTANCES
20I turn to your personal circumstances.
21You are now 30 years of age. At the time of these offences, you were 28 to 29 years old. You have previously been before the courts on a charge of affray.
22On 8 December 2008, at the Dandenong's Magistrates' Court on a charge of affray. You were ordered without conviction to serve a 12 month community based order with conditions of 150 hours of unpaid community work and mental health assessment and treatment. You were 21 at the time of that court appearance. This prior conviction is not directly relevant to the present offences but you do not come before this court as a person of unblemished character.
23Up to the day of your plea, you resided with your mother, sister and niece and nephew. In recent times, your father separated from your mother and has started another family. This breakdown in your parent's marriage has caused you to have feeling of anger and betrayal.
24You attended Tony Gee, Psychologist, to assist you through this difficult period in and around September of 2016. You have not told your father of these offences and their likely outcome for you. As a result of being charged with these offence, you lost employment and registration to be a childcare worker.
25You have worked part time with your father in his motor mechanic business to make some income since your arrest for these matters.
26You commenced your primary school education at Springvale Heights Primary School. In Grade 4, you changed your school to a Catholic school in Mulgrave. Your secondary education took place at Highvale Secondary College in Glen Waverley. You were an average student and successfully completed Year 12.
27After Year 12, you made unsuccessful attempts to increase your ENTER score so that you could apply for a multimedia course. You then commenced work in a catering department of a retirement. At your mother's suggestion and encouragement, you commenced a two year Diploma of Early Childhood Education at the Holmesglen TAFE. In your first year of this course, you continued with your catering job.
28In 2006, you were diagnosed as suffering depression. Dr Carlyle Pereira, Psychiatrist, prescribed Effexor for you and treated you for a period of some three to four years. In all of this time, you were accessing child pornography. You described it as an addiction. You never mentioned this addiction to Dr Pereira whilst he was treating you for depression.
29You commenced working at an early learning centre in the eastern suburbs and completed your Certificate III in Early Childhood Education. You worked at the early learning centre from approximately 2013 to 2016 when you were arrested for these offences. You lost your employment and accreditation immediately.
30You have had relationships with women of your approximate age in the period of 2012 onwards. These relationships did not last. Since your arrest, you have proactively pursued treatment to rehabilitate yourself for what you describe as being a closet paedophile.
31You have sought treatment from Matt Glover, counsellor. The treatment includes acceptance and commitment therapy in combination with cognitive behavioural therapy from him. Mr Glover provided two reports dated 2 June 2017 and 28 October 2017. Mr Glover describes your shame and remorse for this offending.
32He says you now acknowledge that your offending impacts directly on the children in the images you accessed or possessed. You have also received treatment for a sex offenders treatment program from a Dr Matthew Barth, Psychologist. A report from Dr Barth dated 5 November 2017 was tendered at your plea hearing.
33Dr Barth sets out your long-term issue with child pornography and opines that you need long term treatment to reinforce your recognition of the wrongfulness of your offending and to give you strategies not to relapse to this type of offending.
34Dr Bath confirms your shame and acknowledgement that your offending is a sickness and you need help from a specialist sex offenders treatment program at the earliest opportunity. I accept that you are ashamed and remorseful for your offending. I accept you have taken positive self-funded steps to commence your treatment for this offending. These are positive indicators for your rehabilitation.
SENTENCING CONSIDERATIONS
35I turn to sentencing considerations. Charge 1 is a Commonwealth offence, Section 16A of the Crimes Act (Commonwealth) 1914 sets out the central sentencing principles to be applied in your case.
36There are many factors I must take into account when sentencing you and they include the following:
(1), principles of general deterrence;
(2), the nature and circumstances of the offence including your moral culpability;
(3), the maximum applicable penalties to the charge;
(4), if the offence has formed part of a course of conduct consisting of a serious criminal acts of the same or similar character to that course of conduct, that is applicable here;
(5), the fact that you have pleaded guilty to the charges;
(6), the degree to which you have cooperated with the law enforcement agencies and the investigation of the offences;
(7), the deterrent effect of any sentence order made under the consideration may have on you personally;
(8), the need to ensure that you are adequately punished for the offence;
(9), your character, antecedents, age, means and physical and mental condition;
(10), the probable effect of any sentence or order under consideration might have on your family or dependents;
(11), your prospects of rehabilitation and;
(12), the fact that prison is a sentence of last resort.
37I have had regard to the sentencing practices for this type of offending across Australia in respect of Charge 1 and Victoria in respect of Charge 2. I have noted the bundle of case summaries which were helpfully provided to me by the prosecutor. I am also required to take into account the current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exhaustively, to the kind of sentences imposed in comparable cases and the statistics for those sentences.
38I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your cases as indeed they are from one another. Of course, current sentencing practices is but one of the many considerations I take into account when fixing your total sentence for all of your offending in this case.
39The objective seriousness of your offending is indicated by a number of factors. You have accessed and subsequently downloaded and possessed a large number of images. The number of those images is in excess of 167,000. A very large proportion of those images are in Category 1 of the ANVIL classification. You also accessed and possessed materials in Categories 2, 3, 4 and 6 of the ANVIL classification.
40You have pleaded guilty to accessing this pornographic material over a period of one year. You have used this material for your own personal sexual gratification. There is no evidence of your activities being for profit or distribution of this material.
41In essence, you are an end user in this market of depravity where young children are exploited and violated. In general terms, child pornography is a depraved, abhorrent and remorseless exploitation of young people who are the subject of videos and photographs. These children are manipulated by cruel adults who subject them to degrading and distressing experiences that affect their self-esteem, psychological well-being and their personal development.
42It is all done for profit. If there were no consumers or market for this material, there is no profit; hence, no effected children. Your criminal activity is the basis of the child pornography market.
43Possessing and accessing child pornography is a very serious offence. The maximum penalties reflect Parliament's intention in this regard. You have pleaded guilty to these charges and indicated your intention to do so at the first available opportunity. You cooperated with the police at the time of the search and at the time of record of interview.
44You plea of guilty has utilitarian value of allowing the orderly administration of justice, there was a certainty of outcome and a resolution of the substantive issues raises by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters. You plea vindicates public confidence in the legal process set up to protect the community.
45Your plea also indicates and demonstrates some remorse on your part. I regard your prospects of rehabilitation to be guarded but hopeful. You have sought out your own treatment. It is far better for the community if someone of your relatively young age that every step be taken to rehabilitate you. If rehabilitation is successful, you will be able to continue with your life.
46However, the basic purpose for which a court may impose a sentence on you, I must have regard to a range of factors as the seriousness of your offences, your culpability for them and your personal circumstances. I am required to balance the interests of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders such as yourself are rehabilitated and reintegrated into society.
47The prosecutor submitted that your offending calls for an immediate term of imprisonment. It was submitted that the considerations of general deterrence, specific deterrence and denunciation of your conduct were to be accorded full weight given the extent of your offending both by time and the quantity of child pornography material that you have possessed.
48Mr Gullaci submitted on your behalf that a term of immediate imprisonment combined with a community corrections order was a more structured way to punish you for the crimes but also to assist in the rehabilitation of you and hence further enhance the protection of the community in the future.
49In the period between your arrest and the time of your plea, you have embarked on a self-funded path of rehabilitation. You have 14 one hour sessions with Matt Glover, the counsellor. The treatment has included, as I have said before, a combination of acceptance and commitment therapy and cognitive behavioural therapy.
50Over the course of this treatment, you have to come to understand the impact of your offending on the children depicted in the child pornography materials. You are ashamed and remorseful for your offending. This treatment has been supplemented by treatment from Dr Barth. You have had a total of six therapy sessions with Dr Barth. The last session was on 13 November 2017.
51Dr Barth was of the opinion that you needed to complete a specialist sex offender treatment program at the earliest opportunity. Dr Barth has commenced a sex offender treatment program with you. Dr Bath had developed a relapse prevention program with you in that treatment. These efforts by you to seek out and participate in such treatment are positive indicators for your rehabilitation.
52On the other side of considerations for rehabilitation is the offending has taken place in the context of a long-term addiction to child pornography. In the opinion of Mr Jeffrey Cummins, psychologist, you attract a diagnosis of hebephilia and most probably paedophilia, reflective of your interest in child pornography. Mr Cummins has assessed you in respect of current risk of committing a further sexual offence involving an underage person as low to moderate. I note for completeness that at the time of this offending, you were employed as a childcare worker.
53I accept Mr Gullaci submission that a sentence of imprisonment will weigh more heavily on you due to your symptoms of anxiety and depression as diagnosed by Mr Cummins. I also accept that there is a serious risk imprisonment will have an adverse effect on your mental health. These matters are taken into account in the final sentence in your case.
54The overriding sentencing principles in cases of child pornography offences are general deterrence and just punishment. In your case, specific deterrence is relevant due to the length of time of your charged offending and your acknowledge attraction to such material.
55The totality of your offending calls both for some immediate punishment in the form of imprisonment to be served immediately and a community corrections order with conditions of mental health assessment, supervision and child sex offender programs to directly address your offending. You have been assessed for a CCO and are suitable. I note that you are assessed as a low-moderate risk to reoffend according to Mr Cummins.
56As you will be serving a term of imprisonment, I do not think it appropriate for a condition of unpaid community work in your CCO. The better rehabilitation will be if you obtain paid employment upon your release from prison.
57Allowing for the matters I have already outline, in my view it is appropriate to only impose the degree of cumulation to which I will subsequently refer reflecting as it does the different parts of your offending in this case. To do otherwise may produce a sentence which is not appropriate and is unjust.
58I have previously referred to the impact of your plea of guilty and I have taken into account that matter as I have outlined earlier.
59Would you stand please?
SENTENCE
60In respect of Charge 1, you are convicted and sentenced to 12 months' imprisonment. That sentence is to commence on 22 November 2017.
61In respect of Charge 2, you are convicted and sentenced to six months' imprisonment. Such sentence to commence on 20 August 2018. Further, you are convicted on that charge, Charge 2, and sentenced to serve a three year community corrections order which is to commence at the completion of your terms of imprisonment.
62The special conditions of the community corrections order are supervision, judicial monitoring upon your release, mental health assessment and treatment and that you attended as directed a sex offenders treatment program.
63That is a total effective sentence of 15 months imprisonment. Your pre-sentence detention is two days which will be deducted administratively from your sentence.
64Pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty I would have sentenced you to a straight sentence, totally, of three years and three months with a non-parole period of two years imprisonment.
65I order that you be placed on the sex offenders register for a period of 15 years pursuant to the provisions of the Sex Offenders Registration Act 2004. Both of these offences before this court are Class 2 offences under that act.
66I have declined to make a recognizance release order in respect of the sentence in Charge 1 because a sentence in Charge 2 will follow at the expiration of your federal sentence and there is an ongoing supervisory order in the form of a community corrections order which is part of the sentence in Charge 2.
67Was there anything else?
68MR DARBY: No, Your Honour, thank you.
69MR BESIROLGU: No, Your Honour.
70HIS HONOUR: Thank you. What we'll do now is I'll have a community corrections order prepared for you and I'll give it to your solicitor and he can approach and you can read it over and make sure you understand what it means. You can take a seat.
71Has someone checked the mathematics? Commencement dates? Yes. Thank you. Yes, that's fine.
72Thank you. Mr Gunatillake, two documents are coming - two sets of documents. One is a community corrections order and the other one is a Sex Offenders Registration Act order. That order has very restrictive application to you upon your release from prison and you have to comply with it. Be very careful to read all of it and understand what it means for you because breaches of the Sex Offenders Registration order will mean you come back before the court and, generally speaking, it involves more imprisonment. So be very careful about what that means, that order. Thank you.
73MR BESIROGLU: Thank you, Your Honour.
74HIS HONOUR: I'll make sure you get copies of these orders so it's clear, yes. I'm just checking Mr Gunatillake, do you acknowledge that you have signed this form for the Sex Offenders Registration Act?
75OFFENDER: Yes, that's correct.
76HIS HONOUR: Yes, and you understand what it means?
77OFFENDER: Yes.
78HIS HONOUR: Yes, thank you. Just before you go, Mr Gunatillake, sorry is there something you want to raise Mr Prosecutor?
79MR DARBY: There's no forfeiture orders sought but if I could just put on the record, Mr Gunatillake's consented to the forfeiture of his devices.
80HIS HONOUR: Certainly.
81MR DARBY: And I've checked the sentence and I don't see any issues with it.
82HIS HONOUR: Mr Gunatillake, you have got a hard road in front of you. The first part of it is 15 months' imprisonment but after that, you've still got a hard road in front of you because the viewing of child sex pornography over a long period of time is a very difficult addiction to break and you are going to have to really set your mind about it. So good luck with it. Thank you.
83Mr Darby, thank you very much for your assistance of the course of the two days of this proceeding and it's been of great assistance to me in order to wrestle with ‑ ‑ ‑
84MR DARBY: Thank you, Your Honour.
85HIS HONOUR: ‑ ‑ ‑ the matters I have to and I thank you very much for that and those that instruct you. And Mr Besiroglu, is that - have I got that ‑ ‑ ‑
86MR BESIROGLU: That's the correct pronunciation, Besiroglu.
87HIS HONOUR: Besiroglu, they always send along the hard workers to deliver the bad news.
88MR BESIROGLU: As the court pleases.
89HIS HONOUR: Thank you.
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