Director of Public Prosecutions v Harris
[2020] VCC 604
•12 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-02140
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW HARRIS |
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| JUDGE: | HER HONOUR JUDGE HASSAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 April 2020 |
| DATE OF SENTENCE: | 12 May 2020 |
| CASE MAY BE CITED AS: | DPP v Harris |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 604 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence — possession of child pornography — possession of child abuse material — plea of guilty — no criminal history — specific deterrence — general deterrence — denunciation— combined sentence — community correction order — sex offender registration
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269; Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; Boulton v The Queen (2014) 46 VR 308
Sentence: Total effective sentence of 6 months’ imprisonment and community correction order of 2 years
Section 6AAA declaration: 20 months with non-parole period of 10 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Mildenhall | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr P Dunn QC (For Plea) Ms G Boe (For Sentence) | Doogue + George |
HER HONOUR:
1Andrew Harris, you have pleaded guilty to one charge of possession of child pornography, for which the maximum penalty is a term of imprisonment of 10 years, and two charges of possession of child abuse material, for which the maximum penalty is a term of imprisonment of 10 years. The charges are, in effect, the same. The wording of the charge has merely been altered to better reflect the true nature and gravity of the offending.
2You have no prior criminal history and no pending matters.
3Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’. In brief, the circumstances of your offending were as follows.
4On 31 October 2018, Australian Federal Police Child Protection Operations investigators were notified of a Tumblr account publishing images that were deemed to be child exploitation material, depicting prepubescent females. The account user was registered as ‘hjkenny28.tumblr.com’. Investigators were able to link this user address to you.
5Investigators reviewed the material uploaded by the account. Between 25 September and 27 October 2018, 44 images and videos were uploaded. On 22 November 2018, the images were reviewed and were categorised as follows:
a) in category 1 of child exploitation material — that is, no sexual activity — there were 14 images or videos;
b) in category 2 of child exploitation material — that is, child in non-penetrative action — there were three images or videos;
c) in category 3 of child exploitation material — that is, adult non-penetrative — there were five images or videos; and
d) in category 4 of child exploitation material — the category that involves a child and adults in penetrative acts — there were 18 images or videos.
6That’s a total of 40 images or videos.
7On 17 June 2019, a search warrant was conducted at your address. A number of electronic devices were located at the address and seized by the police, including a silver iPad. Investigators established that the Tumblr application was installed on the seized iPad with the user hjkenny28.tumblr.com utilised on that device.
8Investigators reviewed the material obtained from the Apple iPad and located 169 images and 170 videos. They are categorised as follows:
a) in category 1 of child exploitation material (no depicted sexual activity), there were 12 images;
b) in category 2 of child exploitation material (child, non-penetrative), there were two;
c) in category 3 (adult, non-penetrative), four;
d) in category 4 (child and adult in acts of sexual penetration), 76;
e) in category 5 (sadism or bestiality), two; and
f) in category 6 (animated or virtual), 24.
9There was a category 7 (non-illegal but connected) and there was some adult pornography, but I discard that. That is 120 images or videos of child exploitation material.
10The 170 videos located on the iPad were classified into categories and the duration of the material in each category was as follows:
a) in category 1, there was 40 seconds;
b) in category 2, there was four minutes and 17 seconds;
c) in category 3, there was 39 minutes and 26 seconds;
d) in category 4, there was seven hours, 53 minutes and 59 seconds;
e) in category 5, there was 13 minutes and 11 seconds; and
f) in category 6, there was 12 minutes and 14 seconds.
11You also viewed around 13 hours of adult pornography, but that is not a part of this charge.
12Investigators reviewed the internet search history and viewed topics on the devices. The following is a brief sample of the search items found.
a) ‘Nude kids at DuckDuckGo’;
b) ‘30 Top nude children pictures, photos and images’;
c) ‘Kids at nude beach and camping’;
d) ‘Naked kids on Flickr’;
e) ‘Nude Thai kids’;
f) ‘Nude families’;
g) ‘Nude young Thai families’;
h) ‘Nude family fuck in pool’;
i) ‘Real Incest’;
j) ‘Father daughter and mother fucking in real incest video’;
k) ‘Young nudist boys and girls’;
l) ‘Daughter fucks for iPhone -Xhamster’;
m) ‘Dad fucks sleeping step daughter’;
n) ‘Xhamster- Step father gives a fuck’;
o) ‘Xhamster- Skinny step daughter gets what she wanted’;
p) ‘Naked preteen Thai girls’;
q) ‘Real incest nudist families video’; and
r) ‘Shocking family nudity’.
13A number of other searches were also conducted related to the following topics:
a) torrenting sites — that refers to methods of downloading materials;
b) adopting children from Thailand; and
c) concealing and anonymising online activity, for example:
i.‘Delete your activity – iphone and ipad’;
ii.‘How to check whether your web connection is secure’;
iii.‘How to be more anonymous online’;
iv.‘How to set up your devices for privacy protection’;
v.‘How to choose a good VPN’; and
vi.‘How to send messages in private’.
14I turn now to your record of interview.
15You were arrested on 17 June 2019. A recorded interview was conducted at the Pakenham police station on the same date. During the interview, you told the police that you socialised on social media. You said that you may have had a Tumblr account, but you do not normally use it. You said that you downloaded the Tumblr account years ago. You said you used the Tumblr account for photos and to participate in groups in which you were interested, such as wildlife groups. You denied knowledge of the email address [email protected] and the Tumblr account hjkenny28.tumblr.com.
16In relation to the Tumblr account allegations, you made no comment. In relation to whether anything would be found on the seized devices, you made no comment.
17You pleaded guilty to the charges at the committal mention on 25 October 2019. This is a plea at the earliest opportunity. Your plea has utilitarian value, as it has saved the community the cost of a trial. I accept the submission made on your behalf that its utilitarian benefit is of heightened value in the present situation of extreme stress upon the administration of criminal justice in this state caused by the COVID-19 pandemic. It matters not whether the plea was entered before this situation arose. Its effects are ongoing. By virtue of your plea, you acknowledge your criminal responsibility for your actions, and I am also prepared to accept that it is indicative of remorse on your part.
18I turn now to your personal circumstances.
19You were born on 21 June 1972 and are currently 47 years old. You are married and you live with your wife in Pakenham.
20At the time of the offending, you were employed by Metro Trains as an authorised officer and you were a volunteer lieutenant with the Pakenham Country Fire Authority (‘CFA’). Following your arrest on these charges, you resigned from the CFA and were stood down without pay from your employment. You are presently employed as a freight driver.
21Your mother and your father separated only months after your birth. You and your mother then moved in with her parents (your grandparents). Your only contact with your biological father was a meeting with him in 2001, only weeks before he died.
22When you were one year and eight months, you and your mother moved to live in housing commission units in Girgarre, where you attended kindergarten and primary school, and you started secondary school there.
23Your mother remarried when you were 12 years old, and you were 13 when the family moved to Traralgon, where your sister Jodie was born in 1986. You left secondary school in 1988 and obtained an apprenticeship at Telstra, a company for which you worked for 20 years.
24You started to experience health problems when you were only around seven years of age. This coincided with you gaining weight.
25In 1988, when you were 16, you were diagnosed with kidney disease and high blood pressure.
26Your involvement with the CFA began when you were 17 years old. Over the years, you have attended at a number of bushfires and other disasters as a CFA volunteer. You were awarded the Australian National Medal and National Emergency Medal for your services during the 2009 Black Saturday fires.
27You were married for the first time when you were 20 years old in 1993. You lived with your wife in Narre Warren. Your son was born in December 1995. You separated from your first wife in 1999, and she and your son went to live in Frankston.
28On 29 January 2004, when you were 31 years old, you had a kidney transplant. Your mother donated her kidney to you. You were off work for four months. A letter from Associate Professor William Mulley, from the Department of Nephrology at Monash Health, dated 27 March 2020, says you are currently doing very well with regard to your renal transplant, and your renal function is stable. You remain on a suite of medications to stabilise your renal function and to treat your other health conditions, which include type 2 diabetes, with which you were diagnosed in 2016. You have been, since your teenage years, obese, with a body mass index of 41.4, but you had gastric sleeve surgery in 2016 and have since lost over 20 kg. Generally speaking, you have had poor health throughout your life, requiring periods of hospitalisation, surgeries and time off work.
29In 2005, you began your second significant relationship. You and your partner bought a house together. This relationship ended in 2009 and you sold your house. In July 2009, you were made redundant after 20 years’ service at Telstra. You began work as a truck driver in 2010, and in 2014 you began your employment with Metro Trains as an authorised officer.
30In March 2011, you started your third significant relationship with a woman, Rebecca Deliseo. You moved in together sometime in 2012.
31Your son moved in with you and Ms Deliseo. Your son was gay and apparently this caused problems with Ms Deliseo. Your son moved out in acrimonious circumstances, and you and Ms Deliseo went on to separate in April 2016.
32You were by this time in some financial difficulty and needed to borrow money in order to set up a new home upon the breakup of your relationship.
33In May 2017, you met your current wife, Pooncharus Kaewkantha, whom you married on 20 July 2019. Your wife was unable to attend the plea due to the current restrictions on gatherings necessitated by the COVID-19 pandemic, but I was told by your counsel, Mr Dunn QC, that your wife was in attendance at Court on the day of your plea and is supportive of you.
34A psychological report of Dr Mathew Barth, psychologist, was tendered at your plea. Dr Barth interviewed you on 27 March and again on 1 April 2020.
35On your sexual history, you told Dr Barth that you had had a series of unsettling sexual experiences from the ages of six to ten, when your aunt would sleep naked with you and rub up against you.
36You said you became sexually active at 18 years of age. You told him you used pornography since your mid-teens, but your use of pornography only became problematic after your separation from your partner in 2016. You told him you enjoyed watching pornographic material that featured an older man and a younger woman, and you began exploring increasingly deviant material which led you to viewing child abuse material.
37On the issue of your mental health, you reported to Dr Barth that you had suffered anxiety and low self-esteem since childhood. You described periods of depressed mood throughout your life. You told Dr Barth that there had been periods in your life when you had experienced intense anxiety and even transient suicide ideation. These periods included incidents you had experienced during your time at the CFA and a time when you were involved in a truck accident at work.
38You told Dr Barth that in the aftermath of being charged, you consulted with Mr Dylan D’Arcy, psychologist, for assistance and treatment, and subsequently commenced treatment at the Sex Offender Treatment Program with Mr Hanley at Central Melbourne Psychology.
39In a letter tendered at your plea from Mr Hanley, he confirms you have attended on him on 19 occasions since September 2019. He says you have made good progress and are willing to engage but, on the other hand, he says that you lack insight into your sexual interest in child abuse material.
40Dr Barth gives the opinion that you presented with depressive and anxiety-related symptoms of moderate severity, and that these symptoms were largely in reaction to the seriousness of your legal situation. It was not submitted on your behalf that Verdins principles were engaged;[1] correctly so, given the moderate and reactive nature of your current mental health issues.
[1]R v Verdins (2007) 16 VR 269 (‘Verdins’).
41Dr Barth considered you to be of average intelligence. He considered that your primary sexual attraction is directed to adult women. Dr Barth says of your viewing of child abuse material:
it was clear that Mr Harris had attributed a precocious sexuality to the girls depicted in the images and that this formed the basis of ‘cognitive distortions’ about them. These aspects point to the presence of psychosexual pathology.
42Dr Barth says of your treatment with Mr Hanley:
Mr Harris’ treatment remains incomplete. In particular, he continues to lack insight into the sexual motivations for accessing [child abuse material] and in the interview with me, [he] tended to minimise these issues. It is my view that he should continue his participation in specialist sex-offender treatment for some time yet. Completion of such a program is the single most important factor in reducing Mr Harris’ risk of recidivism.
43Dr Barth assessed you as a low-moderate risk of reoffending, based on positive factors such as your age, your lack of a prior criminal history, your good employment history, your capacity to sustain a long-term relationship, and having no mental disorder or significant personality pathology.
44On the negative side, there was your resort to pornography as a coping mechanism, and what Dr Barth regarded as your dysfunctional arousal patterns and cognitive distortions.
45I now turn to the submissions made on behalf of the prosecution and the defence.
46I begin with the defence. Mr Dunn, who appeared on your behalf, submitted that you had had a difficult early life, brought up by a single mother in commission housing. He submitted that, notwithstanding this and your poor health since childhood, you have had a productive life and have served the community as a volunteer, at times to the detriment of your own health and wellbeing.
47Mr Dunn submitted on the basis of your history and the psychological material tendered that your sexual orientation is to adult females. He submitted that this offending occurred at a time when you were subjected to a number of stressors beyond your control, including relationship breakdown with your then partner, difficulties with your son, and financial and workplace stress, and all of this in the context of your poor health and obesity.
48He submitted that your offending did not involve the transmission or sale of any of the material you viewed, nor the intention to do so. In other words, you were in possession of child abuse material solely for your own personal gratification. Mr Dunn submitted that many cases of possession of child abuse material involved the offender viewing significantly more material than you did.
49Mr Dunn submitted that you were a person of good character, that your plea was made at the earliest opportunity in the context of the COVID-19 pandemic, and that you were remorseful and had taken steps to address your offending behaviour and to rehabilitate.
50Mr Dunn relied upon cases in which a community correction order was imposed for this type of offending, and submitted that in your case a combined sentence of imprisonment followed by a community correction order may have been an appropriate sentencing disposition, but for the current circumstances whereby if you were to be imprisoned, because you are a transplant recipient, you would be at greater risk of contagion within the prison environment. In this situation, Mr Dunn submitted that it must be the case that, in order to protect you, prison authorities would have to subject you to an onerous quarantine regime. He submitted that this consideration must moderate any sentence imposed, to the point of precluding you from serving a period of immediate custody.
51Mr Dunn submitted, in accordance with the principles discussed in the case of Boulton v The Queen,[2] a community correction order in your case would be the appropriate disposition, such an order having both a punitive and rehabilitative component.
[2] (2014) 46 VR 308.
52Ms Mildenhall, who prosecuted, submitted that the possession of child abuse material is serious offending and is not necessarily mitigated by the fact that you did not produce or transmit such materials. Ms Mildenhall submitted that, while the material you viewed did not number in the thousands of images, this is not the sole criteria in assessing the gravity of the offending. Here, you offended over an extended time period, and you have sought out and viewed material, including viewing many hours of category 4 (child and adult penetrate) material.
53On the implications of the COVID-19 pandemic if you were to be sentenced to a term of imprisonment, Ms Mildenhall relies upon the letter of Associate Professor Mulley, stating that you are doing well in regards to your transplant and that your renal function is stable.
54She notes that, as yet, there are no reported cases of COVID-19 in the prison system and submits that, although you may be more vulnerable to the serious consequences of the virus, there are no materials before the Court to say that you would not be able to access adequate medical treatment in custody, and how your health would be managed in a custodial environment.
55Ms Mildenhall submitted that a term of imprisonment comprising of a head sentence and a non-parole period is the only appropriate sentencing disposition.
56I turn now to the relevant sentencing principles. In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of general and specific deterrence; that is, I must deter others from behaving as you did, and I must deter you from repeating such behaviour.
57I must express the community’s denunciation of your conduct and I must also promote, if possible, your rehabilitation. I accept, on the basis of your prior good character and lack of criminal history, your family support, your expressions of remorse and at least your participation in treatment, notwithstanding your thus far limited progress under treatment, that your prospects of rehabilitation are good.
58Specific deterrence is a relevant sentencing consideration, given the longstanding nature of your offending, and also because you still lack insight into your offending and into your sexual motivations for viewing child abuse material.
59General deterrence and denunciation are the primary sentencing considerations in this case, as in all cases involving child pornography. The possession of child abuse material is very serious offending. It matters not that you did not produce nor share nor profit from such material. Conduct of that kind would likely have resulted in other additional charges.
60What you have done is repeatedly and persistently sought out and viewed this material, and you have done so over a protracted period of time. You have looked at numerous images and viewed hours of footage of children being sexually abused for your own sexual gratification. Almost eight hours of the footage you viewed is of children engaging in acts of sexual penetration with adults.
61These are not victimless crimes. Children around the world are abused and exploited in order to satisfy a global market in viewing such material. You were an avid consumer of child abuse material. Your consumption not only involves the exploitation and degradation of the children you yourself viewed, but it perpetuates a market which leads to the further exploitation of children.
62The sentence I impose must unequivocally denounce your conduct and give effect to the law’s obligation to protect children from exploitation and abuse. I must ensure that you are adequately punished for your offending. As the Court of Appeal said in Director of Public Prosecutions (Cth) v Garside,
What is clear from all of the authorities is that access to child pornography is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending.[3]
[3] (2016) 50 VR 800, 819 [62] (Redlich and Beach JJA).
63I have taken into account that you are a person who is at greater risk of infection in custody and because of this you may be subjected to more onerous conditions in custody, and this consideration has moderated the sentence I am imposing.
64I did have you assessed for a community correction order, and you were assessed as suitable. However, while a community correction order is punitive in nature, its punitive element is insufficient to reflect the gravity of your offending.
65The current onerous conditions in prison cannot be permitted to overshadow the other factors in your case, which dictate that a term of immediate imprisonment must be imposed. Your offending is an extended course of conduct. As Ms Mildenhall explained in her submissions, your offending needed to be broken up into charges 2 and 3 only because of a legislative amendment.
66Weighing up all the relevant sentencing considerations as best I can, I intend to sentence you to a combined sentence of a period of imprisonment followed by a community correction order. It will be an aggregate sentence.
67On charges 1, 2 and 3, you are convicted and sentenced to six months’ imprisonment to be followed by a community correction order of two years’ duration. Upon completion of your term of imprisonment, you must attend at the Pakenham Community Correctional Services at 825 Princes Highway, Pakenham.
68There will be 200 hours of community work imposed. There will be conditions that you participate in treatment for mental health, and 100 hours of your participation in treatment may be credited as work hours for the purposes of the order.
69You will be subject to supervision by Community Corrections. Judicial monitoring will take place on 12 May 2021 at 9:15am in this Court. During the whole two years of the order, you are to report to your community corrections officer any change of address of where you live or work, and this is to be done within two clear working days of the change happening.
70Throughout the order, you are to attend supervised meetings as directed and allow visits as directed, and you must obey all lawful instructions of community corrections officers. You are not to leave the State of Victoria without prior permission of a community corrections officer and, above all, you are not to commit any offences which could result in a term of imprisonment.
71If you breach the order, either by not complying with any of the conditions or by further offending, you can expect to be brought back to the Court and, depending on the circumstances of the breach and how much of the order has been satisfactorily completed, you could have the order confirmed or varied, or it could be cancelled and you could be sentenced.
72Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of 20 months’ imprisonment with a non-parole period of ten months’ imprisonment. Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served nil days of pre-sentence detention of the sentence that I have passed upon you, and I direct that this be entered into the records of the Court.
73All of the offences are sch 2 class 2 offences for the purposes of the Sex Offenders Registration Act 2004 (Vic). Pursuant to s 6(1) of the Sex Offenders Registration Act 2004 (Vic), you are a registrable offender and, as per s 34, the reporting period is for life.
74I make the disposal order as applied for by the prosecution.
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