Director of Public Prosecutions v Harris (a pseudonym)

[2024] VCC 463

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEPH HARRIS (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2024
DATE OF SENTENCE:	12 April 2024
CASE MAY BE CITED AS:	DPP v Harris (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 463

REASONS FOR SENTENCE

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Subject:	CRIMINAL LAW
Catchwords:	Using carriage service to access child abuse material – possessing or controlling child abuse material – genuine remorse – strong pro-social support -
Legislation Cited:	Commonwealth Criminal Code; Sentencing Act 1991
Cases Cited:	-
Sentence:	9 months imprisonment, to serve 1 month imprisonment before released on a Recognizance Release Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Hogan	Office of Public Prosecutions
For the Accused	Mr S. Ginsbourg

HER HONOUR:

1I am going to take a somewhat unusual step in announcing actually what the sentence I am imposing will be because I know how very anxious everyone is.  Effectively, Mr Harris,[1] I am imposing a sentence whereby you will serve one month in prison and then you will be released on a recognizance release order, all right, and that will last for some period of time.  As I said I am very aware, as will become clearer in my sentencing remarks this is an unusual case all round in my view but in any event I did not want you having to wait right to the end.  Thank you.

[1] A pseudonym.

2Joseph Harris, you have pleaded guilty before me to one charge of using a carriage service to access child abuse material contrary to s474.22(1) of the Commonwealth Criminal Code and one charge of possessing or controlling child abuse material obtained or accessed during using a carriage service contrary to s474.22A(1) of the Commonwealth Criminal Code. 

3I attach the prosecution opening to my sentencing remarks but in very brief compass on 3 August 2022, you were found to be in possession of child abuse material in the form of data contained in 11 separate data storage devices located during a search of your home. 

4In total you had 7,407 illegal files and 3,347 unique images.  On a number of dates between 7 May 2022 and 3 August 2022 you accessed child abuse material using a carriage service.  Specifically you would use a Tor browser either on your mobile device or laptop to access sites on the dark web which contained the offending material.  That material was classified and described in detail in the prosecution opening.

5Undoubtedly some of that child abuse material was in the gravest and most depraved form including involvement of very young children and infants involving humiliating, abusive and generally abhorrent sexual actions upon these very young children, involving penetration, involving bondage and in summarising this offending and the summary is very brief.  I cannot emphasise too much the appalling nature of the material which you had downloaded and accessed.

6You participated in a record of interview in which you were extremely co‑operative.  You said you had owned one particular laptop for 18 months which no one else had access to. 

7You admitted acquiring the child abuse material from the dark web through the Tor network.  You told police you would access child abuse material twice a week but mostly on weekends.  You gave them your username; you told investigators they would locate a great deal of child abuse material on the devices and this was prior to their examination.  You said you obtained sexual gratification from viewing child abuse material, that you would visit one particular website daily for maybe 20 minutes a day and you understood that child abuse material was to quote from you 'anything that involves children or adolescents in any sexual form'.

8You were arrested on that day and were bailed and you pled guilty to the charges on the indictment at the third committal mention on 17 March 2023 which means you entered a plea at the earliest particular opportunity.

9May I say before I now turn to your personal circumstances, as always the material prepared by the Commonwealth DPP was extensive, enormously helpful and the submissions of considerable weight understandable and I am grateful for the assistance of the prosecutor in this case.

10As I have said however there are very particular circumstances relating to this case which have led me to reach the decision that I have in relation to the sentence.  As I have said I turn to your personal circumstances.

11You are the third of four children born to your parents and were raised in Narre Warren. 

12You told psychologist, Dr Mathew Barth whose report dated 6 March 2024 was entered on the plea, that although you were physically well cared for, the family did not discuss personal matters of any great intimacy and you grew up feeling a limited sense of emotional connection.  You said 'they were good parents and they did their best'. 

13Of particular significance in my view, you reported that you were sexually abused by your sister.  She was five years older than you and you said that abuse began when you were 10, persisted for approximately a year and only ceased when she moved out of the home.  That abuse also included penetration.  You also told Dr Barth you did not disclose the abuse to you ‘your intense shame and embarrassment' and felt unable to approach your parents at the time.  Your parents unfortunately only learned of this after you were charged with this offending. 

14You remain in close contact with your parents who I note have attended at court.  You also enjoy the support of another sister and brother but are estranged from a younger brother as a result of the charges that were brought against you.

15You attended a Christian school in Doveton and whilst did not suffer any literacy or numeracy problems, reported what Dr Barth described as pervasive social problems.  You had problems developing social connections with peers and you were bullied verbally and physically.  In particular you described your secondary school years as very unhappy.  You attended secondary school where the bullying became so severe that your parents, after unsuccessfully approaching the school on a number of occasions, and as I gather from one of the references considering legal action, decided to withdraw you from school altogether and to home school you from Years 9 to 11. 

16You then began working.  I note you have no prior convictions which is to your credit but additionally you have a commendable work history.  You have mainly been employed in the excavation and concreting industry.  You have a truck licence and excavator tickets.  You have been employed with your current employer for the past six years. 

17You told Dr Barth that the sexual abuse perpetrated by your older sister began with indecent touching and escalated to sexual penetration and that you found this very distressing and confusing.  As a result, you became shy and insecure about pursuing sexual relations as an older man.

18You had two short term relationships which were marked by significant issues with sexual intimacy and both relationships ended abruptly. 

19Fortunately for you when you were 23 you met your partner, Ms Peterson,[2] and have lived in a de facto relationship with her for eight years. She is a real estate agent. The two of you have a son, Ryan,[3] who is now aged seven.  Ryan, and I received medical material from Ryan’s paediatrician, suffers severe autism and ADHD.  It is quite clear on the material I have received that you are devoted both to your partner and to your son.  He attends a mainstream school but has intensive support and I note in the material from his paediatrician that because of this he has been able to progress significantly.

[2] A pseudonym.

[3] A pseudonym.

20You described Mr Peterson as your closest friend, confidant and main source of emotional support.  As a result of this offending, Child Protection became involved and you were forced to leave the family home.  Nevertheless, you have maintained daily contact with your partner and have engaged in supervised access with your son.  Your time in custody I note has been particularly concerning because of your inability to have contact with your son. 

21You told Dr Barth that you had first been exposed to pornography when you were about 13 which you accessed as you were curious about it and found it interesting and that you sought out material involving subjects of the same age as you and this was the first time you had viewed it.  You said you did not view it regularly at that age and in your mid-teens stopped using pornography altogether.  You then used mainstream adult erotic material on a sporadic basis, occasionally lapsing into viewing child abuse material in your adult years.

22However four years ago for reasons that you are unable to understand, you entered a period of depression and stress, were unable to articulate to Dr Barth any specific triggers but your involvement with pornography became more intense and you found yourself as Dr Barth put it, searching for more extreme images.

23Initially this took you to hardcore sites but from there you followed links to a number of genres including those depicting teens and then underage children.  This led you to seek out further examples of that type of material in the process and you told Dr Barth that you found yourself seek material that depicted progressively younger individuals as well as progressively more graphic content.  Dr Barth noted that you candidly acknowledged that you downloaded a Tor browser and accessed the dark web for the purpose of viewing child abuse material and admitted accessing increasingly deviant material and it was in this context that your offending occurred.

24Since your arrest you have ceased viewing all pornographic material.  You told Dr Barth you had no intention of ever resuming it and significantly insofar as this sentence is concerned you almost immediately took appropriate therapeutic steps to address the problems that underlay this offending.

25Drugs and alcohol are not an issue for you. 

26Turning to the heading of mental health history in Dr Barth's report, it is noted that you have had periods of sadness, inadequacy and anxiety since childhood.  Your formative years were significantly impacted by the sexual abuse from your older sister.  You were very ashamed of that experience. 

27You told Dr Barth that your anxiety and poor self‑esteem intensified when you were subjected to the extreme bullying I have described at school.  Dr Barth noted that your emotional difficulties continued in childhood which involved periods of depression and anxiety due to the continued memories of the abuse and 'generally experiencing a sense of self-loathing.  He told me that this culminated in regular periods of suicidal ideation'.

28Dr Barth believed that you dealt with this troubling and continuous psychological disturbance by trying to repress it, stopping yourself from thinking of it, telling no one and most importantly not seeking professional assistance.

29Since your arrest, unsurprisingly your emotional distress has increased and Dr Barth noted that this had also exacerbated your feelings of self-loathing and sadness and that 'he described intense suicidal ideation, however he noted that the thought of his son was the only thing that stopped him'.

30In August 2022, you began consulting Daria Sizenko, a psychologist, to whose report I will shortly refer and that is combined offence specific treatment with supportive counselling.  You also under a mental health plan consulted with Katya Kamysheva, a clinical psychologist, since December 2022 which treatment focused on the exploration of the impact of your sister's abuse upon you.  You told Dr Barth that you found the treatment confronting but were able to appreciate its benefits. 

31Again under the heading Background to the Offending, you told Dr Barth this occurred during a bout of depressive mood experience and that you began viewing pornography frequently as an escape and then gradually viewed more dysfunctional sexual material.  Dr Barth said you expressed:

'deep shame and remorse for his conduct.  He felt that he had sullied himself to the extent that his conduct had left an abiding stain upon him.  Beyond this Mr [Harris] was clear about the broader ethical implications of his conduct and the way in which his conduct had contributed to the abuse of those depicted in the images he accessed.'

32I depart from that passage to say that this is why Mr Harris, the sentence I have decided upon or the disposition is most unusual.  Child pornography inflicts the most devastating on its subjects.  It is generally inflicted upon children who are already born into circumstances of vulnerability by way of, usually poverty, they already face difficult lives.  Their lives are further twisted and made more painful by their exploitation in this appalling material which only continues because people either fail to appreciate the suffering, remove themselves from it, but in the process support this appalling abusive industry. 

33As I said these children will undoubtedly go on to develop life-long problems and they will mostly be in situations where they do not have the resources to seek any of the assistance that for example you were able to assist and their lives will generally be ones of unrelenting misery. 

34The court's role in sentencing persons who access child abuse material generally speaking must be a stern one.  It must be understood that offending of this kind has immense ongoing harm on the world's most vulnerable people, millions and millions of them, Mr Harris.  They have no choice generally and because of their youth other than to participate in the horrendous experience of being filmed while being sexually exploited.  What is almost worse in one sense is that filmed material exists forever and everywhere and that is something that they would come to realise as adults.  Therein lies the gravity of this offending whether you appreciated it or not at the time.

35Turning back to Dr Barth's report, Dr Barth stated:

'He expressed realistic empathy for the suffering of those depicted.  Mr [Harris] also sought to emphasis that "I don't want to use my abuse as an excuse for what I did".  Mr [Harris] stated "it's horrible, it's disgusting, after I watch it I felt so ashamed, I wish I knew why I kept going back to it"'.

36During his assessment of you over several hours, Dr Barth noted that your mental state was typified by what he described as “a sad and despondent mood, a pervasive sense of hopelessness about his future and a deep sense of shame.  Superimposed on these symptoms is Mr [Harris’] poor self-esteem.”  He noted that a particular concern was that you reported intrusive suicidal ideation.  He said that you continue to present as a psychologically vulnerable person and ultimately following testing he gave the opinion that you met the DSM-5 criteria for the diagnosis of a major depressive disorder with anxious stress, recurrent episodes of moderate severity.

37Importantly in my view, Dr Barth stated 'He remains at risk of further deterioration in his moods.  Continued psychological treatment is unequivocally warranted.'  Dr Barth described you, Mr Harris, as a person with limited ability to manage emotional distress, that you struggle to cope with interpersonal relationships and emotions and that you lack well-developed social skills.  He stated that you:

'find it difficult to make his needs and feelings known to his significant others and will typically withdraw rather than deal with the challenge of working through difficulties.'

38Hence it would seem you tended to resort to viewing pornography as some sort of escape from your own emotional distress.  Again, Dr Barth states:

'Thus when challenges have presented themselves in the past, Mr [Harris] has typically resorted to behavioural means to manage his stress rather than more mature approaches such as resolving them through discussion and compromise.'

39He stated at paragraph 43:

'Mr [Harris’] increasing recourse to pornography in more recent years is an example of a particularly problematic circumstances where his poor coping skills have led him to engage in a self-defeated act defeating acting out.  On the one hand his recourse to online pornography allowed him to escape from his concerns into an alternative world where his problems were irrelevant.  On the other he became more entrenched in the distorted world of online pornography which further impacted his interpersonal and sexual adjustment.'

40He noted that you express a clear orientation towards sexual interactions with adult women.  It is clear from the report that Dr Barth does not consider you paedophilic, but he did have concerns about your sexual adjustment given the material that you viewed.  He stated:

'At a primary level Mr [Harris’] experiences of sexual abuse were not only deeply distressing and traumatic but also contributed to intense confusion about sexual matters.  These early experiences provided Mr [Harris] with a very distorted framework for his sexuality and understanding of sexual intimacy.  Compounding matters his confusion about such matters has led to intense insecurity inadequacy.'

41Importantly, Dr Barth noted:

From my exploration of Mr [Harris’] response to the child abuse material accessed it was clear he had also attributed [this is at the time of viewing] a precocious sexuality to the girls depicted in the images and this formed the basis of cognitive distortions about them.  This in turn culminated in the deviant sexual arousal patterns which underpinned his offending conduct.

42In other words, your capacity to understand or appreciate the youth in particular of the teenage subjects of the material you viewed and undoubtedly those even younger was evident from Dr Barth's investigation.  That is despite your shame in viewing the material, you failed to appreciate the youth and vulnerability of the subjects of this material.

43Dr Barth noted the treatment you had received with Ms Sizenko and he stated:

'During the interviews with me it was apparent that Mr [Harris] has made good progress towards challenging dysfunctional sexual cognitions and developing a good relapse prevention plan.  He has also commenced work on addressing his issues with stress management and on developing more functional coping skills.'

44By that basically what he means, Mr Harris, is being open about your difficulties rather than repressing them and turning to more dubious sources of comfort as a form of escape.  He believed that despite this your insight into your behaviour remained limited and it was his view you should continue participation in specialist sex offender treatment for some time, saying this might be the single most important factor in reducing your risk of recidivism.

45Dr Barth tested you for the risk of re-offending and found you to be a moderate risk of re-offending in terms of viewing online pornography.  He did believe however that with the continuation of specialist sex offender treatment and support from your partner and family, your level of risk was likely to reduce.

46Under the heading Professional Opinion, Dr Barth stated firstly that you had suffered from periods of mood disturbance since your childhood and that your arrest for these charges has precipitated a particularly intense bout of depression with you focusing on guilty and shame for your offending.  He said that your symptoms were reflective of the distressing experiences from your personal history warranting the diagnosis that he gave. 

47He noted there was an appreciable risk that your mood could deteriorate under circumstances of further stress (that is goal) and he said there was a clear need for professional treatment.

48He noted your assertiveness skills were poor, that you tended to express distress and frustration through behavioural means.  He noted:

'Mr [Harris’] sexual abuse was very distressing and traumatic for him.  It also contributed to his intense confusion and insecurity about sexual matters which has persisted into his adult years.'

49He stated:

'While Mr [Harris’] dominant sexual orientation is towards relationships with adult women, his involvement in this offending clearly raises a number of concerns regarding his sexual adjustment.  These include a tendency to attribute a precocious sexuality to pubescent girls and the dysfunctional sexual arousal patterns and cognitions in response to the material he downloaded.'

50Dr Barth noted that significantly you had participated in extended treatment and made good progress.  Ultimately under Concluding Comments, it was noted that you required psychological treatment.  Dr Barth, who is known to these courts as somewhat of an expert in the field of sexual offending and the psychology behind it, stated:

'It should be noted that gaining insight into offending behaviour typically entails a very lengthy therapeutic process.  Mr Harris requires ongoing psychological treatment and support which addresses his mental health problems and also focuses on containing the factors which motivated his offending.'

51The current assessment indicated that the following components are essential to Mr Harris’ rehabilitation, they being a comprehensive mental health treatment to resolve the sexual abuse in your childhood 'which has underpinned his psychological problems to date'.  He recommends trauma focused cognitive behavioural therapy, supportive counselling and so forth.  He stated 'Additionally a significant focus on addressing Mr Harris’ poor self-esteem should be integrated into psychological treatment to the extent possible'.

52He also believed that treatment should focus on you gaining further insight into the factors which motivated your offending 'particularly within the context of his own sexual abuse and the impact this has had on his sexual adjustment'.

53He concluded, 'Provided Mr [Harris] can participate in the treatment he requires in a timely manner, I would consider his prospects for rehabilitation to be positive.'

54He based this on the fact that first, that whilst you had noteworthy problems there were well developed treatments available to address them.  Secondly, you enjoy the support of your partner in pursuing your rehabilitation.  Third, he described you as a sensitive man who brought these qualities as assets to your rehabilitation.  Fourth, you have a history of stable employment and secure accommodation, and finally your experience of the criminal justice system has been what Dr Barth described as 'profoundly aversive and is acting as a strong motivator for him to pursue constructive personal change'.  He concluded:

'Provided that this motivation can continue to be harnessed, the other factors enumerated above are such that I'd consider a degree of optimism to be warranted in Mr [Harris’] case.'

55I also had reference to the reports of the two other psychologists I have referred to.  Firstly, I have a report from Dr Kamysheva.  She noted that you attended on her between 24 May and 11 October 2023.  She noted that through the duration of therapy:

'Mr [Harris] reported fluctuating but persistent symptoms of suggestive of post‑traumatic stress disorder including re‑experiencing traumatic events, avoidance of triggering situations, exaggerated startle response, memory difficulties, negative self-beliefs related to traumatic memories, sense of disconnection of others and so forth.'

56She noted that the treatment included EMDR which is a trauma‑informed therapy.  She noted that during this time you did report an exacerbation of your anxiety and low mood symptoms and what she described as a reported elevated risk of self-harm.  She noted that generally speaking:

'My recommendation would be for a period of supportive psychological engagement focusing on trauma treatment.  However given Mr [Harris’] significant symptom burden and high anxiety, trauma therapy should be attempted only when you [she said] were ready.'

57I also received two reports from Daria Sizenko, psychologist, from you have been receiving psychological treatment since August 8, 2022,  that treatment continuing up until shortly before you were placed in custody at the time of this plea hearing on 5 April 2024.

58In her first report dated 23 June 2023, she noted:

'Mr [Harris] noted engaging with CAM on and off since he was a child himself, at the time finding he was unable to relate to mature bodies in adult pornography.'

59She noted retaining and continuing to use child abuse material intermittently as an adult form of escapism.  She stated:

'In later sessions Mr [Harris] also identified the materials allowed him to make sense of his own childhood experience being sexual abuse by his older sister.'

60Further, Ms Sizenko noted that in the early part of therapy with her maladaptive thought patterns were explored:

'with Mr [Harris] identifying minimization, downplaying the event, the severity of an event/behaviour and selective, focusing on a singular element of an activity event rather than the whole as being prevalent in his offending.  He cited at the time considering engagement with child abuse material to have little impact on anyone but him.  He added that although he would feel guilty after viewing child abuse material it provided him with an escape from stressors of his early life.'

61It would appear that you have attended around 30 appointments with Ms Sizenko.  Further it was noted that sessions focused on your understanding of the impacts of child abuse material on the subjects and enhancing empathy.  She wrote:

'Mr [Harris] expressed disappointment with himself for contributing to the abuse of children by engaging with the materials adding that he "should have known better" being a survivor of molestation himself.  Mr [Harris] was often emotional when discussing impacts of sexual abuse and saying "I wish I had got help earlier".'

62It was noted that you had not engaged with pornography of any kind since late 2022 insofar as adult pornography is concerned:

'noting no thoughts or urges being present since early 2023.  Mr [Harris] described such thoughts being absent as feeling "like freedom".'

63She described you as an active participant in the sessions, as being open and willing to discuss 'prior maladaptive thought patterns and offending behaviour'.  She said you readily engaged with and applied tools and strategies that were discussed in the sessions in between appointments and demonstrating improvements:

'in his insight into his struggles with mental health, accessing child abuse material and difficulties with coping and decision making.'

64In that time she noted your mood improved.  Turning to the later report she noted that there were some financial struggles leading to a cessation of sessions with her between November 2023 and March 2024.  On your return to therapy you noted you are able to self‑regulate your mood without resorting to pornography as you would have in the past.  She concluded 'Mr [Harris] continues to recognise that he would need to actively engage with risk recognition and management throughout his life'.

65I also received an amount of supportive material from your family and your partner.  Your partner in my view wrote what I regarded as an extremely impressive reference, describing her shock and horror at the discovery that you were regularly viewing this material, stating that she was very open with you about her own disgust and concern at your behaviour.  She said that you were open and forthcoming with her.  She was immediately flung into a distressing situation in terms of the family as a whole.  You were required to leave the home because it of protective concerns.  She wrote:

'I chose to stay with him.  Choosing to stay and support [Joseph] does not mean that I condone the crime he has committed and plead guilty to.  I stayed because he has shown genuine remorse, not just for his crime but for all the trauma he has caused us as a family.  [She stated] Since August 2022 he has spent his time doing everything he can to make sure he never re-offends and has committed to this.  [She stated] I stayed because our son adores him and he is an amazing father and partner.  I stayed because I am his partner, his fiancé.  If the tables were turned I would hope he'd support me as I have him.  He has hurt me more than anyone ever has however I believe he deserves a second chance.'

66She described you as her rock, best friend and partner and said she saw no reluctance or resistance to psychological treatment.  She wrote:

'In fact he was more than willing to do whatever it took to prove to me he's a good dad and partner.  [Joseph] has fought for us as a family by doing whatever I need to regain his trust.'

67In what I thought was a telling paragraph, Ms Peterson described the process of taking in of what has occurred (and noting that in my view you should have been) you have been extremely patient with her, describing it as 'He has put up with me being angry, sad and everything in between to help support me in return'.

68Of particular concern to Ms Peterson obviously is the financial support you provide to your family, the loss of your income would require a sale of the family home and most concerningly in the light of that a removal for Ryan from his school which given his extreme conditions I regard as a severe deprivation.  Ms Peterson stated:

[Ryan] would need to start over with a new psychologist, paediatrician, speech therapist and GP.  I would need to find another job, another employer who's understanding of our life situation and the demands of and ASD/ADHD child.  Without [Joseph’s] income support, [Ryan] and my quality of life would be severely impacted.'

69She noted that you had always been a devoted father, you had never posed any danger to your son, stating 'If I ever thought there was any danger for [Ryan] being around [Joseph], I would be the first to do something about it', noting her own traumatic background and experiences in that regard.

70I received letters from your brother, your family, I am satisfied you have strong pro-social support in the community which is a protective factor.

71It was noted that in offending of this kind there must be exceptional circumstances for a term of imprisonment to be immediately served not to be imposed and I accept and indeed it was conceded by the defence that there are no such circumstances.

72Again, I am aware particularly given the amount of material and the nature of the material accessed by you that this is a most unusual case but I am comforted that the circumstances and matters I have described would rarely apply to other persons offending in the way you have, Mr Harris. 

73Firstly, the offending although it is clear you have been accessing child abuse material on and off for a long period of time, relates to a limited period of time. 

74Secondly, it involved no dissemination by you and I regard that as an important factor.  None of that material was shared, none of it was sent to anyone else.  You did not involve in that particularly abhorrent behaviour of group sexual satisfaction over child abuse material.

75Thirdly, I am satisfied of your extreme shame and remorse over your offending to an extent that in my view the court does not often encounter.  That is marked by your immediate co-operation and frankness with police as soon as they came into your home.  You entered a plea of guilty at the earliest opportunity.  You have undergone expensive and extensive therapeutic treatment in order to address the issues that underlay your offending and I am satisfied from the materials tendered on your behalf that you have expressed that shame and remorse to a number of people and that it is indeed genuine.

76In my view the principles of Bugmy have application.  I am satisfied on the psychological material before me that the sexual abuse that you suffered largely underpinned the offending which has brought you here before a court for the first time.

77In my view that experience together with the extreme bullying that you experienced at school have led to a pervasive mental health disorder marked by depression and anxiety mixed with the sexual confusion you went on to experience following the abuse at your sister's hands.

78As such it is my view your moral culpability for this offending is markedly reduced.  I am satisfied that with continued therapeutic treatment your prospects of rehabilitation are sound.

79As I have said, you enjoy strong pro-social support, you have secure accommodation, you have the support of your partner, and I am also satisfied that you are devoted to your son.  I am satisfied that the experience of arrest and incarceration has been an extraordinarily salutary one for you.  I am satisfied that the mental difficulties you have suffered over the years have often culminated in suicidal ideation even prior to your arrest. 

80I am certainly satisfied that your incarceration would see you experience difficulties far greater than other prisoners not suffering from these conditions and would see a deterioration in your mental health condition, that is I am satisfied that the principles of Verdins have application in your case.

81I am also satisfied that the deprivation and difficulties suffered by your family which may be taken into account in a Commonwealth matter are of a high order.  I am satisfied that your devotion to your family has made you clearly aware of this and that their requirements and the possible repercussions they would have faced had you spent a lengthy time in imprisonment would also act as a deterrent to you returning to behaviour of this kind.

82Ultimately it is clear to me that the most efficacious way to ensure you do not re-offend in this way is to allow you access as soon as may be to the sort of therapy you have already been undertaking on a continuous basis.  I regard the extent to which you have attended upon therapeutic treatment for your offending as having involved considerable time and expense and indicates a sincere desire by you to reform not just because of the consequences of your apprehension by police but also because of a slowly dawning recognition of the harm this material does and also the extremely adverse effects your imprisonment would have on the prospects of your partner and highly dependent son.

83For all these reasons it is my view that I should deal with you in a way which would otherwise be regarded as overly lenient.

84I have had regard to other authorities referred to me by the prosecution.  In my view there are a number of distinctions that can be made in relation to nearly all of them, either the offending has gone for a longer period, has involved dissemination of material or has contained different factual bases relevant to the sentence imposed in that respect.

85As I have said, the confined nature of your offending (and I say that without in any way trivialising the gravamen of what you engaged in) l and the various other factors that I have referred to at length have led me to the decision that I should have dealt with you in the way I have described.

86Ultimately, in the case of each charge I am sentencing you to a term of nine months' imprisonment but order that you be released after one month; on you entering into recognisance to be of good behaviour for a period of two and a half years.

87There will be a surety attached to that of $5,000.  Now you do not have to pay that $5,000.  What it means is that should you offend in the next two and a half years, that will breach the recognisance order, you will be brought back before the court, you will be re‑sentenced on these matters and you will have to pay $5,000.  Do you understand that, Sir?.

88OFFENDER:  Yes, Your Honour.

89HER HONOUR:  Now can I ask, and I should know this.  Mr Hogan, can I attach a condition of seeking appropriate therapy?

90MR HOGAN:  Yes, Your Honour.

91HER HONOUR:  Yes and I am going to do that too, it would be ‑ ‑ ‑ 

92MR HOGAN:  I believe that it is a required condition that is imposed on the recognisance release order, that the Commonwealth introduced mandatory conditions that have to be imposed on recognisance orders.

93HER HONOUR:  All right can you, look I am not up to date with it, so what is it?

94MR HOGAN:  I have a draft, Your Honour, that has been used in all my other child sex offence matters.

95HER HONOUR:  All right.

96MR HOGAN:  And they include the mandatory conditions that have to be imposed.

97HER HONOUR:  Yes well I would like to, obviously I wish to impose those but I would like to identify, I take it you want to go back and see Daria, is that correct, Mr Harris?

98OFFENDER:  Yes, yes.

99HER HONOUR:  So can I nominate the psychologist?

100MR HOGAN:  Of course, yes.

101HER HONOUR:  Yes that would seem appropriate given she has been, well she has had almost 30 sessions with him and I want to make sure this continues.

102MR HOGAN:  Yes I agree, thank you.

103HER HONOUR:  All right then, thank you very much.  I would be grateful, what are the other, do you have the other mandatory conditions there?

104MR HOGAN:  I have the conditions here.

105HER HONOUR:  Can you tell me what they are please?  I would be grateful.

106MR HOGAN:  Yes so defendant be of good behaviour, that the defendant is to be under the supervision of the Deputy Commissioner of Community Correction Services and the sex offender management of his or her nominee for x amount of years.  If so directed by the Community Correction Services the defendant is to attend/undertake a complete sex offenders program within a period of x years.

107HER HONOUR:  Yes all right, I will have a look at all of that.  What I will do is ‑ ‑ ‑ 

108MR GINSBOURG:  Does there have to be a period for recognisance as well?

109MR HOGAN:  Yes.

110MR GINSBOURG:  So they are separate to the period of imprisonment.

111MR HOGAN:  Yes well there is the period of good behaviour.

112MR GINSBOURG:  Yes.

113HER HONOUR:  Yes so the period of good behaviour is two and a half years.  The term of imprisonment is nine months but with ordering a release and it begins today, ordering a release in one month.  What is the PSD?  Fourteen days or something?

114MR GINSBOURG:  It is more now.

115HER HONOUR:  I do not think it is.

116MR HOGAN:  I believe it would be, what was it on the last occasion?

117MR GINSBOURG:  Fourteen days the last time.

118MR HOGAN:  Your Honour, I do have the draft recognisance which I am happy to forward to Mr Ginsbourg and your associate.

119HER HONOUR:  Look what we will do is I will sign all that later and then I think does Mr Harris have to sign it as well?

120MR HOGAN:  Yes.

121HER HONOUR:  Yes all right well we will need to do that.  We know how to do that online, Mr Harris.  Do we know what the PSD is please because I do need to declare it.

122MR GINSBOURG:  It was from 18 March was the remand date.

123HER HONOUR:  Was that the day went he went in was it?

124MR GINSBOURG:  That was the date of plea was conducted, the first date of the plea.

125HER HONOUR:  The first date of the plea was 18 March, so that is how many days?  What is the date today?

126MR GINSBOURG:  Sorry I am just calculating.

127MR HOGAN:  12 April.

128HER HONOUR:  Yes.  So there is 14 plus ‑ ‑ ‑ 

129MR GINSBOURG:  Twenty-five.

130HER HONOUR:  All right I declare that 25, do you agree with that, Mr Hogan?

131MR GINSBOURG:  Yes, Your Honour.

132HER HONOUR:  I declare that 25 days of this sentence have been served by way of pre-sentence detention.  I also neglected to add that I am satisfied that you do not present an appreciable risk to the community.  That is, by community I mean those children who are the subject of this appalling child abuse material.

133MR GINSBOURG:  I am sorry to get to my feet, Your Honour.  Your Honour will recall that Mr Harris gave evidence.

134HER HONOUR:  Yes.

135MR GINSBOURG:  I may have missed it, I am not sure that Your Honour referred to that in the sentencing ‑ ‑ ‑  

136HER HONOUR:  Do you mean on the last occasion when he was talking about how he was managed?

137MR GINSBOURG:  No on the 18th of ‑ ‑ ‑ 

138HER HONOUR:  No I do not recall, what was, that is appalling.

139MR GINSBOURG:  He gave evidence of his remorse and his insight into the offending which was unchallenged, Your Honour.

140HER HONOUR:  Yes actually you are right, I had forgotten.  In determining also the genuineness of your remorse, I also rely upon the sworn evidence you gave at the first plea hearing in this matter to that effect which was not challenged by the prosecution.  Thank you.

141MR HOGAN:  One more matter, Your Honour.

142HER HONOUR:  Yes.

143MR HOGAN:  Orders for cumulation and concurrency with respect to the ‑ ‑ ‑ 

144HER HONOUR:  I am going to order that, and again I know it is unusual but I am going to order that each sentence commence today.

145MR HOGAN:  Yes thank you.

146HER HONOUR:  So there will be no cumulation.  All right?  Thank you.  Pursuant to s6AAA I declare that had you not pleased guilty I would have sentenced you to a term of imprisonment of two and a half years and ordered, can I put it that way, Mr Hogan?  I always have trouble resorting to the Commonwealth terminology because, and order that you serve a minimum term of 18 months.

147MR HOGAN:  And there is also the forfeiture order with respect to the
10 devices, Your Honour.

148HER HONOUR:  Yes.

149MR HOGAN:  I have the draft forfeiture order which I will also provide.

150HER HONOUR:  No problem, that is not resisted, Mr Ginsbourg?

151MR GINSBOURG:  No, Your Honour.

152HER HONOUR:  All right, thank you.  Does that take care of everything now?

153MR HOGAN:  I believe so, Your Honour.

154HER HONOUR:  Thank you very much.  All right, I'm going to leave the Bench.  Mr Hancock, sorry I've just been engaged in a fairly lengthy sentence.

155MR HANCOCK:  Yes, Your Honour.

156HER HONOUR:  I'm ready to roll with the ruling.  I'll need to hear some submissions about the admissions which because of this matter and attending to the tendency ruling I haven't had enormous regard to so you'll have to take me through it slowly in chapter and verse and using words of one syllable so that even I will understand, Mr Hancock, all right?

157MR HANCOCK:  Yes, Your Honour.

158HER HONOUR:  But look I'll come back on the Bench at 11 if that's all right?

159MR HANCOCK:  Yes.

160HER HONOUR:  Thank you very much.  Nothing else I need attend to?

161MR HOGAN:  No, Your Honour.

162HER HONOUR:  No.  I thank counsel very much for their assistance.

163MR GINSBOURG:  Sorry, Your Honour, may I be excused from the remainder of the hearing, I've got another commitment?

164HER HONOUR:  No that's, I thought you were going to hang around and listen to my tendency ruling, Mr Ginsbourg, that's a bit disappointing.  Of course, no but we've just got matters we'll attend to we'll do that.

165MR GINSBOURG:  Thank you.

166HER HONOUR:  And thank you very much.  Yes thank you I will stand down.

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