Director of Public Prosecutions v Hunter (a pseudonym)
[2017] VCC 1017
•21 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) |
| v |
| NICHOLAS HUNTER (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 July 2017 | |
DATE OF SENTENCE: | 21 July 2017 | |
CASE MAY BE CITED AS: | DPP v Hunter (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1017 | |
REASONS FOR SENTENCE
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Catchwords: One charge of producing child pornography (Cth) – two charges of transmitting child pornography (Cth) – one charge of possessing child pornography (Vic) – one summary charge of possessing an imitation firearm
Legislation Cited: Crimes Act 1914 (Cth); Crimes Act 1958 (Vic)
Cases Cited:DPP v Thomas [2016] VSCA 237; Kim & Fang v DPP [2016] VSCA 238; Phillips v R (2012) 37 VR 594; DPP (Cth) v Garside [2016] VSCA 74; DPP v D’Alessandro [2010] 26 VR 477
Sentence: Charge 1, producing child pornography – 14 months’ imprisonment; Charge 2, transmitting child pornography – 30 months’ imprisonment; Charge 3, transmitting child pornography – 20 months’ imprisonment. Six months of sentence on Charge 1 cumulative upon sentence on Charge 2, otherwise concurrent. Total effective sentence on the charges 36 months. To serve 24 months before being released on Recognisance Release Order with conditions; Charge 4 (Vic) – 30 months’ imprisonment – 15 months cumulative upon Cth sentences; Summary charge – convicted and discharged.
APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr I Buckley | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms S Lenthall | Victoria Legal Aid |
HER HONOUR:
1 Nicholas Hunter,[1] you have pleaded guilty to one charge of producing child pornography, which carries a maximum penalty of 15 years’ imprisonment; two charges of transmitting child pornography, each of which carries a maximum penalty of 15 years’ imprisonment; and one charge of possessing child pornography, which carries a maximum penalty of 10 years’ imprisonment. In addition, you have consented to the transfer of a summary charge of possessing an imitation firearm from the Magistrates’ Court to the County Court, and have pleaded guilty to that charge, which carries a maximum penalty of 2 years’ imprisonment.
[1]Nicholas Hunter is a pseudonym.
2 The circumstances of your offending are summarised in the Prosecution Opening for Plea (Exhibit “A”). In brief, they are as follows.
3 Charge 1, producing child pornography material, involved you isolating specific screen shots from a video, which you had covertly recorded of your partner’s sister whilst she was in the bathroom of your home, undressing, drying and dressing herself. Four of the still shots come within the definition of “child pornography material”.[2] The date upon which the video was taken by you is unclear, but your victim was approximately 15 years old. The still shots would appear to have been isolated by you at some stage prior to 18 September 2015, the date upon which four of the images produced by you were transmitted via email to another person. Such transmission forms part of your offending on Charge 2. The four images isolated by you come within Category 1 of the categorisation model for child exploitation material (“CEM”)[3], that is, the images did not depict a child with sexual activity, but were sexually suggestive or sexual in nature.
[2]S473.1 of the Criminal Code (Cth)
[3]Categorisation model for child exploitation material of the Australian National Victim Image Library – See Annexure 1 to Exhibit “A”
4 Charge 2, transmission of child pornography material, involved you transmitting a total of 33 items (comprising eight images and 25 videos) via 22 emails to 11 different recipients. This offending occurred between 24 July 2015 and 2 February 2016. Twenty-two of the items transmitted fell within Category 4 of the CEM, that is, they depicted penetrative sexual activity between children, or adults and children. The remaining material comprised the four Category 1 images of your partner’s sister. In addition, there were three Category 2 images, that is, they depicted solo sex acts by a child, or between children, in which penetration of an orifice does not occur. There were also four Category 3 images, that is, they depicted non‑penetrative sexual activity between a child and an adult or adults.
5 Charge 3, transmitting child pornography material, involved the use of a different email account from that used in Charge 2. You used this different email address to transmit a Category 4 video to one person between 6 and 7 September 2016.
6 Charge 4, knowingly possessing child pornography, involved the possession of 855 items of child pornography, which were found by police when a search warrant was executed at your home on 6 October 2016. These images were stored using five different on-line accounts. Of the 855 items, there were 16 which came within Category 5 of the CEM, that is, images depicting sadism, bestiality or child abuse. There were 256 Category 4 items, 92 Category 3 items, 102 Category 2 items and 389 Category 1 items.
7 The summary offence, possessing an imitation firearm, involved an imitation double barrel firearm which was found at your premises in a location which has not been identified in the prosecution opening. A photograph of the firearm shows it to be a very old-fashioned looking weapon, something of a museum piece. An examination of it revealed that it had damage to the right frame and a broken trigger and a missing cover plate and possibly other components. The barrels were closed at the trigger end and it was not designed to, or capable of, discharging a shot, bullet or other missile.[4]
[4]Depositions 101-102
8 At the time of execution of the search warrant on 6 October 2016, you made admissions concerning your offending in relation to child pornography, stating that you had made a big mistake and were ashamed. You claimed that you had looked at child pornography over the past two years, but were not really interested in it and had never made money by trading child pornography, although you had thought about doing so because you were unable to work.
9 You told police that the age range of children depicted in the child pornography material in your possession ranged between 3 and 14. You stated that you were definitely not making child pornography, but admitted that police would find images of your partner’s sister and described having filmed two videos of her. The first was when she was about 13, when she was in the shower at your previous home. This material did not come within the definition of child pornography and was not shared with anyone directly, although it had been stored. You admitted that a later video, from which the Category 4 images comprising Charge 1 had been extracted, had been taken when she was probably 15 years old and that you had been standing just outside the bathroom door in your current house, recording her while she was showering for approximately two or three minutes. Although the date of the filming which you gave to police was incorrect, you admitted that you used screen shots from the video “to trade a few things”. You cooperated with police and provided passwords for your devices and on-line accounts and volunteered details of additional applications on your mobile phone which you knew contained child pornography in on-line storage.
10 You are presently aged 28 years, having been born on 3 November 1988. You come before the Court with no prior convictions.
11 In a plea on your behalf by Ms Lenthall, the Court was told that you grew up in rural Victoria and are one of five siblings, all male. Your parents separated when you were four years old and your father obtained custody of all children. Apparently he was a strict disciplinarian. You lived on a dairy farm, before moving to a small rural town at the age of 12 and, subsequently, to the Geelong area. Apparently, you were bullied at high school, as you were overweight and teased for your “country” ways. You left school partway through Year 9 and, subsequently, completed Year 10 at a TAFE as part of the VCAL Program. It seems that, at about age 14, you returned to live with your mother and, then, completed a Certificate II in Automotive Work at a TAFE. However, you enjoyed working outdoors and have mostly performed work labouring on farms, which involved long hours and hard work. In or about 2013, you obtained your truck licence and worked as a delivery driver for some time. However, approximately 18 months ago, you were found to have a cerebral aneurysm and diagnosed with epilepsy, for which you now take Tegretol twice daily in a total dosage of 600 milligrams. (Exhibit “5”)[5] This has resulted in you being restricted in truck driving and you have been unemployed for the last 18 months. You are currently in receipt of a Newstart allowance.
[5]This diagnosis appears to have been made after Charges 1 and 2 had been committed
12 Your offending apparently occurred in the context of what would appear to be fairly heavy use of cannabis. I here note that in a report from Mr Jeffrey Cummins, forensic psychologist, dated 22 June 2017 (Exhibit “1”), there is a history that you began smoking cannabis at age 13 and, by age 16, were a daily smoker, which continued right up until the date of your arrest in October 2016. You told Mr Cummins that, for several years prior to your arrest, you smoked approximately 2 or 3 grams of cannabis daily. Mr Cummins considered that you attract a diagnosis of Cannabis Use Disorder of at least moderate severity. He accepted that it is probable that you were experiencing symptoms of a cannabis induced depressive disorder at the time of your offending.[6]
[6]Exhibit “1” p.7, para 55
13 When you were 21 years old, you commenced a relationship with your long term partner, who was then 18 years old. You have produced two children, a daughter, currently aged three years, and a son, currently aged two years. Ms Lenthall stated that, following your arrest, it was a condition of your bail that you have no contact with your children. For three months, you had no contact, whatsoever, with the children, until your bail conditions were varied in January 2017 to permit supervised access. Ms Lenthall asked the Court to take this matter into account as extra-curial punishment, and I do so. She also noted that you had abided by all your bail conditions, including reporting to police on three occasions each week since your arrest in October last year.
14 Ms Lenthall stated that, following your arrest, you had taken the initiative to go to your general practitioner who, on 11 October 2016, prepared a mental health care plan and referral to Dr Lauren Gook, psychologist. You first saw Dr Gook on 2 November 2016 and attended a total of 15 counselling sessions with her up until the date of the plea hearing. A report from Dr Gook was tendered as Exhibit “2” on the plea hearing. Dr Gook made it clear that her intervention did not specifically focus on your alleged offending but, rather, your learning of skills to improve your relationships, develop emotional regulation, maintain abstinence from cannabis and become a productive employed member of the community.
15 She noted that you had suffered low mood and anxiety in the context of your arrest and considered that you presented with symptoms consistent with Major Depressive Disorder as defined in DSM-V. She noted a history of depression and anxiety which you had first noticed during your teenage years, describing low self-esteem and social difficulties during your schooling years. You told her that you resorted to cannabis use in order to manage your low mood and anxiety. Dr Gook did not consider that you met the diagnostic criteria for a generalised anxiety disorder. She noted that, over the course of seeing her, you managed to reduce your cannabis consumption and, also, had access to your children reinstated, which resulted in reduction of your anxiety symptoms.
16 Dr Gook stated that you had engaged well with cognitive behavioural therapy in order to achieve insight into factors that have contributed to your low mood, anxiety and illicit substance use and had developed an understanding of the link between your thoughts, feelings and behaviour. She stated that you considered that the therapy empowered you to manage your emotions better and improve your self-confidence and relationships with others. Nevertheless, she considered that you meet the DSM-V diagnostic criteria for Major Depressive Disorder. She considered that you are motivated to make change in your life and to manage your mental health by utilising the skills learned during your sessions with her, but she thought it likely that your mental health symptoms would be exacerbated by a custodial sentence. She based this opinion upon your ongoing symptoms of anxiety and depression and the deterioration in your mental health which had occurred when you did not have access to your children.
17 Also tendered on the plea was the previously mentioned report from Mr Cummins. The history concerning your offending behaviour recorded by Mr Cummins was somewhat different from that recorded by Dr Gook. Dr Gook recorded that you had told her that you derived no pleasure out of the child pornography and just collected it in order to transmit it to others because you had a desire to be liked by others. Mr Cummins recorded that you told him you had been addicted to viewing adult pornography for probably in excess of 10 years. From this, you drifted into viewing child pornography, including producing child pornography by using your mobile phone to video your partner’s sister. However, you claimed that you had never masturbated to any of the child pornography images or video material, which Mr Cummins found improbable.
18 Mr Cummins considered that you had problems with self-awareness, as reflected in your repeatedly seeking out child pornography and manufacturing child pornography. Indeed, you had acknowledged that you had problems coping at the time of offending as you were chronically dependent on cannabis and intermittently experiencing symptoms of depression and paranoia in conjunction with your cannabis use.
19 Mr Cummins assessed you as not having an antisocial personality disorder or antisocial personality style or psychopathic personality disorder. However, he considered that you most probably achieved a degree of sexual arousal from the child pornography material and appeared to be in a state of denial that that was so. He considered that you require offence-specific treatment and you had indicated a willingness to cooperate with this. He assessed your risk of further sexual re-offending concerning underage persons to be low to moderate.
20 I have previously referred to Mr Cummins’ view that, at the time of offending, you had a cannabis use disorder of at least moderate severity and probably were experiencing symptoms of cannabis induced depressive disorder. He also noted symptoms of anxiety and depression reactive to your legal situation. As with Dr Gook, Mr Cummins considered that your mental health would deteriorate if you were incarcerated, particularly because you would fear long term separation from your children. He also thought that the possible end of any prospects of a full reconciliation with your children’s mother would play a part.
21 Mr Hunter, there can be no doubt as to the gravity of your offending on the child pornography charges. Indeed, your counsel has conceded that an immediate sentence of imprisonment is warranted, albeit that she submitted that a sentence on the Commonwealth offences which allowed for release from custody on a Recognisance Release Order would be appropriate, whereas the prosecution took issue with that submission. Ms Lenthall also submitted that, on the State child pornography offence, a combined imprisonment and Community Correction Order sentence would be appropriate. The prosecution also took issue with that submission.
22 Charge 1, producing child pornography, involved a serious breach of trust towards and invasion of privacy of the teenage sister of your partner. She was a minor and entitled to feel secure whilst attending to her personal affairs in the bathroom of your home. You clandestinely filmed her undressing, drying and dressing herself in the bathroom. You did this with the intention of utilising the images to transmit child pornography on the internet and, indeed, later did so as part of your offending on Charge 2. This was seriously creepy behaviour towards a person who should have been protected under your roof. Regardless of the fact that the images are classified in the lowest CEM category, your victim has to continue to live with this unsettling secret violation of her privacy and the fact that images of herself are now available to be viewed by depraved persons who seek out child pornography on the internet.
23 Charges 2 and 3 are both charges of transmitting child pornography. Charge 2 involved transmission over a period slightly in excess of six months between 24 July 2015 and 2 February 2016. Charge 3 involved transmission on a single date, namely, 6 September 2016. A different email account was used for the transmission on each charge. I have already referred to the number and categories of images on Charge 2 and the fact that material was sent to 11 different recipients in 22 emails. I have also referred to the fact that Charge 3 comprised transmission to four different recipients of a Category 4 video.
24 The prosecution opening has described some of the material comprising Charge 2 and the video comprising Charge 3. I will not repeat that description. I have viewed samples of some of the other images and videos transmitted by you on each of these charges. They are profoundly disturbing. They display female children of tender ages (even a baby, whose nappy is removed) with their legs splayed and vaginas clearly on display and, in various instances, their vaginas being opened up and held open by males while close-up images are taken of them. Others show children posing seductively, even in juxtaposition to childish toys and books, and either masturbating themselves or being penetrated vaginally or anally or giving oral sex to adult males. One little girl with a tiny, thin body, had her legs stretched out to almost 180 degrees, astride the pelvis of a male who is holding her chest from behind and pushing her up and down as she is being penetrated by his penis. There is a still image of a young dark-skinned girl who appears to be about 6 to 8 years of age. She is naked except for wearing long black and white striped socks which stretch to over her knees. Her arms are tied above her head and each leg is tied so that it remains bent backwards while her vagina is penetrated. Another video entitled “Girl rides cock like jockey” shows a young girl whose head is encased is some form of covering to resemble a jockey’s goggles with her legs astride a male pelvis. She is apparently being penetrated by a penis whilst bouncing up and down. Many of the videos involved repeated penile thrusting into the vagina and/or anus of young children. Some of the higher category child pornography involves young girls who are chained or tied up whilst sexual acts are performed upon them. They are subjected to humiliation and pain. Some of the videos have a length exceeding one or two minutes.
25 Charge 4, possessing child pornography, as previously mentioned, involved a collection of 855 items stored in five different on-line accounts. I have previously referred to the quantity of material in each category. I note that the quantity of material in Categories 4 and 5 approaches almost one-third of the total. I viewed a sample of this material, some of which had been included in the sample of material viewed by me in relation to Charges 2 and 3. They are of a similar revolting nature to what I have described previously.
26 One Category 1 video shows a naked prepubescent girl, wearing high-heeled gold sandals, apparently being instructed to adopt seductive poses. She is ultimately left with her legs splayed for quite some time before she moves position to turn herself upside down. The video is in excess of three minutes’ duration. This material includes a still shot of a delightful chubby baby girl with her vagina on display and the tip of a penis visible in front of it and with what appears to be ejaculatory material sprayed over the baby’s vagina and chest. Another Category 3 video shows a little girl with what appears to be an unnaturally red vaginal area. A dildo is being used to stroke it, whilst her legs are splayed and, then, the dildo is inserted while she purports to smile and show expressions of delight.
27 There are multiple videos of children of relatively young ages, possibly aged about five years, who are being consistently and forcefully penetrated by penises, either vaginally or anally. These are Category 4 videos. Another such video, perversely entitled “Make Daddy Cum – 12 years”, shows a young girl with a penis in her mouth and then masturbating it with her hands. The male is bizarrely wearing female silky bikini pants and his penis is then put alongside the child’s cheek. Another entitled “Prenate 2” shows a male inserting his penis into the anus of a tiny child and, at first, all that is visible is the child’s small bottom and her toes curling, then the face of the child is seen and she appears to be in pain. There is one distressing image after another, showing acts of a sexual nature being performed upon young children, together with a number of Category 5 images of children tied up. One is entitled “Ready for Torture” and shows a girl of perhaps five or six years lying naked on her back with her legs tied up so that they remain splayed and a collar or chain around her neck. Another shows a child with legs tied in a splayed position and a penis inserted into her vagina and then her anus, with a persisting thrusting motion, while a finger is also inserted into her vagina.
28 The victims in the material possessed and transmitted by you are real children. They are too young to be able to defend themselves against the acts of debasement depicted. In most of the material, their faces are visible and readily identifiable. Not only has their childhood innocence been violated in pervasive, disturbing ways, but some of the children have been subjected to physical cruelty. The images of what has been done to them will be available indefinitely for other criminals, like yourself, to gaze upon repeatedly on the internet. I have already mentioned that your victim on Charge 1 must live with this distressing knowledge.
29 It is clear that in sentencing for child pornography offences that denunciation of your conduct and emphasis upon general deterrence must be paramount considerations. Tragically, child pornography has become a vice of international proportions. It has become more prevalent because of the ease of use of the internet and the ability of offenders to remain anonymous. Producing, accessing and sharing child pornography material cruelly exploits, humiliates and harms children, both physically and psychologically. By its nature, child pornography offending can be difficult to detect. Community concern about the alarming increase in child pornography has resulted in Parliament increasing a number of the penalties relating to it in recent years. Although you are to be sentenced for only one charge of producing child pornography, the law recognises that, by possessing it, you help make up the market that encourages others to continue to exploit, abuse and harm children. Of course, by transmitting child pornographic material, even though not for profit, you also enhance the market for those who sexually abuse children in order to supply that market. It is relevant to note that yours was not one isolated transmission, but involved 22 transmissions rolled up into Charge 2 and one transmission on Charge 3. It is apparent in relation to Charges 2 and 3 that your transmissions took place in a context of trading child pornography material with others. Indeed, you received 15 transmissions of such material from others between 24 July 2015 and 18 September 2015.[7]
[7]See schedule prepared by the Prosecution of relevant emails sent/received – “Marked for identification (D)”
30 On Charge 4, you are to be sentenced for possession of the 855 items on the day upon which police executed the search warrant at your house, although it is plain that a number of those items had been in your possession over one year earlier, as they are the subject of the transmission charges.
31 By your own admission, you had covertly videoed your partner’s sister a couple of years earlier than the occasion which is the subject of Charge 1, albeit that that recording did not fall within the definition of child pornography. Of course, you are not to be sentenced for that, as it is not the subject of any charge. However, the fact that you had secretly videoed a girl of approximately 13 years of age, presumably in or about 2013, when you would have been about 24 years of age, shows an unhealthy interest in underage girls. Moreover, I am not satisfied on the balance of probabilities, as you told Dr Gook, that you transmitted child pornography in order to feel “liked” by the receivers. There are any number of legal ways where you could have assisted others in order to feel a sense of gratitude. I share the view of Mr Cummins, that it is improbable, as you claim, that you were not sexually aroused by any of the child pornography material. This, in my view, makes it imperative that you participate in a sex offender program, noting that your risk of re-offending in this way is assessed by Mr Cummins to be low to moderate.
32 In any event, whether you did or did not receive sexual gratification from the material, you have contributed to the distribution of material which is brought into existence by harming children in a vile and callous manner. As I have already stated, even your possession of child pornography material encourages the various crimes committed by those who produce it. Overall, your offending spans approximately 16 months, at least. Hence, in sentencing you, there must also be emphasis upon specific deterrence, although I accept that there is a slightly lesser need for emphasis upon this factor now, compared to when you were arrested, by virtue of your apparent insight into the impact of your offending and the reasons for it, particularly after counselling with Dr Gook, ceasing to take marijuana and of being deprived of or restricted in your access to your children because of your offending.
33 In sentencing you, I take into account the following matters in your favour:
· You made admissions to your offending conduct when police executed the warrant at your home on 6 October 2016.
· You assisted police in their investigation by making available passwords, email addresses and access to your computer and mobile phone. It is of note that you gave this assistance prior to any forensic examination on behalf of law enforcement agencies, thus saving time and expense in the investigation of your offending.
· You pleaded guilty to the charges at the first available opportunity.
· I am satisfied that your pleas of guilty are indicative of remorse. I note from the material in the psychological reports that you appear to be a relatively unsophisticated individual psychologically, are of limited education, and you had difficulty engaging in emotionally evocative discussions when you first went to see Dr Gook.[8] In this context, I accept that you exhibited remorse when you told the police “It makes me feel sick thinking about it and why – why I did it”,[9] and that you felt ashamed talking about it.[10] I also accept that you expressed remorse to Dr Gook when you stated “I can’t believe I have done this, I hate myself, I shouldn’t have, I couldn’t handle it if someone did this to my kids, why would I do it?”, and reported that you could understand why some family members and friends no longer wanted contact with you and that you had impacted upon “the lives of the victims, their families and broken people’s trust”.[11] Although Dr Gook stated that her counselling sessions did not specifically focus upon your offending, she stated that you demonstrated insight into the impacts of your offending.[12] I also note that Mr Cummins recorded, in relation to Charge 1, that you conceded that your conduct in videoing the sister of your partner “represented a very significant breach of trust and abuse of power”.[13]
In all of the circumstances, I am satisfied that your pleas of guilty go beyond feelings of regret for being caught or the impact that your offending has had upon those close to you. I have already noted that your insight into the impact of your offending appears to have increased over your period of treatment with Dr Gook, and been assisted by your decreased usage and ultimate cessation of use of cannabis. Thus, I am satisfied that your plea of guilty not only has a utilitarian value and has demonstrated a willingness to facilitate the course of justice, sparing the time and cost of a trial, together with any further trauma to your victim on Charge 1, but also that your pleas of guilty are remorseful. It has long been recognised that, in appropriate cases, entering a plea of guilty at the first reasonable opportunity may be regarded as a demonstration of remorse and acceptance of responsibility.[14] I regard yours as such a case. By reason of your early and remorseful pleas of guilty, you are entitled to a high discount upon the sentences which, otherwise, would have been imposed.
· You have no prior convictions and are formerly of good character and have family supports: your former partner, your mother and her former partner, and one of your older brothers were in Court to support you. Also your former partner, your mother’s former partner and a family friend provided written character references (Exhibit “3”). I here note, however, that lack of prior offending is generally given less weight in sentencing for child pornography offences than in other matters, as child pornography offenders generally have been of prior good character.[15] However, I do accept that a person’s prospects of rehabilitation will generally be better with family support than without it.
· You appear to have a history of some form of psychological problems by way of depression and anxiety and social isolation, which led to you commencing to take cannabis at age 13 and developing what Mr Cummins describes as a cannabis use disorder of at least moderate severity, pursuant to DSM-V. I note that the former partner of your mother, with whom you were living up until the time of the plea hearing, states in his reference that your life had “spiralled downwards” and you had become “very withdrawn, depressed, emotional and very anxious” as a result of your marijuana use and you found it “very difficult to gain employment”.[16] I accept that, at the time of offending, you were probably experiencing symptoms of a cannabis-induced depressive disorder as opined by Mr Cummins.[17] I here make it plain that these factors are part of your general background factors, as distinct from a mental disorder relied upon to diminish your moral culpability or in mitigation of general or specific deterrence.
· Very promptly after being charged with these offences, you contacted your general practitioner and accepted a referral to Dr Gook, and you have engaged in regular counselling sessions with her to the present time. Whilst these have not been specific to addressing your offending behaviour, they represent a significant step towards rehabilitation in that you have developed some insight into your own thoughts, feelings and behaviours and, in particular, the impact of your long-term cannabis use. It is to your credit that you have managed to cease cannabis use, a matter confirmed in all three references tendered on your behalf. This is a significant achievement given your long term use of it, which, according to Dr Gook’s report, appears to have been part of a mal-adaptive strategy to cope with your low self-esteem. It is also to your credit that, with Dr Gook’s assistance, you have developed skills to more effectively manage your mental health.
· Although your rehabilitation has a very considerable way to go, you have made a sound beginning with your counselling by Dr Gook and cessation of use of cannabis. Further, you have demonstrated a willingness to undertake rehabilitative programs, in particular, offence-specific programs. I consider that on the information available to me, provided you engage with an appropriate sex offender program, your ultimate prospects of rehabilitation are probably quite good, particularly if you manage to retain your family supports, as well as your past demonstrated capacity for hard work. However, I do recognise that your rehabilitation is in its early stages.
· You have complied with stringent bail conditions for a period of nine months. These have included reporting to police three times each week, being unable to have access to your two children, at all, for a period of approximately three months and, thereafter, being confined to supervised access. I accept from the three references tendered on your behalf that you are a loving father to your children and, according to the reports of both Dr Gook and Mr Cummins, you are fearful of the long term separation from your children by being imprisoned for these offences. Both psychologists have expressed the view that your current depression, which is primarily reactive to your legal situation, is expected to deteriorate in custody.
[8]Dr Gook’s report dated 28 April 2017, page 2, paragraph 4.1
[9]Answer to Question 125 in the record of interview
[10]Answer to Question 200 in the record of interview
[11]Paragraph 6.4 of Dr Gook’s report
[12]Paragraph 4.3 of Dr Gook’s report
[13]Mr Cummins’ report dated 22 June 2017, paragraph 33
[14]DPP v Thomas [2016] VSCA 237; Kim & Fang v DPP [2016] VSCA 238; and Phillips v R (2012) 37 VR 594
[15]DPP (Cth) v Garside [2016] VSCA 74, at paragraph 63
[16]Reference dated 26 January 2017, part of Exhibit “3”
[17]Mr Cummins’ report, paragraph 55
34 In sentencing you, I am mindful of the general sentencing principles in s16A of the Crimes Act 1914 (Cth). The fundamental principle is that I must impose a sentence that is of a severity appropriate in all the circumstances of the offence. I have already referred to other matters which a Court must take into account, as detailed in s16A(2), insofar as they refer to your case. As I have previously mentioned, the predominant sentencing principles must be general deterrence and denunciation of your conduct. This is so that a message will go out to anyone who is minded to participate in the production, transmission or possession of child pornography material, that participation in this evil trade will be appropriately punished, most generally by a significant term of imprisonment. The imposition of just punishment, as well as protection of the community, are principles which must be borne in mind in sentencing you.
35 In a number of cases, most recently in that of DPP (Cth) v Garside, the relevant principles for assessing the seriousness of offending of this type have been set out. They include:
(a) the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;
(b) the number of images or items of material possessed by the offender;
(c) whether the possession … is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence. [18]
In the case of possession of child pornography for personal use, the number of children depicted and thereby victimised is relevant. The length of time for which the pornographic material was possessed is also a relevant factor.
[18]In Garside, the Court was approving the propositions laid down in D’Alessandro [2010] 26 VR 477 and other earlier cases
36 I was taken by the prosecution to a number of cases, several of which involved possession of many greater items of child pornography material than the 855 items which form the subject of Charge 4. However, it is plain that neither the number of items, nor the particular category of material, although relevant, are necessarily determinative of the overall gravity of the offending. For example, although the child pornography material on the possession charge (Charge 4), contained a good proportion of the total items which fell into the lowest category of categorisation (namely, 389 items), a number of those which I viewed I would regard as being towards the higher end of that category, particularly the videos of prepubescent children posing in a confronting sexualised fashion whilst naked or effectively engaging in a striptease act, some of whom appeared to be responding to directions being given to them.
37 In your case, you have engaged in three distinct forms of offending, namely, the production, transmission and possession of child pornography. Your offending overall spanned a period of at least some 16 months from July 2015 to October 2016. On Charge 1 there was nothing inadvertent about your behaviour. You deliberately and clandestinely videoed your partner’s sister and, then, took the trouble to isolate specific screen shots for the purpose of distributing child pornography material. On Charges 2 and 3 you used two different email accounts. On Charge 4 you used a total of five different on-line accounts to store child pornography material. The examples of material which I have viewed I regard as obviously depraved and exploitative material. These particular factors highlight the seriousness of your offending, although, in fairness, it must be said that the prosecution did not submit that there was any evidence of escalation in your offending over the relevant period.
38 The maximum penalties imposed by Parliament for each of the offences are an indicator of the gravity of this type of offending. It is clear, as previously stated, and indeed acknowledged by your counsel, that the only appropriate sentence for this offending is a term of imprisonment with a significant immediate custodial component.
39 In determining the sentences which I propose to impose, I have taken into account the principle of totality. I consider it appropriate that there should be some cumulation of the sentence on Charge 1 with the sentence imposed on Charge 2. However, I accept the submission by Mr Buckley for the prosecution that, as Charge 3 is a single transmission offence of the same nature as the 22 emails which comprise the rolled-up transmission charge of Charge 2, it is appropriate to allow total concurrency of the sentence imposed on Charge 3 with that imposed on Charge 2.
40 As terms of imprisonment are to be imposed on each of Charges 1, 2 and 3, you fall to be sentenced as a serious sexual offender on Charge 4, pursuant to the provisions of Part 2A of the Sentencing Act 1991 (Vic). This means that, pursuant to s6D of the Sentencing Act, the Court must regard the protection of the community from you as the principle purpose for which the sentence is imposed. In order to achieve that purpose, the Court may impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. The prosecution has not submitted that a disproportionate sentence should be imposed and, in my view, this is an appropriate and fair position to adopt in this case.
41 Section 6E obliges the Court to direct the sentence on Charge 4 to be served cumulatively on the other sentences of imprisonment imposed, unless otherwise directed. In this particular case, whilst being mindful of the principal purpose of the sentence on Charge 4, namely, the protection of the community, I consider this to be a case where it is not appropriate to allow total cumulation of the sentence to be imposed on Charge 4 with the other sentences. Although the offence of possession is a separate offence from production and transmitting child pornography material, the material which forms the subject of Charge 4 includes the four images which are the subject of Charge 1 and, also, the entirety of the material transmitted on Charges 2 and 3. Totality is an important consideration. I consider that the sentence which I intend to impose can achieve the primary purpose of protecting the community and reflecting the overall gravity of your offending, whilst also avoiding the result of a crushing sentence. In relation to the latter, I am mindful that you are still a young man, 28 years of age.
42 Whilst Dr Gook makes reference to a childhood of adversity, she does not particularise those circumstances. However, I can glean a number of such factors from the material put before me on the plea: the separation of your parents when you were four years of age; the harsh disciplinarian nature of your father, who became your custodial parent after separation; your low self-esteem and issues of apparently undiagnosed anxiety and depression, which were associated with bullying at school and vulnerabilities which led to your heavy use of cannabis as a maladaptive coping strategy; and your general social isolation, such that the relationship with your former partner is the only relationship of significance that you have had in your life. These matters all lead me to the conclusion that it is important to structure an overall sentence which, whilst serving the predominant sentencing objectives of denunciation, general and specific deterrence, just punishment and protection of the community, must not ignore your prospects of rehabilitation. Both psychological reports refer to your depressive state and, whilst currently it appears to be primarily reactive to your legal situation, it is plain that you have suffered significantly through the breakup of your family unit. Although you are separated from your long term partner, she remains supportive of you and you clearly harbour hopes of an ultimate reconciliation. You wish to maintain as close a relationship with your children as possible. They are presently only two and three years of age.
43 Section 16A(2)(p) of the Crimes Act 1914 (Cth) obliges me to take into account the probable effect that any sentence would have on your family or dependents. Most criminal offending has an impact on an offender’s family or dependents and there is no suggestion that your situation is one of exceptional circumstances. However, the fact is that your children, who are presently aged only two and three years respectively, will be deprived of having their father present in their daily lives for a number of years. Your ability to maintain a relationship with your children is now dependent upon the goodwill of others who may be prepared to bring your children to see you whilst in custody. Of course, even upon release, it is likely that the Department of Human Services, in accordance with its letter, Exhibit “4”, would not support you having unsupervised contact with your children in the immediately foreseeable future. Thus, notwithstanding the primary sentencing objectives, I hold a real fear that if an overly lengthy immediate custodial term of imprisonment is imposed upon you, your children may, in reality, lose the opportunity of forming a meaningful relationship with their father. I consider that this factor merits some measure of mercy, for their sake, in sentencing.
44 Whilst in custody you will not have the benefit of the supportive counselling which you have received from Dr Gook. I believe that I can take judicial notice that, while in custody, you may be seen by a psychiatric nurse or psychiatrist from time to time, but there are many demands upon such professionals in the custodial environment and cognitive behavioural therapy of the type you have been receiving will not be available in prison. Although I consider it highly desirable that you undertake a sex offenders program as soon as possible, I am mindful that there are many persons in custody to be accommodated in such programs, particularly as they are a mandatory prerequisite for the grant of parole in many cases. I am aware that there is a waiting list for entry into such programs and that I cannot sentence you on the basis that you would gain entry to and complete such a course during the immediate custodial component of the sentence I intend to impose. I have structured a sentence which incorporates a Recognisance Release Order, as I consider that you will need structure, guidance and a great deal of assistance to rehabilitate yourself by undertaking mandated programs and, also, to obtain employment within the community.
45 What I am endeavouring to make plain is that I consider that the sentences I intend to impose are sufficiently punitive to give adequate recognition to the need for general deterrence, denunciation, just punishment, protection of the community and specific deterrence, whilst still recognising that you probably have good prospects of rehabilitation. Thus, whilst being mindful of the primary sentencing objectives, the sentence to be imposed also hopefully will facilitate rehabilitation in order to reduce the risk of re-offending and thus enhance the prospects of protecting the community.
46 Mr Hunter, would you please stand up.
47 The sentence to be imposed by this Court is as follows.
48 In relation to the Commonwealth charges:
On Charge 1, producing child pornography material, you are convicted and sentenced to be imprisoned for a period of 14 months.
On Charge 2, transmitting child pornography material, you are convicted and sentenced to be imprisoned for a period of 30 months.
On Charge 3, transmitting child pornography material, you are convicted and sentenced to be imprisoned for a period of 20 months.
49 I direct that six months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2. Save for such cumulation, all sentences are to be served concurrently. Thus, the total effective sentence of imprisonment on the Commonwealth charges is 36 months. The sentence on Charges 2 and 3 is to commence today. The sentence on Charge 1 is to commence on 21 May 2019.
50 I order that, after serving 24 months of the term of imprisonment on the Commonwealth charges, you be released pursuant to s20(1)(b) of the Crimes Act (Cth) upon you giving security by recognisance in the sum of $1,000 to comply with the following conditions:
(a) you are to be of good behaviour for a period of 36 months;
(b) you are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for a period of 36 months;
(c) you are to attend for assessment and, if assessed as suitable, undertake treatment for sex offender programs or programs to reduce re-offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee;
(d) you are to report to Geelong Community Corrections Centre by 4.00pm within two clear working days of your ultimate release from custody;
(e) you are to report to and receive visits from a Community Corrections officer or officers;
(f) you are to notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change;
(g) you are not to leave Victoria except with the permission of an officer at the specified Community Corrections Centre;
(h) you are to obey all lawful instructions and directions of Community Corrections officers.
51 In relation to the State offences, by reason of a term of imprisonment having been imposed on Charges 1, 2 and 3, you fall to be sentenced as a serious sexual offender on Charge 4. I cause the fact that you are being sentenced as a serious sexual offender in respect of this charge to be entered in the records of this Court.
52 On Charge 4, possessing child pornography, you are convicted and sentenced to a term of imprisonment of 30 months.
53 I declare a period of nine days’ pre-sentence detention to be reckoned as time already served under this sentence imposed on Charge 4.
54 I order that 15 months of the term of imprisonment imposed on Charge 4 be served cumulatively upon the term of imprisonment to be served on the Commonwealth charges.
55 Mr Hunter, I need to explain to you what these sentences mean. Firstly, on the Commonwealth offences you have been sentenced to a total effective sentence of three years’ imprisonment. However, after you have served two years of imprisonment, the third year of imprisonment on that sentence is effectively suspended for a period of three years upon you entering into a Good Behaviour Bond with the conditions that I have read out. The figure of $1,000 security is not an amount that you must pay now. It would only become payable if you breached that Bond. The period of that Good Behaviour Bond, or Recognisance Release Order as it is officially called, is three years beyond the two years that you will have served in custody. In fact, for the first 15 months of that three-year period of the Recognisance Release Order you will still be in custody. This is because you will be still serving 15 months of the sentence imposed on Charge 4, the State offence.
56 The Recognisance Release Order enables you to serve one year of the term of imprisonment on the Commonwealth charges in the community, rather than actually in a prison, but the order requires you to be of good behaviour for a period of three years. It also requires you to fulfil the conditions which I have stipulated.
So, as I have said, the Recognisance Release Order is really like one year of your term of imprisonment being suspended, provided that you are of good behaviour and comply with the conditions. If you do not comply with the Recognisance Release Order, either by re-offending or failing to comply with the conditions, then you can be brought back before a court and, if the court is satisfied that you failed to comply with the Recognisance Release Order without having a reasonable cause or excuse, a number of things may happen. These might include that the order might be extended or it might be revoked, and a court might order you to serve that one-year portion of the sentence, which had been suspended, actually in custody.
57 So the order in which you will serve your sentences is as follows.
58 Firstly, you will serve two years immediate imprisonment on the Commonwealth offences.
59 I have made 15 months of the 30 months’ imprisonment ordered on the State offences concurrent with the term of imprisonment on the Commonwealth offences. This means that, after you have served the two years of immediate imprisonment on the Commonwealth offences, you will then serve the remaining 15 months of your State sentence. Thus, it is my intention that you should serve a total immediately custodial sentence overall, including both the Commonwealth and State sentences, of three years and three months’ imprisonment.
60 Once you are released from custody, which will be in a period of three years and three months’ time, less nine days which you have already spent in custody, you will then be undertaking the Recognisance Release Order on the Commonwealth sentences for a further 21 months.
61 Mr Hunter, your pleas to Charges 1, 2, 3 and 4 mean that you have been found guilty of four Class 2 offences as specified in Schedule 2 of the Sex Offenders Registration Act 2004 (Vic), which renders you a registrable offender under the Act. Pursuant to s34(1)(c)(ii) you must comply with the reporting obligations imposed by Part 3 of the Sex Offenders Registration Act for the remainder of your life. My Associate will hand to you a document which sets out the reporting obligations under the Sex Offenders Registration Act. Would you please acknowledge receipt of that document with your signature?
62 On the summary charge of possessing an imitation firearm, I accept, on the balance of probabilities, your explanation that you found this old firearm on a farming property some years ago and had placed it somewhere in your house and had forgotten about it. Given the appearance and description of the weapon, which was very antiquated and damaged, and that there is no suggestion of you having ever used or intended to use it in any way, I consider this offending to be at the lowest end of the scale. Accordingly, on this charge I order that you be convicted and discharged.
63 Pursuant to s6AAA of the Sentencing Act I state that, had it not been for your pleas of guilty on the Commonwealth offences, Charges 1, 2 and 3, you would have been sentenced to serve a term of imprisonment of five years’ imprisonment with a non-parole period of three years.
64 Pursuant to s6AAA of the Sentencing Act I state that had it not been for your plea of guilty on Charge 4 you would have been sentenced to serve a term of imprisonment of four years with a non-parole period of three years.
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