Director of Public Prosecutions v James (a pseudonym)
[2019] VCC 1103
•19 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM JAMES (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE CAHILL |
WHERE HELD: | Bendigo |
DATE OF HEARING: | |
DATE OF SENTENCE: | 19 July 2019 |
CASE MAY BE CITED AS: | DPP v James (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1103 |
REASONS FOR SENTENCE
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Subject: Child pornography
Catchwords: Guilty plea – no criminal record – low range offending – good prospects of rehabilitation
Legislation Cited:
Cases Cited:DPP (Cth) v Garside [2016] VSCA 74 ; D’Alessandro [2010] VSCA 60
Sentence:12 months imprisonment to be released on a reconnaissance after serving six months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Darby | CDPP |
For the Accused | Mr M. Habib | Docherty Legal |
HIS HONOUR:
1William James[1], you have pleaded guilty to one charge of use a carriage service to transmit child pornography, one charge of use a carriage service to cause child pornography material to be transmitted, one charge of use a carriage service to procure a person under 16 years of age for sexual activity, and one charge of use of a carriage service to transmit indecent communications to a person believed to be under 16 years of age, contrary to the Criminal Code (Cth.) You have also pleaded guilty to one charge of knowingly possess child abuse material, contrary to the Crimes Act (Vic.)
[1] A pseudonym.
2The circumstances of your offending are set out in the prosecution opening for plea.
3In relation to Charge 2, on 19 November 2017, you had SMS and MMS conversations with someone using the alias 'Kaia.' She told you she was
14 years old. You told her you were 38. You were actually 47.4In one conversation, you told her you were 'jerking off.' She asked you if you wanted to trade pictures. You sent her an image of the hand around the base of your erect penis. She sent you a closeup image of a pre-pubescent vagina. You responded, 'Nice pussy. I want to lick it.' You sent her another image of her erect penis and asked to see her 'boobs.' She sent you an image of exposed prepubescent breasts.
5By these communications, you caused child pornography images to be transmitted to you.
6In relation to Charge 3, later on the same day, you had further SMS and MMS conversations with her. You told her your daughter liked to watch you jerking off. It was not true; you told her that to try to get her interest to watch you masturbating. She asked you what you wanted to do. You said you were naked and had jerked off.
7On 6 December 2017, you said you wished she was with you and you would be kissing her naked body all over if she was. On 2 January 2018, you asked her to talk on WhatsApp or some other free texting app. On 5 and 6 January 2018, you had video calls with her. You told police in one of them you masturbated.
8By sending the online communications and masturbating over a video call with her, you intended to procure her engagement in online sexual activity with you.
9Over a period of nearly two months you had communicated with Kaia, who was in fact a 10-year-old girl living in Georgia, USA. Her mother found your sexually explicit text messages and images on her phone and reported them to local police.
10Because you had not attempted to conceal your identity, you were identified and the offending was detected.
11In relation to Charge 4, on 25 June 2018, using Hangout, you communicated online with 'BandAddict' who said she was 14 years old. You told her a girl had wanted to watch you 'jerking off.' You said it was 'kind of fun', and watching her made you 'even more horny.' You said you had only ever done it once and it would be nice to find another girl to have fun with.
12By sending these messages, you transmitted material that was indecent to a person you believed to be under the age of 16.
13In relation to Charge 5, on 4 July 2018, police executed a search warrant at your home. They seized two mobile phones and a computer, and found child abuse material stored on them.
14Under the Australian National Victim Image Library classification model, you had 114 Category 1 images which show no sexual activity. Those images included images of girls aged between five and 16 years with exposed genitalia, and an image of a naked male with an erect penis sitting on a beach with a naked male baby.
15You had 31 Category 2 images. That category relates to sex acts between a child and someone else. Those images included images of girls aged between five and 16 years, digitally penetrating their vaginas, and an image of a female aged around six years inserting an instrument into her anus.
16You had 71 Category 3 images of 'adult and child non-penetrative sex', which included images of girls aged between three and
14 years in the presence of, or holding, adult penises, including an image of a girl aged around 10 years surrounded by three erect adult penises.17You had 72 Category 4 images, which show penetrative sex, and five Category 4 videos, which included girls aged between six and 15 years being penetrated orally and vaginally by adult penises. One image showed a female appearing to be in distress, and a video featured a female with her eyes closed, being held down.
18You had three Category 5 files; they included two images of a girl aged around eight years lying on her back with her vagina exposed and her arms and legs bound with rope, and an image of a girl aged around six years with her hands in handcuffs and her mouth being penetrated by an adult penis.
19In relation to Charge 1, when police interviewed you, you told them you had saved child pornography sent to you by other people in a folder on your phone for several months, and you had cleaned them out maybe six months ago.
You said that you had 30 to 40 images of naked girls, some engaging in oral sex and partial penis-to-vagina penetration, and you had sent maybe half of the images to other people.20In summary, by your own disclosure, you used the internet to transmit 15 to
20 child pornography images from around July 2017 to January 2018. You told police you believed the people you met in chat rooms were just 'horny people looking for fun.' You said a lot of people came up as being between 10 and
16 years old, but you were assumed they were just guys pretending to be something that they are not. You said you conversed with them for the fun of it.21You admitted that you texted with a girl named Kaia who said she was 17; and her picture looked younger. You said you may have sent her a photo of yourself masturbating. You said in a video call, you were masturbating, she sent you an image of her 'boobs', and you spoke with her about 'sex and stuff like that.'
22You were charged with a number of offences and admitted to bail.
23At a committal mention, you pleaded guilty to the charges on this indictment.
24You have no criminal record.
25I turn now to your personal circumstances, which are set out in the psychological report of Warren Simmons dated 14 March 2019.
26You are now 49 years of age.
27Your father died when you were young, and you were raised by your mother and stepfather in Kyabram. You have two older sisters.
One now lives with you. She, with your mother and two of your close friends, have supported you in court.28You attended local schools and completed Year 12. You reported a happy childhood. You enjoyed most sports and competed in target shooting at a national level. However, when you were 14, you were sexually abused.
You told your parents. The perpetrator subsequently passed away.29When you left school, you worked as a photographer and then for a brake company for eight years. For the last 16 years until February of this year, you had worked at a cannery.
30In your early 30s, you met the mother of your daughter. Your relationship with her was happy for the first ten years, but deteriorated and ended in May 2018. When you separated, your daughter, now aged 16, decided to live with you.
31You have been a social drinker since the age of 17, and since your early 20s, a regular user of cannabis. You have no significant medical history other than a number of fractured bones suffered in sport and BMX bike accidents.
32You have been anxious and depressed since you were arrested and charged, and since November 2018, your doctor has treated you with Zoloft.
33You told Mr Simmons you lack energy and motivation, have lost your appetite and weight and your libido.
34I note that on your doctor's referral since December 2018, you have been seeing a psychologist for monthly counselling sessions and management of your anxiety. And in that regard, I received a letter dated
16 July 2019 from Roger Barnes, psychologist, confirming those counselling sessions.35In relation to your offending, you told Mr Simmons you descended into the depraved world of child pornography because you wanted to understand how paedophiles think. You said you started to send them photos so they would talk to you. You said you did not think the people you communicated with were young girls. As it happened, one of them was a 10-year-old girl. You believed their photos and identities were not real.
36According to Mr Simmons, you tended to minimise the effect of your behaviour on others, and you have limited victim empathy. He noted this is not uncommon in those who have child exploitation material, as they do not perceive themselves as having directly interacted with the victim, and therefore, they have an emotional distance from what occurred.
37Mr Simmons took a detailed psychosexual history from you. You denied arousal to children, claiming you had never used the pornographic material obtained for sexual gratification. You told police people in online chat rooms had sent you the child pornography, which you used to interact with others.
38Mr Simmons stated, and I accept, there is no evidence you attempted to groom potential victims.
39In Mr Simmons' opinion, the indecent assault on you when you were a teenager has had a significant impact which you have never been able to deal with effectively, and that you would benefit from treatment to address your limited insight into the harm your offending has caused. I accept these opinions.
40Mr Simmons believes you are not a high risk of reoffending, taking into account that you had a limited number of images in your possession, you did not try to meet with any potential victim, and you do not show any clear evidence of deviant arousal.
41I take his view into account in finding your prospects of rehabilitation are relatively good, provided that you accept and respond to programs designed to reduce reoffending.
42I read a letter, dated 16 July 2019, which your sister Melanie[2] wrote to the court. She has moved in with you since the time of your arrest. She described you as a loving, caring, son, brother and father who is a kind and gentle man.
She wrote you are the very best uncle to your nieces and nephews.You disclosed to her the sexually explicit and sordid nature of your online behaviour.[2] A pseudonym.
43She wrote, and I accept, your offending occurred in the context of your loneliness after your separation from your partner, and you went into chat rooms looking for friendships. She said, and I also accept, you are very sorry for what you have done and for the shame and the pain which it has caused your family.
44You have placed yourself under house arrest, and leave the house only to attend court or for medical appointments. As she wrote, your offending has cost you dearly. After you were charged, DHHS removed your daughter from your care and your longstanding employer terminated your employment.
You have lived with restrictive bail conditions which have prohibited you from having contact with persons under the age of 18 years, including your daughter, without supervision, and from accessing the internet except for banking, bill paying and medical purposes.45Your daughter has been living with your mother, and you have had continuing and regular contact with her in your mother's presence. I am told that there is a Children's Court-ordered family unification order in place, and it is the wish of both your daughter and your that you eventually be reunited.
46In thorough written and oral submissions, your counsel, Mr Habib, relied on the following factors in mitigation of penalty:
· your early plea of guilty, for its utilitarian value and as evidence of your acceptance of responsibility and remorse;
· your cooperation with authorities, including your admissions and disclosure of unknown offending relevant to Charges 1 and 3;
· your prior good character;
· your good work record;
· the absence of any intellectual disability or significant antisocial personality trait;
· your strong family support for you and your strong support for them;
· the extra curial punishment of the removal of your daughter from your care and the loss of your job, which you held for 16 years;
· the public stigma and opprobrium attaching to these offences in the community you have lived in for almost 30 years; and
· your good prospects of rehabilitation.
47They are mitigatory and I have taken them into account to moderate the sentence I will impose.
48To support a submission your offending, while serious, was low-end, Mr Habib pointed to the lack of aggravating circumstances in that you did not falsify your identity or try to conceal it. You did not encourage either girl to keep the conversation secret. You did not use coercion, threats or inducements.
You did not try to set up a physical meeting. The sexual activity - that is, masturbating in a video call - was online and not physical contact.49Your communications with 'BandAddict' were brief. You had a relatively low number of child pornographic images on your digital devices. You are to be sentenced for possession of those images on a single date - that is, the date of your arrest. And you did not have the images for sale or further distribution.
50As to disposition, Mr Habib submitted I should release you on a community correction order or, if I concluded the only appropriate sentence is a term of imprisonment, I should impose a sentence which combines imprisonment and a community correction order.
51Mr Darby, who appeared for the Crown, in comprehensive written and oral submissions, argued a constellation of factors including:
· your offending against two girls who told you they were 14 years old involving, as it did, messages sent over a period of nearly two months to 'Kaia', a 10-year-old girl, about kissing, being horny and masturbating in your daughter's presence, and masturbating in a video call with her;
· you possession of images of prepubescent breasts and vagina received in response to your request for them;
· around 70 messages sent in a one hour and 50 minute exchange with 'BandAddict', asking her age, said to be 14, suggesting a video chat, talking about masturbation and talking about previous experience masturbating over webcam;
· the transmission of 15 to 20 child pornography images over approximately a six-month period; and
· your possession of 293 files, or images, of child pornography on the day you were arrested
in combination, mandated a sentence involving an immediate term of imprisonment.
52He acknowledged you have no criminal record, that you made an early plea which, in addition to its utilitarian value, is evidence of remorse and acceptance of responsibility, and you have strong family support.
53He submitted, given your limited insight and victim empathy, I should be guarded about the prospects of your rehabilitation.
54There is force to this submission.
55He also submitted, regardless of whether your offending was low-end or not, it was inherently serious. I accept the force of this submission.
56In DPP (Cth) v Garside[3], the Victorian Court of Appeal set out the principles governing sentencing for child pornography offences:
· Firstly, child pornography offences are considered especially grave by both the courts and the legislature.
· Secondly, general deterrence is to be a paramount consideration in sentencing child pornography offenders.
· Thirdly, the objective seriousness of offending by using the internet as a tool through which to exploit children is grave.
· Fourthly, child pornography offences generally require that a person is of good character is to be given less weight.
[3][2016] VSCA 74.
57In an earlier case of D'Alessandro, [4] Justice Harper with Justices Redlich and Williams agreeing had observed:
'Firstly, the problem of child pornography is an international one. Secondly, the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. And fourthly, those who make up that market cannot escape responsibility for such exploitation. And fifthly, limited weight must be given to an offender's prior good character.'
[4] [2010] VSCA 60.
58Mr Darby provided me with a table of comparative cases. I have read them and others and used them as a yardstick to examine the sentence I must impose in your case.
59In order to consider all sentencing options, I have had you assessed for a community correction order. I have taken into account the assessing officer's recommendations in determining the sentence I will impose.
60Your favourable assessment notwithstanding, having regard to the applicable sentencing principles, I have concluded, in all the circumstances of your case, that a disposition involving an immediate term of imprisonment is the only appropriate sentence.
61On the federal charges, I will impose individual sentences of imprisonment and fix a single recognisance release period.
62I have moderated the sentences I have imposed and the period of your incarceration to take into account your early guilty plea for its utilitarian value and also evidence of your acceptance of responsibility for your actions and remorse, your voluntary disclosure of offending not known to police, relevant to Charges 1 and 3, the extra curial punishment for your offending, and the desirability that the disruption by your incarceration to the intended reunification with your daughter be minimised.
63Please stand, Mr James.
64On Charge 2, use carriage service to cause child pornography material to be transmitted to yourself, you are sentenced to eight months' imprisonment, which is to commence today.
65On Charge 3, use carriage service to procure a person under 16 for sexual activity, you are sentenced to eight months' imprisonment to commence on
19 September 2019.66On Charge 4, use carriage service to transmit indecent communications to a person believed to be under 16, you are sentenced to four months' imprisonment to commence on 19 February 2020.
67On Charge 1, use a carriage service to transmit child pornography, you are sentenced to four months' imprisonment to commence on 19 March 2020.
68The total effective sentence is 12 months' imprisonment, and I order you be released after serving six months of the term of imprisonment upon giving security by recognisance in the sum of $1,000 on the condition that you be of good behaviour.
69And rather than make a community correction order on Charge 5, the State offence of possess child abuse material, I will make a further condition of your recognisance that you attend for assessment and treatment for programs to reduce your offending under the supervision of community correctional services.
70On Charge 5, possess child abuse material, you are sentenced to six months' imprisonment.
71By reason of the terms of imprisonment I have imposed in respect of Charges 1, 2 and 3, you fall to be sentenced as a serious sexual offender in relation to Charge 5.
72Section 6E of the Sentencing Act requires, unless I direct otherwise, the sentence I impose on you in respect of Charge 5 be served cumulatively on the other sentences I have imposed. The prosecution did not call for a disproportionate sentence. To ensure that the total sentence remains just and appropriate for the whole of your offending, I direct the sentence on Charge 5 be served concurrently with the Federal offences.
73My intention, Mr James, by these sentences is to impose an overall sentence of 12 months' imprisonment which will see you released on a recognisance to be of good behaviour for 12 months, and to undertake sex offender programs in the community, after serving six months.
74The period of the recognisance is 12 months.
75The five offences for which you have now been sentenced are Class 2 offences under the Sex Offenders Registration Act.
76You are now a registerable offender and must comply with the reporting conditions of part 3 of the Act for the rest of your life.
77You must report your personal details to Victoria Police within seven days, and you have an ongoing obligation to report your personal details to Victoria Police every year thereafter, and to report any change of your personal details during that time. It is an offence punishable by a term of imprisonment to fail without reasonable excuse to comply with your reporting conditions.
78I declare that but for your plea of guilty, I would have imposed an overall sentence of 18 months' imprisonment which would have required you to have served nine months.
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