Director of Public Prosecutions v Jedrzejczyk
[2018] VCC 231
•8 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 17-01956
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| PAUL JEDRZEJCZYK |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 February 2018 |
DATE OF SENTENCE: | 8 March 2018 |
CASE MAY BE CITED AS: | DPP v Jedrzejczyk |
MEDIUM NEUTRAL CITATION: | [2018] VCC 231 |
REASONS FOR SENTENCE
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Subject: Criminal Law – sentence
Catchwords - pleaded guilty to one charge of transmitting child abuse material using a carriage serve – transmitted sadistic, violent video on dark web over 2 days – 27 year old offender - severe obsessional compulsive disorder – good prospects for rehabilitation – specific deterrence not high – advanced insight into condition.
Case Cited: Verdins v R [2007]VSCA 102
Sentence - 6 months imprisonment – immediate release – Recognizance Release Order to be of good behaviour for 2 years - $1000 recognizance
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr J. Grant | CDPP |
For the Accused | Mr P. Tiwana | GTC Lawyers |
HER HONOUR:
1Paul Jedrzejczyk, you have pleaded guilty to one charge of transmitting material using a carriage service, the material being child abuse material. This is a serious charge for which the maximum penalty is 15 years' imprisonment. The circumstances of this instance of offending are particularly serious because of the unusually depraved nature of the material which you transmitted.
2Between 21 and 22 March 2017, during a 24-hour period, you uploaded a video to three different YouTube accounts and three different Facebook accounts. The video was a compilation of parts of a video series named "Daisy's Destruction" which is child pornography, otherwise described as child exploitation material.
3On 28 June 2017, police executed a search warrant at your home. You were interviewed and arrested and released on bail.
4The amended prosecution opening dated 15 February 2018 includes a list of six uploads performed by you at various times over 21 and 22 March. You transmitted the material to the Facebook server, and each time the Facebook system blocked its publication. However, each time you transmitted it to the YouTube server, it was successfully published. When you saw that it was being made public, you removed it within several minutes.
5"Daisy's Destruction" is a series of four separate graphic video clips that depict the ongoing sadistic and violent, physical and sexual molestation of a female infant approximately eighteen months old by a naked adult female wearing a face mask. The clips were filmed in the Philippines, and they contain appalling and shocking scenes of cruelty and depravity.
6The child in the video has been identified and rescued by police in the Philippines. The female offender and male director of the clips have been arrested and prosecuted. It is known that this video is commonly shared amongst paedophiles around the world via the dark web, which requires specific software configuration or authorisation to allow access.
7The video is classified as Category 5 under the Child Exploitation Tracking System[1]. That category includes the most serious forms of exploitation.
[1] Child Exploitation Tracking System – Australian National Victim Image Library Scheme (CETS ANVIL) Category 5 includes sadism, bestiality or humiliation (including urination and defection and/or torture
8When the police came to your house, you were cooperative and assisted them to find 11 electronic devices. You told the police that you suffer from severe Obsessive Compulsive Disorder, and that this was why you offended. You explained that you used the dark web to gain access to the full version of the video which you then edited and shortened before uploading it to Facebook and YouTube using various email addresses that you created.
9You told police that your mental health had deteriorated after your father died in 2007 and you had been subsequently diagnosed with OCD and anxiety and depression. You said, and I quote:
"I've got severe OCD, I don't mean to do it. I just can't help myself. It takes over me. I want to stop but I can't."
10Your father's birthday was 23 March, and it was in the days before this that you committed the offences. You had been treated successfully for these conditions until your mother died in April 2016, but have had no treatment since then apart from medication.
11You developed as part of the OCD an obsession with searching and watching violent videos on the internet of people hurting themselves, being violently murdered, or looking at the bodies of deceased war victims.
12Eventually, you found an online newspaper article about "Daisy's Destruction" and you began to research it. You became obsessed with it, and then found the video on the dark web.
13Turning to your personal background, you are a 27 year old man living with your partner in a stable relationship. You were the only child of your parents, both of whom have died when each was aged 62. At school, you experienced intense and persistent bullying involving verbal and emotional abuse, and physical and sexual assaults. This led to anxiety, agitation and palpitations. You told your mother, and the school authorities were informed but nothing was done and you felt helpless. Your father was stern and critical, making you feel a failure.
14Sadly, things were unhappy at home too, because your father contracted lung cancer in 2003. In 2005, he fell from a ladder and injured his spine. During surgery on his spine, it was found that the lung cancer had spread and he was rendered a paraplegic. He was placed into residential care and was discharged home in January 2006, requiring round-the-clock care with nurses visiting twice a week to assist.
15A week before you were to sit your VCE exams, your father was taken into palliative care and he died after you had sat your first exam. You were not able to continue with your exams and instead you were awarded a derivative VCE score. This meant that you were unable to pursue the course of your choice or gain entry to the university you wanted to go to. You left home in 2010 and returned to live with your mother in 2013. In 2016, whilst on your first overseas trip, she died suddenly and you returned home immediately.
16You are a well-educated man, having completed a Bachelor of Business degree and a marketing degree. Whilst still a student, you commenced working at Woolworths and remained there for five years. Thereafter, you have worked as a storeman and you are still employed in that capacity in a job you enjoy and value. You have no prior convictions, and only one court appearance which resulted in a non-conviction adjourned undertaking.
17Your history of OCD is of important significance in this case. Your condition with treatment over the years has been well documented and has been described by Dr Deakin, who assessed you very recently, as a remarkably severe form of the illness. You were first diagnosed in 2008, about a year after your father's death. From that time, you had gradually become depressed and you attempted suicide.
18You began to experience recurrent, intrusive violent thoughts and urges to watch violent videos. You were a patient at Origin Youth Health for two years from September 2008 following a suicide attempt. You engaged in various forms of self-harm placing yourself at risk. In his report dated 4 February 2018, Dr Deakin referred to many instances of the manifestation of your condition which you related to him.
19An example is your mother's decision in 2008 to cancel internet access to the house because of your obsessional viewing of violent material. You then obsessively checked that there was indeed no internet access to the house, sometimes doing this for hours or for a whole day. You then bought a basic mobile phone with no internet access.
20Dr Deakin gave evidence and described OCD as an anxiety disorder characterised by obsessions and compulsions. He explained that compulsions are the behavioural responses to the obsessional drive. In your case, your obsession led to high anxiety which was relieved by watching the material and your anxiety was appeased because you had satisfied the intrusive obsessional drive.
21He said you were not in control of your thoughts, which were involuntary, and you could only control and regulate yourself by indulging in the compulsions. The uploading of the material also relieved your anxiety. Dr Deakin explained that the causes of OCD are not known, but it is amenable to medication. He said it can be a serious illness and can be very debilitating.
22At the time of these offences, you were living in shared accommodation with a friend. A few months earlier, you and your girlfriend watched the film "Mad Max". She mentioned that she had seen more violent movies than "Mad Max" and referred to the movie "Three Men and a Hammer" which you yourself had seen several years ago. Her comment reminded you of the obsessional urges you had had as an 18 year old, and of viewing that particular movie.
23After several years of remission, this reminder served as a trigger and unfortunately a pattern of OCD recommenced with uncontrollable urges to watch violent material leading to the video "Daisy's Destruction" even though you knew it was wrong and illegal.
24Around this time, you had Googled information about the treatment of OCD and you misinterpreted what you read about exposure therapy as meaning that exposure to violent material would cure you of the obsessive need to watch it. According to Dr Deakin, this made your condition worse.
25The other factors in play at the time of the offending were that it was your father's birthday on 23 March and the fact that you were missing him, particularly given that it was your first year without your mother whose loss had been very difficult for you. You had also had an argument with your housemate and were anxious about securing a promotion at work. You were depressed by your compulsive viewing of material on the dark web, feeling that your life had become completely engrossed in it. You watched it for many hours a day, sleeping only for a few hours, and you watched it at work whenever not in the company of your boss.
26In the months following the offending, shortly before your arrest, you contacted the Australian Federal Police by sending messages regarding access to "Daisy's Destruction" which you told Dr Deakin was your way of indicating that you needed help. That was what led to your arrest, and that is important as an indication that you recognised your need to stop but needed some form of intervention to do so.
27Specific deterrence in your case intricately involves your treatment and the chances for recovery because it was your mental illness that directly led you to offend. Following your arrest, you were referred to a psychologist and a psychiatrist, and the medication that you had been taking at the time of the offending was reviewed and altered with engagement in cognitive behaviour therapy as well.
28Your obsessions were transferred to the outcome of this case, characterised by obsessively looking up similar cases, and Dr Deakin considers that after the case is over it is likely that your obsessions might move on to something else.
29Dr Deakin addressed with you your understanding of the illegality of transmitting child pornography. You told him you continued to worry that you might reoffend, but you felt reassured that you would not as you had satisfied the previously unanswered question regarding whether you would get into trouble. You told him that you are currently functioning better and did not take your phone to work.
30It is important to note that you have not been diagnosed with paedophilia. Indeed, you told Dr Deakin that you were repulsed by the content of the child pornography material.
31Your prospects for rehabilitation can be said to be reasonably good and specific deterrence need not rank high in my sentencing task. For several years, you seemed able to manage your condition which returned to trouble you seriously when your memory of watching violent videos was revived. The emphasis needs to be on your treatment and consequent improvement and anxiety, falling short of complete recovery because of the persistent nature of your own illness, but your own past experience indicates that there is the capacity for your condition to improve.
32Dr Deakin considers you have reasonably advanced insight into your condition and that you are actively engaged in appropriate treatment. He referred also to the Problem Behaviour Program at the Victorian Institute of Forensic Mental Health as a specialised service catering to offenders similar to you as a suitable alternative to your current treatment. He said in his evidence that there was no need for you to take part in a sex offender program as it would have no utility in this case.
33The need for general deterrence is of very great significance in a case like this because of the importance of sending a message to others who might offend similarly. In this particular case, its importance is magnified by the seriousness of the charge because of the appalling depravity of the material.
34In a case where material shows a baby tortured by adults exploiting her helplessness and indulging their own depravity, the court has an important role because of the need to protect children and to denounce and punish those who would circulate it and perpetuate a market for it.
35But in a case where the offender suffers from a severe mental illness which was directly instrumental in producing the criminal behaviour, general deterrence plays a much less significant role. It is clear that your illness led to your offending, and the prosecution agrees that your sentence should be appropriately modified by your reduced criminal culpability according to the principles in the case of Verdins[2].
[2] Verdins v R [2007] VSCA 102
36You still have stable employment and you are living with your partner, who is a graphic designer. You have her support and that of her parents. You spend time with them and you have no problems with either drugs or alcohol. You are still a relatively young man with the potential to contribute to the community in the years ahead.
37Letters in your support have been provided by your partner, Ms Schumacher, as well as her mother, Bridget Schwabel, and your uncle, Tadeusz Wozniak. Each of them understands the nature of the charge against you and understands you are having treatment. They all speak well of you in other ways. Ms Schumacher and your uncle understand the difficulties you have faced over the years, and Mrs Schwabel confirms the support given to you by her family.
38You have written a letter addressed to the court in which you express your remorse and shame and take full responsibility for your actions, although I accept of course that your acceptance of responsibility is within the constraints imposed by your illness.
39These are all mitigating factors which, taken together with the indications that you will be able to manage your condition in future, suggest you have good chances for rehabilitation as I said before. I also take into account that you co-operated with the police right from the start and pleaded guilty at an early stage. That early plea is an indication of your genuine remorse which is important in terms of your rehabilitation and deserves a discount on your sentence. A discount is also indicated by the plea having facilitated the progress of the case, and the criminal justice system, by avoiding the delay and the expense and inconvenience of a trial.
40Returning to the principles in the case of Verdins, Dr Deakin could not say specifically what the effect of imprisonment would be upon you other than to observe that treatment would likely be limited to medication and you would be more vulnerable to the stresses of imprisonment than others. The risk would be that it would make you more anxious and the OCD would be exacerbated. Accordingly, it is clear that limbs 5 and 6 of the decision in the case of Verdins apply to reduce the sentence, and I take that into account.
41Your counsel submitted that this is an unusual case, and an appropriate sentence would be one that enables you to continue your treatment in the community. The prosecution has characterised your offending as more serious because of the editing you did in compiling the single video and then uploading it, with it being viewed about a hundred times as a result, before you removed it. The submission was that imprisonment would usually be imposed in such cases, and this one is no different, particularly given that there may be concerns about your prospects for rehabilitation raised by the difficulty of treatment in the past and your misguided attempts at self-treatment.
42I have formed the view that this is indeed an unusual case, and the circumstances place it in a category of its own. So-called "comparable cases" are not helpful. The Verdins principles carry very significant weight here and call for much greater consideration than slight moderation of the sentence.
43You are not a suitable vehicle for general deterrence, as the terminology puts it, in these cases. There is no dispute that your unwanted, intrusive, obsessional thoughts led you to offend and that fact, sadly, sets you apart from other people who do not suffer in this way.
44Although I have considered the suitability of a Community Correction Order, the gravity of the offending in this case requires a prison sentence but one which need not be served immediately.
45Would you stand now please, Mr. Jedrzejczyk.
46I sentence you to six months' imprisonment under a Recognizance Release Order, but make an order that you be released forthwith with the condition that you be of good behaviour for two years and that you undergo assessment by the Specialised Offender Assessment and Treatment Service.
47Despite the indication by Dr Deakin that a sex offender program would not be useful in your case, Corrections have indicated that such an assessment could be useful in determining the risk of re-offending in a similar way. Accordingly, I shall include that suggestion as a condition.
48Although you were assessed as suitable for a Community Correction Order, with possible conditions as to your ongoing treatment, a Recognizance Release Order is more appropriate because of the sentence of imprisonment being warranted in this case. I am satisfied that you do not need to have your treatment mandated by the court, and therefore other conditions are not necessary.
49I fix a recognizance, as required by the legislation, of $1,000. That is not a sum you have to pay now, but might be forfeited if you were to breach the order. It is a form of security designed to ensure that you abide by the conditions imposed. I am obliged to tell you that it can be varied or discharged by a court. A breach would bring you back to court and you could be ordered to serve all or part of the six months' imprisonment. The sentence has the effect of a suspended prison sentence.
50The charge in this case is a Class 2 offence under the Sex Offenders' Registration Act and you are required to report your details to the police every year for eight years. You will be given a form to sign about that shortly.
51If you had pleaded not guilty to this charge, I would have sentenced you in the same way, but with a good behaviour bond for four years.
52Now first of all Mr Grant, are there any matters that I have omitted? Are the technical parts of the order correct?
53MR GRANT: No, Your Honour.
54HER HONOUR: Good, thank you. Is there anything else, Mr Tiwana?
55MR TIWANA: No, Your Honour. Thank you.
56HER HONOUR: Thank you. We will just attend to the signing of the documents now.
57You can sit down, Mr Jedrzejczyk. Mr Grant, should I fill in the gaps in the bottom part of the order here? Which reads: "This order has been issued because - "
58MR GRANT: Apologies, Your Honour.
59HER HONOUR: Will I hand that back to you?
60MR GRANT: My understanding is that is if in certain situations you have to provide reasons as to why it was given.
61HER HONOUR: I see. I will just leave it alone then.
62MR GRANT: Yes.
63HER HONOUR: Thank you, Mr Grant. Thank you, Mr Tiwana, for your assistance.
64MR GRANT: Thank you, Your Honour.
65MR TIWANA: Thank you.
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