Director of Public Prosecutions v Kyne

[2022] VCC 1451

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-22-00053

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER KYNE

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2022
DATE OF SENTENCE:	7 September 2022
CASE MAY BE CITED AS:	DPP v Kyne
MEDIUM NEUTRAL CITATION:	[2022] VCC 1451

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence

Catchwords:              Possession of child abuse material – Over 300,000 child abuse images and 18,000 videos –– Category 1 and 2 materials according to Interpol Baseline Categorisation System – 52-years-old – No prior criminal history – Meets the DSM-5 diagnostic criteria for Paedophilia and Hebephilia – First time in custody – Early guilty plea

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:DPP (Cth) v D’Alessandro (2010) 26 VR 477; DPP (Cth) and DPP v Garside [2016] VSCA 74, Worboyes v The Queen (2021) 96 MVR 344; Rossi v The Queen [2021] VSCA 296

Sentence:                  3 years’ imprisonment with a non-parole period of 1 year and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms G Overend	Office of Public Prosecutions
For the Accused	Ms B Franjic (Plea) Mr K Burke (Sentence)	Dribbin & Brown Criminal Lawyers

HIS HONOUR:

Introduction

1Christopher Kyne, you have pleaded guilty on indictment to one rolled-up charge of possession of child abuse material contrary to s 51G(1) of the Crimes Act 1958. This offence carries a maximum penalty of 10 years’ imprisonment.

2The case was opened in line with an agreed summary of prosecution opening dated 11 July 2022.[1] Following the plea hearing, an amended summary of prosecution opening dated 4 August 2022 was filed.[2] This summary is the same as Exhibit A but adds further detail relating to how many offending images were unique, and in relation to the moving images, the length of the longest video on each device. I am told that these further details are not disputed.

[1]Exhibit A.

[2]Exhibit C.

3On the morning of 13 May 2021, police executed a search warrant at your home address where you lived with your mother. A number of electronic devices, including laptops, hard drives, USB’s and DVDs were seized.

4The seized items were later analysed and found to contain child abuse material. This consisted of both still images and videos. Across nine devices, comprising four laptops, three external hard drives, a USB and X8 DVD disks, a total of 309,341 child abuse images and 18,395 child abuse videos were identified.[3]

[3]See Exhibit C - Amended Summary of Prosecution Opening for the breakdown across the devices.

5The child abuse material was categorised according to the Interpol Baseline Categorisation System. Category 1 child abuse material is an image depicting a real pre-pubescent child (under the age of 13 approximately) involved in a sexual act, witnessing a sexual act or the material is focused on the anal or genital region of the child. Category 2 relates to other child abuse material that is illegal within Victoria but does not fit within Category 1.[4]

[4]This includes a child subject to: torture, cruelty or physical abuse; sexual abuse; engaged in a sexual pose or sexual activity; is in the presence of another person who is engaged in a sexual pose or sexual activity; is exposing the genital or anal region of a person who is, or who appears or is implied to be a child; the breasts area of a person who is or is implied to be a female child, and a reasonable person would regard as being, in the circumstances, offensive.

6Across all devices, there were some 225,904 still images and 11,368 videos in Category 1. There were some 83,404 images and 7,025 videos in Category 2.

7The amended opening, Exhibit C, makes clear that a significant number of the still images and videos across the devices were unique. Not only is the sheer volume that was in your possession staggering, it is also clear that more than a hundred thousand victims were abused in order to produce this vile material.

8I have been provided with descriptions of the child abuse material you possessed. The content can rightly be described as revolting and extreme. The images include:

·        children, aged between 2 – 4 years and 3 – 6 years being vaginally penetrated by an adult or adolescent male erect penis.

·        a female child aged between 7 – 11 years, lying naked face up on a bed with her legs open and vagina exposed. She is blindfolded, and her arms and legs are bound with rope.

·        children aged between 8 – 12 years being orally penetrated by an adult or adolescent male erect penis.

·        two female children aged between 7 – 11 years lying on top of each other, tummy to tummy and top to tail. The children are engaged in tandem oral sex. A female adult can be observed in the background holding a chain in one hand, whilst her other hand is on the child’s lower back.

9The videos include:

·        a female child aged between 4 – 6 years lying on a bed, topless with an adult erect penis held near her face, and what appears to be semen smeared over the child’s chest.

·        a toddler aged between 2 – 4 years with a gag (possibly tape) placed over the mouth. The child’s right arm is outstretched and placed on an adult females exposed vagina.

·        a female child aged between 6 – 7 years, her vagina being penetrated orally, digitally and with a penis by a male aged 50 or over.[5]

[5]These examples relate to Category 1 material. See prosecution opening for further descriptions, including for Category 2 material.

10The longest child abuse video ran for some 5 hours and 27 minutes. There were others that were hours long.[6]

[6]See Exhibit C for the duration of the longest video on each device.

11You were arrested and conveyed to Knox police Station where you participated in an interview. You accepted responsibility for downloading illegal child abuse material. When asked why you had downloaded the material, you replied “it obviously does something to me”. You said you commenced downloading this material around 2009.

12You were released pending summons. You pleaded guilty at the earliest opportunity on 21 January 2022 and were committed to this Court on bail.

Personal circumstances

13You are 52 years old and have enjoyed a long work history. You have no prior criminal history.

14You grew up in a close-knit family unit consisting of your parents, a brother and your two sisters. Your father worked in sales and your mother was a homemaker. Your memories growing up are happy ones, devoid of any developmental issues.

15Your schooling was likewise unremarkable, and you completed year 12 in 1987. You trained and worked as a tiler for approximately 2 years, followed by 12 months of employment in a tile shop. You then undertook training in carpentry and have worked in the building industry as a carpenter for 20 years. For the last 5 years, you have worked for a garage door manufacturer, providing measures and quotes.

16Your father passed away last year, aged 87. Your mother, who is now 84, remains living independently. Prior to your remand in custody, you had been living with your mother providing her with support. You have maintained a close relationship with all your siblings.

17You commenced a relationship when aged 17. The relationship resulted in marriage and your son was born in 1993. You separated from your wife in 1998 but have maintained a positive relationship with her. You are also very close to your son.

18Following your divorce, you have had two further long-term relationships. The first lasted 6 years, and the second, 10 years.

19You enjoy good physical and mental health. Currently, as a result of your legal predicament, Ms Matthews opines that you present with mild to moderate Depressive and Anxiety symptoms and meet a DSM-5 diagnosis for Adjustment Disorder. Ms Matthews further states that your mental state is not so severe that you would not manage a prison sentence.[7]

[7]Exhibit 2 – Psychological report, penultimate paragraph on page 5.

Objective gravity

20It goes without saying that the offence you have pleaded guilty to is an inherently serious one. The maximum sentence of 10 years’ imprisonment makes that plain.

21I regard the offending that you engaged in as a serious example of the offence.

22I am required to take into account a number of factors that inform the objective seriousness of your offending. These include the nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed, and the number of images you possessed.

23As I have already indicated, you were in possession of some 309,341 child abuse images and 18,395 child abuse videos. That is a huge amount of offending material. The vast material indicates the sexual and physical abuse of so many innocent children. The children abused were as young as 2 – 4 years. Over 200,000 images and 11,000 videos involved pre-pubescent children. I re-iterate, the material was vile and depraved. While I am sentencing you for possessing this material on a single date, I take into account that you accumulated this material over a period of a decade as you admitted to the police. This offending wasn’t an isolated occurrence. The offending material was found across 9 separate devices.

24Your possession of this significant number of child abuse material creates a market for the continued corruption and exploitation of children.  This is not a victimless crime and children must be protected. Given the anonymity provided by the internet, this offending is difficult to detect.

25In sentencing you, general deterrence must be given prominence. In DPP (Cth) v D’Alessandro,[8] the court stated that:

the prevalence and ready availability of pornographic material involving         children, particularly on the internet, demands that general deterrence must be a paramount consideration.[9]

[8](2010) 26 VR 477.

[9]Ibid 483 [21].

26The sentence I pass must unequivocally send a message to those who may be minded to offend in a similar manner, that such abhorrent offending will be met with stern punishment in the form of prison sentences. Your offending must be denounced, and you must be justly punished.

27I accept that you possessed the material for your personal use and not for the purpose of sale or distribution. You didn’t profit in any way. Of course, the absence of these factors does not mitigate the offending.[10]

[10]See DPP (Cth) and DPP v Garside [2016] VSCA 74, [25] – matters relevant to sentencing for child pornography cases.

28I also regard your moral culpability for this offending as high. You have lived a rewarding and social life, enjoyed a stable upbringing, and faced no mental health issues. You well understood the wrongfulness of possessing this material.

29In relation to the offending material, you told Mr Hanley:

It was almost owning it rather than downloading it to watch it [that was appealing] …it was something different…. I knew it was wrong…at the very start it was like any other porn…I wouldn’t have kept downloading it if it didn’t turn me on.

Matters in mitigation

30You pleaded guilty at the earliest opportunity. By pleading guilty, you have facilitated the course of justice and taken responsibility for your actions. You have also saved the community the time and expense of a trial.

31Your plea of guilty attracts a greater utilitarian benefit, having been entered when the courts are facing significant delays in relation to criminal trials. The courts must encourage those who are guilty to so plead, and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.[11] 

[11]Worboyes v The Queen (2021) 96 MVR 344; Rossi v The Queen [2021] VSCA 296.

32You were cooperative with the police and made appropriate admissions in your record of interview.

33I accept that your plea of guilty and cooperation with the police is indicative of remorse.

34You have reached the age of 52 without any prior criminal history. There is nothing subsequent or pending. You have enjoyed long-term consistent employment, primarily as a carpenter.

35This is your first experience of custody. That fact, coupled with the restrictions resulting from COVID-19, including initial isolation and ongoing lockdowns, will make your time in custody more onerous.

36Prior to your remand, you were living with your elderly mother and providing her with support by driving her to appointments, assisting around the house and paying her bills. I accept that your inability to continue with that care will cause you anguish as you serve your sentence. Thankfully, your brother lives very close to your mother and will be able to assist her.

37Since your arrest, you have engaged in rehabilitation. I have had regard to Mr Hanley’s report dated 12 July 2022.[12] Mr Hanley states that you have participated online in sex offender treatment. You have undertaken nine counselling sessions since 7 February 2022. I note Mr Hanley’s conclusion at [14] of his report:

Mr Kyne has made incipient progress in sex offender treatment. Despite efforts to delve into deeper issues, Mr Kyne’s approach to treatment has remained at a somewhat superficial level. His approach appears to reflect poor self-awareness, and a somewhat defensive interpersonal style. Mr Kyne does not seem accustomed to self-reflecting on his own thoughts and behaviour and making corresponding adjustments. Nevertheless, in treatment he has demonstrated an ability and willingness to engage in a process of developing insight into his behaviour (including his offending behaviour) and has expressed a readiness to put plans in place to actively manage his behaviour appropriately.

[12]Exhibit 3.

38Ms Matthews agrees with Mr Hanley’s opinion that your insight into your offending is limited, and you would benefit from a sex offender treatment program.

39Ms Matthews, not surprisingly, states that you meet the DSM-5 diagnostic criteria for Paedophilia and Hebephilia. As best she can, Ms Matthews estimates your risk of re-offending as being low to average.

40I regard your prospects of rehabilitation as reasonable. You must develop appropriate insight and complete a sex offender treatment program.

Sentencing

41On behalf of the prosecution, Ms Overend submitted that this was a serious example of the offence and that all relevant sentencing purposes, including general deterrence, could only be met by a term of imprisonment consisting of a head sentence and a non-parole period. I entirely agree.

42Despite her initial submission, Ms Franjic was realistic in conceding that a term of imprisonment consisting of a head sentence and a non-parole period was an appropriate disposition. She urged the Court to consider a shorter non-parole period.

43The objective gravity of your offending along with your high moral culpability, calls for a sentence of imprisonment. There is no realistic alternative, not even a combination sentence.

44Your offending must be marked by a sentence that adequately punishes you, acts as a clear deterrent to others and denounces your conduct. I must also bear in mind your rehabilitation. Specifically deterring you from further offending remains of some importance.

45Having taken into consideration all relevant matters and principles, I sentence you Mr Kyne as follows:

46On Charge 1, possession of child abuse material, you are sentenced to 3 years’ imprisonment. I set a non-parole period of 1 year and 9 months’ imprisonment.

Pre-sentence detention

47Pursuant to s 18 of the Sentencing Act 1991, the period of 48 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Section 6AAA declaration

48Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been convicted, you would have been sentenced to a term of 4 years and 3 months’ imprisonment with a non-parole period of 2 years and 9 months.

Disposal order

49Pursuant to s 33(1) of the Confiscation Act 1997, I grant the forfeiture order sought in relation to the items listed in the schedule.

Sex Offender Registration

50Pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, registration is mandatory in relation to this offence and the reporting period is 8 years. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations. You will be sent an acknowledgement form for signing in due course and will be provided with a document setting out your reporting obligations upon your release and the consequences of any breach. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.

51Thank you. Ms Overend does that deal with everything?

52MS OVEREND: Yes, your Honour.

53HIS HONOUR: Can I just check, in terms of the longest video, I got the length correct?

54MS OVEREND: Yes, that was right.

55HIS HONOUR: Yes, thank you. And I should formally say, I refer to it in my sentencing remarks, the amended summary that you filed is Exhibit C.

56MS OVEREND: Yes, your Honour.

57HIS HONOUR: Yes, thank you. Any anything arising Mr Burke?

58MR BURKE: No, your Honour.

59HIS HONOUR: Thank you.