Director of Public Prosecutions v Leishman

[2016] VCC 1729

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR -14-02147

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHAN LEISHMAN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	17 November 2016
CASE MAY BE CITED AS:	DPP v Leishman
MEDIUM NEUTRAL CITATION:	[2016] VCC 1729

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Robins	Office of Public Prosecutions
For the Accused	Ms A. Chambers	Victorian Legal Aid

HIS HONOUR: 

1Stephen Roy Leishman, you have pleaded guilty to one charge of use
a carriage service to access child pornography; one charge of solicit child pornography; one charge of make child pornography; one charge of transmit child pornography; and one charge of access child pornography.  They are all Commonwealth offences.  You have also pleaded guilty to one State offence of possess child pornography. 

2The use a carriage service charge carries a maximum penalty of ten years' imprisonment; Charges 2, 3, 4, and 5, all carry 15 years' imprisonment; and Charge 6 of possess child pornography under the State legislation, carries
a maximum penalty of five years' imprisonment. 

3You are now 56 years of age. 

4I accept that you pleaded guilty at the earliest reasonable opportunity and within your own limited capacity, have expressed a degree of remorse.  The matter resolved and I take that into account and you must also get the utilitarian benefit of that plea of guilty.

5Unfortunately, in your situation, Mr Leishman, you do have a number of prior convictions which are of real significance, albeit some are of age. 

6In April 1985, you were convicted in the Wynnum Magistrates' Court of aggravated sexual assault of a 21 year old.  You were sentenced to imprisonment. 

7In August 1988, you were convicted in the Beenleigh Magistrates' Court of aggravated assault of a girl aged 12.  You were sentenced to imprisonment for a period of six months.

8June 2005, you were convicted here in Warrnambool of stalking a female. 

9You were also convicted of behaving in an offensive manner in a toilet block. 

10The situation here is that you absconded for a period of around about seven months, from August of last year and were ultimately apprehended and you have remained in custody since. 

11As I discussed with counsel at the time, that does not all go well, in terms of prospects of remorse, but I think it would be unfair to add to your sentence simple because of that.  You are a man of limited capacity and I can understand, to a certain extent, you are reluctant to be incarcerated again.

12On Charge 6, you are to be sentenced as a serious sex offender.  I am aware that that means that the sentence on that charge should be cumulative, unless otherwise ordered.  No disproportionate sentence has been sought and the community protection becomes the principle sentencing purpose. 

13In your particularly situation where the victims of this particular matter are - obviously I will not go into the debate of it all, the children who have been forced or coerced or invited to participate in this sort of conduct have to be protected.  You, because of the nature of the offending, will be placed on the Sex Offenders Register, if you are not already there and I advise you the reporting condition will be for life and I will ask you to now sign the receipt of those documents. 

14Ms Chambers, if you wouldn't mind going down to the dock with my associate.

15MS CHAMBERS:  I am more than happy to, Your Honour. 

16HIS HONOUR:  The offending can be summarised in fairly brief compass. 
In June 2013, law enforcement agencies identified an email address. 
In November 2013, police executed a search warrant at your premises and seized a number of computers and data storage devices.  They were forensically examined.

17I am not going to list the category of child pornography, that is known to anyone who is aware of these matter, but in any event, the charges that arose out of all that were (1) accessing child pornography between 8 September 2009 and
20 December 2009.  There were two child pornography images. 

18Charge 2, solicit child pornography.  That was a situation where you sought information from a website in Russia.  On 8 March, you created a user account and you put messages in there seeking child pornography, with a fairly vivid description of what you wanted to look at.  The same occurred between 25 and 28 May 2013 and that gives rise to the charges of soliciting. 

19Charge 3 is of making child pornography.  That scenario, in March 2013, you uploaded six child images to a photo sharing website, which were then accessible by other.  The images in that were Category 1, which is the lowest of the categories.  There was some discussion with counsel as to how that all comes about.

20But in any event, Charge 4, the transmission.  On five occasions between
20 and 28 April, you uploaded 83 child pornography files to online data storage.  You created an account in a fictitious name.  that address was linked to you and the acknowledged files were six to 11 years of age, dealing with children and you also transmitted child pornography files attached to some emails.  An aggregate of about 15 images were classified as child pornography.

21Charge 5 of accessing.  You accessed then again between September 2013 and November 2013, seven child pornography files and the categories of that are outlined. 

22Charge 6, the State matter of possessing child pornography, which were in fact all in Category 6, which is the most serious of the categories.  They comprised cartoons and drawings depicting children.  We expressed some concern about that, but was unable to be provided with the images.  In any event, very sensible discussions took place as to how this matter should be disposed of.

231 November 2013 you were arrested and interviewed and essentially, as was your right, you went "no comment".  The matter proceeded as a straight
hand-up brief and as I already indicated, you absconded and the matter ultimately proceeded from there. 

24One matter, I suppose, someone is going to be able to give a victim impact statements in matters such as this.  I know the Americans are able to do it, but I do not get one.  The societies must protect their children, whether those children be in this country or a foreign country or wherever and it is a gross mistake to regard this sort of offending as victimless. 

25In your situation, it calls for the application of general and specific deterrence, denunciation and an appropriate punishment.  An active gaol component of any disposition, in your circumstances, is inevitable. 

26What was put, was that - and this is the ultimate disposition that I agreed to, was a period of active custody, followed by a community corrections order with a sex offenders program, would be the best way to try and deal with punishing you and protecting, as best as possible, the community. 

27It was agreed that the offending fell - it is a strange way to describe it, I suppose, but tell at the lower end of this sort of offending, in terms of the number of images and those sorts of matters and I do not need to go through that here.  This is not one of those matters where people are apprehended with 80,000 images and continually in discussion with Russia and places like that.  But as
I said, there has to be a custodial sentence and I am well aware of the provisions of the Commonwealth legislation about sentencing, as well as the State provisions about sentencing.

28You are now 56, so you really cannot call much of your childhood into aid, however you were born in Warrnambool in 1960 and your parents both worked in factories in this area.  You went to Warrnambool South Tech for Form 1 and Form 2.  That was the total extent of your education. 

29You were taken, at around about the age of 13 years, by the Department, as is so dreadfully common from matters at around that time.  You became a Ward for a period of time and went to Baltara Reception Centre.  I do not think that I have ever met a person who went to Baltara who has had a happy adulthood, but you were there for a period of four months.  You then returned and lived with your mother, who by then had moved to St Kilda.  Your education was virtually zero, in that sense.

30At the age of 15, you obtained your first job and since then you have worked in various unskilled jobs, factory work, storeman, delivering telegrams, baker's assistant and the like. 

31In 1978, you went to Queensland for a few months and again worked on
a casual-type unskilled basis.  You went back there again in 1982 and you formed a relationship with a woman.  You then came back to Victoria again, and again, the same sort of thing, the itinerant getting casual work.  You have now not been employed since around about the year 2000.

32In 1983, you had returned to Queensland to live and formed a relationship with a women, with whom you have a number of children.  Your relationship with her lasted on and off for about 20 years, finally ending in around bout 2005.  There were six children of that relationship.  One was stillborn.  Of the remaining five, only one does not have an intellectual disability.

33You have a grandchild and it is still not been determined whether that child has an intellectual disability.

34Counsel has explained to me where your children live.  I do not need to go through that. 

35In October 2012, one of your children died in Queensland as a result of a snake bite.  That clearly has had a fairly dramatic effect upon you, in terms of your emotional stability and your understanding of the world around you.  It cannot be put that this offending is in any way, in my view, related to that on a moral basis, it is just part and parcel of the life that you have been subjected to. 

36Prior to incarceration, you were in receipt of a disability support pension.  You have degenerative disease in your lower back.  You suffer from depression, anxiety, high blood pressure, you have an incisional hernia, and you had an upper neck injury.  You have ischemic heart disease.  There is a strong family history of heart disease.  You have high blood pressure, high cholesterol, chronic obstructive airway disease and osteoarthritis with your knees.

37A gaol term is inevitable, it is a very hard place for you to be.  It may be that you ironically receive better care there than you would if you were in the outside world.  That will be taken into account as by those later aspects of Verdins.

38You have tried to make a living by being a stall operator and selling natural organic cleaning products, which you have learnt to do off the internet.  You made an attempt, as I said, to support yourself.  After you had fled the jurisdiction, you went to Queensland.  You then came back to Melbourne and were homeless until police finally found you and arrested you.

39I have taken into account the psychological report of Mr David Ball, who says that you present as a "moderate to high risk of re-offending.  His risk in the community may be lowered, provided he completes a sex offender treatment program and that his computer is fitted with an effective security program." 

40I accept all the matters about depression and anxiety.  You do not have any frank mental illnesses or personality disorders or anything like that and
I accept that the depression, as well as the medical conditions, will make imprisonment more onerous for you and I simply take all those matters into account in this fairly depressing process.  I will just simply then proceed to sentence you. 

41You prospects of rehabilitation would have to be guarded.  The risk of you
re-offending in this way, I think, unless you are put on the sex offender's program and are under proper supervision by Corrections, has to be regarded as, as Mr Ball says, moderate to high.  However, if those programs can be achieved, if you can get accommodation, it would be certainly in the community's interest as well as your own if you could be rehabilitated. 

42Accordingly, on Charges 1 to 5 on the Commonwealth legislation, you are sentenced to an aggregate period of imprisonment of two years and three months. 

43I direct that if you agree, you are to be released on recognizance after serving ten months.  I direct that that sentence commence today.

44I direct that 251 days - do you agree with that, Mr Robins, 251?

45MR ROBINS:  Yes, 251 days, Your Honour. 

46HIS HONOUR:  Thank you.  Be reckoned as having been served under that sentence. 

47In addition to that, on Charge 6, the State offence, you, if you agree, will be placed upon a community corrections order, with conviction, for a duration of two years, with the conditions that (1) of supervision, (2) of treatment and rehabilitation, mental health, and (3) programs to reduce re-offending, that being essentially the sex offender's program. 

48The two years duration upon your release from prison, gives them sufficient time to ensure that program is carried out and one can only hope for everybody's point of view, that it causes you to understand why you just simply cannot do these things, Mr Leishman. 

49All right, have we got those?  All right, I will get you to go down, Ms Chambers if you don't mind.  There is a recognizance release and I will explain that to him in a moment, as I need to.

50MS CHAMBERS:  Yes.­

51HIS HONOUR:  And also the community corrections order, which - yes, it is all right.  What happens, Mr Leishman, I do not know how much of this you are going to grasp, but just stand up for me for a moment. 

52MS CHAMBERS:  No, he's got hearing difficulties, Your Honour, and it would appear.

53HIS HONOUR:  You cannot hear me at all? 

54MS CHAMBERS:  A little bit? 

55HIS HONOUR:  All right.  What I will do is, I will do this in open court and then
I will entrust the ordeal of explaining this to you, to your counsel.

56MS CHAMBERS:  I will be able to, Your Honour.

57OFFENDER:  Sorry, Your Honour.

58HIS HONOUR:  In a moment, all right.  The situation is that if you agree, you're to be released on a recognizance.  That will be to be of good behaviour.  It will be after you have served ten months, which just means you have got a while to go to get your head around being released.  The will be a recognizance of $500 and I must explain to you very clearly, that if you offend again after you are released, during the period of that recognizance and the good behaviour is to be for three years, that if you offend again in that period of time, you will come back and you are going to have to do it all.  All right?  That is really what it is about.  You will do the lot.  Plus what you get for re-offending.  All right? 

59MS CHAMBERS:  I will explain ‑ ‑ ‑

60HIS HONOUR:  So if my associate can take those down to the dock and
Ms Chambers, you could go with her.

61MS CHAMBERS:  I will, Your Honour.

62HIS HONOUR:  And just make sure he understands that before he signs it. 
Mr Robins, does the Crown keep that original release document, or does the court?

63MR ROBINS:  That would remain with the court, but I can ask for a copy to be provided.

64HIS HONOUR:  No, we'll do that.  I just had it confused. 

65MR ROBINS:  Yes.

66HIS HONOUR:  There used to be one of these documents that the Crown - the Commonwealth Crown used to keep.  It might have been - but if it is not one of these, I will just make sure it is on the court file. 

67MR ROBINS:  As long as it's on the court file and they receive a copy, I don't see an issue. 

68HIS HONOUR:  That is all right, yes. 

69MR ROBINS:  The only other issue that hasn't been raised to date, Your Honour, is with regards to a 6AAA.

70HIS HONOUR:  I don't - when I've given a combination sentence, it's in my view that 6AAA does not apply.

71MR ROBINS:  As Your Honour pleases. 

72HIS HONOUR:  Well, not as I please, it is - it is the view of a lot of others too.  All right, they have been handed over and witnessed.  You are satisfied that he understands the nature of those documents?

73MS CHAMBERS:  I am, Your Honour.

74HIS HONOUR:  Thanks, Ms Chambers.  All right, then simply take him away.

75MS CHAMBERS:  Thank you, Your Honour.

76HIS HONOUR:  Yes, thanks, Mr Robins.

77MR ROBINS:  Thank you, Your Honour. 

78HIS HONOUR:  Yes, thanks, Ms Chambers.

79MS CHAMBERS:  Thank you, Your Honour.

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