Director of Public Prosecutions v Logan

[2019] VCC 189

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01369

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAMERON LOGAN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 February 2019
CASE MAY BE CITED AS:	DPP v Logan
MEDIUM NEUTRAL CITATION:	[2019] VCC 189

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 P. Darby	CDPP
For the Accused	Dr M. Fitzgerald	Doogue & George

HIS HONOUR: 

1Cameron Duncan Logan, you have pleaded guilty to an indictment which contained a charge under the Commonwealth Criminal Code 1995 of accessing child pornography material using a carriage service, to a charge under the Victorian State Crimes Act of knowingly possess child abuse material.  The maximum penalty for the first offence is 15 years.  Imprisonment for the second is ten years.

2During the period of the offending at the time of your arrest, you were 49 years old and were employed as an administration officer and you were living in Truganina in Victoria with a wife and two children, who were then aged 12 and 14.  The circumstances of your offending are contained in a prosecution opening which was tendered and exhibited.  For purposes of the sentence I will summarise it.

3As to Charge 1, in November 2017 the Australian Federal Police began investigating a device associated with two IP addresses that appeared to be using peer to peer software to download child pornography.  The IP addresses were linked to an account held in your name.  Between 20 November 2017 and 23 November 2017, the Australian Federal Police connected to the first IP address on multiple occasions and downloaded files of interest.  Samples of downloaded files were viewed and confirmed to be child pornography. 

4Between 6 January 2018 and 9 January 2018, Federal Police connected to the device associated with the second IP address on multiple occasions and downloaded files of interest.  A sample of downloaded files was viewed and confirmed to be child pornography.  Some of the downloaded files and folder names were included in the opening and were each suggestive of child pornography.  A total of 1,011 images and videos downloaded by you were identified as child pornography.  The images and videos have been classified using the Categorisation model and the Australian National Victim Image Library model set out in an annexure to the opening.

5As to Charge 2, on 16 March 2018, police executed a search warrant at your home.  Analysis of your desktop computer revealed it contained child abuse material and it was then seized.  Forensic analysis of the computer determined that it contained 115 videos of child abuse material.  The files identified as child abuse material were classified using the ANVIL model and those are contained in a chart in the opening.  The Category 1 child abuse files possessed by you, included videos depicting erotic posing of children with no sexual activities. 

6Category 2, were videos of solo masturbation by a child or sexual acts between children, in which penetration did not occur.  A video of a girl aged between ten and 14 years old taking her clothes off, until she is naked and then inserting a vibrator into her vagina.  A video of two young girls aged between ten and 14 years old masturbating each other.  The Category 4 video depicted a girl between ages ten and 14 performing fellatio on a male.  And Category 5 video depicted a girl between age ten and 14 years old, letting a small dog perform cunnilingus on her.

7I had the unpleasant task in viewing a sample of this material in each of these categories and found them to be objectively revolting and disgusting.  Upon the execution of the search warrant you participated in a field interview and you stated that you did download some child pornography but said that you did not end up watching it and just deleted it.  You did not copy it anywhere or transmit it to anyone else.  You downloaded it using a uTorrent.  You first came across child pornography when using a website called, "Vichatter", which is for sharing porn.  You did not share it with anyone or show it to anyone else. 

8You said that you probably downloaded child pornography a few times and had deliberately downloaded files knowing they may contain child pornography.  You then had downloaded child pornography because you were curious to see what it was and you admitted that you did probably for sexual gratification, something different that you had not seen before and that you tried to prevent files being automatically uploaded to others on uTorrent to save bandwidth.  You said that you had not paid for any of the files.  You were the only person in the house that had seen or was aware of that material on your computer and you regretted doing it, felt guilty doing it, which is why you did not keep the files or share them.

9The categorisation model for child exploitation material of the Australian National Victim Image Library was contained in an annexure, as I have noted and will remain so for the future reference.  I have referred to it to refresh my mind today of each type of material categorised and contained in each segment, from segment and Category 1 to 6.

10Before referring to your personal circumstances, I should state the circumstances of your offending in the context of established principles and relevant considerations.  These principles govern sentencing for child pornography offences and should be understood by you as the first foundation for this sentence.  Child pornography offences are considered especially grave by the legislature, both Commonwealth and State and by the courts.  Although they are separate and distinct, there is an overlap between Commonwealth and State offences.  They are directed to different types of criminality. 

11Using a carriage service to access child pornography relates to the use of the internet and the central role it has in the proliferation of this vile material, the industry that is child pornography and the means by which you, in this case, have had access to it.  The State offences concerned with your storage of this highly objectionable and abhorrent material.  The starting point for an assessment of the objective seriousness of your offence is the maximum penalty applicable, which I have mentioned before.  These maxima provide an indication as to this.  What is notable is that in relation to Charge 1, the penalty increased from ten to 15 years in 2010 for provisions introduced in 2005. 

12This increase reflected the even greater levels of depravity and corruption which the internet facilitates by ever greater demands for this material.  The maximum penalty for the State offence was also increased from five to ten years in 2015, with child pornography now more adequately in 2017, as child abuse material.  Because this material is indeed a form of child abuse.  The problem of such material is international.  Its prevalence and easy availability demands that general deterrence must be of paramount consideration in this sentence. 

13Those who are minded to exploit children by the production of child pornography to do so, because there is a market for this material and those who like you, in this instance, make up that market must face the consequences for such exploitation.  The community looks to the court to ensure that such criminal exploitative conduct of the most vulnerable does not escape responsibility.  In this context, although relevant to proper sentencing, prior good character must be given lesser weight and I intend to accord a reduced weight to this factor.  I take into account these relevant factors inherent in the material found and in the circumstances of their access and possession by you. 

14Firstly, the nature and content of the material including the age of the children and the gravity of the sexual activity, which is depicted.  The categorisation and review of that categorisation indicates that the age involved ranges from quite young to young teenage children.  The vast majority of the material here fell into Category 1 and 2, with a few in later Categories 4 and 5, sub-divided in images and videos.  The first category involves no sexual activity but is sexually suggestive.  It includes nudity, surreptitious images, sexually suggestive poses, explicitly display of genitals and urination by child. 

15The second includes solo masturbation by a child, or sexual acts between children only without penetration, but includes penetrative use of sex toys by the victims only.  These are more closely described in the summary.  Category 4 depicts a girl performing fellatio on an adult male and I have described the remainder involving a dog.  The fact that the material accessed by you was largely Category 1 material does not detract in my view, from the gravity of your offending.  Those images may not be as depraved or abusive as the images at higher levels, but nevertheless represent abuse of child victims of the most abhorrent kind.  The material in this category is not mild in content and is capable of significant gravity.

16Although you did not apparently possess such images for profit, you are not a mere passive recipient but became an active participant in its market.  This access and possession is morally depraved conduct harmful to children of a very serious kind and while deciding this case according to its own circumstances, my view is that the authorities reflect clearly the expectation that immediate imprisonment would ordinarily be imposed.  The number of images possessed is relevant here.  It is a relevant factor because it enables firstly, some value of comparison to other cases.  But also because it has direct correlation to the number of children exploited. 

17The number accessed by you, 976 images and 35 videos is not as large as sometimes seen in other cases and I take that into account.  However, it is not small or insignificant.  The videos actually possessed for Charge 2, is 115 and the same comment can be made as to that material and as to its number.  However, based on this volume I accept that the number of children involved as victim is probably in the hundreds.  I accept that the possession was not for the purposes of sale or further distribution, although this is a lack of aggravation rather than a mitigatory factor.  I also accept to the same affect that you did not otherwise profit from the offences.  The duration of the offending is also relevant. 

18Charge 1, is on the basis that you regularly used the internet to access child pornography over approximately a two month period.  It was not a momentary decision, rather a course of conduct.  I take this into account although I accept some comparative cases demonstrate that in your case, often offenders pursue such conduct for much longer period.

19Charge 2 is put on the basis of a possession at the time the search was conducted by police.  Although I have mentioned the reduced weight to be assigned to previous good character, two matters must be acknowledged.  That is, that you can assert such good character as attended by the testimonials and your lack of prior criminal history.  That you facilitated the investigation by your cooperation and answers to the field interview.  A matter to be noted, given such offending is inherently difficult to detect. 

20In this context, I accept that your offending was not technically beyond generally achieved by a normal internet access, in that the use of applications for anonymity dark web participation, the use of codes or detachable storage facility, or interactions with other users beyond participation in uTorrent mechanism is not present.  I accept that you stored these images on your family computer and that you endeavoured to limit the reciprocal access to others by manipulating the settings.

21I take the matters listed in s.16A(2) of the Commonwealth Crimes Act into account and s.5 of the Sentencing Act of Victoria in relation to Charge 2, the State offence. I take your plea of guilty into account pursuant to s.16A(2)G and s.5E respectively. You entered such a plea at the first committal mention which was the earliest opportunity. I accept that your plea is accompanied by remorse and an acceptance of responsibility. Your willingness to facilitate the course of justice also carries utilitarian benefit in relation to both offences of having avoided a criminal trial, its costs and inconvenience.

22You are 50 years old, you live with your wife and two children.  You have been most recently employed as an administration officer in a large-scale elevator repair company.  You are the eldest of three children in a family from Melbourne's east.  Your personal history is described as largely unremarkable with no criminality or abuse or substance use in your family background, except for what you described as a mother detached and a rather detached and impersonal relationship with your family.  You moved out of home in your early 20’s but remain in contact with your parents, who wrote a letter of support and I note as of this morning, that your father passed away very recently.

23You have never had a close relationship with your sisters and have lost contact with them.  Your educational history was marked by some bullying in isolation and ended in Year 11, though you completed a TAFE course thereafter.  You then worked as a service station attendant for some years and then moved to Thailand where you taught English for some three years. 

24You returned to Australia and worked as a call centre operator for some years before the administration job, which I mentioned before, where you had been employed for over 11 years.  I accept this history of employment is to your credit and I take it into account.  You also do some work privately in illustration, which augments your income.  However, you have recently had problems with your eyesight, which I will return to in a moment. 

25Your early 20’s, you married.  That marriage lasted for some seven years before it dissolved.  Your second marriage has been more stable for the last 19 or so years.  Your wife has also written a letter on your behalf and is supportive of you.  You have two children from that relationship.  The court was shown a letter from an eye specialist at the time of the plea, in which Dr Shaw refers you to the Royal Victorian Eye and Ear Hospital in order to assess gradual degradation in your vision in both eyes, which is diagnosed at that time as likely bilateral macular dystrophy.  This is said in a brief note from a Dr Kahn, to be affecting your work and causing distress and anxiety.

26On 20 November the defence has sought to adjourn this matter due to deterioration of eyesight with an appointment on 21 November to commence treatment.  After an admission on 13 November to emergency, at a time when on 20 November, the day of the purported sentence I adjourned therefore these matters.  On 20 December further deterioration of the eye with significantly reduced vision in your right eye, moderately reduced vision in your left eye was reported.  I was told that you could not drive and I was told that there was doubt as to whether the eye will improve, with diagnosis uncertain. 

27As of today, I have received a report from Dr Fagan dated 20 February, in which he describes that at this stage no definite diagnosis has been made and no treatment has been initiated.  He notes that macular dystrophy is probably, with central loss of vision in the right eye but he has also written of an implication of a significant non-medical component.  The doctors involved are unable to explain your reported vision loss in the left eye.  It may be better than you are reporting.  So, there is clearly a non-organic component, but the assessment and diagnosis remains difficult.  It is clear however, that you have some difficulty with your eyesight.  The court was provided with such reports and I take this condition into account in that it may have rendered your occlusion more burdensome to some extent. 

28The court was provided with a report dated October 2018 from Dr Mathew Barth of Central Melbourne Psychology.  He is a psychologist who has assessed you.  You reported to him that you commenced viewing pornography during the 90’s.  You told him you found the search process on the internet exciting, due to your otherwise conservative outlook in the real world.  You reported feelings of shame and sadness consequent to your legal predicament.  That you had consulted Jeffrey Burrows for a series of counselling sessions, about which Mr Burrows wrote a report, to which I will refer in a moment.

29You told Dr Barth that access to child abuse material raised your curiosity, that the process of engaging in this illegal conduct had been exciting and that you had not considered its significance at the time.  But having reflected on these matters during treatment with Mr Burrows, you were able to accept the harmful nature of your behaviour, accompanied by situational depressive and anxious symptoms of mild intensity.  Mr Barth noted however, that although you claimed to have no attraction to underage persons and denied gaining sexual gratification from child abuse material, the very nature of the material accessed and found in your possession, is very concerning and indicates, "The presence of deviant sexual arousal patterns".  And that you viewed your conduct as being a victimless crime.

30Although your appreciation was challenged by treatment with Mr Burrows, further intervention is warranted.  Your insight remains very limited and your inability to discuss interpersonal and sexual factors, which underpinned your offending, is said by Dr Barth to be of concern.  He recommends further participation in a sex offender treatment program.  He made an assessment of your risk of recidivism which on static factors, placed you in the low risk category, but low moderate risk given this limited insight into your offending.

31Dr Barth candidly wrote your progress has been slow.  Your insight in the very early formative stages.  This slow progress was confirmed by Mr Burrows in his letter of October 2018.  I accept that you voluntarily attended to participate in a sex offender treatment program with Mr Burrows at your own expense from April to September 2018.  That you have expressed regret and some enhanced empathy for the victims.  Mr Burrows makes clear that your offence supporting cognition related to both a lack of perceived harm of the offending and to the victims.  He has endeavoured to focus on relapse prevention and abstinence but your understanding as to your motives remains limited.

32Your prospects of rehabilitation in my view are good, although qualified by certain denial of the interest inherent in accumulating and possessing such material and limited but developing insight.  I take these reports and letters I have mentioned, into account.  I have referred to some authorities as comparators, as well as other cases referred to in submissions and to basic sentencing principles.  I have read and received each of them, both in prosecution and defence submissions in writing and viva voce. 

33The comparable cases of Miao, Fedele, Porte and Zaab do provide a yardstick against which to examine the application of sentencing principles.  I accept that the utility of such analysis must have its limits delineated by the individual facts which pertain to each case.  They concern cases of relatively low number of files, the offender was a person of good behaviour with family support and no or minor priors and received sentences often after a guilty plea, for similar range of offences.  I have considered these dispositions. 

34I have also received the statistics as quoted from the Sentencing Advisory Council.  In my view, given that you have demonstrated a capacity and willingness to undertake and continue rehabilitative work specifically related to your offending conduct, without restrictive compulsion or supervision in reclusion, the primary objective of the sentence being overwhelmingly general deterrence, denunciation and just punishment can be met in this case, by a community corrections order.

35The element of specific deterrence, given your long use of interest pornography remains relevant and rehabilitative prospects can also be adequately enhanced by the terms of the community corrections order, which in my view is appropriate.  As a result, the sentence which you will be subject to, will require you to attend the sex offender program, to be under supervision and to perform unpaid community work.  The sentence will subject you to the requirements of the Sex Offender Registration Act by way of two Class 2 offences.  You will be registered as a sex offender and be the subject of reporting obligations set out in the Act for a period of 15 years.  You can remain seated, Mr Logan.

36On Charge 1, the Commonwealth offence, you are convicted and sentenced to be subject to a community corrections order for two years.  I order the treatment and rehabilitation of the sex offender treatment program in particular, be applicable in your case and that you perform 100 hours of unpaid community work.

37Similarly, on the second charge, you are convicted and sentenced to be subject to a parallel community corrections order for the period of two years, with the same conditions.  And I stress that there is a single order for 100 hours of community work, common to both.  I do not recall whether there were other ancillary orders required, Mr Darby.

38MR DARBY:  No.  No.  No, there are not.  Thank you, Your Honour. Mr Logan has consented to the destruction of the computer but no order required.

39HIS HONOUR:  Yes, thank you.  Mr Logan, I should tell you that you will be subject of some burden under the conditions of the Sex Registration Act, which you will have to comply with.  There is a long list of obligations that someone on that Register has to comply with, on a regular basis and I would advise you to carefully have a read of those obligations.  Because if you are in breach of any of them, you will be breached as a sex offender and brought before the court for punishment.  Do you understand?

40ACCUSED:  Yes, Your Honour.

41HIS HONOUR:  I should also inform you that if during the two years during which you are under supervision of the Correctional Services, you commit further offences or you breach this order by non-compliance, by non-attending either at community work or at the sex offender program when it is required, or by supervision or other appointments or any other lawful directions of Corrections, you will be in contravention of this order, brought back before the court and you will be punished for that contravention and you will be re-sentenced for these offences, at which point it is likely that you would receive a sentence of imprisonment to be served.  Do you understand?

42ACCUSED:  Yes, Your Honour.

43HIS HONOUR:  Mr Fitzgerald, your client will have to sign some documentation and I will countersign them. 

44DR FITZGERALD:  Thank you.

45HIS HONOUR:  Perhaps if you would be good enough to go through those obligations with him, both in relation to the community corrections order and as to the obligation under the Sex Registration Act, I would be obliged.

46DR FITZGERALD:  Thank you.

47HIS HONOUR:  Thank you, gentlemen.

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