Director of Public Prosecutions v McConaghy

[2014] VCC 2007

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01413

DIRECTOR OF PUBLIC PROSECUTIONS

v

GLENN MCCONAGHY

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 November 2014
CASE MAY BE CITED AS:	DPP v McConaghy
MEDIUM NEUTRAL CITATION:	[2014] VCC 2007

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Kalyk
For the Accused	Mr N. Papas

HER HONOUR:

1Glenn Lesley McConaghy, you have pleaded guilty to two charges.  Charge 1; accessing child pornography using a carriage service between 23 June 2011 and 10 March 2014, and Charge 2; using a carriage service to make available child pornography between 7 and 8 September 2013.  The maximum penalty for both of these offences is 15 years.  In 2010 the penalty for these offences was increased from ten years, reflecting the seriousness with which Parliament views this kind of offending.

2The circumstances of this offending are set out in Exhibit A, summary of prosecution opening for plea.  I have also had available a sample of the child pornography material the subject of these offences and with the agreement of parties, viewed it in my chambers.

3In September 2013 the Australian Federal Police conducted an investigation into the BitTorrent network and discovered a number of computers, including yours, as sharing child pornography.  BitTorrent is a readily available application and is used commonly for sharing movies, music and other information on the internet.  This network facilitates the sharing of files between users.  Each user can download a file, or part of it, from another computer on the network.  Once the file is downloaded other users on the network can download the files from their own computer, a process known as uploading or sharing.

4The BitTorrent file sharing protocol can be used by peer client computers via many different BitTorrent client software programs.  These programs are typically free software programs that can be downloaded from the internet.  In this instance your internet address was using uTorrent version 3.1.2.  When this program is installed various settings are established which configure the host computer to share files by automatic uploading, hence once this program was installed on your computer there was automatic uploading of the child pornography material.

5In respect of Charge 2 between 7 September and 8 September 2013 your computer was identified as sharing child pornography using an internet provider address to which you subscribe.  Police were able to make a direct connection with your computer and download a number of files that were being shared by your computer via the BitTorrent network.  A number of these files were classified as containing child pornography material as that term is defined under the Criminal Code (Cth).  Analysis revealed that you had made available for sharing 897 child pornography files on the BitTorrent network.  These files were classified in accordance with the Australian National Victim Image Library (ANVIL), categories of which there are seven classifications.  The relevant criteria for classification is set out in paragraph 15 of Exhibit A.

6All of the 897 files of child pornography were picture files.  These were made up of Level 1; 58 per cent, Level 2; five per cent, Level 3; 21 per cent, Level 4; 14 per cent, Level 5; 0.1 per cent and Level 6; two per cent. 

7In respect of Charge 1 on Wednesday 12 March 2014 police attended at your home with a warrant and seized two computers.  Analysis later conducted confirmed access by you to videos and images on those computers which constituted child pornography.  This material was also classified in accordance with the ANVIL categories.  Police located 2956 child pornography files.  The majority of these had been deleted by you from the computer or had been placed by you in the recycle bin.

8188 of these files were video files created at various dates between 23 June 2011 and 14 February 2014.  Twelve per cent were Level 1, 13 per cent were Level 2, 15 per cent were Level 3, 48 per cent were Level 4, two per cent were Level 5 and ten per cent were Level 6.  Two thousand seven hundred and sixty-eight files of child pornography were picture files created at various dates between 23 February 2012 and 10 March 2014.  These were made up of 95 per cent Level 1, four per cent Level 2 and 0.5 per cent Level 3 and 4.

9Additionally, on one of the computers a BitTorrent client program existed, the update having been installed on 24 December 2013.  A number of Torrent files were located, the names of some of which were indicative that they contained child pornography, such as 'Nude children pedo pictures' and 'Fuck pre-teen point one'.

10Of the Torrent files located there were creation dates between 29 June 2011 and 9 April 2014.  Further, the other computer contained a TOR application which had been run between 30 December 2013 and 11 March 2014 207 times.  This application enables a person to gain anonymity as it prevents others watching your internet connection.

11You participated in a record of interview with police on 12 March 2014.  In the first part of the interview you indicated on a number of occasions that you did not upload any child pornography and that you did not know how to.  In respect of downloading such material you admitted that you had done that but maintained that you then deleted the files at the end of the session.  You maintained that child pornography came up on the screen out of the blue like a popup when you were viewing adult pornography and it was necessary to backpedal to get rid of the material.

12You told police the material was of naked girls aged between ten to 12 and you maintained that you did not click on or save those images.  You denied downloading the material on 8 September 2013 the subject of Charge 2 and maintained the material could only be on your computer by inadvertent popups whilst you were browsing the net.  You were able to explain the process of downloading adult pornography using BitTorrent but you denied that this involved child pornography.  You said that sometimes you saw a police warning in respect of some of the illegal material and that when that happened you closed down everything and deleted what had been downloaded.  You maintained that police analysis would not reveal any child pornography and that you deleted all such material downloaded.

13Your position changed midway through the interview when you were shown some of the images retrieved from your computer.  You identified the subjects on some of those files as aged between six to seven and 12 to 13.  You indicated that you obtained these images from a website called htchan.net which contained pre-teen images of children aged between five and 12, that new images appeared on a daily basis and then you got in the habit of looking at them.  You also stated:

"I don't know why you wouldn't pick on this site and get rid of it and there would be no problem whatsoever, instead of sending me to gaol.  If you know the sites are there why don't you do something about them?  And they're just there to trap people."

14This was reflective of your attitude that you could not resist the temptation to access the material and that the authorities should be more active in removing it once aware of its existence.

15I received reports dated 27 May 2014 and 13 November 2009, Exhibits 2 and 3, and heard evidence from Bernard Healey, clinical psychologist.  Your personal circumstances were outlined in that evidence.  You are currently aged 58 and grew up in Lethbridge with your family.  You have a brother and two sisters.  Your father died in 2009 and your mother, who is aged 78, lives alone in Inverleigh.  You provide some assistance to your mother in the maintenance of the property.

16At times in your life you have drifted away from your siblings, however they maintain their support for you and have accompanied you to court for these proceedings.  You attended school in Lethbridge and Geelong.  Through various jobs over a period of years you ultimately obtained a roofing licence and established your own company, McConaghy Roofing Pty Ltd, and demand for your services increased.  Your business has been successful, however it is apparent that you have devoted a significant period of your life to work related activities.  Such has had the effect, in the opinion of Mr Healey, to contribute to your isolation and poor social skills.  He was of the opinion that such characteristics left you vulnerable to engage in this conduct for which you are to be sentenced.

17I heard evidence from a friend, Alan Ridgeway, who has known you for the last 25 years.  He confirmed your  strong work ethic.  He has provided you assistance in respect of your business, allowing you to access his computer, you having rid of yours since the discovery of these offences.  He expressed concern about the survival of your business if you were unavailable to keep it going.

18You have relevant prior convictions from 2009.  Mr Ridgeway gave evidence regarding his knowledge in respect of the prior matter before the Magistrates' Court in 2009 and his reaction to both being informed on that occasion and again in respect of these matters.  He also described your demeanour in telling him about these matters; that you looked withdrawn and ashamed that you had done the wrong thing again.

19You were assessed by Mr Healey in 2009 and in 2014.  When assessed in 2009 your full-scale IQ was 121.  More recently it was assessed at 107.  Such a decline was seen by Mr Healey to be attributable to your inattention to your personal health, relentless work effort and ageing factors.  More recently personality testing revealed depression and significant social introversion and withdrawal.

20As indicated you have a prior conviction for this kind of offending.  On 4 December 2009 you were convicted and fined $4000 on charges of possessing and making child pornography.  I was informed the circumstances were different to this instance in that it involved a small amount of images, 12, which were not current or downloaded at the time that you were charged.  As a consequence of this prior matter you engaged in counselling with Mr Healey and continued to do so until January 2011, when you ceased involvement with him.

21Mr Healey gave evidence that at that time he had formed the view that you had a strong resolve to keep away from child pornography and that you had made sound progress in addressing issues of isolation by re-establishing family and social connections outside the work environment.  However as events have shown that assessment was overly optimistic, with a relapse in offending soon after you ceased counselling, a period of about six months.  Mr Healey was of the opinion that you quickly increased your isolation from your family and you had again thrown all your energy into work.  This circumstance made you again vulnerable to accessing this kind of material, which is readily available on the internet and is of a seductive and addictive nature, particularly to individuals with your characteristics.

22The offending in Charge 1 commenced in June 2011.  This is clearly relevant to your prospects of rehabilitation and risks of re-offending.

23In cases involving child pornography the sentencing principles were set out in DPP (Cth) v D'Alessandro (2010) 26 VR 477, recently approved in the Commonwealth DPP and DPP (Cth) v Guest [2014] VSCA 29. First, the nature and gravity of the offence. Second, the significance, or otherwise, of general and specific deterrence, and third, in cases involving this kind of offending a term of imprisonment will ordinarily be warranted, but it is recognised that there are cases where this is no requirement to serve any period of imprisonment.

24Approaching the sentencing task in the manner there set out; one, the nature and gravity of the offence.  In considering this factor the following is relevant:

25(a) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted.

26(b) the number of images or items possessed.

27(c) whether the material is for the purpose of sale or further redistribution.

28(d) whether the offender profited from the offence.

29In the case of child pornography for personal use the number of children depicted, and thereby victims, is also regarded as a relevant consideration.

30First, the nature and content of material, age of children and gravity.  You had almost 900 images that were available for sharing through the BitTorrent network.  The majority of the files were classified Level 1, relating to depictions of children engaging in sexually suggestive behaviour.  There was also a significant amount of both Level 3 and 4 files involving both penetrative and non-penetrative activity between a child, or children, and an adult, or between children.  The volume of material over this two day period or session was significant.

31Additionally during the period June 2011 to March 2014, a period of two years, eight months, you accessed almost 3000 files and videos.  Of the 188 video files about half were Level 4 with the remainder being in approximately equal amounts of Levels 1, 2, 3 and 6.  Of the picture files the majority of them were Level 1.  The relevant categorisation criteria is set out in paragraph 15 of the opening, Exhibit A.

32As previously indicated I have viewed the material that was provided to me, described as a sample of the files from your computers.  This material included children of a very young age, obviously younger than girls aged between ten and 12, as you had indicated initially in your interview.  Some of the material involved children of toddler and pre-school age involved in acts of sexual penetration with adult males.

33From the material available in the sample I do not accept that it is arguable this material fell into what was described by your counsel as 'a grey area', each clearly amounting to child pornography as that is defined and the level of classification.

34It was submitted that you saw the images then immediately deleted them, and that a significant proportion of the images were not retrievable by you.  Additionally, as you maintained in your interview, you were not aware that once the material was downloaded by you, and prior to you deleting it, that it was available through the BitTorrent network for sharing or uploading.

35You have, however, pleaded guilty to Charge 2, which involves an acceptance of the elements of the offence.  The files were available through the BitTorrent network to share by other clients of that network.  Ultimately your counsel conceded this, however submitted you were not necessarily sure that all the material amounted to child pornography.

36I was provided with a table of comparative cases.  On assessment in terms of pure numbers of files your case falls mid-range, being neither at the lower or higher end of offending of this type.  Both counsel approached the matter on that basis.  I note some of the cases were decided when the maximum penalty for this offence was ten years.  These cases provide some guidance but they are of limited assistance as each and every case needs to be given individual consideration and distinguishing features between them are easily identified, whether that be because of circumstances of the offence or the individual offender.

37As noted above the number of images is also relevant to the number of different children depicted and therefore the significant amount of victims of this crime.  It is not suggested that you sold or profited from this material.  It was submitted that you deleted or placed the file in the recycle bin after a session of viewing the file.  Once the file had been deleted it was no longer available for sharing on the network.

38Your counsel emphasised that you had deleted the material once you had viewed it.  It was no longer available to be shared and the period of time the material could be shared was therefore limited.  Although that is so the fact remains that there was a significant amount of material available to be shared as a consequence of your downloading it on the days in September the subject of the charge.

39The court has made clear on a number of occasions that general deterrence is the paramount sentencing consideration in offending of this grave nature.  Offences of this nature make for a readily available market for the exploitation and damage to very vulnerable children.  Given your history in respect of child pornography and the short time lapse between the conclusion of counselling and resumption of offending, specific deterrence is an important sentencing matter to consider.

40You have pleaded guilty to these matters at the first opportunity.  I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  Your plea is indicative of remorse.

41Mr Healey was cross-examined regarding your recognition of the impact of your offending on children and your own insight.  He indicated he was of the opinion that you did recognise the harm and damage to children exploited by this offending.  Mr Healey also recognised that some of your responses in your record of interview could be interpreted that you perceive yourself as a victim.  He did, however, maintain that you are ashamed and embarrassed in respect of this offending.

42Features that reflect positively on your rehabilitation prospects are the continuous support of your family and friends.  Additionally, you re-contacted psychologist Mr Healey when this offending was discovered and have engaged in counselling with him since then.  In terms of preventative measures to decrease the likelihood of relapse into offending you no longer have a computer at home and you recognise that you cannot live a reclusive and isolated existence, and that it is necessary for you to expand your social network and maintain family contact.

43As to your risk of re-offending Mr Healey remarks:

"Results of Static-99 revealed medium risk of re-offending of the kind for which he faces the court, however it could not be argued that he would engage in contact offending.  Similarly, the sexual violence risk assessment revealed no risk of sexual violence or contact offending."

44I accept that you have reasonable prospects for rehabilitation.  I am, however, more guarded given the seriousness of this offending and your relatively short relapse into similar, though objectively more serious offending.

45Pursuant to s.16A of the Crimes Act I must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Under s.16A(2) of the Crimes Act (Cth) I am obliged in sentencing you to take into account the matters referred to within that section as are known to me, and I have done so.  As previously noted whilst general deterrence is not specifically listed there it is a matter to be accorded significant weight given the nature of your offending.

46Your counsel recognised this offending was serious and would ordinarily warrant a custodial sentence.  It was submitted on your behalf that you could be placed on a recognisance release order immediately rather than in some time in the future.  It was submitted that a sentence could be structured so as to ensure you could continue to work in the community and have counselling available to ensure that you address the issues in your life that led to this offending.  The prosecution submitted that given the objective seriousness of this offending, and general and specific deterrence, that the only appropriate sentence was one that involved the serving of an immediate term of imprisonment.

47Taking all relevant considerations into account I sentence you to a period of 12 months' imprisonment.  I order that you are to be released in six months on a recognisance release order in the sum of $1000 to be of good behaviour for a period of two years.

48I am required to explain the purpose and consequence of making the recognisance release order that I have just made.  The order reflects the gravity of your offence but also the mitigating factors to which I have referred to in the course of these reasons.  If you are of good behaviour over the following two year period that will be the end of the sentencing process as far as this court is concerned, that is after the six months that you served.

49If you are not of good behaviour in all likelihood you will be brought back before this court, and depending on the nature and seriousness of the transgression the court may either take no action or impose a fine, extend the period of your good behaviour, impose a different penalty, revoke the recognisance release order or send you back to prison for the balance of that period of imprisonment.

50But for your plea of guilty I would have sentenced you to a total of 24 months' imprisonment and fixed a recognisance release order for a period of 12 months.

51Mr McConaghy in respect of the Sex Offenders Registration as a consequence of your prior conviction, which were Class 2 offences, you were previously placed on the Sex Offenders Register for a period of 15 years.  By virtue of your convictions for these offences the period of time you will be placed on a Sex Offenders Register is extended.  These offences are both Class 2 offences under the Sex Offender Registration Act and you will have a reporting period of life pursuant to the provisions of that Act.  Mr McConaghy there is some documentation in respect of the Sex Offender Registration Order that my associate will take you ‑ ‑ ‑ 

52MR PAPAS:  Just while that's being done I think Your Honour said recognisance release order of 12 months in relation to the s.6AAA?  I presume Your Honour meant would have imposed a recognisance release order to commence in ‑ ‑ ‑ 

53HER HONOUR:  Twelve months.

54MR PAPAS:  ‑ ‑ ‑ 12 months.

55HER HONOUR:  Yes.

56MR PAPAS:  Rather than "of 12 months."

57HER HONOUR:  Yes, I'm sorry.

58MR PAPAS:  I'm just clarifying that for Your Honour.

59HER HONOUR:  Yes.

60MR KALYK:  And Your Honour was that sentence also aggregate?

61MR PAPAS:  Yes, I assumed.  Sorry and I was going to raise that, yes.

62HER HONOUR:  Yes.

63MR KALYK:  Thank you, Your Honour.

64HER HONOUR:  Yes, aggregate.

65MR PAPAS:  That's pursuant to section - the provisions of the State Sentencing Act which allows for aggregate sentences.

66HER HONOUR:  Yes.

67MR PAPAS:  And the provisions of the Judiciary Act allow for those provisions to be imposed.

68HER HONOUR:  Well that was my intention.

69MR PAPAS:  Yes, Your Honour.

70HER HONOUR:  Yes in respect of both charges.

71MR PAPAS:  Thank you, Your Honour.

72MR KALYK:  Thank you, Your Honour.

73HER HONOUR:  Thank you.  You can remove the prisoner.

74MR PAPAS:  Has he signed it?

75MR KALYK: No, he hasn't signed it yet.

76MR PAPAS:  Sorry he can't be removed yet, apparently he has to sign the recognisance release order as well, Your Honour.

77HER HONOUR:  He needs to sign that immediately?  I hadn't realised that.

78MR PAPAS:  Which has now been prepared.

79MR KALYK:  I'm just (indistinct), Your Honour.

80HER HONOUR:  Sorry.

81MR PAPAS:  Would Your Honour mind if I just go up to the dock and just explain that?

82HER HONOUR:  No.  No problem, Mr Papas.

83MR PAPAS:  Yes that appears to accord with Your Honour's order.

84HER HONOUR:  Thank you.

85MR PAPAS:  I'm not sure if he signs it first and then Your Honour,?  I'm not sure which order it's done.

86HER HONOUR:  What's the date?

87MR PAPAS:  It's the 28th, Your Honour.

88HER HONOUR:  Thank you.  James could you take that down to Mr McConaghy please?  Thanks.  I'll just stand down.  Thank you.

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