Director of Public Prosecutions v McLaren

[2015] VCC 370

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR-15-00126

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL ANTHONY MCLAREN

---

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Warrnambool
DATE OF HEARING:	23 March 2015
DATE OF SENTENCE:	26 March 2015
CASE MAY BE CITED AS:	DPP v McLaren
MEDIUM NEUTRAL CITATION:	[2015] VCC 370

REASONS FOR SENTENCE

--- Subject: Criminal Law - sentence          

Catchwords: Pleas of guilty to three charges - access child pornography using carriage service, make available child pornography, and possess child pornography. Most material in Categories 1 and 2, very few in more serious categories – gravity of offending and volume of material at lower end of range - accused aged 52, one prior conviction for similar offence 20 years ago – lonely, isolated single man, never married    - no social networks outside family -  employed but likely to lose his job – assists elderly dependent parents –not exceptional hardship to family members – suffers Schizoid Personality Disorder with associated Reactive Attachment Disorder and Paedophilia - high risk of re-offending but little or no risk of contact offending.

Legislation Cited: Crimes Act 2014 (Cth) – Sentencing Act 1991 (Vic)

Sentence: 1 year RRO and 2 year CCO.          

APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr. A.  Dhillon (via videolink)	CDPP
For the Accused	Mr. C. Mylonas (via videolink)	Brown McComish Solicitors

HER HONOUR: 

1Paul Anthony McLaren, you have pleaded guilty to one charge of accessing child pornography material using a carriage service, one charge of making such material available, and one charge of possessing child pornography material.  The maximum penalties for Charges 1 and 2 is 15 years imprisonment, and for Charge 3 five years.  That these are serious offences is reflected by the severity of those penalties.

2Federal Police detected your use of technology which enables the sharing of material, in this case, the child pornography.  In June, 2014, the police executed a search warrant at your house and seized a computer which was forensically examined.  You also supplied your password and in cooperating with the police, you told them that "There probably would be stuff on there."

3The examination revealed that between 23 April, 2013, and 17 June, 2014, you had accessed 614 child pornography files.  These comprised 373 images, 170 videos, and 72 documents in narrative form describing sexual activity between children and adults.  The images and videos most fell within Categories 1 & 2, with very few of them belonging to the more serious categories of depravity.  The volume of material found was relatively small, compared with other cases of this type.  You gained access to the material over a period of 14 months and there was some overlap between the access and the possession of it.  Making it available to others, as you did for two months, is an aggravating factor. 

4You were arrested and interviewed and you made certain admissions and were cooperative with the police.  You were released on bail and pleaded guilty to the charges at the earliest opportunity.  For this you are entitled to a discount on your sentence for having expedited the system of criminal justice and avoided the expense and inconvenience of a trial. 

5You are a 52 year old, single man, living alone and with very limited social contacts.  You work as a tip attendant, and you are fearful that you may lose your job when this matter becomes public.  Of course, that would be very unfortunate, as your job is a means of passing the days usefully and bringing in an income.  It is, you say, a lonely job, as there are few customers and the hours are long.  In your spare time, you regularly assist your elderly parents who rely upon you and your sister, as they both have limited vision, but it is not put that this amounts to exceptional circumstances.

6You are close to your family and you recall a happy childhood, with your adoptive parents and uneventful schooling, ending in Year 11.  You have a solid work history, having been employed for many years with only two employers, and one period of unemployment in between those jobs.

7One of the manifestations of your social isolation is the use of adult pornography over many years, and at some stage, you started having access to child pornography as well.  You were recently assessed by Ms Pamela Matthews, a Forensic Psychologist, and you told her you regretted this, and have some understanding that it may harm the children depicted.  I accept that as an indication of remorse and that you might now be developing some insight, which is necessary for rehabilitation in cases such as this.  You agreed readily to the forfeiture of your computer, and that is something I can take into account as reinforcing the evidence of your remorse and contrition.

8I note that you have a prior conviction for a similar offence.  In 1997, you were convicted in the Magistrates' Court of possession of child pornography in the form of printed photographs of young girls engaged in explicit sexual activity, and you were fined $500.  The fine was converted to a Community Based Order, with 25 hours of unpaid work and it appears you completed that, but clearly it was not sufficient deterrence for you. 

9Your current isolation is partly due to a lack of friends, once you ceased playing sports some years ago, and the absence of any intimate relationship at any stage.  You do not enjoy good health as you suffer from Type II Diabetes, high blood pressure and high cholesterol, all managed with medication.  Ms Matthews' opinion is that you suffer from schizoid personality disorder which she considers as possibly having arisen from a reactive attachment disorder stemming from your infancy in the foundling home from where you were adopted.   The diagnosis of paedophilia is also indicated, according to Ms Matthews, by your focus on children aged below 13 years.  Ms Matthews emphasised the need for continued treatment and intervention in developing your social supports to avoid the high risk of further similar offending.  At the same time, she said your risk of any contact offending is very low, so low as to be unlikely.  She offered her opinion that given the low-end nature of your behaviour, you may not qualify for any priority in prison for the treatment that you need, owing to current pressures on those programs.

10Ms Matthews” reference to continuing treatment, is a reference to the sessions you have been undertaking with a consultant psychologist, Ms Bente Schjeflo, who considers that you have begun to understand the harm done by behaviour such as yours.  However, she said that while you are willing to continue these sessions, you are concerned that the loss of your job will mean you cannot afford to do so. 

11General deterrence is of paramount importance in cases such as this, because of the potentially serious harm done to the children who are exploited for the business of pornography, and the difficulty in detecting the criminal behaviour.  It is regarded with great abhorrence by the community and stern punishment consistent with appropriate denunciation by the court, is necessary.

12Specific deterrence is also strongly indicated in your case because of the high risk factors I have mentioned, and a prison sentence without treatment would not address that risk.  Ms Matthews observed that it would also expose you to isolation brought about by the likelihood that you would choose to confine yourself to your cell whenever possible, and would not engage with others if you could avoid it.  The corollary would be that enforced social engagement would likely cause you anxiety, depression and perhaps aggression. 

13Clearly, your rehabilitation would be best encouraged and facilitated by remaining in the community with treatment and indeed, punishment made available by a Community Corrections Order.  The duration of the order and its obligations impose suitable punishment which fulfils the requirement for both general and specific deterrence.  It is to be hoped that by means of the order that I am going to impose, you will be assisted to continue with psychological treatment.  You have been assessed as suitable for that order, and it will be made in respect of Charge 3. 

14Please stand now Mr McLaren, and I will explain to you the details of this order. 

15You will be convicted of the offence, that is, for Charge 3, and the order begins today and lasts for two years.  You will be under supervision and you must perform 80 hours of unpaid community work over six months.  You must undergo a mental health assessment and necessary treatment, and the fact that you have already engaged with a treating practitioner will, no doubt, be taken into account in providing for this.  Certainly, that is indicated by the report from Corrections.  You must also be assessed for participation in a sex offender program which is conducted in Melbourne and I understand you have been informed about that.  You must report to the Corrections Office in this building before 4 pm on Monday 30 March. 

16In relation to each of Charges 1 and 2, I sentence you to 12 months imprisonment and order that you be released forthwith upon entering into a Recognisance Release Order.  I fix a recognisance in the sum of $1000 which is not a sum that you have to pay now.  The conditions include the requirement that you be of good behaviour for the duration of the order; that is, one year, and that otherwise, the conditions and obligations under the Community Corrections Order apply to this order as well.  I am required to explain to you that if you fail to comply, this order may be varied or discharged, which includes extending or reducing its duration.

17If you had pleaded not guilty to these charges, I would have sentenced you to a Recognisance Release Order of two years for each of Charges 1 and 2, and a Community Corrections Order of three years for Charge 3, with 120 hours of unpaid work. 

18Pursuant to the Sex Offender Registration Act, you must report your details to the police each year, for the rest of your life. That is a mandatory order and I have no discretion about it. 

19Now, those documents are ready for signature by you now, Mr McLaren, so just take a seat while those are shown to your solicitor who is here. 

20While that is being done, perhaps I could raise something with you, Mr Dhillon.

21MR DHILLON:  Yes, Your Honour.

22HER HONOUR:  In your written sentencing submissions, you refer to the application of the Serious Sex Offender Provisions of the Sentencing Act but they would seem not to apply, given that Charge 3 is not a sentence of imprisonment.  Is that a correct interpretation?

23MR DHILLON:  Yes.  Yes.  That's so, Your Honour.

24HER HONOUR:  Thank you.

25MR DHILLON:  Thank you.

26HER HONOUR:  Mr Dhillon, if you were here in person  I would be passing you a copy, or at least I would be passing you the Recognisance Order for you just to have a look at.  The template that was handed up the other day has the two sub-paragraph (C),  one of them has to be selected.

27MR DHILLON:  Yes.

28HER HONOUR:  The one I have selected is the one which reads "That the defendant is to attend for assessment and if assessed as suitable, treatment for Sex Offender Programs or programs to reduce re-offending as directed by Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee."

29MR DHILLON:  Yes, Your Honour.

30HER HONOUR:  Otherwise the conditions are the same.

31MR DHILLON:  Yes, and I can cross out the other ones.  Does Your Honour's associate intend to make those amendments to the draft form which was emailed to Your Honour's associate. 

32HER HONOUR:  Yes.  That's right.  She has typed one up in conformity with what I have just read out. 

33MR DHILLON:  Yes, thank Your Honour.

34HER HONOUR:  Thanks Mr Dhillon.

35MR DHILLON:  She has my contact details.

36HER HONOUR:  Yes, certainly.

37MR DHILLON:  Thank Your Honour. 

38HER HONOUR:  I thank you.  Is that everything?  Any further? 

39MR MYLONAS:  No, Your Honour. 

40MR DHILLON:  No.  No further matters, thank you. 

41MR MYLONAS:  As the court pleases.

42HER HONOUR:  Adjourn the court please, till tomorrow. 

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