Director of Public Prosecutions v Milonas
[2018] VCC 1720
•23 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-00938
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEORGE MILONAS |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 September 2018 | |
DATE OF SENTENCE: | 23 October 2018 | |
CASE MAY BE CITED AS: | DPP v Milonas | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1720 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Access child pornography; Knowingly possess child pornography; Early plea of guilty; Delay; Significant quantity of child pornography; Offending not in the ‘lower range’; Need for further treatment; Reasonable prospects for rehabilitation; General deterrence; Denunciation.
Cases Cited:R v Hutchinson [2018] NSWCCA 152; R v De Leeuw [2015] NSWCCA 183; R v Verdins & Ors (2007) 16 VR 269; DPP v Garside [2016] VSCA 74.
Legislation Cited: Criminal Code (Cth), Crimes Act 1958 (Vic), Sex Offenders Registration Act 2004 (Vic); Sentencing Act 1991 (Vic).
Sentence:Total Effective Sentence of two years and six months imprisonment – Released after fifteen months upon entering into recognizance for the sum of $3,000 and agreeing to comply with condition to be of good behaviour for period of three years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr B. Stevens | Office of Public Prosecutions (Cth) |
| For the Accused | Mr J. Yianoulatos | James Harris Lawyers |
HIS HONOUR:
1 George Milonas, you have pleaded guilty to one charge that between 24 April 2013 and 5 January 2017 you accessed child pornography material contrary to s.474.19(1)(a)(i) of the Criminal Code (Cth). The maximum penalty for that offence is 15 years imprisonment.
2 You have pleaded guilty to another charge that on 5 January 2017 you knowingly possessed child pornography contrary to s.70 of the Crimes Act 1958 (Vic) The maximum penalty for that offence is 10 years imprisonment.
3 You have also pleaded guilty to a related summary offence of failing to store a firearm possessed under a longarm firearms licence for a category A or B longarm firearm contrary to s.121(1) of the Firearms Act 1996 (Vic). The maximum penalty for that offence is 12 months imprisonment.
4 At the hearing of your plea the prosecutor tendered a summary of prosecution opening for plea which became Exhibit A. That summary sets out in detail the factual basis for your sentence.
5 Essentially your offending involved the following:
6 During 2016 police identified an internet account, which was leased in the name of your mother, and which was suspected to be downloading child pornography material. On 5 January 2017, police from the Joint Anti-Child Exploitation Team attended at your residence in Kings Park and executed a search warrant. A number of electronic devices were seized including a Hitachi hard drive, a Seagate hard drive and a Hewlett-Packard laptop.
7 You fully cooperated with police at the time, and indicated from the outset that child pornography was stored on those electronic devices. In fact child pornography material was in the process of being downloaded when police attended.
8 You told police that you began downloading child pornography in late 2014 or 2015 and that you used a variety of methods to do so including using the applications BitComet and Freenet. You used the search-term, "PTHC" which stands for preteen hardcore, to find links to child photography. Having found and downloaded the child pornography you would transfer it to your hard drives.
9 As to your reasons for doing so, you told investigators that someone at your workplace told you that you could make money selling child pornography on the Internet. You said that at the time you needed money as a result of a car accident and you thought you could download child pornography and sell it for profit. You said that you did not actually view the child pornography apart from sometimes making sure that it was correctly named. You maintained that you did not get sexual gratification from viewing this material.
10 The hard drives and laptop seized were subjected to forensic analysis. The child pornographic material located was then classified according to the categorisation model of the Australian National victim image library, known as (ANVIL).
11 The three devices together contained a total of 10,254 files that constituted child pornography. Those files were classified as follows:
Category Images Videos Total 1: No sexual activity 6,855 96 6,951 2: Solo/sex acts between child 427 263 690 3: Adult/child non-penetrate 981 64 1,045 4: Adult/child penetrate 877 448 1,325 5: Sadism/bestiality/gross child abuse 98 24 122 6: Animation 116 5 121 Total 9,354 900 10,254
12 A summary of the child pornography material within each category is as follows:
•The Category 1 files depict the erotic posing of children with no sexual activity. One image depicts an infant girl's vagina.
•The Category 2 files include depictions of girls engaging in self-masturbation or masturbation between children. One video depicts two pre-teen girls dancing around, undressing each other and then masturbating each other whilst naked.
•The Category 3 files include a large number of images of different girls aged between two and ten years with erect penises close to their faces, and a number of videos of pre-teen girls masturbating adult males.
•The Category 4 files include numerous images and videos of penile-vaginal penetration. One video depicts an adult penis in an infant girl's vagina. And one image depicts a preschool-aged girl performing oral sex on an adult male.
•The Category 5 files include numerous images and videos. One video depicts a preschool-aged boy tied hanging upside-down, with a rope tied around his ankles and attached to the ceiling, and an adult female hitting the boy with an unknown object. The boy is screaming and crying.
13 It was suggested that a sample of this material was available to be viewed. Bearing in mind what was said by R A Hulme J in R v Hutchinson [2018] NSWCCA 152 at paragraphs [49]–[50], and the reasonably detailed description of the material in the Summary of Prosecution Opening, to which I have just referred, I was satisfied that it was not necessary to view the material.
14 That said, in assessing the impact of the offending I need to be mindful of the fact that these offences are not victimless crimes. As Johnson J explained in R v De Leeuw [2015] NSWCCA 183 at paragraphs [72] (g) and (h), the possession of child pornography material creates a market for the continued corruption and exploitation of children. Children are sexually abused in order to supply that market.
15 In addition to those matters an air rifle was also located in your bedroom leaning against a wall. A long arm firearm safe was located in the garage of the house, however, the safe was not bolted to the floor or wall.
16 You were licensed to possess a long arm firearm, however, a condition of that license was that the firearm be stored in a fixed and locked receptacle. Photographs were tendered on the plea by your counsel showing an area of the garage floor to which the safe had previously been fixed. You told police that the safe needed to be moved because, "It was getting wet, getting water in it." Police did not see any evidence of water or storm damage in the garage. Your failure to properly store this firearm constitutes the related summary offence to which you have pleaded guilty.
Personal Circumstances
17 You were born on 3 July 1981. You are now 37 years of age. During the time frame of the offending you were aged 31 to 34 years of age. You have no prior convictions.
18 You are single and live with your mother. Your father having passed away when you were 16 years of age. Three months after his death, you were hospitalised and underwent surgery to remove a benign tumour to the brain.
19 Your psychologist, Mr Bedson, formed the view that you never really had the opportunity to properly grieve your father's death. You were very close to him, you described him as your best friend, and his loss in these circumstances caused you significant trauma.
20 You attended secondary school at Essendon Grammar where it was suggested you found it difficult to make friends and were often bullied. You completed your VCE at Overnewton College which was a better environment for you but you still felt as something of an outsider. You did not study at a tertiary level because of financial constraints.
21 Virtually all of your working life has been spent working in the retail of automotive parts. It seems you performed well, worked hard and enjoyed speaking with customers and colleagues about cars. You told your psychologist that you have had two friends throughout your life. You still see one of those friends regularly. You also told Mr Bedson that you have never had a sexual relationship and that your sexual orientation is heterosexual.
22 As a result of your involvement with this offending your employment with Autobarn as a salesperson and accessory fitter was terminated. You had been employed by that organisation for 11 years.
23 To your credit, you have used your time on bail constructively, first by undertaking studies at Kangan TAFE in Broadmeadows where you gained a Certificate IV in Hospitality.
24 I was told that more recently you had worked as a labourer cleaning up building sites. You found that work too physically demanding. Fortunately you were able to find work recently as a sales representative for an auto parts manufacturer. In that job you were able to utilise your previous experience in that industry.
25 Mr Yianoulatos, who appeared on your behalf on the plea, relied upon a character reference provided by Father Demos Nicolaou, the parish priest of St Paraskevi Greek orthodox church in St Albans. Father Nicolaou has known you for nine years and speaks highly of your qualities as a loyal trustworthy and hard-working person. In particular he refers to your commitment to the parish and the fact that you have always volunteered a great deal of your time for the benefit of the church.
Psychological Assessment and Treatment
26 Shortly after your arrest you were referred by your General Practitioner to the psychologist Mr Bedson for assessment and management of your depressive symptoms and anxiety. Since January 2017 you have been seeing Mr Bedson at least monthly, if not fortnightly, for treatment. He provided a report detailing his opinion and his treatment of you dated 18 August 2018.
27
In that report Mr Benson noted that on first presentation you exhibited a number of symptoms which he said were representative of melancholic depression and adjustment disorder. The symptoms you exhibited included insomnia, lowered mood, poor appetite, a high sense of guilt, intense anxiety, poor sleep, suicidal ideation, palpitations and a sense that you deserved to be punished. It was
Mr Bedson's view that these symptoms severely impaired your functioning and resulted in poor decision-making. However, it was not suggested that the principles in R v Verdins & Ors (2007) 16 VR 269 case had been engaged.
28 He formed the view that these symptoms were not solely due to your arrest but possibly stemmed from post-traumatic stress disorder which developed after the death of your father when you were 16, and in the wake of your own experience of cancer which immediately followed his death.
29
After detailing the basis for his diagnosis of post-traumatic stress disorder
Mr Bedson said the following
“In this context George's explanation for downloading child pornography as ‘punishment and wanting to emotionally harm myself’ (himself) is understandable. He knew that this was wrong and states that he found it quite 'sickening' and seeing it reinforced his sense of worthlessness as a person. It is my opinion that he did not seek sexual gratification and that this was indeed a form of punishment – not dissimilar to other destructive behaviours under stress such as gambling, drugs, alcohol etc."
30 Mr Bedson, was called to give oral evidence on your plea and expanded on his report. Indeed the prosecution indicated that he was required for cross-examination. He explained that he had formed the view that you downloaded pornography as a means of harming yourself, that is, engaging in self-punishment and self-deprecation. You had very negative self-esteem, poor social interaction and you felt as if you were a bad person and deserved to be punished.
31 Mr Bedson indicated that you had come a long way in the treatment you had engaged with him over the last 18 months or so. You have reconnected socially, you have involved yourself in a number of church activities and you have made considerable progress with respect to the grief that was never dealt with in respect of your father's death.
32 Through cognitive behaviour therapy Mr Bedson challenged your perceptions of worthlessness and he regards you as having engaged positively. As to your prognosis he told the court that he did not believe you would offend again in this way, he believed that you had been very 'proactive' in working on your issues.
33 When cross-examined by Ms Mackay, who appeared on behalf of the prosecution, Mr Bedson was taken to the comments that you had made to police at the time of your arrest. He had not been provided with your record of interview and was not aware that you had told police that you had downloaded child pornography because you wanted to sell it because you were in need of “serious money”.
34 He was not aware that you also told police, that you never looked at the child pornography unless you checked to see if the files had been named correctly. He was not aware that you had used the term 'PTHC' in searching for child pornography. Mr Bedson had not asked you how often you viewed this material. However, he had asked you whether you masturbated when viewing this material and you responded that you did not. Mr Bedson had not conducted any testing to determine whether you had a paraphilia disorder. He was aware that such testing exists.
35 Mr Bedson appeared to accept that there was an inconsistency between the diagnosis of PTSD and the need for self-punishment as one explanation for the offending, and the other explanation being that he intended to sell it.
Submissions as to sentence
36 Mr Yianoulatos emphasised that a significant feature of your circumstances is that you immediately took responsibility for the downloading and possessing of these images and pleaded guilty at the earliest opportunity. There has also been considerable delay in having the matter heard which he said should be taken into account in your favour.
37 You have also used that time to undertake treatment and otherwise reconnect with your local community. Your counsel submitted you were unlikely to offend and that your prospects for rehabilitation are high.
38 As to the objective gravity of the offending, the written outline provided by your legal representative, submitted that:
"The percentage of total videos and images that fall into category one as classified by the ANVIL is on, or about, 68 per cent. Whilst there is no denial that the material is offensive and does not lessen the seriousness of the offending, it is however submitted on behalf of Mr Milonas that the gravity of the offending ought to be considered and viewed at the lower range."
39 Mr Yianoulatos relied upon the decision of DPP v Garside [2016] VSCA 74, to submit that it was appropriate to impose a disposition that facilitated and did not interrupt your rehabilitation. He argued a community correction order would be the best vehicle to achieve that objective.
40 In response Ms Mackay argued that the submission that the offending should be viewed at the lower range should not be accepted. The quantity of material in this case is considerable. There were 10,254 files. Although the majority of the material was in category one being the less serious category, that category in itself, she pointed out, is very serious, that is, depicting children as young as infants in sexually suggestive or sexually explicit poses. Moreover, 31 per cent of the material related to categories 2–5.
41 She argued, quantifying categories by reference to percentages is of limited utility and may tend to obscure just how degrading these images really are. What is additionally required is a qualitative analysis of what is actually depicted in the images and videos downloaded and possessed. Here, among other files, there were 122 files depicting sadistic torture of children as young as pre-school. There were also over 1,300 images, including 448 videos, depicting sexual penetration of children as young as infants by adults.
42 The forensic examination of these materials showed that they contain files with names which were readily identifiable as containing highly graphic child exploitation material. Moreover, this offending had been sustained over a period of three years and eight months. It had only ceased when the police attended to find you in the act of downloading more of this material. The forensic examination showed that you had frequently engaged in this offending at times on a daily basis. And that you went to some lengths to arrange the files chronologically.
43 On that basis, it was submitted that this was not offending at the 'lower range.'
44 As to the psychological material, Ms Mackay argued that Mr Bedson's opinion about your motivation for this offending is questionable having regard to the fact that he was not aware that you provided police with a different reason for downloading this material.
Findings
45 As I have indicated you were arrested on 5 January 2017. You pleaded guilty to these offences at committal mention in May of 2017. I will treat your plea as having been entered at a very early stage in the proceedings. That fact merits a substantial sentencing discount not only because it has facilitated the course of justice but it is very much consistent with genuine remorse. You were cooperative with investigators from the outset and made frank admissions. Your application to treatment also suggests you are indeed ashamed for engaging in this offending.
46 I note also that through no fault of your own, and despite your early plea, there has been a significant delay in the hearing of your matter. It is now over 22 months since you were arrested and this matter must have weighed heavily upon you. You have used that time constructively. That delay and the motivation you have shown to rehabilitate are important matters to be taken into account in your favour.
47 I will not sentence you on the basis that you downloaded this material with the intention of selling it. There is no evidence that at any time during the three year and eight month time frame for Charge 1 you sold, transferred or attempted to make these files available to any other person at any time.
48 However, I also find the explanation put forward by Mr Bedson that you did not seek sexual gratification from this material, as unsatisfactory. The frequency and duration of your dealings with this material appears to be inconsistent with the assertion that you did not seek sexual gratification from it. As has been said you engaged in the accessing and storing of this material frequently sometimes on a daily basis over a three year and eight month period. You were still doing so at the time the police attended at your house.
49 The weight of the evidence points to you having underlying psychological problems, in part at least contributed to by the trauma associated with the untimely death of your father and your own cancer treatment immediately afterwards. However, I am not satisfied that your psychological treatment to date has adequately identified the reasons for your offending. It is manifest that further treatment is required. It is encouraging that you have shown a willingness to apply yourself to such treatment over a sustained period, even if it should be regarded as a work in progress.
50 Given that you retain the support of your family and provided you continue to access treatment, I am prepared to assess your prospects for rehabilitation as at least reasonable. It would be hoped that as you progress the reasons for your offending will become clearer and you will in turn develop greater insight.
51 Turning to my assessment of the gravity of the offending, I cannot accept your counsel's submission that this offending should be viewed in the lower range. Even recognising that there is some ambiguity in that expression as was discussed in Hutchinson at paragraphs [57]–[64], for the reasons advanced by Ms Mackay a quantitative assessment, but more importantly, a qualitative assessment of the material you accessed and possessed compels the conclusion this is very serious offending.
52 I must, therefore, in sentencing you emphasise the need to protect children and the need to deter others from engaging in this type of offending.
53 Section 5(4) of the Sentencing Act 1991 (Vic) and s.17A of the Criminal Code (Cth) require that I cannot impose a sentence of imprisonment unless I am satisfied that no other sentence is appropriate in all the circumstances of the case. I am so satisfied here. Given the number and content of the images you accessed and possessed I have no alternative but to impose a term of imprisonment.
54 The Victorian Court of Appeal decision in Garside is not of great assistance to you here. It involved less serious offending and the sentence was only allowed to stand through the exercise of the 'residual discretion.'
55 In structuring the sentence to be imposed you must be punished for both using a carriage service to access child pornography and the additional criminality involved in retaining that material. Although there is significant overlap in the offending, some measure of cumulation is appropriate.
Sentence
56 Mr Milonas, would you please stand.
57 On Charge 1 you will be convicted and sentenced to imprisonment for a period of two years to commence from 23 April 2019. That sentence will expire on 22 April 2021.
58 On Charge 2 you will be convicted and sentenced to 12 months imprisonment, such sentence being a state sentence and there being no pre-sentence detention will start as of today.
59 On the related summary offence of failing to store a firearm in accordance with the conditions of your firearms licence you will be fined without conviction the sum of $250.
60 I will order that six months of the sentence on Charge 2 be served cumulatively upon the sentence imposed on Charge 1 making a total effective sentence of two years and six months.
61 I will further order that pursuant to s.19AC of the Cth Crimes Act that you be released after the service of nine months of the federal sentence imposed on Charge 1, that is, on 22 January 2020, upon you entering into a recognisance of $3,000 to be of good behaviour for a period of three years.
62 The effect of that order, Mr Milonas, will be that you will be released on 22 January 2020, that is, 15 months from this day, however you will continue to have the balance of the term of imprisonment that was imposed on you, that is, a further 15 months hanging over your head for a period of three years. If you breach the condition of the reconnaissance release order that you should be of good behaviour you would likely to be brought back before me, you would forfeit the $3,000 and you would be liable to serve the 15 months imprisonment that has been imposed. Is that clear, Mr Milonas?
63 OFFENDER: Yes, it is.
64 HIS HONOUR: Just take a seat for a moment if you would, please. I will further declare pursuant to s.6AA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a total effective sentence of four years with a non-parole period of two years and three months. I will further declare that having been found guilty of two class 2 offences under the Sex Offenders Registration Act 2004 (Vic), you will be required to report under that Act for a period of 15 years.
65 Mr Stevens, could I ask you whether any matter arises out of the sentences that have been imposed?
66 MR STEVENS: I don't believe so, Your Honour. I've prepared the bond form, if I could just have a moment to - - -
67 HIS HONOUR: By all means.
68 MR STEVENS: - - - to look over that I'd be grateful.
69 HIS HONOUR: By all means. Yes.
70 MR STEVENS: Thank you.
71 HIS HONOUR: Mr Yianoulatos, so that it is clear to assist you in explaining this to your client, the first charge, two years imprisonment, but it commences on 23 April 2019. The second charge is 12 months but it commences immediately. The effect is to add six months of the sentence on Charge 2 to the sentence on Charge 1 making a total effective sentence of two and a half years. Having served 15 months of the combination of those sentences, he will be released on a recognizance release order on 22 January 2020 upon him entering into that recognizance in the sum of $3,000 with the condition that he be of good behaviour for three years. Is that clear?
72 MR YIANOULATOS: As Your Honour pleases.
73 HIS HONOUR: Thank you, Mr Yianoulatos.
74 MR STEVENS: Your Honour, I double checked and it is correct.
75 HIS HONOUR: Thanks, Mr Stevens.
76 MR STEVENS: Yes, Your Honour's correct.
77 HIS HONOUR: Yes.
78 MR STEVENS: I have completed the bond form and I'll provide - - -
79 HIS HONOUR: Thank you very much.
80 MR STEVENS: - - - the reconnaissance release order and I'll hand that up to Mr Tipstaff.
81 HIS HONOUR: Yes. Mr Yianoulatos, there are two documents that your client is required to sign. The first is the document that enables his release on that date, the reconnaissance release order. The second is the sex offenders registration notice that is provided. It needs to be done in front of my associate and I wonder whether these forms might be provided to you.
82 MR YIANOULATOS: Yes, sir.
83 HIS HONOUR: My associate will indicate to you where your client needs to sign.
84 MR YIANOULATOS: Yes.
85 HIS HONOUR: And if you wouldn't mind facilitating that with your client now that'll enable the process to take its course.
86 MR YIANOULATOS: We'll attend to it immediately, Your Honour.
87 HIS HONOUR: Mr Milonas, you can now go with the correctional officers if you would, please. Thank you. 10.30 please, Mr Carlisle. Thank you, Mr Stevens, thank you, Mr Yianoulatos.
88 MR STEVENS: Thank you, Your Honour.
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