Director of Public Prosecutions v Mizzi

[2015] VCC 1496

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00903

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARIO MIZZI

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 & 14 September 2015
DATE OF SENTENCE:	14 September 2015
CASE MAY BE CITED AS:	DPP v Mizzi
MEDIUM NEUTRAL CITATION:	[2015] VCC 1496

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms J. Hortle	C.D.P.P
For the Offender	Ms E. Ruddle	Markotich Lawyers

HIS HONOUR:

1Mario Mizzi, you have pleaded guilty to one count of using a carriage service to access child pornography and one count of accessing child pornography using a carriage service.  In addition to that you have pleaded guilty to three summary charges; one count of possessing a Category A or B longarm without a serial number; one count of failing to store a Category A or B longarm correctly contrary to the Firearms Act; and one count of failing to store ammunition under a longarm licence contrary to s.121 of the Firearms Act.

2The maximum penalty of the first Commonwealth charge is ten years; the second Commonwealth charge is 15 years' imprisonment; and the summary offences, possession without a serial number is 240 penalty units or four years' imprisonment, and the other two summary offences 12 months' imprisonment or 60 penalty units.

3The circumstances of the offending were set out in the Crown opening, which was read in open court on the plea and which I incorporate by reference.  In brief summary, the police investigating child pornography ascertained that your ISP address had been used to access child pornography, and they proceeded to execute a search warrant on you.  The program you were using allowed other users to access child pornography from your ISP.

4They then executed a search warrant on 20 August 2014, and they then proceeded to seize two hard drives from your computer, a Cooler Master and a Samsung, and then they found the Chinese-made air rifle without a serial number and some unsecured cartridge ammunition in a wardrobe.

5You were taken to the Epping police station and participated in a "no comment" record of interview.

6The police then proceeded to analyse the two hard drives, and proceeded to categorise the material that was found.  What was found is set out in paragraphs 13 and 14 of the Crown opening.  Essentially, on the Cooler Master there was something like 1569 Category 1 material and another 1524 of non-illegal material, and then 8,078 images of adult pornography, and then in movies there was 13 Category 1 movies, two Category 2 and 41 adult pornography movies.

7On the Samsung they did a 31 per cent sample and found 391 Category 1 images, 26 Category 2, and then 70 non-illegal ones and 65,833 adult pornography.  And then as far as the movies are concerned, they found two Category 1, one Category 2, and six Category 4, and one Category 7 and 8, 73 adult pornography. 

8So overall, there was 1,960 Category 1 images, 50 Category 2, 15 Category 1 movies, three Category 2 movie files, six Category 4 movie files.

9The search also indicated that you had been using search terms such as "PTHC", which is pre-teen hard-core, and pre-teen soft-core.

10It is necessary now to assess the seriousness of the offences.  The first matter here is to consider the sheer number of child pornography files that the case involved.  As outlined by the learned prosecutor, as I have indicated, there were something like 1,960 Category 1 , 50 Category 2; in the movie files there was 15 Category 1, three Category 2, six Category 4.  And then the Samsung only involved 31 per cent of the total images on that drive.

11So on a quantitative basis, the number of Category 1 and Category 2 under the relevant classification scheme is not insignificant in terms of the order of magnitude of cases that come before these courts. 

12The next matter going to the assessment of the seriousness is to consider the period over which the material was downloaded. There were two separate periods for the charges. The first charge is that over the period 17 November 2009 till 16 March 2010, which is a period of some four months.

13Then the second charge is the period 17 February 2013 to 29 January 2014.  The second one is nearly 18 months which is a significant period.

14The next matter to consider is to assess the seriousness of the actual files.  The starting point is the classification of each of the relevant files under the Child Exploitation Tracking System.  While the files have been placed in the relevant category, this in a sense is only a starting point. 

15There was a dispute on the plea hearing as to the appropriate description of the Category 1 files.  The learned Crown Prosecutor submitted that the files in Category 1 could not be described as innocuous and said that they constitute files of significant depravity.

16Defence counsel accepted that the appropriate categorization of the Category 1 files were in the mid-range of Category 1 files.  In addition to that objective description, at the invitation of the learned Crown Prosecutor I did peruse the file titles of the downloaded material which indicated that they covered a wide range of what could be only described as debauched activity of a child pornographic nature.

17In addition to the Category 1 images it is also relevant to consider the Category 4 images.  While the age of the females on the sample was not clear it did involve penetrative sexual activity on the two samples that the prosecutor had viewed.

18Another matter referred to by the learned Crown Prosecutor was that it was undisputed on the basis of the analysis that you had sought to download material, using search terms such as "pre-teen hardcore" and "pre-teen softcore," so this was the deliberative action by you.

19The usual aggravating factors in this type of offending were considered by the learned Crown Prosecutor in her submission and do not appear here, such as paying for the material or exchanging it with other people.  It appears that the software you were using allowed it to be uploaded by other people, but there was no evidence that this had in fact occurred.  In addition, there was no special storage of the material or other features.

20Overall, having regard to the volume of material, the classification as
Category 1 of most of it and the duration of the offending, I put the seriousness of the offending here as above the bottom of the range of this type of offending that comes before this court.

21In relation to the firearms offences, I regard them as being of lesser seriousness but still significant.  You have had a firearms licence and own firearms, so you should have been fully aware of the requirement to have a firearm, albeit an air rifle, properly secured and registered.  You will be punished for this offence because you will lose your other firearms licences and firearms as a consequence of your conviction for this offence and the other offences.

Matters in mitigation

22I turn to the personal circumstances of you.  The first matter was put by your counsel is that you have no prior convictions alleged against you and, in addition there was positive evidence of your good character.  This included your involvement in a community organisation in Darebin to lobby against poker machines, as well as continuing involvement with another charitable organisation and there was a reference before the court.  I have taken those matters into account as well as two specific references that have been provided, one from your wife and another from a personal friend, Mr Collela.

23You are aged 59 and were born in Melbourne, the youngest of ten siblings.  Your personal circumstances and background and upbringing are set out in great detail in the report of Dr Hussein, clinical and forensic psychologist, which I incorporate by reference. 

24You left school relatively early but were able to get into the workforce and obtain qualifications as an automotive electrician.  Then you were employed full time owning your own business for a period of some 16 years until it was closed down in 2005.  Shortly prior to that you had suffered a back injury in a fall when working on your house.  After you closed this business down you then retrained as a trade teacher and worked in a number of TAFEs including in quite senior positions.

25You have now been unemployed since 2013.  As a result of the injury I referred to, you are suffering from ongoing medical pain and pain management issues.  You have had a number of issues relating to depression and anxiety going back to at least since 2004.  In late 2005 you were referred by your general practitioner for a psychiatric assessment.  You were found in February 2006 as suffering from a chronic depressive disorder, dysrhythmia, and put on a trial of antidepressant at that stage.  It appears that you are still using antidepressant medication.

26On the plea it was put that your offending took place against the background of unemployment and stress.  That seems clear from the medical material and also from the report of Dr Hussein, who indicates that there have been marital difficulties and that you have been living separately and apart under the one roof from your spouse for some years.  Dr Hussein assessed that you were suffering in the extremely range for depression or anxiety and for stress. 

27It was in the context of accessing adult pornography that you came across the child pornography which has brought you before the court.  Dr Hussein has indicated that you have responded well to the 34 sessions of therapy since you commenced to see him in September 2014.  Although you were suffering from marital problems and depression during the period of your offending, given the period over which it did occur and the fact that you were also accessing adult pornography, I do not accept that these matters provide anything but the context for your offending and do not go to reduce your moral culpability.

28I turn now to some other matters put in mitigation.  First I have taken into account your plea of guilty.  It was at the earliest opportunity.  The prosecution accepted that you had co-operated fully with the authorities.  You have facilitated the course of justice and taken responsibility for your conduct and you are entitled to the credit for that.

29

I have also taken into account your remorse which is set out in the report of

Dr Hussein and which was conceded by the prosecution as a relevant sentencing consideration.  You have developed insight into your offending and victim empathy which is an important factor going to your rehabilitation.

30Next there was some delay from when police first executed the search warrant to the committal and then to bring the matter on for a plea.  I have taken that into account in your favour.

31The primary submission of defence counsel was that having regard to your prior good character and efforts of rehabilitation, then a community corrections order was the appropriate disposition.  I have considered your overall prospects of rehabilitation as good.  Although you have a history of anxiety and depression and you have been on antidepressants from time to time, the report of Dr Hussein indicates that in the period he has been treating you, you have responded well to his treatment and this bodes well for your rehabilitation.

32A further factor put on your behalf is that as a result of this offending coming to light, you have been cut off from your two children and a number of grandchildren and, indeed, from the balance of your family.  This has been put as extra judicial punishment.  I have considered it but do not give it any decisive weight.  It is indeed unfortunate as support of your family will be relevant to your continued rehabilitation.  I note, however that your wife has indicated that she will continue to support you.  Overall, given your fragile psychological state and the period over which you did access this material, considerations of specific deterrence must be given some weight in this matter.

33I turn now to the matters in s.16A of the Crimes Act.  There was no real dispute between the prosecution and defence as to the importance of the various factors set out in the competing sentencing submissions that were provided and which I have taken into account. 

34General deterrence and denunciation must be given paramount weight given the pervasiveness of this material, the need to deter others from accessing it and in order to choke off the demand for such material and to vindicate the child victims.

35I was provided with a helpful chart of some comparable cases in order to place this case within the range of cases.  Those cases indicated that offending of this scale generally calls for a sentence of imprisonment to be served, although it was accepted by the learned Crown Prosecutor that a sentence of imprisonment followed by immediate release upon a recognisance would not be frank sentencing error.  She put, and I accept, that the case of Golding may be seen as the closest comparable case.

36Given the volume of material here, I regard this matter as close to the line. The most significant factor supporting the decision not to require you to immediately serve any term of imprisonment is the efforts of rehabilitation that you have undertaken particularly given your generally fragile psychological state. Thus, notwithstanding the prior good character and indeed prospects of rehabilitation are seen by the authorities as having lesser weight in sentencing for this type of offence, I have determined that the matters set out in s.16A of the Crimes Act and the interests of the community in general deterrence and denunciation can be met in this case by a sentence of imprisonment followed by immediate release upon a recognisance.

37I have had you assessed for a community corrections order.  The learned prosecutor accepted that conditions akin to a community corrections order could be attached to a recognisance release order, as occurred in Golding, and I propose to take that course of action.

38On the first count of using a carriage service to access child pornography, you are sentenced to two months' imprisonment.

39On the second count of accessing child pornography, you are sentenced to six months' imprisonment.

40The sentences are to be served concurrently.

41I order that, provided you agree, I will order that you be released immediately upon entering into a recognisance in the sum of $1,000 with a number of conditions. 

42Those conditions will be as follows:  That you are to be of good behavior for a period of 18 months.  That you be under the supervision of the Community Corrections Office and the Sex Offender Management Unit for 18 months.  That you attend for assessment , if assessed as suitable, treatment for a sex offender program or programs to reduce re-offending as directed by the Office of Corrections.  That you report to the Reservoir Community Corrections Service by 4 pm on 16 September and you report and receive visits from the Community Corrections Officer as directed.  That you notify the Community Corrections Officer of a change of address within two clear working days.  That you not leave Victoria without the permission of the Community Corrections Officer and that you obey all the lawful instructions and directions of those officers.

43On the summary charges, the firearms charges, you are convicted and fined an aggregate sentence of $1500 on the three counts and I give you a stay of three months to pay that fine.

44As a consequence of the sentence, you are to be on the sex offender register for 15 years and my associate will prepare the relevant papers and ask you to sign them.

45I am required to explain the sentence to you.  I have sentenced you to two months' imprisonment on the first count, six months on the second count. 
I have directed that they be served concurrently, but I have ordered that you be released forthwith on a recognizance, which is an agreement to be of good behavior for 18 months, in the sum of $1,000.  You do not have to pay that money, but if you commit an offence in the next 18 months or breach the conditions that I have imposed, then you will be brought back here to be resentenced.  I have imposed the conditions that I have outlined akin to a community corrections order, supervision, assessment for sex offender programs and other programs to reduce offending, reporting to that office within two days, receiving visits, notifying of changes of address, not leaving Victoria without permission and obeying the lawful instructions.

46On the firearms offences I have imposed an aggregate sentence of $1500 and given you three months three months to pay the fine.

47I have had this order prepared.  I will have counsel look at it and then I would ask you, Ms Ruddle, if it is in order, if the prosecutor says it looks in order, I will ask you, Ms Ruddle, to explain it to the prisoner and then I will resume in a few moments.

(At a later stage.)

48(Recognisance order signed and acknowledged.)

49Mr Mizzi, you have signed the recognisance order.  I have signed it.  I am giving you this opportunity to be of good behaviour for 18 months so you do not have to serve the six months' imprisonment that I have sentenced you to, but if you do breach this bond then you face a real risk that you will be required to serve the six months.  Do you understand?

50OFFENDER:  Yes.

51HIS HONOUR:  That includes continuing with the sex offender treatment with Dr Hussein, or anyone else they direct you to.  Then you are on the sex offender register for 15 years.  You are getting the paperwork for that.  That has got significant obligations and if you do not comply with them that is a criminal offence too, do you understand that?

52OFFENDER:  I do.

53HIS HONOUR:  No doubt Ms Ruddle has explained it to you.  All right.  I thank counsel for their assistance in this plea.  Anything else?

54MS HORTLE:  One final issue, Your Honour.  Would Your Honour be minded to specify the discount the offender has received for pleading guilty.

55HIS HONOUR:  The discount.  Yes, I have got to specify 6AAA, yes.

56Had you not pleaded guilty I would have imposed a sentence of imprisonment, part of the six months to be served, but I will not go any further than that.

57MS RUDDLE:  As the court pleases. 

58MS HORTLE:  Thank you, Your Honour.

59HIS HONOUR:  All right, thank you.  Adjourn until 9.30 tomorrow.

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