Director of Public Prosecutions v Morris
[2023] VCC 674
•28 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01726
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL MORRIS |
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JUDGE: | HER HONOUR JUDGE HAMPEL |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 April 2023 |
DATE OF SENTENCE: | 28 April 2023 |
CASE MAY BE CITED AS: | DPP v Morris |
MEDIUM NEUTRAL CITATION: | [2023] VCC 674 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Guilty plea - early plea of guilty - accessing child abuse material - producing child abuse material - possession of child abuse material - remorse and acceptance of responsibility - paedophilic and hebephiliac disorder
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).
Cases Cited: R v Boulton (2014) 46 VR 308.
Sentence:Total effective sentence of 3 years imprisonment, non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Coulson | Office of Public Prosecutions |
For the Accused | Mr L. Cameron | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1Daniel Morris, on 23 February 2021 police executed a search warrant at your home. Examination revealed that a total of 1467 still images and 22 videos of category 1 and category 2 child abuse material were stored across four devices: an Apple laptop; and three mobile phones, a Samsung A20, a Samsung A30 and Huawei. There was also child abuse material stored on a DVD or CD labelled 'Porn A'.
2All 186 images and all but one of the 112 videos stored on the devices were original, that is there was no duplication of images and only one duplication of a video across the devices. Some but relatively few of the still images and videos on the DVD were duplications of images stored on the laptop or one on the mobile phones. On my calculation that means that 1002 of the 1240 images and 107 of the 110 (all but three) videos stored on the DVD were unique. So, of a total of 1467 stills and 222 videos contained category 1 or category 2 child abuse material, 1118 images and 219 videos were unique. The total running time of the videos was 20 hours and 39 minutes.
3When interviewed, you told police your history of accessing and storing child abuse material extended over the past 10 to 15 years. You said it had not been continuous, that you had had extended periods when you did not search for or view it and that you had on a number of occasions deleted all that you had stored on your devices before recommencing. You said the DVD was old, that you had burnt images onto it six or seven years earlier. This would suggest it was some time before the warrant was executed that you last deleted and destroyed the materials that you had accessed.
4You told police that you had accessed materials using the dark web. You said information about how to access the dark web was easily accessible in the public domain.
5As a result of what was found on your devices, and your admissions to police when interviewed, you have now pleaded guilty to and come to be sentenced for one rolled up charge of accessing child abuse material, one charge of producing child abuse material and one charge of possession of child abuse material. Against the background of your admissions, it is important to note the dates of the charges and the material they relate to in order to identify what is conduct the subject of a charge, the time over which a charge extends, whether it is a single instance or a rolled up charge, and to distinguish that from what is relied on for context so as to confine sentencing to the conduct and the time period the subject of the charges.
6Charge 1 is a rolled up charge of accessing child abuse material covering a three-day period in October 2019 during which, on five separate occasions, you downloaded child abuse material using a specific website and stored the files in the download folder of one device, the Samsung A20.
7Charge 2, produce child abuse material, is a single occasion in April 2020 where you saved onto your Apple laptop a screen recording of an eight-minute online chat between you and a naked nine-year-old female child who, at your request, engaged in sexual acts and sits with her genitals exposed and displayed to you through the camera.
8Charge 3 is a charge of possession of child abuse material on the day of the execution of the warrant, 23 February 2021. On the schedule that was provided to me with the prosecution summary, 928 of the 1467 images and 164 of the 222 videos possessed by you on that day were defined as category 1 child abuse material, using the Interpol baseline definition of child abuse material. Category 1 child abuse material is defined as an image depicting a real pre-pubescent child under the age of 13 years approximately, where and the child is involved in or witnessing a sex act or the material is focused or concentrated on the anal or genital region of the child.
9A further 539 images and 58 videos found in your possession on the date of the execution of the warrant were category 2 child abuse material. That is defined as other child abuse material that is illegal within Victoria, but does not fit within the Interpol baseline category 1. Category 2 material includes an image which depicts or describes a person who is, or appears, or is implied to be, a child, as a victim of torture, cruelty or physical abuse; as a victim of sexual abuse; as being in the presence of another who is engaged in a sexual pose or sexual activity; or is exposing the genital or anal region of a person who appears or is implied to be a child or the breast area of a person who is or appears or is implied to be a female child; in circumstances where a reasonable person would regard the material as being in the circumstances offensive.
10I do not consider it necessary for sentencing purposes to detail in these reasons the examples of category 1 and category 2 materials found in your possession, nor to summarise or give any more the detail about the information you gave in relation to the platforms you used to access the child abuse material. I do not want to be, and the court should not be, a party to inadvertently adding to what is already available in the public domain for the benefit of the prurient or the deviant. However, I note for the record that I have read and have regard to the mercifully brief but deeply disturbing descriptions of the representative sample of child abuse material, both category 1 and 2, set out in the prosecution summary when coming to my findings about the seriousness of this offending.
11One measure of seriousness is of course the maximum penalties prescribed by Parliament here, 10 years' imprisonment for each offence.
12In assessing the objective gravity of the offending the prosecution pointed rightly to the significant number of category 1 and category 2 images, the number and duration of the category 1 and category 2 videos and the inescapable conclusion flowing from that that many hundreds of children were abused and exploited in the production of the images accessed and stored by you. It pointed out rightly that each one of those children is to be regarded as a victim of your offending.
13Without people who access such material, there is no market. Children would not be exploited if people were not going to access the images. That you did not directly produce any of the images accessed or stored that are the subject of Charges 1 and 3 does not detract from that. And your role in directing the actions of the child whose image you watched recorded and stored detailed in Charge 2 fixes you with direct, real-time involvement in the abuse and exploitation of a real child.
14The duration of the offending period, from October 2019 to February 2021, of itself, and seen against the context of the admitted duration of your accessing and viewing child abuse material, and your admission the images on the DVD found in your possession in February 2021 had been burnt onto it six or more years earlier, make these in my view serious examples of extremely serious offending.
15It is clear therefore that the sentencing principles of denunciation, deterrence, just punishment and protection of the community weigh heavily in the sentencing mix. Those who access such material, store it and direct its production are contributing directly to the exploitation of the children who are featured in it. Children are vulnerable. Adults, all adults should nurture and protect them, not participate in exploiting them, denying them their childhood and a normal, healthy sexual development. Children are not commodities. Until they are old enough to make free and informed choices to ensure their own safety and to fend for themselves, the adults into whose orbits they come have a duty to care for them, to protect them and not debase them. And accessing and viewing the material is a failure of a duty to care for those children and a debasing of them. By the very nature of production of child abuse material, children who are used in the production of such material are a vulnerable sub-group of that already vulnerable cohort that children are.
Personal circumstances
16Turning then to your personal circumstances, you are now 45 years of age. You are single and childless.
17You report an untroubled upbringing, maintaining a good relationship throughout childhood and into adulthood with your parents and siblings. There is no family history of anyone being in trouble with the criminal law. You report that on one or two occasions when you were six and your sister was 10 she 'touched you'. Nothing in the report of the psychologist, Ms Sizenkio, who assessed you for the purposes of this plea, suggests any connection between that and this offending.
18You were a good student who obtained tertiary qualifications after successfully completing secondary schooling. You have qualifications in graphic design. You completed an apprenticeship in graphic reproduction. That equipped you well for employment into your adult years.
19Your history of employment is one of general stability, interrupted by bouts of unemployment after you were made redundant on two occasions. You demonstrated a capacity to regain meaningful and gainful employment.
20You report no meaningful long-term romantic relationships since you were in your early 20s and you report long periods where you have described yourself as single. As I understand it, you have never been married and the information does not indicate to me that you have ever lived in a domestic relationship with a partner.
21Apart from what appears to be a long but non problematic history of cannabis use, there is no history of substance use let alone abuse, mental illness, a psychological disturbance or physical disability which would explain your conduct, mitigate your moral culpability, add to your risk of reoffending or significantly impede your rehabilitation. There is no history or diagnosis of behavioural disorder or psychological disorder save for the finding after your arrest and the discovery of this offending that you not surprisingly satisfy the criteria DSM-V criteria for Paedophilic and Hebephillic disorder.
Matters relied on
22In dealing with the matters relied on by Mr Cameron in his plea I note that you have no previous convictions and positive evidence of good character was presented on your behalf. That speaks significantly, because, although you describe what appears to be in some ways a somewhat lonely life, you clearly have long-term friends who think highly of you, speak well of you and maintain their good opinion of you and your character notwithstanding their shock at the discovery of this secret part of your life.
23However, good character is of lesser weight in offences such as this and must be tempered by fact that you engaged in this activity for much of the time you were otherwise impressing others. As your counsel put it, the testimonials speak of a man for whom such offending is at odds with the person they knew. That is the conundrum and that is why good character counts for less in sentencing for offences such as this. You could and did earn the trust and respect of others, whilst unbeknown to and unsuspected by them, for over 10 to 15 years you were actively seeking out, viewing and possessing this vile material which so shockingly and cruelly abused and exploited innocent babies and children.
24You are entitled to considerable weight being given to your early plea of guilty and the admissions that you made that supported that. That plea of guilty has significant weight not only for its utilitarian value, as evidence of your willingness to facilitate the course of justice, the saving the cost of a trial and not adding to delays in the courts, which were already significant before COVID increased the backlog in the courts notably. The weight to be given to the plea of guilty in terms of not adding to the backlog or seeking to reduce it post-COVID must clearly also be separately valued and given weight.
25It was put by Mr Cameron that your prospects for rehabilitation were good. In addition to the absence of any previous convictions, including most importantly absence of previous convictions for conduct such as this, you have family support. Your family continues to support you. You have a demonstrated capacity to engage in meaningful employment and to return to employment after long periods of unemployment following retrenchment. It is important to note that your periods of unemployment seem to follow being retrenched rather than being dismissed for poor attitude or incompetence.
26You can also call in aid the absence of a history of trauma, substance abuse, psychological or psychiatric condition or other disability which might otherwise interfere with rehabilitation. I accept that your plea of guilty and your subsequent conduct in seeking out and engaging in counselling demonstrates remorse and acceptance of responsibility. As I have noted, you made extensive admissions to the police and indicated you intended to plead guilty from the outset. You did not seek to shirk responsibility for what you had done or to minimise it.
27You complied with you bail restrictions from the time that you were charged and released on bail and you have engaged in some specialist sex offender counselling. Although that, according to the report of Ms Sizenkio, has been somewhat limited, I accept that the limitations are due to your limited resources rather than any lack of commitment on your part. Because of your limited resources, you could only access counselling when you were able to receive a Medicare rebatable referral to a psychologist. So I accept there is no lack of commitment but simply lack of means and opportunity to engage in more.
28Having accepted all of that, when assessing your prospects for rehabilitation I accept Ms Sizenkio's opinion, which indicates that there is much work to be done to address the cognitive distortions which allowed you, an intelligent man who knew what you were doing was wrong, shameful and abhorrent, to continue and to not seek help of your own volition or until charged. It is also relevant clearly as weighing on the assessment of your prospects for rehabilitation that Ms Sizenkio in her unchallenged opinion noted that you satisfy the diagnostic criteria, as I have already noted, for paedophilic and hebephiliac deviance.
29In her view you stand in need of significant therapeutic engagement to address and manage your risk of further offending. You have clearly indicated a desire to do so and I urge the Corrections authorities to ensure that you are assessed as soon as possible and given every opportunity to participate in sex offender treatment programs both in custody and out of custody so as assist you to address the deviant attitudes and to reduce further your risk of reoffending.
30In conducting her risk assessment, Ms Sizenkio noted no identified factors which raised your risk of reoffending above the general level of risk of reoffending of offenders who access child abuse material. Although you report long-term use of cannabis, Ms Sizenkio notes no suggestion of any causal link between cannabis use and accessing child abuse material.
31Mr Cameron also relied, in making his submissions as to the appropriate sentence, on the burden of imprisonment if the sentence that I imposed involved a custodial component. In addition to the real restrictions that still exist in this endemic phase of COVID on access to visits, programs, courses and freedom of movement for people in custody and the added risk of being exposed because of the vulnerable cohort in prison to the risk of transmission without being able to take steps one might otherwise take of one's own volition to ensure one's safety, you are a first-time offender.
32You will, I accept, suffer the shock of the previously unknown, as well as the punitive effects of imprisonment itself. That is the loss of liberty. I accept imprisonment is more onerous post-COVID than it was before and I accept that imprisonment is a shock to a first-time prisoner. Those matters must be taken into account in assessing the appropriate sentence. Imprisonment is, it must be noted, a burden and a punishment for everybody sentenced, whether they are a first-time offender or somebody returning.
33Mr Cameron also noted that you had expressed concerns about your inability to care for your parents in the event that they became in need of care. I accept that the burden of concern about that is a matter properly to be taken into account. However, both your parents live interstate and you have been not living with them or being relied on to provide day-to-day or week-to-week care for them. So, whilst the emotional concern about not being there if you are needed is clearly a matter to take into account, that is where it sits, no more than that.
34It was acknowledged by Mr Cameron that this is serious offending and that general deterrence is the paramount sentencing consideration. And, in addition to assessing your prospects for and giving proper weight to your prospects for rehabilitation, he acknowledged that those principles of denunciation, specific deterrence and protection of community also loomed large.
35This in my view is an example of serious offending. Even making an allowance for the duplication of some images, there is a substantial volume of category 1 and category 2 images and videos. That language, category 1 and category 2, disguises the real horror of this material. You stored, viewed and possessed stills and videos that recorded debasing and at times no doubt painful abuse of babies as young as six months, toddlers, little children, through to bigger children, pre-pubescent and pubescent children. Some of the videos ran for hours.
36As I have noted, Charge 2 involved the obtaining, recording and storing by you of a direct online communication between you and a nine-year-old child, where she engaged in sexual activity at least in part directed by you. For charges 1 and 3, you acknowledge obtaining for your pleasure just under 1500 stills and over 200 videos which included hundreds of children being abused in that material.
37You say, and I accept, that you are ashamed. One of the difficult features in sentencing in a case such is this is that your shame was not enough to stop, to seek help or put ahead of your return to your deviant pleasures, the needs, interests or basic human rights of the babies and children whose abuse you commissioned, viewed or possessed. By accessing and possessing the material, and on that one occasion the subject of Charge 2 of recording your own direction of abuse, you perpetuated this evil exploitation of children. That is why it is so serious.
38Of course, as I have already said, I know I must sentence you, and do so, for the offences on the indictment. Charge 1, the three-day period in October 2019, charge 2, the single instance of viewing, uploading and saving the real-time online 'performance' in April 2020 and charge 3, the possession on the single day, the day of the execution of the warrant, of that vast amount of material.
39Therefore I am sentencing you for three instances of discrete offending over a 16-month period but seen in the context of the admissions to police and Ms Sizenkio of the 10 to 15-year history of viewing and possessing such material.
40Accepting all that was said in R vBoulton,[1] and upon which Mr Cameron relied, about the punitive as well as rehabilitative functions of a community correction order and its availability even for very serious offences, I have come to the clear view that because of the seriousness of the offending no sentence other than one of imprisonment is appropriate. The offending is too serious, despite the evidence of remorse, your engagement with counselling and your prospects for rehabilitation. I do not consider your personal circumstances justify a non-custodial sentence.
[1]R v Boulton (2014) 46 VR 308.
41It follows therefore that the serious offender provisions apply. Acknowledging the primacy of protection of the community as a sentencing consideration as a result in respect the sentence for Charge 3, I do not consider a disproportionate sentence is required in order to give effect to protection of the community. Nor do I consider a totally cumulative sentence in respect of Charge 3 is required.
42Having regard to the 12-month maximum term of imprisonment available if a combination sentence were to be imposed, I do not consider a combination sentence to be appropriate either. The number and nature of the images, the period of offending and the need to give proper weight to protection of the community, denunciation and deterrence mean in my view, a term of imprisonment of 12 months or less, even accompanied by a substantial community correction order, is insufficient to mark the overall gravity of the offending.
43I now come formally to sentence you, Mr Morris. On all three charges to which you have pleaded guilty you are convicted.
44On Charge 1 you are sentenced to be imprisoned for a period of 12 months.
45On Charge 2 you are sentenced to be imprisoned for a period of 18 months.
46On Charge 3 you are sentenced to be imprisoned for a period of two years.
47I make the sentence on Charge 3 the base sentence and I direct that six months of the sentence on Charge 1 and six months of the sentence on Charge 2 be served cumulatively upon each other and upon the sentence on Charge 3. That makes a total effective sentence of three years' imprisonment and I fix the period of 18 months as the time that you must serve before being eligible for parole.
48I declare that you have spent 15 days in pre‑sentence detention and direct that that be counted and reckoned as part of the sentence already served. And I declare pursuant to s6AAA of the Sentencing Act that but for your pleas of guilty I would have sentenced you to a total effective sentence of four years and six months' imprisonment and fixed three years as the time that you would have had to serve before being eligible for parole.
49Pursuant to the provisions of the Sex Offenders Registration Act[2] conviction for these offences means that you are automatically required to be registered for life on the sex offender register and subject to reporting conditions for life. Because this is a remote hearing, I cannot physically have handed to you a copy of the reporting conditions. They in any event do not come into effect until your release from custody. I will ensure that a copy of those reporting conditions are provided to your legal advisers and sent to you in prison, so the court will do what it can to ensure that they have been provided to you.
[2][2] Sex Offenders Registration Act 2004 (Vic).
50Are there any further orders that are required to be made, Ms Coulson or Mr Cameron, and have the sentences that I have pronounced reflected what I said I intended to do?
51MS COULSON: Nothing further from my end, Your Honour.
52MR CAMERON: Your Honour, I might have misremembered, but I understood there was a disposal order that was sought by the Crown. I might have that wrong.
53HER HONOUR: Thank you for reminding me. That had slipped my attention. That's right, isn't it, Ms Coulson? There was a disposal order.
54MS COULSON: That's correct. Thank you.
55HER HONOUR: That was consented to, wasn't it, Mr Cameron?
56MR CAMERON: That's so, Your Honour. But otherwise the orders Your Honour's made are, with respect, clear and reflect Your Honour's overall intention as indicated by the total effective sentence.
57HER HONOUR: All right, thank you. I will make the disposal order sought.
58These are very difficult cases. Can I thank both of you, Ms Coulson and Mr Cameron, for the careful, measured and sensitive way in which you dealt with the matter in your written and oral submissions. I am not sure that it is ever able to be said to be an easy task to do what I have had to do, but you certainly assisted me in doing that to the best of my ability. I want to thank you both for that.
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