Director of Public Prosecutions v Morrissy
[2022] VCC 1465
•31 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-00707
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIAM MORRISSY |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August 2022 | |
DATE OF SENTENCE: | 31 August 2022 | |
CASE MAY BE CITED AS: | DPP v Morrissy | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1465 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Z. Hough | Office of Public Prosecutions |
| For the Accused | Mr T. Marsh | Doogue & George |
HIS HONOUR:
1 William Morrissy, you have pleaded guilty to one charge of using a carriage service to transmit child abuse material; one charge of using a carriage service to solicit child abuse material; and one charge of possession of child abuse material, all contrary to the criminal code of the Commonwealth. Each of the charges carries a maximum penalty of 15 years' imprisonment.
2 The circumstances of the offending were set out in the prosecution opening, which was read in open court this morning. Essentially somehow or other you came to the attention of the authorities and they raided your property where you were living in Melbourne on 8 October 2020 and seized your mobile phone. You gave them access to that phone and when they downloaded it, they found the material stored on it which constitutes Charge 3.
3 At some stage the police were able to ascertain that you had been using a messenger service known as Kik to transmit and solicit child abuse material over the period 13 July 2020 to 16 August 2020 and this transmission and soliciting constitutes the offending in Charges 1 and 2.
4 In the prosecution opening in Charge 1 the offending involved the transmission of child abuse material and you were found to have transmitted 39 images of child abuse material in eight private chats and two group chats. The relevant material was classified under the Interpol scheme and of the 39 images transmitted, 25 of them were in category 1 and 14 were in category 2. Category 1 is described as real child/prepubescent children under 13 and can include all sorts of sex acts involving prepubescent children that would otherwise be classified in categories 1 to 5 under the Australian ANVIL system.
5 Category 2 is other illegal content with children under 18, which covers any media between children aged between 13 and 17 that would again be classified under ANVIL.
6 The material found in your possession on your phone when the police raided your property was 72 images in categories 1 and 2; 13 videos in category 1, a total of 85 files. Of these 85 files, 63 were category 1, the more serious category, and 22 were category 2. Two of the videos involved an adult man penetrating a prepubescent boy and then ejaculating on that boy. The images also involved infant males posing in such a way their genital or anal region was exposed.
7 The annexures to the prosecution opening show the child abuse material that you transmitted to a number of different usernames and group names in the period 13 July through to 16 August. Essentially there were three dates, 13 July in an evening over a period of a couple of hours, and then another spate of transmissions on 16 August. That is Charge 1.
8 In relation to the solicitation which involves receiving the material and then transmitting it, that was again a spate of offending on 13 July reciprocating or mirroring the transmissions and then an attempt to solicit on the 24th. It was unsuccessful, then there was another solicitation on 16 August. There were three discrete dates and intensive activity on two of those dates, namely 13 July and 16 August. The activity in the solicitation was a number of communications to various people who were on the chat site.
9 The Crown opening indicates in relation to Charge 2 that there were 15 separate individuals you were soliciting from. In relation to Charge 3, 13 of the videos involved prepubescent boys and 72 were in categories 1 or 2.
Assessing the seriousness of the offending
10 The now ubiquitous movable item of personal property known as a mobile phone has given rise to a wide range of offending conduct associated with its use captured under the criminal code. A particular feature of the use of a mobile phone with its associated carriage service has been in the generation and proliferation of child abuse material.
11 The provisions of the criminal code have been the subject of legislative elaboration with enhanced penalties over the years designed to prevent the exploitation of vulnerable children by the use of a carriage service. It is necessary to characterise the seriousness of the offending under the headings set out in the case of Garside.
12 The offending here was a course of conduct over a period of a little over a month to transmit child abuse material, and to solicit that material. The actual offending, as I indicated in Charges 1 and 2, involved offending on three separate dates, namely 13 July, 24 July, and 16 August.
13 Under Charge 1, the offending involved transmission of 39 images to eight private chats and two group chats. Of the 39 images, 25 were categorised as category 1, and 14 as category 2. Category 1 is the more serious, involving children under 18. In relation to Charge 2, there were communications to various individuals involved in group chats and 15 individuals were solicited.
14 Annexure B shows your quite extensive solicitation of material from persons within the chat groups you were accessing, confirming that you are interested in boys under the age of 13, and asking and requesting pictures of the relevant user's child in two of the chats; thus while the offending under Charges 1 and 2 is limited to three specific dates, on the first of those dates there are a number of individual actions by you constituting transmission and solicitation of child abuse material. This goes to a characterisation of its seriousness.
15 The offending captured in Charge 3 where the material was found on your mobile phone is a total of 85 category 1 and 2 images, including a total of 63 category 1 images. Two of the videos show an adult male sexually penetrating a prepubescent boy.
16 As discussed on the plea, while a number of images held is at a lower end of the range of matters that come before the courts, there is a significant number in the most serious category, namely category 1 and 2. Overall, considering the offending as a whole, it is at a lower range of seriousness but still very serious, even though it could be said, as submitted by your counsel, to be episodic.
17 In terms of your moral culpability, it is relevant that you admitted in the record of interview that you had been accessing child pornography for a period of five years, although you are not to be sentenced for that. I accept the submission of your counsel that there was no evidence of commercial exploitation, and the duration of the activity, including the possession, is limited. Further, and as submitted, it appears that you ceased accessing the material before you were the subject of a raid by the police on 8 October.
18 It is difficult to estimate the number of children victimised by this conduct. It must be regarded as indeterminate but it must be a significant number, given the number of still images and videos, the subject of Charges 1 and 3.
Matters in mitigation
19 I turn now to matters in mitigation put on your behalf by your counsel in a comprehensive plea. No prior convictions are alleged against you. You are aged 26 and since you left school have been in employment. For the last seven years you have been working in a pawnbroking operation.
20 Your personal circumstances are set out in your defence submission, and also in the report of Ms Cokorilo, psychologist, which I incorporate by reference.
21 You are the oldest of six children. Your parents were Christian missionaries who travelled extensively, including overseas and in other states of Australia, and you have resided in Victoria since 2013. You were born in Victoria as well.
22 Your schooling was somewhat disrupted as your parents were travelling extensively. You did not get on well with your father, although you have an amicable relationship with your mother and your siblings, although somewhat distant, given that they appear to live interstate. The marriage was not happy, and you were the subject of harsh discipline by your father.
23 After leaving home at age 18, you entered shared accommodation until, in 2020, when you began cohabitating with your husband and subsequently married him. He has been in court to support you on the plea.
24 You described to the psychologist that you were somewhat of a loner in growing up and had few friendships. You have had one significant relationship in your lifetime, and met your current partner in 2019. You describe your husband as a close friend, and he is a key source of support to you.
Explanation for the offending
25 In her report, the psychologist seeks to identify an explanation for your offending. She indicates that you have suffered from depression for some years and are on medication. You have a generalised anxiety disorder and you have been using alcohol and other substances to address your mental condition. The examiner notes the disinhibitory effects of alcohol and substance abuse as being relevant to your offending.
26 You were introduced to child pornography in 2019 by a member of a gay group chat. You told the psychologist that you are not interested in sexual contact with a child and that your sexual partners have been adults. In her report the psychologist indicates that you have a number of psychological conditions traceable to your childhood upbringing.
27 On the plea your counsel indicated that neither your parents nor your employer are aware of your offending. Further, it is only recently that your husband has become aware of your offending. Notwithstanding this, your husband continues to support you and I do regard him as a significant prosocial influence, as submitted by your counsel.
28 He has provided a reference to the court evidencing your remorse for your conduct, so I am satisfied you have remorse for your conduct and you have insight into your conduct, although it appears, as submitted by the learned prosecutor, you have not actually taken any positive action to address the underlying psychological condition related to your offending.
29 Your counsel submitted that you have good prospects of rehabilitation. The learned prosecutor submitted, however, that given your failure to take any action to address the underlying causes of the offending since you were charged nearly two years ago, then your prospects should be regarded as somewhat less than very good.
30 I would regard your prospects of rehabilitation as reasonable, but it is clear from the report of the psychologist that you require assistance to address your underlying depressive symptoms, and the use of alcohol and drugs as self-medication.
31 In terms of your prospects of recidivism for sexual offending, Ms Cokorilo indicates that you would benefit from psychological interventions and targeted programs for online offenders. She further notes that you appear motivated to reform and thus have a good propensity for rehabilitation with appropriate supports.
32 On the plea your counsel relied on your early plea of guilty, your remorse, your cooperation with the police in the record of interview and providing full admissions, your voluntary cessation of your offending before apprehension, as well as your lack of prior convictions. He also relied on your relative youth and in his submission that this offending was at the lower end of the range in support of a submission that he made that the disposition should either be a community corrections order or immediate release upon a recognisance release order.
33 As discussed during the plea, when a sentence of imprisonment is imposed for these types of offences, then only in exceptional circumstances can any recognisance release order be made without the service of some period of imprisonment.
34 Your counsel also emphasised the plea of guilty in the COVID environment, and the learned prosecutor accepted that you are entitled to a perceptible amelioration in sentence in those circumstances.
35 A further factor is the issue of delay. As I have indicated, it is now nearly two years since you were interviewed by the police in October 2020, and 17 months since you indicated you would plead guilty. You have thus had these matters hanging over your head for this period and that is a factor that I take into account in your favour, including your lack of offending since then.
Purpose of sentencing
36 The basic purposes for which a court may impose a sentence of imprisonment are punishment; deterrence, both specific and general; rehabilitation; denunciation, and protection of the community. In sentencing I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.
37 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
Sentencing submissions
38 In his submission your counsel emphasised the principle of parsimony and the principle that imprisonment should be a sanction of last resort, as set out in s16 of the Commonwealth Crimes Act. Your counsel, whilst acknowledging that the authorities treat this type of offending as very serious, he submitted that a community based disposition was within range.
39 He emphasised the impact of a sentence of imprisonment on you, on your employment, on your occupation, on your partner, on your mental health, and effectively invited the court to consider that those impacts of a sentence of imprisonment outweigh the benefits to the community by way of general deterrence that a sentence would result in.
40 The learned prosecutor submitted, however, that the seriousness of the offending here and considerations of general deterrence and denunciation call for a sentence that required an actual period of time to be served. She submitted comparable cases to be considered as possible guideposts in sentencing.
41 The cases are of some assistance, although the personal circumstances of the offenders is different and some of them are under a slightly different sentencing regime and different numbers of counts that were dealt with, but I have had regard to the four comparable cases that were referred to by the learned prosecutor.
42 In sentencing you I am required to take into account the matters set out in s16 of the Crimes Act, and I am required to apply the principle of parsimony and the principle that imprisonment is to be a sanction of last resort.
43 In sentencing for offences of this nature, however, intermediate courts have made it very clear that considerations of general deterrence and punishment are paramount. As I have indicated, mobile phones and use of a carrier service are ubiquitous. With the ability of a carriage service to access and transmit child exploitation, the ability to do this is virtually unlimited, and it is very difficult to detect.
44 The accessing of, and distribution of this material only feeds a market for child abuse material. That material involves the victimisation of children and has longstanding impacts on them. It is for that reason that Parliament has set heavy penalties for the use of a carriage service for this very difficult to detect offending.
45 The sentences of the courts must send a signal to all those tempted to use the internet to access and transmit and store this material, that upon apprehension there will be heavy penalties. In sentencing for these offences considerations of prior good character and even relative youth carry less weight than it would otherwise carry due to the interests of the community in sending a signal to all those in possession of devices, mobile phones, that they are not to be used to solicit or disseminate child abuse material.
46 As Nettle JA said in the case of DPP v Smith [2010] VSCA 215 at 23:
'…general deterrence is regarded as the paramount sentencing consideration because of the public interest in stifling the provision and use of child pornography and less or limited weight is to be given to an offender's prior good character because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character'.
47 In sentencing you pursuant to s19 of the Crimes Act then after a sentence of imprisonment on Charge 1, there is a presumption of cumulation in relation to other sentences. This presumption does not apply if the court is satisfied that its non-application would result in sentences that are of a severity appropriate in all the circumstances.
48 The learned prosecutor submitted that while the criminality involved in Charges 1 and 2 is a course of conduct, it is different criminality and some cumulation is appropriate.
49 Your counsel submitted, however, that the two offences, Charges 1 and 2, are intertwined with each other and that in those circumstances full concurrency is appropriate. I accept your counsel's submission and regard full concurrency in Charges 1 and 2 as appropriate, as it is clear from the prosecution submissions that the soliciting and transmission is occurring over virtually identical time periods set out in the two annexures to the prosecution opening.
50 The offending involved in Charge 3 is, however, different as it does involve the retention of child abuse material and some cumulation of the sentence is appropriate.
51 The learned prosecutor noted that in the event that an offender is released on a recognisance release order, then under the Crimes Act provisions in relation to treatment of sex offenders, specific conditions should be imposed on any recognisance release order, and I propose to impose such conditions on you.
52 Here, while taking into account all the submissions made on your behalf by your counsel, and having regard to the psychological report I am unable to accede to the submission of your counsel that the sentence of the court ought not require that a term of imprisonment be served.
53 I understand that for a person of your age a first term of imprisonment will be more burdensome, particularly given your psychological condition. However, considerations of general deterrence and denunciation call for a sentence of imprisonment to be served.
54 Specific deterrence carries less weight given that you are a first offender, and on the opinion of Ms Cokorilo are likely to respond to appropriate treatment and you are remorseful and have insight into the impact of your offending on the victims of child sexual abuse.
55 As I have indicated, the sentence of imprisonment will be more burdensome upon you, given your frail psychological condition as set out by Ms Cokorilo, and I take that into account in applying the principle of parsimony and I will have the psychological report provided to the authorities so that they look after you in the transition to prison.
56 In sentencing you overall, however, a signal must be sent to all those in the community with mobile phones that they are not to be used to solicit, access, disseminate, or store child abuse material. The material here was of a level of seriousness involving in part very young children, and it was solicited from and transmitted to a number of other users.
57 Your conduct calls for denunciation. You have contributed to the continued exploitation of a number of victims of child sexual abuse, and the sentence of the court must deter others minded to engage in such conduct.
58 Could you please stand. The sentence of the court is as follows:
59 On Charge 1, you are sentenced to 12 months' imprisonment. On Charge 2, you are sentenced to 12 months' imprisonment. On Charge 3, you are sentenced to nine months' imprisonment. The sentences on Charges 1 and 2 both commence this day. The sentence on Charge 3 commences on 1 December 2022. This makes a total effective sentence of 18 months' imprisonment.
60 I have determined that the orders of concurrency and cumulation in relation to Charges 2 and 3 are appropriate and still result in sentences that are of a severity appropriate in all the circumstances under s19(6) of the Crimes Act, and direct that those reasons be entered in the records of the court. Should you agree, I have determined to impose a total effective sentence of 18 months' imprisonment.
61 Upon serving six months' imprisonment you will be eligible for release upon a recognisance release order with conditions that you undertake appropriate sex offender programs and other programs as directed over a period of two years, and you will also be required to be of good behaviour for that period of two years.
62 As a consequence of your conviction for three Class 2 offences, you will go on the Sex Offenders Register. The reporting period is for life. The paperwork will be prepared for you and handed to you and you will be required to sign it before you leave the court.
63 I have prepared this recognisance release order. I will have the order re-engrossed, and I will hand it to the parties and ask you, Mr Marsh, if you could discuss it with your client, explain it to him.
64 MR MARSH: I think Your Honour might also need to announce the monetary component of the bond in open court as well.
65 HIS HONOUR: Yes. It's $1,000. It's in the draft that I sent to the parties. I also have to declare that had you not pleaded guilty I would have imposed a total effective sentence of 30 months' imprisonment with a non-parole period of 20 months. Mr Marsh, have you explained to your client the ins and outs of the recognisance release order?
66 MR MARSH: I'll need to go through that again, Your Honour.
67 HIS HONOUR: All right, thank you. I'll hand it to you. The conditions of it are what's called for by the learned prosecutor, that upon his release from prison he has got to go to the Office of Corrections within two business days; be under their direction for the period of two years; engage in any sex offender or other programs that they might direct him to; advise them of change of address et cetera.
68 MR MARSH: Yes.
69 HIS HONOUR: And be of good behaviour over that period. So I'll ask you to explain it to him and get him to sign it and then we will reconvene the court in a few moments. Are there any other matters, Madam Prosecutor?
70 MS HOUGH: Yes, Your Honour. The prosecution is seeking forfeiture of the Apple iPhone that was seized on 8 October 2020 in accordance with s23ZD of the Crimes Act 1914.
71 HIS HONOUR: Have you got an order?
72 MS HOUGH: I've got a draft order, yes.
73 HIS HONOUR: Hand it up.
74 MR MARSH: There's no issue with that, Your Honour.
75 HIS HONOUR: I'll make that order. I will stand down for a few moments and then we will reconvene.
76 MR MARSH: May it please the court.
77 MS HOUGH: May it please the court.
(Short adjournment.)
78 HIS HONOUR: Mr Morrissy, I am required to explain the sentence to you. I have sentenced you to a total effective term of 18 months' imprisonment but I directed that, and you have agreed, that after you have served six months you will be released on a recognisance release order, which is an agreement that you will be of good behaviour for a period of two years.
79 Within that two year period you will be under the supervision of the Office of Corrections and that you will undertake any programs that they direct you to undertake, including any sex offender program that they direct you to undertake or any programs for drug and alcohol counselling.
80 Over that period if you commit an offence carrying a term of imprisonment then that breaks - that breaches the good behaviour bond which you are undertaking to be of good behaviour for that two year period, in which case it's a $1,000 bond. That will be forfeited and you will come back to me and you may be re-sentenced for the original offences.
81 As a consequence of the three convictions you are required to go on to the Sex Offender Register and the period is for life, for your life. You are required to register with the registrar and advise that registrar of changes of address, mobile phones, cars, a whole lot of requirements, that you're to advise them of these changes within 14 days of them occurring as set out, and you've agreed. You've signed the document and you've agreed to do that.
82 I want to thank both counsel for their assistance in this matter and comprehensive pleas on both sides that allowed the matter to be wrapped up today, and I wish Mr Morrissy all the best. Adjourn the court.
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