Director of Public Prosecutions v Murphy

[2018] VCC 516

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02361

THE QUEEN

v

PHILIP JOHN MURPHY

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	16 April 2018
DATE OF SENTENCE:	20 April 2018
CASE MAY BE CITED AS:	DPP v Murphy
MEDIUM NEUTRAL CITATION:	[2018] VCC 516

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. MacKay	Commonwealth Director of Public Prosecutions
For the Accused	Mr P. Smallwood	Davies Elliott Solicitors

HIS HONOUR: 

1Philip John Murphy, you have pleaded guilty to one charge of transmit child pornography material using a carriage service, contrary to s.474.19 of the Criminal Code Commonwealth. This offence carries the maximum penalty of 15 years' imprisonment and/or a pecuniary penalty of $162,000.

2It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, Crown opening upon plea.  That opening was accepted by you through your counsel. 

3I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now briefly summarise. 

4Between 23 December 2016 and 25 February 2017 you used Skype to chat online with others about sexual activity and the messages sent during this period amounted to child pornography material.  The child pornography material that you transmitted was classified by the Victoria Police using a child exploitation tracking system as Category 6 on the CETS scale.  The substance of the child pornography material was sexually explicit communications with others about sexual activity involving children.  The communications were grossly offensive and deeply disturbing. 

5On 28 February 2017 Australian Border Force officers at Melbourne Airport seized your Notebook computer when you arrived at Melbourne Airport after travelling to Hong Kong.  All data from this computer was downloaded. 

6On 3 August 2017 police executed a search warrant at your home and workplace.  You co-operated in both a field interview and formal interview with police at Sunshine police station.  You said you were engaged in sexual fantasy chats about possibilities.  You were not chatting about actual events or activities.  You said that you believe child pornography involved naked images of underage children and you had not appreciated that text communications could constitute child pornography.

7I state to you that I have taken into account the following matters in mitigation of sentence: 

8You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial.

9You pleaded guilty at an early stage.

10You co-operated with authorities.

11You made full admissions.

12I accept that you are genuinely remorseful. 

13You have no prior convictions.  I sentence you as a person of previously good character.

14I have been told something of your personal circumstances and these matters are set out in the report from Patrick Newton, psychologist, dated 30 March 2018.  You are 53 years of age, having been born on 7 March 1965.  You were born in the UK but grew up in Hong Kong.  After completing your secondary education in Hong Kong you studied law in the UK, then completed a degree in theological studies.  In 1991 you were ordained a priest in the Church of England.  You worked as a parish priest in the UK until 2001 when you came to Australia.  You were a parish priest in Victoria until 2009.  Between 2009 and 2012 you worked in the community sector.  From 2012 to 2015 you were
a chaplain in Hong Kong.

15At the time of these offences you were working as an Anglican priest in East Burwood.  This was a difficult parish for you and it was a difficult time in your life as a result of your mother's deteriorating health and your brother's extradition to the UK.  When arrested you were a parish priest in Sunshine.  You were immediately suspended from your duties by the Anglican church when these matters came to light.  You will not be able to return to work with the church.  You are studying with a view to teaching adults English as
a second language. 

16A large number of references and testimonials were tendered on your behalf.  The quality, quantity and detailed information provided by the authors of these references and testimonials is a credit to you.  I accept that you have made significant voluntary contributions to a large number of good causes in the community, both in Australia and in the UK over many years.

17A psychological report from Patrick Newton were tendered on your behalf. 
I accept Mr Newton's opinions that during the offending period you were suffering from an adjustment disorder, with mixed anxiety and depressed mood. 

18It is not submitted that any of the well-known principles enunciated in Verdins case apply, however I accept Mr Newton's opinions and have taken them into account as part of your personal circumstances.  I accept Mr Newton's opinion that there is a clear need for you to participate in offence-specific treatment to address issues associated with your conduct as soon as practicable, even though he felt there is a low to moderate risk of recidivism.

19I accept Mr Newton's opinion that, at paragraph 50:

"With participation in education and treatment and the protective factor of sex offender registration, it is likely that Mr Murphy's overall risk of recidivism will be reduced and trend in the medium term towards the low risk level suggested by historical risk factors."

20You have had some treatment from the psychologist, Emma Millard.  This was arranged by the Anglican church, but it has not encompassed an
offence-specific therapy.  With appropriate treatment I assess your prospects of rehabilitation as being good.

21Against these matters in mitigation, however, your actions were very serious indeed.  This offending occurred over two months between December 2016 and February 2017.  During that time you sent seven written descriptions of child pornography to four Skype users.  You described yourself engaged in sexual activity with children.  I accept there was no actual sexual activity with children, nor were there any photos or videos of children involved in these communications. 

22The objective gravity of this offending therefore falls towards the lower end of the scale, as the volume of child pornography material was relatively small and no real children were depicted.

23As was said in the Court of Appeal of the Supreme Court of Western Australia in the case of Ponniah v R [2011] WASCA 105 at paragraph 38:

"The criminality involved in the material that does not depict real children is of a different nature to that involving real children.  Further, this is not to say that material of this type is harmless.  It has a tendency to 'normalise' the exploitative sexual activity involving children and may stimulate
a susceptible recipient to engage in sexual activity involving real children.  Having said this, Mr Grinceri in his oral submissions before this court, conceded appropriately, in my view, that were it not for four movies involving real children, a term of immediate imprisonment was not called for in this case."

24As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant.  General deterrence is also of considerable importance in a case such as this.  Superior courts have consistently emphasised that general deterrence is the primary sentencing consideration for offending involving child pornography.  This type of offending must be discouraged.  The essence of this offending is the transmission of the child pornography material using a carriage service, the internet. 

25I am called upon by the Crimes Act 1914 Commonwealth to have regard to the matters set out in s.16A. Pursuant to s.16A(1), I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. I have taken into account the matters set out in paragraph (2). Pursuant to s.17A I must not pass a sentence of imprisonment unless, after having considered all other available sentences, I am satisfied no other sentence is appropriate in all the circumstances of the case.

26Your counsel submitted that I ought impose an adjourned undertaking or community corrections order.  It was submitted on behalf of the prosecution that imprisonment was the only appropriate sentence. 

27Whilst I am satisfied, having regard to the nature of this offending and all relevant circumstances, that I have no alternative but to impose a sentence of imprisonment, I have decided that it is appropriate that I direct by order that you be released forthwith, upon you complying with various conditions. 

28It is my intention to tailor an appropriate sentence, taking into account all relevant facts and appropriate sentencing principles, particularly the need for general deterrence, but also the need for you to undertake specific
offence-related treatment. 

29I propose to convict and sentence you to 12 months' imprisonment, but direct that you be released forthwith upon giving security by recognizance in the sum of $500, to comply with the following conditions:  Those conditions are:

·That you be of good behaviour for 12 months;

·You will be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management for 12 months;

·That you attend, undertake and complete the sex offender program within a period of 12 months. 

30In order to comply with this order, it is necessary for you to report to the Sunshine Community Corrections Service within two clear working days of the commencement of the order and report and receive visits from a Community Corrections officer or officers, notify such an officer of any change of address or employment within two clear working days of the change and you are not to leave Victoria, except with the permission of such an officer and you have to obey all lawful instructions and directions of that Community Corrections officer. 

31It is necessary for me to explain the purpose and effect of the order I propose, the consequences that may follow if you fail to comply with that order and to obtain your consent to the making of such an order.  Before I do that, I will just ask if your counsel, Mr Smallwood, could assist. 

32Mr Smallwood, we have got a draft - Danny, have you got the - and actually whilst perhaps we are doing that, I might also deal with - there is a mandatory requirement, by virtue of my sentencing you today, you become a registrable offender under the Sex Offenders Registration Act 2004. You will be required, within 28 days, to report your personal details and begin a regime of annual reporting, required by the Sex Offenders Registration Act and be otherwise subject to the Act for a period of eight years.  And we have the documentation here which notifies you of your reporting obligations and I will ask you to sign this form, where appropriate.

33It was eight years, was it not, Ms MacKay?

34MS MacKAY:  Yes, Your Honour.

35HIS HONOUR:  So perhaps if I give you all this documentation.  Yes,
Mr Smallwood, we have got the documentation.  We have got a copy for - we will give you a copy once it is all been signed, Ms MacKay.

36MS MacKAY:  Thank you, Your Honour.

37MR SMALLWOOD:  As the court pleases.  May I approach Mr Murphy, Your Honour?

38HIS HONOUR:  Yes.  So, Mr Smallwood, if you and my associate - yes, you just hand that to Mr Murphy.  You can see - we can run through this together.  It is all set out in front of you there.  The recognizance release order, upon giving security by recognizance of $500 to comply with the following conditions: 

·Good behaviour of 12 months;

·Supervision for 12 months.  You will see the details there; 

·Undertake the sex offender program within 12 months.

·Then there are the related orders about reporting to the Sunshine Community Corrections Service office within two days;

·Reporting and receiving visits;

·Notifying those officers of change of address or employment;

·Not leaving Victoria without permission;

·Obeying their lawful instruction and direction. 

39The order has been issued because the accused, Philip John Murphy has been charged with the following Federal Offence:  Transmit child pornography.  The court have sentenced him to a term of 12 months' imprisonment and the court has decided the accused be released forthwith, if the accused complies with the conditions of this order. 

40Do you understand, Mr Murphy, you are convicted and sentenced to 12 months' imprisonment.  There is an order that you be released forthwith, upon you complying with the conditions which are set out in the order.  Do you understand that? 

41OFFENDER:  I do.

42HIS HONOUR:  And do you agree to be bound in accordance with the order?

43OFFENDER:  Yes. 

44HIS HONOUR:  And if you could sign that please where you are asked to do that.  And perhaps whilst you are signing things, there is the Sex Offenders Registration documentation.  Could you just sign that. 

45I just have to explain in lay terms, the effect of the order to you, Mr Murphy.  The order of the court is that you are convicted and sentenced to 12 months' imprisonment.  The further order is, you are released forthwith.  You are providing a recognizance in the sum of $500.  You do not pay any amount of money, you pay money if you breach the order.  And the terms of the order are that you be of good behaviour for 12 months and that you undertake the sex offender program and comply with the other requirements which are set out in the written document. 

46In short form, if you breach the order, you will be brought back before me and ought expect to serve the sentence of imprisonment.  Do you understand the order?

47OFFENDER:  I do, yes.

48HIS HONOUR:  Yes, thanks.  Ms MacKay, do you want to just - perhaps, Danny, could you just show Ms MacKay - Ms MacKay, we followed the pro forma provided by the Commonwealth DPP.  If Danny will just show it to you.  Could you just double-check that we have got the formalities correct. 

49MS MacKAY:  Yes, Your Honour.

50HIS HONOUR:  Yes.  Yes, thank you.  Thanks.  There is nothing further, is there? 

51MR SMALLWOOD:  No, Your Honour.  As the court pleases.

52HIS HONOUR:  No, all right, thanks.  We will just stand down.  Just before I do stand down.  I just would like to apologise.  I made a mistake at the plea hearing, by allowing a section only of the Crown opening to be read.  I communicated with the court media officer that, on reflection, it was a mistake.  The entire opening is available and can be accessed, if required.  Thank you. 

53MR SMALLWOOD:  As the court pleases.

54HIS HONOUR:  Thank you. 

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