Director of Public Prosecutions v Naughton

[2016] VCC 490

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00147

THE QUEEN

v

ROBERT NAUGHTON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 May 2016
CASE MAY BE CITED AS:	DPP v Naughton
MEDIUM NEUTRAL CITATION:	[2016] VCC 490

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Padmanaban
For the Accused	Mr R. Keating

Pages 1 - 10

 

 

HER HONOUR: 

1Robert James Naughton, you have pleaded guilty before me to one charge of using a carriage service to a access child pornography material contrary to s.474.19(1) of the Criminal Code (Cth) and one charge of knowingly possess child pornography contrary to s.70(1) of the Victorian Crimes Act.

2The facts underlying your offending are as follows.  On May 18 2014 police identified a particular internet protocol address which had accessed 27 child pornography files via the online peer-to-peer network Ares.  Further checks by police showed that on 6 August 2014 that same address had 464 child pornography files.  On 27 August 2015 a check revealed that particular IP address had 100 child pornography files.  Victoria Police enquiries revealed that at all relevant times that IP address was assigned to you and your wife at your residential address.

3On 28 August 2015 Victoria Police executed a search warrant at your home during which a number of items were seized.  Amongst those items was (1) an Asus PC desktop, which revealed on it a total of 145 child pornography files which had been downloaded.  They were not deleted or hidden from view.  They fell into a number of the different child pornography material classifications numbered 1 to 6, where category 1 relates to depiction of children with no sexual activity, but it essentially involves nudity, sexually suggestive posing with emphasis on the genital area and solo urination.

4Thereafter they are gradated in seriousness to category 5, which involves sadism, bestiality or humiliation (urination, defecation, vomit, bondage et cetera or child abuse) and category 6, which is cartoons, comics and drawings depicting children engaged in sexual poses or activity.  The material discovered by police contained child pornography files which fell into the first five categories, the majority of them falling into categories 2, 3, 4 and 5. 

5Police also seized an Emtec USB which contained 14 deleted child pornography files, the earliest of which was created on 26 November 2013 and the last created on 11 February 2014.  Police also seized a SanDisk Ultra 32 GB thumb drive revealing that you had deleted 368 child pornography files.

6Further a Samsung USB external hard drive was seized containing 437 pornography files, all of which were video files, classified from 1 to 5, the majority of those being in the 3, 4 and 5 classifications of seriousness.  They had been removed by you from your computer and loaded onto the hard drive and were able to be viewed by the users.

7The majority of the films depicted female toddlers aged from 18 months to young girls aged approximately 14 years, engaging in sexual activity with adult males in various forms of violence.

8Your actions in downloading those files, whether they were later deleted or still maintained by you, and were in total 964 files, underlies Charge 1 on the indictment.  Your actions in removing the 437 files to the Samsung external hard drives underlies Charge 2 on the indictment.

9You were interviewed by police on 28 August 2015, at which stage you told them that you had started looking at the child pornography "for curiosity's sake".  You agreed that you would use terms such as "kid's sex" or "schoolgirls".  You said you viewed files, once they downloaded, into a share folder and with respect to the files on the Samsung hard drive you thought you would go through them later and, "Sort out any that were good and discard the rest".  You said you had transferred files on the portable hard drive because you did not want to clutter up your PC.

10You told police that you did not really obtain any sexual gratification watching child pornography, that it was more or less curiosity and did not believe it was outside the law to download this material.  You told police that you had started about 12 months before, saying, "It might have been something to do with all the fuss about those paedophile rings".  "There was a news item and I wanted to see what all the fuss was about."  You said you found the material titillating and mildly exciting.

11It is my comment that I do not accept many of the answers given to police, that is your venturing into use of this material on the base of curiosity only, given that you had been dealing with this material for around two years by the time police executed the warrant on your home.  I do not accept that you did not know that it was illegal and I do not accept that you only found it of mild interest.

12I now turn to your personal circumstances.  You are now 69 years of age and have been retired since 1997.  You are a married man with two adult children.  You have no prior convictions.  You have led what I regard as a fairly unremarkable and law-abiding life up until the time that you developed an interest in child pornography and then were ultimately raided by police.  You were the only child of your parents.  Your father was an accountant in the food processing industry.  Your mother died when you were about 12 or 13 from uterine cancer.  Your father died in 1983.

13You worked for 30 years for the same company, Amcor, rising eventually to the position of production engineer.  You have had some trauma in your life.  When you were 21 you were involved in a car accident in which your then fiancée was killed due to the actions of the driver of the other car involved in the collision.  This apparently left you with some symptoms of post-traumatic stress disorder and major depression and you stopped going to church and gave up a cadetship, in the can-making industry.  About 12 months later you met and married your wife.  You have been married about 43 years and you have two sons, aged 36 and 39

14Primarily of difficulty to you has been a condition known as Marfan syndrome, which is a genetic disorder which has caused you to have eyesight issues from a young age.  You have now got to the stage where you are legally blind.  In addition you have developed a heart condition difficulty as a result of that same syndrome.  You received a letter from your treating GP, Dr Michael Beech, dated 2 September 2015, describing you as having:

"A number of medical problems including Marfan syndrome, which has rendered him legally blind.  He also has problems with the arch of his aorta and his aortic valve, which is also the consequence of the Marfan syndrome.  He suffers from emphysema".

15I received a psychological assessment from clinical psychologist Julie Brown.  In her report dated 18 April 2016 she believed that you had been suffering from major depression for some years.  This would have primarily seemed to have arisen from the more aggressive onset of Marfan syndrome to the point that you are legally blind, have had to give up a number of activities such as lawn bowls, you find it difficult to go out into the sun and you essentially for several years now have been confined to your home. 

16She described you as a person who -

"himself described his life as, 'I feel like a failure, not a lot to look forward to, certain amount of guilt that I've become a burden, disappointed in myself quite often over many years.  Should have been more successful and wasn't, like that cadetship.  The death of my fiancée, the fact I had to give up work, as I enjoyed it.  I loved it'" -

- clearly referring to your retirement, which was brought about primarily, it would seem, by the development of your eye condition.

17It was Ms Brown's view that the depression you have suffered has been ongoing for several years and may have affected your capacity to make sensible and law-abiding decisions.  I accept her diagnosis of you as a man whose life essentially has narrowed as Marfan syndrome has developed and has limited what you can do.  I make the comment on the side that this must not be a particularly pleasant situation for your wife either.  It seems that you have developed a largely non-active lifestyle, confine yourself to indoors and confine yourself for many hours a day looking at computers and in this way ultimately came across child pornography.

18During the plea I explained to you with some clarity, I hope, Mr Naughton, that ordinarily persons charged with this offending can only expect to receive a term of imprisonment.  That is because of the great evil that the child pornography reaps upon its primary victims, that is the children who are the persons depicted as being exploited and forced into sexual activity on this material.

19I explained to you that they were usually born into the most underprivileged households in the world, invariably come from poor countries and are poverty-stricken members of those already deprived countries; that in addition to the incredibly difficult circumstances most of them are born into, they are then subjected to sexual exploitation for profit often from a very early age but certainly in a way that would be likely to render their already very difficult lives almost unsupportable.  Certainly the psychological damage at the very least is immeasurable.

20These industries flourish because of persons like yourself, Mr Naughton, who watch these films.  Hence parliament has taken a very stringent view of the criminality of everyone involved in this industry, whether it be as a maker of films or simply as a consumer, like yourself. 

21In any event, were it not for your age and in particular for the physical difficulties that you suffer as a result of Marfan syndrome, you would be looking at a gaol sentence today, Mr Naughton.  However, it has been conceded very sensibly by the prosecution that your age and condition would make service of a term of imprisonment almost impossible for you, certainly far more difficult for the normal prisoner, and Verdins' case makes it clear that in such a situation a judge should look at that particular influence either in terms of reducing the sentence or deciding that it should be served by way of a non-custodial sentence.

22I have had you assessed for a community corrections order and, unsurprisingly, you have been found suitable.  It is my view that because of your physical condition, your age, your previous good history, your plea of guilty which I am satisfied was made at an early stage and is indicative of remorse on your part, that a community corrections order is an appropriate sentence in this case, an appropriate disposition which marks both the punitive and mitigatory features of this case.

23You need to understand, Mr Naughton, that if, whilst you on this order and you decide to return to viewing child pornography, firstly it will probably be picked up and, secondly, it will breach the order.  If you breach the order you will be brought back in front of me and I will resentence you on your original offending.

24I propose placing you on a community corrections order for a period of two years.  It must be expressed differently in relation to each charge, because one charge falls under Commonwealth legislation, the other charge falls under Victorian legislation.  It is my view, however, that you should undertake a sex offender program so that you truly understand the import of what you have been doing; and, secondly, that you undertake psychological assessment and treatment to deal with your depression.

25I make the point, as I have made it before:  I note that your wife is in court.  This must have been extraordinarily difficult for her and for her to reconcile what you have done with your marriage and what I am sure has been a very difficult situation for her for several years.  It is not uncommon for men of your age to close up, Mr Naughton, whether they have got a blindness condition or not, but I am quite sure that the condition that you suffer has made you close up and close down and you have probably been an incommunicative and unsatisfying partner. 

26I am hoping that you will take the opportunity to use the mental health condition of this order to explore those issues and do something about them.  So this is not just a matter of dealing with the offending, it is dealing with what has led up to it.  You need to find a way in which you can live your life in a more satisfying manner, on top of understanding why child pornography is such an evil and pernicious thing.

27I am therefore going to place you on a two-year community corrections order, which I can only do with your consent.  I need to explain to you the core conditions that relate to the order and then I will outline the special conditions that will apply in your case.

28Whilst you are on the order for the next two years you must not leave Victoria without permission of the community corrections office.  You must report to the community corrections office within two working days of the making of this order.  That is by Friday of this week. 

29Whilst on this order you must not commit any offence punishable by imprisonment.  That does not mean you have to commit an offence and be imprisoned, it just means you commit an offence for which you theoretically could be gaoled, such as stealing a box of matches from Woolworths.

30Whilst you are on the order you must report to and receive visits from the community correction office.  You must also inform the community corrections office of any change of address or employment within 48 hours of that change.  Whilst you are on that order you must obey all lawful directions of the community corrections office.

31I am going to order also that you undertake a sex offenders program and I am going to order that you attend for assessment and treatment for psychological difficulties. 

32The way that this order is expressed in relation to Charge 1 is that you are to be placed on a recognisance for two years with a surety of $1,000 to comply with those conditions that I have already outlined to you.  In relation to Charge 2 you are to be placed on a community corrections order in the same terms and conditions.  Those orders are to run concurrently. 

33So the way it is expressed in this order, Madam Prosecutor, is that I order the release of the defendant under paragraph 21B of the Crimes Act after serving 24 months.  So the ‑ ‑ ‑

34MS PADMANABAN:  So Your Honour orders that the accused serve - that the accused is sentenced to a term of 24 months' imprisonment and order that - if I am correct in understanding what you want to give effect to - he's released forthwith.

35HER HONOUR: Where does it say he is released forthwith? Because it does not appear on here. The court orders the release of the defendant under paragraph 21B of the Crimes Act after serving 24 months of the term.

36MS PADMANABAN:  No, that will be crossed out, Your Honour, and it will go to, "Forthwith upon the defendant giving security by surety", and then the ‑ ‑ ‑

37HER HONOUR:  "Orders the release of the - - -"

38MS PADMANABAN:  By recognisance of $1,000.

39HER HONOUR: All right. It still does not make sense to me. The court orders the release of the defendant under paragraph 21B of the Crimes Act 1914 after serving. Do I cross out "after serving"?

40MS PADMANABAN:  It is crossed out, Your Honour, all the way from "after" to - up to, not including, "forthwith".

41HER HONOUR:  Yes.

42MS PADMANABAN:  Then "giving security" and then we cross out "sureties" and up to, not including, "by".  It is, "By recognisance of $1,000 to comply with the following conditions".

43HER HONOUR:  Very well.  Where does the 24 months go in?

44MS PADMANABAN:  On the next page, "This order has been issued because", and then paragraph (b) refers to, "The court has sentenced the defendant to a term of 24 months' imprisonment", and then again it is crossed out until "forthwith" in terms of the release.

45HER HONOUR:  Thank you.  Now I understand.  Thank you very much.

46The $1,000 is only paid if you breach the order, Mr Naughton.  So do you agree to enter the order?

47OFFENDER:  Yes.

48HER HONOUR:  Thank you.  So he is to report to which community corrections office? 

49ASSOCIATE:  It's going to be Dandenong.

50HER HONOUR:  To the Dandenong - and that is by 4 pm on 6 May.  Do I add to the conditions, Madam Prosecutor?

51MS PADMANABAN:  No, not unless there was something specific Your Honour had in mind.

52HER HONOUR:  I know you put the sex offenders program; it has not included the mental health assessment, but that is on the CCO, so I do not really care.  All right, so I have signed that.  So for the next two years, Mr Naughton, you will be on this order and those conditions will apply.

53You are also mandatorily placed on the Child Sex Offenders Register for a period of 15 years.  Is that right, Madam Prosecutor?

54MS PADMANABAN:  It is, Your Honour.

55HER HONOUR:  Have you go the documentation for that?  Thank you.  That is mandatory, it just goes with the offending, sir, the conditions of which will be explained to you by Mr Keating.  Thank you. 

56MS PADMANABAN:  Is Your Honour intending to give a s.6AAA or specify ‑ ‑ ‑

57HER HONOUR:  I do not need to, because I have - pursuant to section - it is not sure with the recognisance, though, is it?  Pursuant to s.6AAA - I do not think I have to.  Section 6AAA is under Victorian legislation and if I have handed down a community corrections order I do not need to make a s.6AAA declaration.

58MS PADMANABAN:  It is our view that it applies to Commonwealth offences, but I don't think - nothing turns on it, Your Honour.

59HER HONOUR:  All right, then.  I do not think it does either.  Thank you.

60MR KEATING:  Your Honour, there was a - he signed voluntarily a forfeiture situation.  I would just perhaps indicate that there are some personal belongings that the informant is going to seek to be returned to him.

61HER HONOUR:  Very well.  You just need to sign the CCO.  Mrs Naughton, if it is of any assistance to you, it may assist if you got yourself some counselling through this as well.  It is a very, very difficult experience to go through and it may be of assistance to you as well.  I hope you do not mind me saying that, but, yes, it is never fun for family members in a situation such as this.  Thank you very much.  I will give you that.  Thank you.

62Yes, thank you.  We will adjourn to 9.30 tomorrow morning.  Thank you very much.

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