Director of Public Prosecutions v Neeson

[2018] VCC 1562

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00947

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL NEESON

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2018
DATE OF SENTENCE:	21 September 2018
CASE MAY BE CITED AS:	DPP v Neeson
MEDIUM NEUTRAL CITATION:	[2018] VCC 1562

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hawker	Office of Public Prosecutions
For the Accused	Mr J. Van Arkadie	Victoria Legal Aid

HER HONOUR:

1Samuel Neeson, you have pleaded guilty to one charge of using a carriage service to access child pornography material, contrary to s.474.19 of the Criminal Code (Cth). The maximum penalty for that offence is 15 years' imprisonment. Further, you have pleaded guilty to one charge of knowingly possessing child abuse material, contrary to s.51G of the Crimes Act 1958, Victoria. The maximum penalty for that offence is ten years' imprisonment.

2The factual basis of your offending is set out in the prosecution opening tendered upon your plea.  In essence, with regards to Charge 1, between
28 September 2015 and 2 November 2017, you accessed child pornography material primarily through a website called FrostWire, which is a file sharing service.  Between the dates of the charge, you accessed 591 child pornography files, consisting of 138 category 1 files; 139 category 2 files, 40 category 3 files; 265 category 4 files; and 9 category 5 files.

3Charge 2 is a single date charge of 3 November 2017.  On that date, a warrant was executed at your premises and devices seized contained a total of 3652 images of child abuse material and 1153 videos containing child abuse material.  There were 1803 image files and 46 video files which were category 1; 490 image and 432 video files, category 2; 247 images and 44 video files, category 3; 1094 images and 650 video files, category 4 and; 18 images and 11 video files, category 5.

4The descriptions relevant to each category are contained with the prosecution opening and I do not propose to recite those now.  You were interviewed on
9 February and you exercised your rights. 

5The accessing and possessing of this type of material creates a market which results in the abuse of children.  It matters not where that abuse occurs.  The cyber world creates a gloss of detachment and artificiality but the harm to our children is very real. The gravity of your offending is not to be assessed solely upon the categorisation of images.  This was not an isolated act of downloading.  Your conduct persisted over a period of over two years.  There were numerous children depicted and over 4800 videos and images were either accessed or possessed.  Some children were of very tender years.  Over a third of the images were category 4 or 5.

6That being said, this was nevertheless very simplistic offending; there were no steps taken to conceal your offending, there is no evidence of any intention to distribute, no evidence of any motivation or intention to sell or profit from the images.  Your offending is be distinguished from circumstances where there are elaborate web trails making it difficult to identify those who are offending, increasing the burden upon law enforcement and increasing the ongoing risk to children.

7You have no prior convictions or appearances and you fall to be sentenced on the basis that you are, apart from this matter, a man of good character.  You are entitled at this time to call to your aid your good conduct over a significant number of years.  Unfortunately, this is not unusual as regards this particular kind of offending and is only one of the many factors that must be weighed in the sentencing process.

8Turning to matters personal to you; you are now aged 30.  You were born in Bairnsdale, where your father was a teacher and your mother managed the family home.  You are the eldest child of a sibship of three.  You have enjoyed and continued to enjoy a close relationship with your parents, as is evidenced by their attendance at court both upon your plea and sentencing this day. 

9You attended a primary school in the local area and went on to complete VCE at a college in Bairnsdale, where your father taught.  Subsequent to that, you competed a bachelor's degree in psychology at RMIT. You obtained employment at Coles, aged 18, and you still work for the company.  Your role now includes supervision of junior employees.  You have had one steady personal relationship when you were aged 18 but that ended in the context, as you described it, of you ‘finding and accepting your sexuality’. 

10At the time of this offending, you were living with a flatmate.  Upon becoming aware that you had been charged, the flatmate immediately moved out.  This had social and financial consequences for you.  You are now single with no dependents, you are living modestly and alone. 

11You began seeing a psychologist shortly after being charged in relation to this matter after referral from your general practitioner pursuant to mental health care plan.  You engaged with an organisation called ‘The Talk Shop’, where you have attended some nine sessions.  Exhibited upon your plea is a letter from the psychologist, Danny Italia, dated 8 August 2018.  It confirms your referral to that service in November 2017 to assist in the management of symptoms of anxiety and depression, exacerbated, it seems, by these proceedings. 

12Mr Italia says that you regret this offending and that you told him wanted to stop but felt unable to do so, describing your conduct as ‘addictive-like’ behaviour.  Mr Italia emphasises your acceptance of responsibility for your actions and your wish to continue treatment. 

13I have received a report dated 21 August 2018 from Mr Jeffrey Cummins, a clinical psychologist.  You saw Mr Cummins for the purposes of assessment and report at his rooms on 7 August this year.  You told Mr Cummins that you had not informed either of your parents or siblings in relation to the matters which bring you before the court at the time of his assessment.  You told him that was as a result of you feeling ‘overwhelmed, embarrassed and ashamed’. 

14As regards your employment situation, I note that you have now taken leave after informing your employers in relation to the circumstances which you face before this court. 

15At the time you saw Mr Cummins, you had not yet informed your parents or siblings in relation to your sexual orientation and it is in that context, in your view, that you became addicted to viewing child pornography involving males, initially as curiosity. 

16You told Mr Cummins that at the time of accessing the material, you knew it was morally wrong and you assumed it was a criminal offence.  You told him that your addiction simply, as you put in, "won out."  You acknowledged that you used the pornography as a precursor to masturbation.  You told
Mr Cummins that you have completely ceased viewing such material as a result of your arrest. 

17As regards risk, Mr Cummins says, in his opinion, your current risk of committing a further offence in terms of this type of offending is low-moderate and trending towards low.  He said in his opinion it is imperative that you continue to receive offence specific treatment and, in addition, he recommends assistance to meet adult males with the same sexual orientation.

18At interview, Mr Cummins described you as being mildly moderately anxious and moderately depressed.  He said you may benefit from being trialled on an antidepressant medication.  Mr Cummins said that based on his assessment, he would expect your mental health would inevitably deteriorate, and significantly so, upon incarceration.  He said you will definitely be at risk of developing a reactive trauma related condition, an adjustment disorder with mixed anxiety and depressed mood.  He said, in his opinion, you are genuinely judging yourself harshly concerning your behaviour, constantly verbally expressing both regret and remorse.

19I have received correspondence from your parents, setting out the family background and your history which makes clear that, at least in recent times, you have informed your parents as regards your appearance before this court.  You are described as taking responsibility for your mistakes and as voluntarily seeking help. Indeed, the correspondence confirmed that you only told your parents in early September as a result of not wanting to upset them earlier.  They say, in conversations with you, you have admitted that you have done the wrong thing and that you are determined to make changes in your life.  They note that you have already started this process.  You parents say they remain absolutely committed to supporting to you as you put your life back together. 

20I take into account your plea of guilty, which you entered at an early stage in the proceeding.  I am sentencing you on the basis that you pleaded guilty at an early opportunity and that you are entitled to the full benefit of an early plea.  You have saved the community the time and expense of a trial and I accept that, in your case, your plea is properly used as evidence of remorse. 

21As regards your prospects of rehabilitation, in my view, they are very good, given that you have taken responsibility for your actions, you are actively seeking treatment, you have ceased offending and there is nothing subsequent.  You have the full support of your parents, stable employment. In my view, these matters combine for a positive prognosis.

22You have consented to the forfeiture of electronic equipment and I take that cooperation into account. 

23I accept that you will find custody more burdensome as a result of personal attributes, including lack of social skills and experience with the large variety of people you will encounter in custody. I also note
Mr Cummins's view as to the burden of custody in your case. 

24Your counsel points to matters you are entitled to have taken into account in mitigation.  Firstly, your plea of guilty to which I have already referred, your lack of prior convictions, nor anything subsequent, your prospects of rehabilitation. 

25However, as well as matters personal to you, to which I have referred, I must also take into account other relevant sentencing considerations. I have had regard to the matters set out in s.16A of the Crimes Act 1914 in relation to Charge 1 and s.5 of the Sentencing Act in relation to Charge 2. 

26The cases make clear that with respect to this kind of offending, general deterrence is of considerable importance.  Indeed, it is often described as paramount in relation to this type of offending.  That is not, of course, to mean that other sentencing factors are not relevant, as sentencing is always a balancing exercise.

27As regards specific deterrence, in my view, given your lack of prior history, nor anything subsequent, this factor can be given less weight.  Your conduct must be clearly denounced and you must be appropriately punished.  I must, of course, seek to protect the community from future offending.  But given the matters to which I have already referred, in my view, this can also be given less weight. 

28The prosecution submit that the only disposition open is an immediately servable term of imprisonment.  Your counsel submits that a community correction order is within the range or, if I am against, a combined CCO with a term of imprisonment.

29In the circumstance of this matter, I have no option but to impose terms of imprisonment.  You are convicted and sentenced as follows:

30Charge 1, eighteen months, commencing two months from today's date.  I direct that you be released on a recognisance release order after having served nine months of that sentence;

31On Charge 2, you are convicted and sentenced to be imprisoned for 11 months, commencing this day.  I order that one day be reckoned as served. 

32You have now been convicted of two Schedule 2 offences. Pursuant to s.34 of the Sex Offender Registration Act, you are required to comply with the reporting obligations of the act for a period of 15 years.  In a moment, my associate will provide you with relevant documentation, setting out your obligations in this regard and ask you to sign an acknowledgement that you have received that documentation. 

33Finally, I make an order pursuant to s.464ZF(2) of the Crimes Act, for you to undergo a forensic procedure for the taking of a scraping of the mouth and/or blood sample in accordance with sub-division 30A(iii) of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.  I inform you that if you do not consent to the taking of a mouth scraping under supervision of an authorised member of the police force, then the sample taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted.  Madam Prosecutor, you will prepare the RRO?

34MR HAWKER:  Yes, Your Honour.  If I have written it down correctly, so it is 18 months to commence two months ‑ ‑ ‑

35HER HONOUR:  From today's date?

36MS HAWKER:  Today's date, to be released ‑ ‑ ‑

37HER HONOUR:  So the State sentence starts today?

38MS HAWKER:  Yes, Your Honour.

39HER HONOUR:  The Commonwealth sentence starts two months, and in two months it is a sentence of 18 months with a nine month RRO.  So effectively what it means is that the end date of the State sentence and the earliest possible parole date on the Commonwealth sentence are the same, 11 months from now. 

40MS HAWKER:  As Your Honour pleases.

41HER HONOUR:  That is just an explanation, that is not a part of the sentence. 

42COUNSEL:  Yes, Your Honour.

43HER HONOUR:  Mr Van Arkadie, would you please approach the dock with my associate and have the acknowledgement in relation to sex offender registration signed?

44MR VAN ARKADIE:  Certainly, Your Honour.  Thank you, Your Honour.

45MS HAWKER:  Your Honour, I have prepared the recognisance ‑ ‑ ‑

46HER HONOUR:  The acoustics in this court are just terrible.  Yes, go head.

47MS HAWKER:  I have prepared the recognisance release order.

48HER HONOUR:  Thank you.

49MS HAWKER:  And I have provided ‑ ‑ ‑

50HER HONOUR:  Thank you.  And, Madam Prosecutor, does the structure of this sentence achieve what I wanted to?

51MS HAWKER:  Yes, it does, Your Honour, correct.

52HER HONOUR:  Thank you.  Commonwealth state sentencing is always structurally difficult.

53MS HAWKER:  Yes, Your Honour.

54HER HONOUR:  Mr Neeson, if you would stand again please?  The purpose of the order is to allow you - it is called a recognisance release order, it allows you to be released.  Although it is a nine month order, it commences two months from today, so 11 months, in fact, from yesterdays, you will complete your State sentence and you will also be released on this RRO.  It is different to parole, you will be released pursuant to this order. 

55So it is called a recognisance release order, it allows you to be released into the community upon conditional supervision, effectively.  And if you do not breach the order, you will not be returned to custody or required to serve what will be the other nine months of that sentence.  So in a moment you will be asked to agree to be bound in accordance with the order, that is to give the undertaking.  You will be provide with a copy of the order. 

56I am obliged to inform you that if you breach the order, you will be brought back before me and, in all likelihood, you would serve the outstanding nine months. I also inform you that the order may be discharged or varied under s.20AA of the Crimes Act 1914. You should discuss that with your counsel should the need arise. So I will just hand that handed back and there will need to be a further signature. Thank you. Counsel, do you want to approach your client again? He will need to sign that with my associate.

57MR VAN ARKADIE:  Yes, Your Honour.

58HER HONOUR:  Thank you.

59MR VAN ARKADIE:  Thank you, Your Honour.

60HER HONOUR:  Thank you.  Counsel, is there anything further?

61MS HAWKER:  Nothing further, Your Honour.

62MR VAN ARKADIE:  No, Your Honour.

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