Director of Public Prosecutions v Newell

[2023] VCC 941

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-02116

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAJ NEWELL

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2023
DATE OF SENTENCE:	5 June 2023
CASE MAY BE CITED AS:	DPP v Newell
MEDIUM NEUTRAL CITATION:	[2023] VCC 941

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Charges of using a carriage service to access child abuse material and a charge of possessing or controlling child abuse material obtained or accessed using a carriage service – no criminal history – early plea of guilty – genuine remorse – youthful offender – excellent prospects of rehabilitation – exceptional circumstances established to release immediately on recognisance release order – 15 years reporting

Legislation Cited:      Sex Offenders Registration Act 2004

Cases Cited:Phibbs v The King [2023] VSCA 123; Azzopardi, Baltatzis and Gabriel v R [2011] VSCA 372; Worboyes v R [2021] VSCA 169

Sentence:                  Total effective sentence of 3 months imprisonment, released immediately on a recognisance release order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Pan	Office of Public Prosecutions
For the Accused	Mr J. Brancato	Gallant Law

HIS HONOUR: 

Introduction

1Mr Newell, you have pleaded guilty to a charge of using a carriage service to access child abuse material and a charge of possessing or controlling child abuse material obtained or accessed using a carriage service.

2The offence in each charge carries a maximum penalty of 15 years' imprisonment.

3The circumstances of your offending are set out in the document 'Prosecution opening on plea', which is Exhibit A.

Circumstances

Charge 1

4On 17 August 2020, you downloaded from the internet five videos of child abuse material into your computer.  The content of these videos are summarised in paragraph 7 of Exhibit A.  Two of the videos have a short duration.  Three are much longer with one running for nearly 22 minutes.  These circumstances constitutes Charge 1.

Charge 2

5On 11 May 2021, police members searched your premises and found your computer.  On that day, you were in possession of the five videos referred to in paragraph 7 of Exhibit A.  This circumstance constitutes Charge 2.

6You were arrested, charged and bailed.  You were unhelpful when interviewed by the police.

Criminal history

7You have no previous findings of guilt or criminal convictions.

Personal

8You are now 23.  You are an only child.  Your father was born in Tasmania and your mother is an indigenous American Indian.  As your parents put it, you were raised with indigenous and Christian values.   You have a half-brother and sister from your mother's previous marriage.

9Your family came to Australia in 2009.  You attended Years 5 and 6 at a public school on the Gold Coast and then attended a school affiliated with your church for your secondary education.  You performed well at school even though suffering from anxiety and lack of self-esteem.  Until you turned 18, your parents restricted your access to the media and internet.

10Initially, you attended the Gold Coast University then, in 2019, you moved to Melbourne to attend university.  You also obtained employment with an international clothing company, a position you still hold.

11In March 2020 your parents visited America on holidays.  Owing to the restriction due to the pandemic, they were not physically reunited with you for three years.  They were in contact through the phone and 'video chats'.  Nevertheless, your parents perceived a deterioration in your mental health.  They arranged for you to live elsewhere.  To them, your mental health improved until the confiscation of your phone and computer by the police.  It then declined.  Your parents encouraged you to seek professional help, which you did.  You have been seeing a psychologist since November of last year.  There has been improvement in your mental health. 

12Your parents and your friends speak of your remorse, as do you.  Everything, including your guilty pleas, point to you being genuinely remorseful.  Remorse is particularly useful from a community's perspective if it translates into a determination not to reoffend.  In your case, I am satisfied that it does.

13As you point out, your case was publicised in a large Victorian newspaper.  As your parents point out, the unusualness of your names, Kaj and Pennington, and the existence of the internet means this case will not be forgotten quickly.

Psychologist

14Peter Hanley is a psychologist. He has counselled you since November 2022. IN his report, he wrote two paragraphs which are significant:[1]

'Whilst the gains he has made in treatment are promising, Mr Newell's offending appears to be underpinned by issues relating to sexuality and identity formation that have been affected by his own experience of online exploitation.  I expect that the personality and sexuality issues underpinning Mr Newell's offence-related issues will take a lengthy treatment period to address comprehensively.

…Going forward, Mr Newell requires sex offender treatment (either individual or group-based), drug and alcohol education and psychological treatment that incorporates an understanding of his sexuality and identity-related issues.  Based on his history of depression and suicidal ideation, the vulnerability associated with his sexuality, and his tendency to "act out" his emotional issues, any treatment regime should include monitoring of Mr Newell's risk of suicide and self-harm'.

[1] Report dated 5 June 2023, [20] and [22].

15Since it seems that Mr Handley will be providing ongoing counselling and treatment, he is fully aware of those issues.

Discussion

16Through its legislation, Parliament is determined to eliminate the use of carriage services to deal with child abuse material.  In your case, first, it can be seen through the maximum penalties for the offences contained in the two charges:  15 years' imprisonment.

17Second, since 23 June 2020, if imprisonment is the appropriate disposition, then I cannot release you immediately on a recognisance release order unless you demonstrate the existence of exceptional circumstances justifying that step.  Plainly, if imprisonment is appropriate then serving at least part of the sentence is the usual outcome.

18Third, with these offences, again if sentences of imprisonment are appropriate, then there is a presumption of cumulation of the sentences.

19Fourth, the courts have made clear the importance of general deterrence in sentencing on child abuse material offences.  In other words, my sentences should act to deter others from committing these offences or similar offences.

20This was elaborated in more detail in the judgment in the case of Phibbs v R, which was handed down very recently, where Their Honours said at paragraph 51:[2]

'It is well established that all offences relating to the sexual abuse of children are very serious and that factors personal to an offender carry less weight than general deterrence and protection of the community.  The courts recognise that significant lifelong harm is caused to children who are sexually abused.  Accessing or possessing child pornography is not a victimless crime - it is abhorrent because it supports a market for the production of images that involve the sexual exploitation of children.  For these reasons, this Court has repeatedly emphasised that, ordinarily, persons who commit child pornography offences will be sentenced to an immediate term of imprisonment'.

[2] [2023] VSCA 123 at [51].

21The prosecution submits sentences of imprisonment are appropriate but I should release you immediately on a recognisance release order.  It submits I could find exceptional circumstances and an exception to the presumption.  Your counsel agrees with the submission.  I do so find.

22As to your youthfulness, in Azzopardi, Baltatzis and Gabriel v R,[3] Redlich JA examined the considerations which underlie the general primacy of an offender's youth as a sentencing factor and the tension which exists between youth and deterrence.  In that case, the offending was horrendous and raised the need for deterrence and protection of the community against the considerations of the youthfulness of the offenders.

[3] [2011] VSCA 372 at paragraph 34 to 40.

23In sentencing young offenders, and you are a young offender, Redlich JA set out these considerations:[4] 

(a)   since young offenders are immature, they are more prone to ill-considered or rash decisions.  They lack the degree of insight, judgment and self-control possessed by an adult;

(b)   young offenders have the potential to be redeemed and rehabilitated because typically their stage of mental and emotional development may make them more open to influences designed to change their behaviour positively as opposed to adults with established patterns of antisocial behaviour.  His Honour added:[5]

'No doubt because of this potential, it has been stated that the rehabilitation of young offenders, "Is one of the great objectives of the criminal law"';

[4] At paragraph 34 to 36.

[5] [2011] VSCA 372 at paragraph 35.

(c)   the courts recognise the potentially detrimental and antisocial effect on young persons of being placed in an adult prison.

24As to the last point, a sentence of imprisonment with an immediate release does not involve actual imprisonment unless the person misbehaves.  However, the possibility remains.

Guilty pleas

25You pleaded guilty at the third committal mention hearing in November 2022.  Judging from the reasons for the adjournment of the first two such hearings, I consider these pleas were entered at the earliest reasonable opportunity.

26By pleading guilty, you have accepted responsibility for your offending.  From the perspective of the criminal justice system, it saves the time and expense of a jury trial.  It allows other trials to be listed earlier than would be the case.  Judging from the witness list attached to the indictment, you have spared only four persons the burden of giving evidence in a trial.  Given the nature of your offending and its aftermath, their giving evidence would have been no great burden to them.

27At the present time, a guilty plea deserves a greater discount on sentence than in other times.  Why this is so was explained in the case of Worboyes v R[6], where the court said:

'For these reasons, we consider that - all other things being equal - a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence'. 

[6] [2021] VSCA 169 at [39].

28Even though this passage appeared in a 2021 judgment, it still remains applicable.  This court, and the other criminal courts, are still struggling to overcome the backlog of cases built up during the pandemic and the effects of the virus still affect the functioning of this court, especially in relation to jury trials.

Prospects of rehabilitation

29I consider your prospects are excellent.  I very much doubt you will be in trouble again.  I somehow doubt that you will ever be in trouble again. 

Sentence

30On Charge 1, I will sentence you to three months' imprisonment.

31On Charge 2, I will sentence you to three months' imprisonment.

32The sentence on Charge 2 will commence at the same time as the sentence on Charge 1. That is concurrency.  The total effective sentence is three months' imprisonment and I will release you immediately on a recognisance release order to be of good behaviour for one year. 

33In addition will direct that you report under the Sex Offenders Registration Act for 15 years. 

6AAA

34Although I have doubts about whether s6AAA of the Sentencing Act does apply, I do note that in the case that you referred me to, Ms Pan, Their Honours made a s6AAA statement. So presumably if you are in agreement with the Court of Appeal then you are on solid ground. In those circumstances what I would have done absent your pleas of guilty, I would have sentenced you to a total effective sentence of six months' imprisonment.

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