Director of Public Prosecutions v Newton

[2015] VCC 1464

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00904

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE RICHARD NEWTON

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 October 2015
CASE MAY BE CITED AS:	DPP v Newton
MEDIUM NEUTRAL CITATION:	[2015] VCC 1464

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 A. Payten
For the Accused	Ms R. Sleeth

HIS HONOUR: 

1Shane Richard Newton, you have pleaded guilty to an indictment charging you with three offences; one of accessing child pornography using a carriage service; one of making available child pornography material using a carriage service; and one of possessing child pornography.  Charges 1 and 2 were brought under Commonwealth Criminal Code and Charge 3 under the State Crimes Act. 

2

You have also admitted prior court appearances and convictions, although

I do not regard those as being of any significance in this sentencing exercise. 

3The prosecution has tendered and relied upon a written opening, which was read to the court.  I incorporate that document into these reasons for sentence in its entirety. 

4The document reveals that on 24 February of this year, at about 7.10 am, Victoria Police officers attended your home at 115 Station Road Melton South for purposes of executing a warrant under the Commonwealth Crimes Act.  You were present during the search.  The search involved examination of a computer hard drive and two USB devices.  At the completion of the search you were arrested and you were transported to Victoria Police offices where you were questioned. 

5

You described to the police that you used a computer program called "eMule" to search for child pornography, with the search term "PTHC", meaning

"Pre-teen hard core".  You indicated you could not recall when you started searching for that kind of material, but you thought it was perhaps a year ago.  You indicated that you had peer-to-peer sharing programs, eMule being one of them and another one "ARES", loaded onto your computer, which you described as being programs to search movies or "in my case, the wrong thing". 

6You indicated that when you downloaded child pornography from eMule, the files were automatically saved to a folder called "eMule" on the D drive.  You then transferred those files to a folder titled, "New folder".  You did not know how many images and movies of child pornography you had, but you thought the children in the images and movies were aged six and older and you had a preference for girls. 

7You indicated that you chose the selection of child pornography to download by reading the file names and that you were not looking for any particular type of child pornography.  If, during your search you inadvertently downloaded adult pornography, you deleted the image or movie, as you were not interested in searching for that.

8You indicated that you were aware that when you had images and movies in the eMule folder, other users on the eMule network were able to access and download those files and hence the basis for Charge 2 on the indictment. 

9The material contained on the computer hard drive was examined and the nature of the material assessed, in accordance with the Australian National Victim Identification Library, child pornography material classification, of which involves classification according to Levels 1 through to 6 inclusive. 

10Level 1 is depiction of children with no sexual activity, but nudity, surreptitious images showing underwear, et cetera.  Level 2, solo masturbation by a child or sex acts between children.  Level 3, non-penetrative sexual activity between children and adults.  Level 4, penetrative sexual activity between children and adults.  Level 5, sadism, bestiality, humiliation or child abuse.

11Referable to Charges 1 and 3, accessing or possessing child pornography on the hard drive of your computer, there were 2,604 unique images in Level 1 category; 639 images in the Level 2 category; 139 in the Level 3 category; 235 images in the Level 4 category; and 20 images in the Level 5 category. 

12In addition to the images, there were a number of videos; 47 unique videos in the Level 1 category; 60 in the Level 2 category; 21 in the Level 3 category; 425 in the Level 4 category and 16 in the Level 5 category.  There were also five videos in the Level 6 category, animated or virtual.  So that Charge 1 on the indictment relates to 4,211 unique files, accessed by you, and Charge 3 to 4,956 unique and duplicate files possessed by you. 

13

The file subject to 1 and 3 were located in the single folder titled, "New folder".  "New folder" was saved in the local disc H drive on your computer hard drive.  In respect of Charge 2, analysis of the material saved in the "eMule" folder revealed that it contained 22 movies of child pornography, classified four unique files in the Level 1 category; one in the Level 2 category; two in the

Level 3 category; 15 in the Level 4 category. 

14I am told and it was part of the submissions by the prosecution that the 425 unique videos contained on the hard drive, the subject of Charge 1, in Category 4, totalled 116 hours alone and the total video material was 138 hours.

15The figure of 116 hours of that 138 hours in Category 4 is alarming. 

16The material that was placed before me during the course of the plea hearing did not, in my opinion, adequately identify the degree of depravity of the material.  I was informed that there was a compilation DVD that was available to show samples of the images and the videos that had been identified.  I viewed that DVD.  I give, by way of example, descriptions that arise from the file name of a few of the videos that appear to fall into Categories 4 or 5. 

17One of the files was entitled "Baby".  There was what seemed to me to be an identical file "Baby (2)".  It was identified as "PTHC", "Pre-teen hard core".  Although that particular movie was not of great length, it involved a clear image of a male erect penis penetrating the anus of what appeared to me to be an infant, lying on its stomach on a table.  The adult male was moving his penis in and out, accompanied by the sounds of a baby crying.  Of course it is not possible to determine whether that particular baby was actually crying, but the appearance was of an infant, not just a toy, but a live infant being anally raped in the way that I have just described. 

18There was another file "Two year baby, anal fuck, PTHC".  There was another entitled "11-year-old - 12-year-old pre-teen fucking, sadism/masochism".  The title went on "Inga deep inside a four-year-old cunt".  Another was entitled, "Nine-year-old Cambodian sex slave, bound and fucked by European owner (step-dad)”.  That lasted for ten minutes and involved a video of what appeared to me to be a nine-year-old girl who may well have been of Cambodian origin.  Certainly she had the appearance of an Asian female, who may well have been from that part of the world.  She was lying on her back with her hands bound by duct tape to her ankles.   Her legs were spread apart and she was being subjected to vaginal intercourse by what appeared to me to be a European male.  That video went for ten minutes.  The depiction showed what seemed to me to be a look of pain, anguish, humiliation and significant distress on the part of the victim. 

19Another, it was entitled, with "PTHC" as the catchcry, but it also had "PT", presumable pre-teen, "XX" in the title.  "Black man fucking ten-year-old little boy (hot)!!!"  Another was entitled, "Hot, hot, hot!!!!! 13 year-old bondage".  That was a video that went for several minutes, I think 15, although my handwriting does not allow me to say with certainty that that was the period.  It was of a girl apparently aged about 13, prepubescent, tied up with her legs secured apart.  She was blindfolded and subjected to sexual penetration by a tongue, finger, dildo and full penile/anal and penile/vaginal penetration during the course of that 15 minutes of video. 

20There were many others of not dissimilar ilk amongst those that were provided to me in the sample.  It is difficult to assess the degree of depravity against the degree of depravity revealed in other cases.  But it seems to me that this selection that I was shown shows a degree of depravity that must come high up on the scale and must, it seems to me, put this offending, for that reason at least, into amongst the higher, if not the highest categories of offending of this nature. 

21There are a number of other factors that are relevant, other than the degree of depravity.  There is the number of unique images and videos, the number of children who were the victims, impossible on what I saw to determine with any precision, but given that there were a very significant number of unique files, one may reasonably infer that there were victims that numbered not too far short of the several thousand, perhaps even approaching the 4,000 or so images that were unique files that were shown. 

22There are other cases, of course, where the number of images are greater.  But it seems to me that it is the number, length and nature of these video files that marks the seriousness of this particular offending. 

23Another factor is whether the material is for the purposes of sale, or further distribution.  There is no evidence to suggest that it was in that category at all.  The fact that the material, or some of it was contained on a file which could be accessed by others, supports Charge 2.  But there does not seem to be any evidence that the offender had the material for the purposes of further distribution, rather primarily it seems for his own consumption. 

24

There is no suggestion that he would profit from the offence.  Another factor is the length of time during which the offender had the material in his possession.  The period set out in the indictment is between

11 June 2014 and 23 February 2015.  Whilst there are cases which involve the accessing over a longer period of time, that is still a

not insignificant period of time during which the accessing took place.  That same period covers Charge 2, the making the material available.  Charge 3 is an offence which deals only with that which was found on his computer on the day of his arrest, 24 February 2015.

25

Needless to say, from what I have just outlined, I regard this offending conduct as of a very serious kind.  I note that the appellate courts, both in Victoria and in other States, have indicated the need for general deterrence, which frequently overrides previous good character and very often requires the court to impose a custodial sentence.  I accept that that has to be considered against a large number of factors and whether or not a custodial sentence should be regarded as the default position, is not something which

I really need to consider, because I have determined that an immediate custodial sentence is required in this case. 

26

Turning to matters personal to you, Mr Newton.  I was provided by your counsel with a helpful outline of submissions and a chronology and a report from Ms Carla Lechner, psychologist, as well as receiving evidence from your wife and indeed from yourself, and ultimately further evidence in documentary form through an affidavit from your solicitor, Mr Jansen, supplemented by evidence today from him and evidence from Dr Rabbani supporting two letters that he provided to the court supporting, to some extent at any rate, correspondence which is contained in the affidavit material provided by

Mr Jansen.

27You are 41 years of age.  You are the youngest of three children.  Your parents separated before you were born.  It seems that you had a very hard upbringing.  You were the victim of child sexual abuse when you were aged 12, which has led to what has been diagnosed as post-traumatic stress disorder.  You were taken from your mother's custody and into State care in your early teens.  Your teens were attended by instability and movement between houses. 

28

You moved back to your mother's home in your mid-teens, but that was not without its difficulties.  Your schooling was significantly interrupted.  You attended four different high schools and you left during

Year 10.  You indicated to Ms Lechner that you could not do it any more, that you wanted out of the schooling system. 

29You have worked in a number of factory positions, the last one being a job for five or six years making concrete pots.  You last worked in a glue factory in 2007.  Since that time you have been in receipt of a carer's pension, to enable you to care for your wife, who undoubtedly suffers from a number of significant medical problems. 

30Ms Lechner diagnosed you as having a major depressive illness at the time she examined you and indicated that, in her opinion, you had been depressed for much of your life.  It was her opinion that, in all the circumstances, your mental impairments would result in giving you much more difficulty in serving your sentence than for a person who did not have those mental impairments.  She noted that you also lacked a robustness that might be required to manage potential bullying and conflict. 

31She noted that you fulfilled the criteria of a diagnosis of paedophilic disorder and indicated that the risk of your relapsing to such behaviour again could be reduced by appropriate treatment services.  She also indicated that you found it hard to articulate why child pornography was illegal. 

32Your counsel explained what that really meant.  As I understood what she told me, that you had not really given the matter the degree of thought at that stage that would have enabled you to have what you now have, which is a better insight into the broader harm that is caused by the child pornography industry.

33You are not a person of high intelligence, but you are a person of average intelligence.  I think that to give the offending some context, there clearly was, over a number of years, a period during which you may have felt deprived of sexual contact with your wife and the intimacy that might have been available had your wife been in better health. 

34You were co-operative with the police.  You apparently made full admissions in your interview with the police and you have pleaded guilty to these offences.  That is very much to your credit.  I propose to give you full credit for an early indication of a plea of guilty. 

35Your counsel's written submissions suggests that your offending was unsophisticated.  I am inclined to think that it was unsophisticated.  But she also submitted that it was at the lower end, in terms of quantity and seriousness of the bulk material.  I cannot accept that submission for the reasons I have already indicated. 

36The plea hearing and the subsequent plea hearings, have been largely devoted to exploring the submission that exceptional circumstances exist in this case, arising from the hardship that would be caused, or will be caused to your wife by your incarceration.  A body of evidence was provided.  I have already referred to it. 

37My initial inclination was to think that the evidence did not provide a sufficient basis for the conclusion that exceptional circumstances existed.  However, having heard from Dr Rabbani today and having heard the full submissions on the subject from your counsel, I am persuaded that it meets that threshold.  The prosecution, I think, are content to accept that it does meet that threshold, although they argue that the degree of mercy that should be extended is not such as should result in my imposing a sentence that does not involve a period of immediate incarceration. 

38I accept the prosecution's submission in that regard.  Although there is no doubt that your wife will suffer and I think it is reasonable in those circumstances to moderate the sentence out of a sense of mercy.  This offending is of a kind that is far too serious, in my opinion, to enable me to impose a sentence that did not involve a period of immediate incarceration. 

39I accept that not only will your mental impairments make your period of incarceration more difficult for you to bear, also the fact that you have put your wife in this position by your conduct.  You will know that she is having difficulty in coping, physically and emotionally during your absence.  Those matters will also make your period of incarceration harder.  I take that into account in assessing the appropriate sentence.

40

I am required to consider the provisions of s.16A of the Commonwealth Crimes Act in relation to Charges 1 and 2 and to impose a sentence that is appropriate in all the circumstances and one which takes into account the matters set out in s.16A(2).  I do not propose to cover those individually. 

I think I have indicated sufficiently that those that are relevant and they have been canvassed during the course of the plea hearing. 

41In addition, of course, it is recognised that Commonwealth law just as State law recognises the need to impose a sentence that meets the requirements of general deterrence.  The law is very clear that in these sorts of case, general deterrence is a very significant sentencing consideration.  It seems to be recognised in the Court of Appeal in this State that offences of this kind are prevalent and that there is a need, even in cases where people have no prior convictions, to impose immediate custodial sentences in an appropriate case.  I need, under Commonwealth law, to consider the requirement that I must not impose a custodial sentence unless it is the only sentence that is appropriate and indeed, State law reflects the same consideration.

42I was asked to consider a community corrections order.  It seemed to me that that was desirable in the face of Ms Lechner's opinion that treatment would be beneficial to you.  I had you assessed and you have been found to be suitable for a community corrections order.  What I propose to do is to sentence you to a community corrections order in respect of Charge 3, to take effect upon your release from your term of imprisonment. 

43I cannot impose such a sentence unless you consent to it.  You indicated to the Department of Corrections at the time of your assessment that you would consent to such an order.  Would you consent to such an order?

44OFFENDER:  Yes, Your Honour.

45HIS HONOUR:  Yes, all right.  All right, well in those circumstances, I am ready to impose sentence upon you.  Would you stand please.

46Shane Richard Newton, on Charge 1 of accessing child pornography, I convict you and sentence you to imprisonment for a period of 16 months. 

47On Charge 2 of making available child pornography, I convict you and sentence you to imprisonment for a period of four months. 

48The sentence on Charge 1 will commence today.  The sentence on Charge 2 will commence after you have completed serving 16 months of the sentence of Charge 1, which makes a total effective sentence of 18 months' imprisonment.  I order that you be released upon entering into a recognizance to be of good behaviour in the sum of $1,000, after having served a period of nine months. 

49In respect of Charge 3 on the indictment, I convict you and order that you be the subject of a community corrections order for a period of two years, with conditions in addition to the core conditions, requiring you to be under the supervision of the Department of Correction for the period of the order, two years, and to participate in rehabilitative programs concerned with addressing your mental health issues and also to participate in programs designed to reduce your risk of re-offending.

50But for you pleas of guilty, I would have sentenced you to 24 months' imprisonment and released you on recognizance, after having served a period of 12 months'. 

51I am required to inform you that you will be placed on the sex offenders' register for a period of?

52MS PAYTEN:  The reporting period in relation to these offences if life, Your Honour.

53HIS HONOUR:  Life?  For life, and you will be provided with information about your obligations under that legislation. 

54Are there any other orders I need make, counsel? 

55MS PAYTEN:  No other orders, Your Honour.  If I could just clarify?  The total effective sentence, Your Honour described I think as 18 months.

56HIS HONOUR:  Correct.

57MS PAYTEN:  Is it actually 20 months, 16 and four, Your Honour? 

58HIS HONOUR:  I am sorry, I should have said that the sentence on Charge 4 commences after - if I did not, after serving, not 16 months, but 14 months.

59

MS PAYTEN:  And that is the sentence on Charge 2, Your Honour, if I

can - - -

60HIS HONOUR:  Sentence on Charge 2 - - -   

61MS PAYTEN:  Yes.

62HIS HONOUR:  - - - commences after he has served 14 months of the sentence on Charge 1.

63MS PAYTEN:  Yes, Your Honour. 

64HIS HONOUR:  Yes.

65MS PAYTEN:  So the total effective sentence becomes 18 months.

66HIS HONOUR:  Total effective sentence is - yes, that was my error, I am sorry.  All right.  So I have got it right now? 

67MS PAYTEN:  That is correct, Your Honour. 

68HIS HONOUR:  Yes, all right.

69MS PAYTEN:  If I could just have a moment to complete the form and I'll hand that up? 

70HIS HONOUR:  Yes, do that.  Take a seat, Mr Newton.  You will be provided with a copy of the - or provided with the community corrections order also, for purposes of signing in a minute. 

71I think I was required to sentence him as a serious sex offender, am I not, on Charge 3?

72MS PAYTEN:  It is open to the court to do that in relation to Charge 3, Your Honour.

73HIS HONOUR:  Do I have a discretion about that? 

74MS PAYTEN: So the offender may be sentenced as a serious sex offender in relation to the third count on the indictment. And a Commonwealth offence is irrelevant, insofar they are sexual offences pursuant to Schedule 1 of the Sentencing Act.  So it is incumbent upon Your Honour to sentence the offender as a serious sex offender.

75HIS HONOUR:  To sentence as a serious sex offender.  Well look, there seems to be some doubt about that.  I mean, obviously we will comply with the law, but just make sure that you are both agreed that that is the law.  I am not doubting you, but I am just - - -

76MS PAYTEN:   Yes.

77HIS HONOUR:  - - - inviting that consideration.  I will just stand down for a few minutes whilst the orders are drawn up. 

78MS PAYTEN:  As Your Honour pleases.

79(Short adjournment.)

80HIS HONOUR:  I should mention that I was provided with some summaries of cases said to be of not dissimilar kind to this and references to a number of other authorities to enable me to identify what seemed to me to be current sentencing practice and to try and fit this case into the boundaries of that current sentencing practice and I have endeavoured to do that. 

81The recognizance release order, I think should be for a period of 18 months, rather than nine months, the full extent of the total effective sentence.

82MS PAYTEN:  Yes, Your Honour, rather than the period upon release?

83HIS HONOUR:  Yes, correct. 

84MS PAYTEN:  For good behaviour?  Yes. 

85HIS HONOUR:  Yes. 

86MS PAYTEN:  I will make that amendment, Your Honour.  My apologies. 

87HIS HONOUR:  So if you could amend that.  You have determined, I think, that I have to sentence him as a serious sex offender on Charge 3, is that right? 

88MS PAYTEN:  That is correct, Your Honour. 

89HIS HONOUR:  Yes.  All right, well I declare that - - -

90MS SLEETH:  Your Honour has recorded in the record that he is a serious sexual offender. 

91HIS HONOUR:  Yes.  It has not been suggested that I should impose a disproportionate sentence as a result of that and of course I have not done so. 

92I declare four days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted administratively from the period that Mr Newton will actually have to serve. 

93Now, I think the documents are now ready, are they? 

94MS PAYTEN: Your Honour, if I might note, one final matter is, s.16(f) of the Crimes Act requires Your Honour to explain in everyday language the purpose and effect of making a recognizance release order, to the offender.

95HIS HONOUR:  Yes.  The purpose of the recognizance release order, Mr Newton, is to enable you to be released after you have served nine months of the 18 month sentence, but you should appreciate that the balance of that sentence is hanging over your head during the next 18 months and that if you were to commit an offence punishable by imprisonment, upon you - after your release from - on recognizance and during the period of the recognizance, namely 18 months, you would not only be up to forfeit the $1,000 of the recognizance, but also to be re-sentenced for this case and may result in you serving the balance of the 18 months or some other sentence.  Do you follow? 

96Now, the documents, I think, are now ready for you to sign.  Ms Sleeth, would you accompany my associate - - -

97MS SLEETH:  Yes, Your Honour.

98HIS HONOUR:  - - - to your client and ensure that he understands exactly what he is being asked to sign. 

99I should say that I note from the community corrections order assessment report that the Community Corrections Services has assessed the accused, or the offender as being medium risk of re-offending.  And in view of that and the report of Dr Lechner, I regard Mr Newton's prospects of rehabilitation as being moderate.  They may become good once he has received some treatment and/or has been provided with rehabilitative programs during the period of his incarceration. 

100MS SLEETH:  Your Honour, can I just - in relation to the Community Corrections report.

101HIS HONOUR:  Yes.

102MS SLEETH:  I think that that clarified that assessment was in relation to offending in general, rather than offending - yes, under offending behaviour programs, it is written that it is further noted that the risk level outlined above relates to a general offending risk.

103HIS HONOUR:  Yes.  I would regard his prospects of rehabilitation nevertheless as being moderate at this stage.

104MS SLEETH:  As Your Honour pleases. 

105HIS HONOUR:  All right, thank you.

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