Director of Public Prosecutions v O'Connor

[2017] VCC 974

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01296

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW O'CONNOR

---

JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2017 and 30 June 2017
DATE OF SENTENCE:	21 July 2017
CASE MAY BE CITED AS:	DPP v O'Connor
MEDIUM NEUTRAL CITATION:	[2017] VCC 974

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW
Catchwords:  Sentence – possession of child pornography
Legislation Cited: s.70(1) Crimes Act 1958 (Vic),
s.6AAA and s.18 Sentencing Act 1991 (Vic)

Sentence:Convicted and sentenced to 4 years’ imprisonment with a

non-parole period of 2 and ½ years’ imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Devlin	Office of Public Prosecutions
For the Accused	Ms T. Hartnett	Galbally & O’Bryan

HIS HONOUR:

1In this matter, Mr O'Connor pleaded guilty to one charge in indictment No.G11072152.

2At the various hearings on this plea, Mr Devlin appeared on behalf of the Director and Ms Hartnett on behalf of Mr O'Connor.  Ms Verkade appears today for the Director.

3The one charge in the indictment is possession of child pornography, pursuant to s.70(1) of the Crimes Act (Vic) 1958.  The maximum penalty prescribed for such offence is ten years imprisonment, being indicative of the view of Parliament as to the seriousness of this crime.

4The circumstances themselves relate to a one day possession charge, being the 7^th May 2015, when such pornography, which I will detail in due course, was found at Mr O'Connor's premises at 38 Hall Road, Belgrave Heights.

5The background of such find was a tip off from an international child rights organisation to the AFP, whereby information was referred to the Victorian Police, and pursuant to warrant, the home was raided on 7 May.

6Exhibit A, which was accepted by Ms Hartnett as the being the facts upon which I am to sentence her client, was the amended prosecution opening, dated 19 September 2016.  The only way to describe the child pornography is that both, certainly in size, it is of massive degree, and as to content, it is revolting to an extreme degree.

7In the opening, paragraph 6 indicates the categorisation which was adopted,  pursuant to the Australian Child Exploitation Material Categorisation Scheme.  There were some, as to image files, 2,395 single frame image files with 2,739 montage image files, made up by way of 20 images per montage, some 54,780 images in regard to those montage image files.

8The schedule to the opening, Schedule 1, details three of those items.  In particular, three from category five, defined as sadism and child abuse.  The three involved gross sadism.  They involve, an infant boy and two young females, between the age of four and seven.

9For the purposes of this sentence, annexed will be Schedules 1 and 2.  The purpose of that is that a Judge has an option obviously of looking at the material.  Court of Appeal authority has indicated that that such is not always necessary, provided that the prosecution provide an appropriate summary, which I have accepted in this case as did Ms Hartnett, as to the details. The two schedules are particularly detailed and allowed the Court the joy of not having to troll through all of the material.

10The second portion of material found were videos.  There were some 40,408 videos.  Their categorisation is set out in paragraph 13 and, if I did not refer to it, the image file categorisation was set out at paragraph 6.  Schedule 2, to the opening details a number of those charges.  The child pornography can only be described as being extremely depraved.

11I find, both with the images and in particular the videos, the Court is dealing with serious examples of this offence.  Firstly, because of the number of images.  Secondly, because of the type of activity detailed.  Thirdly, the detail and degree of such activity.  Fourthly, the dehumanisation that has taken place as a result of the acts perpetrated upon these innocent children, and fifthly, the depravity demonstrated by such acts.

12Mr O'Connor underwent a record of interview.  A summary was provided to the Court.  Many of the comments simply do not make sense.  His answer to Question 2 for example, was that he is not into child pornography, that is demonstrably false. As he later answers at 223, he had been accessing and saving child pornography for a period of some two to three years.

13Mr O’Connor further made the comment in response to Question 246 as to why was he involved.  "I wouldn't know.  I don't really get turned on by real young girls."  Well, that again is demonstrably false.

14Then perhaps indicative of his state of mind at that time, he said at Question 254, "Well, I'd be a liar if I said I didn't get turned on by any of it."  Although again he limits such by his answers to Question 269 when he said, "No.  There's been very few that have really turned me on."

15The chronology is such, that I accept the plea was made at the earliest time in the Magistrates' Court, that is, after the committal. It was adjourned to this Court. Mr O'Connor did not appear, and there were two listings of the matter before Judge Hogan, the circumstances of which I will come to later.

16As to the prior criminal history of Mr O'Connor, he has never served gaol in his life and has no serious priors, certainly no priors of this degree, or for this type of charge.

17In so far as the plea before me, there was no issue between counsel that there was no alternative but for a gaol sentence being imposed.  Whether that gaol sentence should be part of a combined gaol and community correction order, was a matter left for the court.  Certainly that was the proposition put by counsel.

18When the plea was entered, that is at the committal in September of 2016, the discussions leading to such plea between counsel were on the basis of a concession made by the Crown, on that date, that a combined gaol, community correction order was within range.  As I say, that matter, despite the two appearances before Judge Hogan, did not proceed because there was no appearance by Mr O'Connor.

19The matter finally came before this Court on 27 April 2017. By that stage, the legislation had changed so that the discussions between the Crown at the committal, that I have referred to, were no longer appropriate.  By that, I do not mean, and indeed it was specifically maintained by Mr Devlin, that the Crown was not resiling from the fact that it did concede at the time that such a sentence was within range.

20However, it was put to this Court, given the amendments, that is the amendments restricting the period of imprisonment in such a combined sentence of 12 months as against the 24 months that it was previously, meant that it would be a matter for the Court whether such disposition could be passed.

21In so far as the plea was concerned, Mr Hartnett accepted, given the seriousness of the pornography and the matters relevant to the pornography that I have already described, that imprisonment was appropriate.  However, it was her submission that such should be coupled with a community correction order.

22Tended was the defence submissions (Exhibit 1) and further, the two reports of a psychologist, Newton, Exhibits 2 and 3.

23Ms Hartnett described Mr O'Connor as being a troubled, sad and a lonely person.  He had an earlier relationship which had folded, and from which there were some three children.  He had his own home.  She questioned his insight and indeed, his reasoning.  She was concerned as to the impact of his ice addiction.

24Ms Hartnett was concerned as to her ability to obtain instructions.  She was also concerned as to the impact upon her client of grief issues in his life, related to a death, by drowning, of a son.  She was concerned that he was lonely and eccentric on presentation, and it was quite difficult to get instructions.

25Ms Hartnett noted that Mr O’Connor had always worked, that he was well qualified.  He had qualified by way of two apprenticeships.  He had family alive, who are aware apparently of these matters.  However, he was not prepared for the family to appear, or to help him.

26Essentially the focus was on his own solitary life.  He had focused, since his son's death, on that tragedy, and that has had a dramatic impact on him since 2012, on top of a somewhat fragile general mental state.

27The submission was, even given those limitations and based on the matters referred to in Mr Newton's report, to which I will come, that a community correction order was the appropriate sentence, given his lack of any history and the plea. I was also asked to accept that the last limb of Verdins would apply, given the impact of his mental condition in gaol.

28The submission put by the Crown was still that the crime warranted gaol and given the amendments, whether a combined order was appropriate. Such was a matter, as I said, left to me.

29Mr Newton no doubt did as best he could, Exhibit 2, really confirmed much of what was put to me by Ms Hartnett.  In particular, the impact of the death of his son. His partner had subsequently left him, when the current offending came to light. He had been using methamphetamine for some period of five years. He said that initially he used the drug to help him deal with the high demands at work, and that drug became regular and escalated.

30It was put to Mr Newton that he had in fact stopped using the drug, although there would be no ongoing treatment.  Mr O’Connor apparently had two periods of inpatient psychiatric care, sometime in the early 2000’s, as a result, essentially of profound anxiety.  Mr O’Connor again showed limited insight and or advice and indeed, it has seem to resile from the circumstances of the plea, in particular, at paragraph 22.

31Essentially the opinion provided in the first report was consistent with the matters to which I have already referred, that diagnostically the symptoms were sufficiently intense to meet DSM-5 criteria for post-traumatic stress disorder in partial remission. It was noted that despite a common place sexual history, and his statement that his sexual adjustment was normal, he was resolutely denying any sexual motivation for conduct and was unwilling to explore his thoughts or feelings, and therefore no definitive conclusion could be given in regard to his sexual functioning.

32In so far as his rehabilitation was concerned, at paragraph 39, Mr Newton stated that the second key rehabilitative need is for Mr O'Connor's to participate in specialist sex offender treatment.

33There was a further report, Exhibit 3 which really does not take the matter much further.  Except, in order, at paragraph 7, Mr Newton said to avoid ambiguity,

"The depression and PTSD of which Mr O'Connor suffers was not in any way put as having any impact on his thinking, nor in any way in the Verdins sense, as we understand it to have been causative or any connection to this criminality."

34Mr Newton was of the view, paragraph 9, that Mr O'Connor's mental state will continue to be characterised by high levels of anxiety and depression.

35It was, as a result of that, somewhat unsatisfactory analysis of Mr O'Connor, both by way of his counsel and the psychologist, that I called for a Forensicare report in regard to Mr O'Connor.  That forensicare report was received, Exhibit B, and is dated 22 June 2017.

36Again, it would appear that at interview, as recounted on p.2 of the report, the interview taking place on 22 May at the Ararat Prison, Mr O'Connor was still in denial as to the circumstances.  Albeit, he pleaded guilty.  He was proffering the comment that the computer was stolen and that he does not know what happened. He maintained that he had no interest in child pornography and therefore could not explain the images.  He was reluctant to answer questions and stated that he purchased the laptop from an associate at work.

37Again, the psychiatric history was set out.  It does not really change from what I have detailed.  His background, and I suppose one could say, the normality of his background and his good working record is detailed.

38The consultant psychiatrist is Dr Rhea Zergiotis. On the second last page, at the top, she said:-

"The themes expressed by him were very much of post-traumatic issues in relation to the loss of his son under tragic circumstances, and the loss of other close family members.  He denied any current suicidal or homicidal ideation.  His attention and concentration was good, and there was some inconsistencies with dates.

No formal cognitive testing was performed.  His insight into psychological issues was at fairly superficial level.  He had poor insight into the current offences and offender behaviour.  He denied any active involvement in child pornography offences and rather, externalised blame for any offending on his ice addiction at the time and being the result of clouded thinking owing to depression."

39Again, unfortunately there is not much assistance in the opinion proffered by the Doctor, except at paragraph 6:-

"It is recommended that Mr O'Connor receive both psychiatric and psychological treatment for his residual symptoms of post-traumatic stress disorder."

40Hence the reference to the last part of the Verdins analysis.

Mr O'Connor denied any suicidal ideation during the assessment, but it would be highly likely that there would be some deterioration in his mental state around the time of sentencing, especially if this resulted in a custodial sentence.

He should have access to appropriate prison health services and Mr O'Connor was advised therefore during the assessment to seek appropriate treatment within the current facility where he is remanded.

He would also benefit in participation of specialist sex offender program to develop a greater understanding, relation to his use of pornography and reduce the risk of recidivism."

41In that regard, I am just reminded, that he also is subject to the sexual reporting provisions imposed by Parliament.  Madam Associate, could you hand the document to Mr O'Connor or his counsel and have that signed please?

42MS HARTNETT:   Yes, Your Honour.  Mr O'Connor has signed that documents.

43HIS HONOUR:  Thank you.  As I say, that is a provision imposed by Parliament, not by this Court.

44Unfortunately, the Court is limited in obtaining a full understanding of the criminality in this matter.  I accept however, that paragraph (d) of Verdins is appropriate, and that given his condition, he will suffer more than the normal member of the community would suffer in gaol, and I take that into account in sentencing.

45Unfortunately of course, in gaol are many, many persons, as we know, with similar conditions, if not, more extreme.

46As I said, this disposition is difficult.  The criminality is very serious.  The objective culpability is high.  The balancing as to the subjective matters in so far as culpability is difficult.  There is, as I said, no Verdins connection.

47However, my experience is such that I have been involved in cases where persons, who otherwise live a blameless life, go off the rails as a result of the death of a son or daughter.  I find that the background to this abhorrent behaviour must be seen in such context.

48Unfortunately, combined with addiction to methamphetamine, there must have been an impact due to such loss to some degree whereby he has utilised pornography of such a gross form.

49One of the important roles of the Court, is to pass a sentence, which reflects the need for the Courts, and the justice system, to protect children from organised depravity, which is evident in these crimes.

50It is somewhat rare for this Court to have such sadistic material put before it.  As I say, you could only say, even having the matter orally and verbally described, without having to see it, the material involved was as revolting as I have had to endure.

51And I say, against that of course must be considered the subjective factors that I have referred to and reports, that were put to me by Ms Hartnett.

52I should say that despite the concession given by the Crown at the hearing in September 2016, either in regard to the old legislation as it stood, and certainly in regard to the new legislation, it would not have been my opinion that a sentence involving a community correction order was possible.  The criminality, its degree and culpability is such that that was simply impossible.

53I do not in any way criticise the Crown for making the concession.  They are an independent organisation and they have made the concession.  However, I find, be it September last year, under the old legislation, or now, there is no way that this Court, passing an appropriate sentence for this degree of criminality and  type of pornography, could have countenanced a combined sentence.  That is, certainly one year of imprisonment is totally inadequate and two years, in my view, would also have been inadequate.

54It is also important, as recommended in the Forensicare report for Mr O'Connor to undertake the SOATS Program. Because of the matters referred to in the Forensicare report, I will order that Madam Associate, these three reports be forwarded to the authorities and a note made on the sentencing documentation of concern of the Court as to M O'Connor's treatment in gaol, demonstrated from his depression and PTSD issues.  That is, that there will be need for appropriate treatment by the authorities of Mr O'Connor.

55Mr O'Connor, I am now going to pronounce a gaol sentence on you.  I have determined it would not be an appropriate sentence to combine that with a community correction order.

56If you would stand up please.

57Mr O'Connor, for this one charge, you will be sentenced to a period of imprisonment of four years.  I order that the period that you must serve before being eligible for parole is two and a half years.

58Pursuant to s.18 of the Sentencing Act 1991, I understand this is agreed 85 days pre-sentence detention that you have served to date, will be deemed as service of this sentence.

59MS HARTNETT:  Yes, Your Honour.

60HIS HONOUR:  Hence, before you will be eligible for parole, will be necessary for you serve the period of two and a half years, less the 85 days.

61Also, can I advise you that it is most important that you undertake the SOATS Program.  The view taken by the authorities, irrespective of what the Court sets in regard to a minimum period, is that you do not get parole unless you do the SOATS Program.  So, there we are.

62I will make the disposal orders sought.  I made the order under 464ZF as to the forensic order.

63In so far as the declaration order under s.6AAA of the Sentencing Act 1991, it is always difficult in a multifactorial case such as this to determine what would have been the sentence had you not pleaded guilty. It is important however, for you to recognise the benefit of pleading guilty, and I tell you now that had you not pleaded guilty, the sentence I would have imposed for your criminality is not four years, but five years and four months, and the minimum period that I would have imposed is not two and a half years, but three years and four months.

64Therefore, essentially on the top, Mr O'Connor, I am giving you a sentence of four years.  Had you not pleaded guilty, the sentence would have been five years and four months.

65Yes, you can take a seat.  Any matters that I need to attend for from either counsel?

66COUNSEL:  No, Your Honour.

67HIS HONOUR:  All right.  Mr O'Connor can be taken away.  Good luck, Mr O'Connor.  Is this the forensic order?  All right.

68MS VERKADE:  Thank, Your Honour.

69MS HARTNETT:  As Your Honour pleases.

70HIS HONOUR:  Thank you both.  Ms Tipstaff, tell me when we are ready to go.

‑ ‑ ‑