Director of Public Prosecutions v Ortell

[2016] VCC 1459

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01340

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASHAN ORTELL

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 October 2016
CASE MAY BE CITED AS:	DPP v Ortell
MEDIUM NEUTRAL CITATION:	[2016] VCC 1459

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Burnside	OPP
For the Accused	Mr D. Glynn

HER HONOUR: 

1Ashan Ortell, you have pleaded guilty to one charge of knowingly possessing child pornography.  The maximum penalty for that offence is five years' imprisonment.  The prosecution made an application for the disposal for certain items being computer equipment on which you had certain images stored.  Ultimately, that application was not opposed.

2The circumstances of your offending are set out in the Summary of Prosecution Opening upon Plea which was tendered as Exhibit A.  In brief, the circumstances are as follows.  You found pictures on the phone of your ex-partner’s daughter.  She was then 15 or 16.  You realised that what she had been doing was what is called "sexting" with her boyfriend who is also a young person of around the same age. You took her phone from her. You contacted school authorities and then the police in relation to all of this. You gave the phone back to your stepdaughter after she asked for it back. You made copies of the images of your ex-partner’s daughter and her boyfriend which you kept on your computer and on USB sticks.

3Your computer devices were seized by police on 16 August 2013 and then on 13 September 2013, a further search warrant was executed at your address and the police found a small bag with a USB device containing a file with text messages containing the images of the complainant and her boyfriend.  Two additional USB devices and a laptop computer containing the same images were also seized by police.

4Your reason for copying the images was, you said, because you wanted the authorities to take some action in respect of these activities.  You said that you would keep the images until you received some satisfactory response.  You, as I said, contacted the authorities but apparently were not satisfied with the response and continued to hold the images despite at one stage being told by the police to delete them or been told by police that you should not have possession of such images.

5In sentencing you, I have taken into account your personal circumstances as outlined by your counsel.  It is of particular significance that you have no criminal history and that you were at the time of this offending caring for your ex-partner’s daughter and your three younger children.  You and your ex-partner had separated sometime earlier.

6You have worked in various jobs but since about 2009 you have been the carer for your children and for a subsequent child you have from another relationship.

7This is a very unusual case.  The law says that people may not keep images of a sexual nature of children.  Usually, such images are kept for sexual motivation.  That is not the case in your situation.  You kept the images, I am satisfied, because you were very concerned about what had been going on and foolishly decided that this was the way to deal with it. Nevertheless, the message has to get out to everybody that sexual images of children must not be kept on computers or any other form of equipment.  This case also illustrates some of the difficulties that can arise when young people engage in sexting which unhappily is apparently becoming more prevalent.

8In my view, this offending is at the lowest end of this type of offending in terms of moral culpability.  There are a small number of images, there being 18 images in all.  You took no part in the production or downloading or creation of these images.  The images were made by your ex-partner’s daughter and her boyfriend.  There is no suggestion of any exploitation of them by anybody.  You made no attempt to conceal the images. In fact you were so concerned that you contacted the authorities about the images.

9There may have been some potential for harm in you keeping the images and your ex-partner’s daughter and her boyfriend knowing about that, but there is no victim impact statement and I cannot assess whether there was any of that type of harm caused.  This is very different from the usual situation where children are exploited for the gratification of others.  The distribution and reuse of such images is a dreadful harm to this children and to the society in general.  This is a very different sort of situation.

10You pleaded guilty at an early stage.  That plea of guilty indicates your acceptance of your legal responsibility and some remorse although of a somewhat limited nature given the circumstances of the offending.

11You have no prior criminal history.  You are entitled to considerable credit for that given that you are 57 years old and have not been in trouble with the law.  I consider that you have excellent prospects of rehabilitation. 

12I consider that specific deterrence has already been achieved. Having gone through this process, I consider it extremely unlikely that you would ever retain sexual images of children ever again.  There has been considerable delay due to other matters having to be dealt with.  This matter has been hanging over your head for some time and you have not further offended.

13Community protection is not required given your excellent prospects of rehabilitation.  Denunciation and general deterrence do remain as sentencing considerations but any sentence imposed must of course be proportionate to the gravity of your offending.

14There will be some level of punishment to you in the confiscation of your hard drive and laptop and USB sticks.  You will be convicted and conviction also is punishment in itself.

15In the circumstances of this case, I consider that if you agree or consent, the appropriate disposition should be an undertaking to be of good behaviour for a period of 12 months with conviction.  I consider that a community correction order would in this case be excessive.  I note the submissions put forward by the prosecution but in my view in terms of punishment, a community correction order would be out of proportion to the gravity of the offending.  There is no suggestion that a community correction order is required for rehabilitative purposes.

16Could you please stand up, Mr Ortell.

17Mr Ortell, are you prepared to make an undertaking to be of good behaviour for a period of 12 months?  What the order will say is that you are required to attend court if you are called upon to do so.  As long as you behave yourself and do not cause any problems then you will not be called up to court.  I am going to be giving you some documentation in a minute but there is a warning attached to it.  If you break the conditions of the undertaking, you may be punished for any offence that has been adjourned on your agreeing to enter this order.  You may be punished for failing to be of good behaviour.  In addition for being punished for either of those, you may also be fined.  So it is very important that you make sure that you completely stick to the law for the next 12 months.  Now I am going to sign that order as you have indicated that you will consent to it.

18I have also made the disposal orders that were sought.  The offence to which you have pleaded guilty is a Class 2 offence for the purpose of the Sex Offender Registration Act 2004. That means that you will be required to comply with the reporting and other requirements of that legislation for a period of eight years. Now in a moment my associate is going to come with the adjourned undertaking and ask you to sign that to show that you have consented to that. She will also provide to you a copy of the Sex Offender Registration Act requirements.  You will be asked to sign a document saying that you have received that, so all that you will be asked to do is to sign an acknowledgement that you have received that document. 

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