Director of Public Prosecutions v Palliser

[2015] VCC 1264

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-12-01102
CR-13-00250

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNETH PALLISER

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2015 – 7 May 2015 9Trial CR-12-01102; 25 August 2015 (Plea CR-12-01102 and CR-13-00250)
DATE OF SENTENCE:	8 September 2015
CASE MAY BE CITED AS:	DPP v Palliser
MEDIUM NEUTRAL CITATION:	[2015] VCC 1264

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REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:              Sentence – Trial (CR-12-01102) – Findings of guilt - Three charges of transmitting child pornography and two charges of unauthorised modification of data with intent to commit a serious offence (Commonwealth offences) and two charges of knowingly possessing child pornography (State offence) -  Plea of guilty (CR-13-00250)- two  charges of failing to comply with reporting obligations under the Sex Offenders Registration Act 2004 – Relevant criminal record – Schizoid avoidant personality traits - Past history of depression and long standing anxiety disorder complicated by chronic long term use of prescription medication – Moderate to severe substance use disorder

Legislation Cited:       Sex Offenders Registration Act 2004; Sentencing Act 1991
Cases Cited:              DPP (CTH) vD'Alessandro [2010] VSCA 60

Sentence:Total Effective Sentence 6 years’ imprisonment commencing on 8 September 2015 with a minimum of 4 years’ imprisonment -  124[BH1] days pre-sentence detention declared as having been served – s.6 AAA Sentencing Act 1991 declaration (CR-13-00250) – Already registered on Sex Offender Register

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APPEARANCES:	Counsel	Solicitors
Director of Public Prosecutions	Mr C Mandy	Commonwealth Director of Public Prosecutions
Offender	Mr K. McDonald	Michael Gleeson Lawyers

HER HONOUR: 

1Kenneth Palliser following a trial, you were found guilty of the following offences:

2Three charges of transmitting child pornography and two charges of unauthorised modification of data with intent to commit a serious offence; these offences are contrary to the Commonwealth Code and the maximum penalty for each of them is 15 years’ imprisonment.

3You were also found guilty of two charges of knowingly possessing child pornography which is a State offence and carries a maximum penalty of 5 years’ imprisonment.

4Further, you have now pleaded guilty to 2 charges of failing to comply with reporting obligations under the Sex Offenders Registration Act 2004 which has a maximum penalty of 5 years' imprisonment.

5The maximum penalties reflect the seriousness with which the Commonwealth and State Parliament, as the case may be, regards the offences.

6The basis on which I sentence you is as follows:

Re charges 1-3 on trial indictment:

7Having set up a false Facebook persona, ‘Annette Vanderson’, at some point on or before 2 September 2010, on or about that date, you posted on the Facebook wall of three teenage boys, all of whom attended the same High School, images of child pornography. From descriptions of the images, it appears that the images came within Category 1 of the CETS ‘scale’. Two of the victims were 15 years old and one of them was 16 at that time and were all school friends of another boy to whom you sent the images, a child whose father had previously represented you in respect of charges in 2006. You had repaired this boy’s computer and it is believed that this is how you gained access to his friends.

8It is evident from material relied on by the Prosecution at the plea hearing that the child pornography which you posted on the wall of one the victims had been viewed by friends of his. This was due to the security settings that he had on his Facebook account, a matter which was outside your control, but which meant that a larger audience was or could have fallen victim to your offending. Further, there was a link to the virus containing child pornography on each of these Facebook postings.

9Insofar as charges 4 and 5 are concerned, I sentence you on the basis that you created the child pornography virus which was unleashed into the computers of the fourth and fifth victims upon the respective victims clicking on a link entitled Myki training joke and performing any step in respect of a bogus survey.

10The basis for the possession of child pornography charges is that in the course of the police investigation, a number of child pornography images were found on your computer equipment. These were in the form of thumb cache images rather than the original images to which they related, and I sentence you on this basis.

11It is clear that the gravamen of your offending is in respect of Charges 1 to 5.

12Your offending was sophisticated and involved careful pre-planning whereby you used your considerable skills with computers to confront as many people as possible including children, with child exploitation material. You also took elaborate measures to ensure that you covered your tracks. I regard these aspects of pre-planning and track covering as aggravating features of your offending.  

13Whilst I accept that your intent was to confront as many people as possible including children with child pornography, I can and must only sentence you for what you have been charged with and found guilty of, not for what you might have done or in respect of the other children who received the postings of the images. However, your purpose is relevant in assessing your moral culpability. The fact that you were in the process of developing a screen saver which would also carry the virus, although not the subject of any charge, indicates that you had not decided to desist from offending. If you had decided to stop such activity of your own accord, this would have been a mitigating factor, so I sentence you on the basis that there is no such mitigation in this regard.

14Insofar as the Myki training virus was concerned, your intention was to confront unsuspecting members of the community, including children, with 45 images of child pornography, of various gradations of depravity. These were categorised by Victoria Police under the CETS classification system as follows:

·    23 category 1 images, depicting posed child nudity;

·    6 category 3 images, depicting non-penetrative sexual activity between children and adults; and

·    16 category 4 images, depicting penetrative sexual activity between children and adults.

15In possessing and seeking to distribute child pornography, you have played a significant role in the evil trade of the sexual exploitation of children, who are helpless to control their abuse at the time. Nor can they control the distribution of their images in perpetuity by depraved individuals like you. In assessing your moral culpability I have factored in the number and nature of images which were in your possession and those which you distributed. The material which is the subject of the possession charges was contained within small thumbcaches, rather than being larger, more discernible images.  I have also factored in that you did not distribute any of the material for profit, although in the unusual circumstances of your case, such a motivation would have at least targeted like-minded individuals, one would have thought, rather than unsuspecting ones.

16The law makes it clear that general deterrence is of primary concern in cases such as this, and limited weight can be given to prior good character.

17The factual basis for the plea indictment is that  on 6 July 2010 and 5 July 2011, you failed to provide to the police a number of email addresses that you had created, only providing one address on the first occasion and two on the second. However, the police discovered that you had 14 email addresses, although the prosecution allows that you may not have recalled one of these. You denied the ownership of another of the email addresses, however, this particular address was used by you during the course of the offending which is the subject of Charges 1 to 5 on the trial indictment.

18I also factor in that you committed the offences before me whilst on the Sex Offenders Register.

19Your offending, in particular Charges 1 to 5, is most serious and calls for a punishment which is just in all of the circumstances. Your conduct must be strongly denounced and strong weight must be given to general deterrence in a bid to deter others from behaving as you have.

20You have run a trial in relation to all of the charges for which I sentence you, except the Sex Offender Registration charges, and therefore, remorse is not a factor which you can count in your favour insofar as the trial matters are concerned. You have every right to run a trial and are not to be punished for doing so, however you have forfeited any discount which would attach to pleas of guilty. In relation to the plea indictment, your plea came late and I am not satisfied that it is a manifestation of remorse.

21However, in your favour, I do factor in that you instructed your Counsel that you did not want any of the victims in respect of Charges 1 to 3 or any other child witnesses subjected to cross examination and made appropriate concessions in the running of the trial to avoid this happening.

22In respect of the Sex Offender Registration matters, these were also listed for trial, however, you decided to plead guilty to these. In sentencing you for these matters, I take into account the stage at which you entered your pleas of guilty and I allow for an appropriate discount in saving the witnesses the time and trouble of giving evidence and saving the community the time and expense of a trial.  I also factor in that there was no Committal proceedings.  I also make some allowance for the apparent fact that you might have forgotten some dormant email addresses, however, this could not have been the case for the majority of those which you failed to report.

23In sentencing you, I do so on the basis that, fortunately, the child pornography which you disseminated was not viewed by many victims, although this was no thanks to you. In creating a child pornography virus and attaching photos to Facebook accounts of children and by disguising the virus as a Myki survey, there was the potential for this to go much further than it actually did.  This was your intent. However, as I have said, at the end of the day, only several victims actually saw the images, and I sentence you in respect of the victims referred to on the indictment, whilst finding that your moral culpability is high.

24You have prior convictions, which are most relevant:

25On 29 June 2007 at the Melbourne Magistrates Court, you were convicted of 16 charges of knowingly possessing child pornography, 13 charges of intentionally contaminating goods causing public alarm and anxiety, one charge of recklessly contaminating goods causing public alarm and anxiety and one charge of printing child pornography. You were sentenced to a total effective sentence of 12 months' imprisonment which was wholly suspended for two years and you were placed on the Sex Offenders Register for life.

26These prior matters related to you printing out images of child pornography and over the course of two weekends, disseminating them in various shops and a toilet in a number of shopping centres in the Eastern suburbs. You placed the images in places where members of the public, including children, could readily find them, and this is what occurred.

27Your purpose on that occasion was evidently the same purpose on the occasion for which now I sentence you insofar as the trial is concerned, and it is a most disturbing one.

28Six months after the operational period in respect of these prior matters had expired, you commenced preparation for the offences insofar as Charges 1 to 5 on the trial indictment are concerned.

29These matters are relevant to your prospects of rehabilitation, and specific deterrence.

30I take into account the material tendered on your behalf in respect of your mental health.

31Dr Dion Gee Forensic psychologist assessed you on 2 June this year whilst you were on remand and you did not present with any acute major mental illness although he said that you had certainly presented with past evidence of depressive pathology and a "seemingly long-standing anxiety disorder." However, he said that the latter was complicated by your chronic long term use of prescribed Benzodiazepines. He said that you presented with a moderate to severe substance use disorder but that this was now in early remission because you were in a controlled environment. He said that your substance use had had "a considerable impact on (your) ability to cope with distress, contributed to (your) general level of interpersonal dysfunction, and may have mediated (your) aberrant behaviour." Dr Gee was of the view that you might have a neuro-developmental disorder but that this would require specialist assessment.

32It was with this in mind that I adjourned the matter to explore whether you did have such a disorder. The outcome of the specialist assessment conducted by Christine Canty, Neuropsychologist on 7 August this year, was that you do not. She said that your "cognitive profile was one of average to above average general intellectual skills and memory functioning with particular strengths in verbal comprehension, social reasoning skills and visual memory, and relative weaknesses in speed of processing, working memory and integration of visual and spatial information." She said that reports of your poor emotional awareness and lack of significant emotional relationships may be more consistent with schizoid-avoidant personality traits which were found to be clearly and significantly indicated in the personality assessment performed by Dr Marziano in 2006.

33It was not submitted on your behalf that you suffered any impairment of mental functioning which impacted on your moral culpability or which ought reduce the weight that would otherwise attach to specific or general deterrence. However, I take into account the matters set out in each of the expert reports in a general way. I am also satisfied that time in custody will be harder for you than for someone without these mental health issues, insofar as they can be ascertained.

34I also take into account that whilst on remand, you have been in protective custody and subjected to lock down, which led to you being hospitalised for two days as a result of stress and anxiety. I understand that you had been placed in protective custody since an incident occurred with another inmate. You have therefore been subjected to harsh conditions, making time in gaol harder for you than for someone without these conditions. Once you are sentenced, you will not be subjected to the lockdown situation, and it is uncertain as to whether you would continue in protective custody. However, this is your first time in gaol and you are 62 years old which are matters that I have taken into account in sentencing you.  

35Bearing in mind that evidence of good character is of limited weight in cases such as this, I accept that until you reached 53 years of age, you were a hard-working and law abiding citizen. You were an attentive carer for your housemate and long-time friend, Mr Hutchinson, until he passed away recently. You have a number of friends who speak very highly of you, and who say that you have made significant contributions to their lives and to the community.  

36I take into account your background. Sadly, you parents and one of your brothers are deceased. You have a sister and brother who live in Queensland. You left school after Year 10, largely because of bullying and truancy.  You then worked for the PMG which later became Telstra. You joined a ham radio club at about the time you commenced work, and it was through this club that you became friends with Mr Hutchinson.

37In about 1997 you set up your own company, Eastern Digital, and after accepting a redundancy package from Telstra in 2006, you ran this company full time, repairing computers and as a computer consultant.

38You had a major health scare at about the time you left Telstra, which turned out to be unfounded. However, this caused you a good deal of stress. You felt rather lost after leaving Telstra, and it was in these circumstances that you committed the 2006 offences.

39You have never had a partner in life. You were a devoted friend and carer to Mr Hutchinson, and the impact of his death upon you has been immense.

40Mr Gleeson, who appeared at the plea on your behalf, told me that you were open to receiving treatment in respect of your offending, however, this has to be seen in the context of you maintaining your denial of any wrongdoing insofar as the trial matters are concerned.

41Mr Gleeson submitted that the fact you were on the Sex Offenders Register for life ought give me some assurance in respect of the risk of re-offending, and also referred me to the view expressed by Dr Gee insofar as such a risk is concerned. I am afraid that the first matter is of little comfort in view of the fact that you offended in a more sophisticated and purposeful way whilst on the Sex Offenders Register and also failed to notify police of relevant email addresses. As to the second matter, I factor in the risk assessments carried out by Dr Gee, but bear in mind the limitations that accompany the first assessment referred to at paragraph 36 of his report.

42Whilst I have little doubt that gaol is having and will have a salutary effect upon you, and bearing in mind that you are an intelligent man, in view of your lack of remorse and insight in respect of the current offending, against a backdrop of your most relevant criminal history, and factoring in all relevant considerations in your case, I regard your prospects of rehabilitation as fair at best. I must give not insignificant weight to specific deterrence and protection of the community. Indeed, as you are to be sentenced as a serious sexual offender for the purposes of Charges 1 to 3 on the trial indictment as well as Charges 6 and 8 on that indictment, protection of the community is the principal purpose in sentencing you for those offences. However, it was not submitted by Mr Mandy that a disproportionate sentence ought be imposed in order to achieve this purpose, and I do not intend to do so. A sentence which adequately addresses all relevant sentencing principles can be achieved by applying the principle of totality.

43Mr Gleeson submitted that in view of the matters referred to by Dr Gee in respect of your need for treatment and to have some hope, that a period of imprisonment in combination with a substantial Community Corrections Order would be appropriate in your case. He made a secondary submission that a sentence of imprisonment with a low non-parole period would be open in your case. Mr Mandy submitted that a period of imprisonment plus a Community Corrections Order was not open. He submitted that a term of imprisonment with a suitable non-parole period was appropriate. He referred me to another case and made some comparisons with yours; however, the differences are rather stark, so that this other case is of limited assistance in terms of sentencing practice. In saying this, I make no criticism of Mr Mandy.  Your case is so unusual that finding some guidance from like cases is most difficult and I accept that he did what he could.

44I have considered the submissions on behalf of each of the parties and the weight which I must attach to all relevant sentencing considerations. I am afraid that a sentence of imprisonment combined with a Community Corrections Order will not adequately address all of these, and I am of the view that a shorter than usual non-parole period to any degree is not warranted in your case. However, I have imposed a sentence which I consider to be appropriate in all of the circumstances.

45Would you please stand up Mr Palliser.

46You are convicted of Charges 1 to 6 and Charge 8 on the trial indictment and of Charges 1 and 2 on the plea indictment.

47You are to be sentenced as a serious sexual offender in respect of Charges 1 to 3 and 6 and 8 on the trial indictment which will be noted on the records. Because of this there is a presumption of cumulation, however, I intend to cumulate in respect of other charges as well because of separate instances of offending involving separate victims insofar as the trial indictment is concerned and your breach of the Sex Offender Register also warrants a level of cumulation.

Sentences on State matters

48I first intend to sentence you in respect of the State matters, both on the trial indictment and plea indictment.

49In relation to Charges 6 and 8 you are sentenced to 9 months’ imprisonment for each of these and in respect of Charges 1 and 2 on the plea indictment you are sentenced to 6 months’ imprisonment for each of these. I direct that 1 month of the sentence imposed on Charge 8 and 1 month from the plea indictment be served cumulatively with each other and with the sentence imposed on Charge 6, giving a total effective sentence of 11 months’ imprisonment. That sentence would start today.

Sentences on trial indictment for Commonwealth matters

50In relation to Charges 1 and 2 on the trial indictment, you are sentenced to 3 years' imprisonment and in relation to Charge 3, you are sentenced to 3½ years' imprisonment. In relation to Charge 4, you are sentenced to 2 years' imprisonment and in relation to Charge 5 you are sentenced to 3 years' imprisonment. 

51The sentence in respect of Charge 1 is to commence 5 months before the expiration of the total effective sentence (11 months) for the state matters.

52The sentence in respect of Charge 2 is to commence 2 years before the expiration of the sentence on Charge 1.

53The sentence in respect of Charge 3 is to commence 30 months before the expiration of the sentence on Charge 2.

54The sentence on Charge 4 is to commence 18 months before the expiration of the sentence on Charge 3.

55The sentence on Charge 5 is to commence 30 months before the expiration of the sentence on Charge 4.

56It is my intention to impose a total effective head sentence of 6 years' imprisonment and to impose a non-parole period of 4 years’ imprisonment.

57On my calculation, the sentences that I have just imposed in relation to the Commonwealth matters produces a total effective sentence of 6 years’ imprisonment and I fix a non-parole period of 4 years' imprisonment.

58I also declare that you have already served 124 days by way of pre-sentence detention which I will declare as already having been served. 

59In relation to the plea indictment, I give a s.6AAA indication that if not for pleas of guilty I would have sentenced you to 12 months' imprisonment in relation to each of those matters and made appropriate orders for cumulation such that I would have imposed 14 months' imprisonment total effective sentence.

60Is there any difficulty with the way I've expressed that sentence?  Does it add up to what I intend?

61MR MANDY:  I will just check, Your Honour, if - - -

62HER HONOUR:  All right, do you want me to stand down while you do that?

63MR MANDY:  Yes, that might be - - -

64HER HONOUR:  Yes, very well, thank you. 

(Short adjournment.)

65HER HONOUR:  Yes.

66MR MANDY:  Your Honour, you said that your intention was to impose a total effective sentence of 6 with a four year non-parole period in respect of the Commonwealth matters.

67HER HONOUR:  Yes.

68MR MANDY:  I take it that your intention was that that global sentence was to start in six months' time after the service of six months of the State charges on Counts 6 and 8 and the Sex Offender - - -

69HER HONOUR:  I was actually - I had more in mind, an overall global figure of six years with four years to take in the State sentence as well.  But I see what you're saying, that I've added - yes.

70MR MANDY:  So the only query - it is six with a four.  So the sentences, as Your Honour's announced them, expire on 8 September 2021, so that's six years from today.  The only query that I have is whether or not Your Honour intended there to be cumulation for Charge 5. 

71HER HONOUR:  I did intend to have cumulation for Charge 5, yes.

72MR MANDY:  Because the way the order is now expressed is that Your Honour has indicated that that sentence is to commence 30 months before the expiration of the sentence on Charge 4 but the sentence on Charge 4 is only two years.  So if that was to start 30 months - before that sentence it would start before Charge 4 starts.

73HER HONOUR:  Yes, I understand that.  So what's then a better way to express that while retaining the total effective sentence?

74MR MANDY:  You can express it in the way that Your Honour has because if Your Honour's intention is a global effective sentence of six with a four or at least six, leaving aside the four, it is six as Your Honour's announced it and there isn't an error in the way that Your Honour's announced it. 

75HER HONOUR:  I did want to give effect to cumulation but not at that expense of totality so, as I say, my overall intention approaching the whole matter from a totality point of view was to accommodate cumulation as much as I could but not at the expense of totality.

76MR MANDY:  Yes.

77HER HONOUR:  So are you saying that if I leave it as is then that will give effect to my intention?

78MR MANDY:  Yes.

79HER HONOUR:  Yes, very well then and the overall total effective sentence would be?

80MR MANDY:  Six years starting from today and Your Honour's announced a four year minimum with a declaration of 124 days.

81HER HONOUR:  Yes, very well. 

82MR MANDY:  Your Honour, there might be one other issue and my instructor is just asking for 10 minutes so that he can get some instructions about it.

83HER HONOUR:  I have a trial that's supposed to be starting now.  I'm just wondering, I won't have these orders to be signed or entered into the records until a stage later today.  So even if we reconvene, if it's convenient to the parties, say 1.30 today or - - - ?

84MR MANDY:  I've got to head out to Sunshine.  We could do it tomorrow morning. 

85HER HONOUR:  It's just that I have to - there is the slip rule; if there's any difficulty with an aspect of the sentence then there is the slip rule that can be applied.  But I need to have the orders for the time being at least entered into the records so that Mr Palliser's sentence effectively starts and then if there are any adjustments to be made then they can be made under that rule.  So are you content then for - - - ?

86MR MANDY:  I'll tell Your Honour what the query is, that Your Honour's indicated that Mr Palliser is to be sentenced as a serious sexual offender in respect of Counts 1 to 5, the Commonwealth counts.  It's that aspect that we're - - -

87HER HONOUR:  No, I didn’t intend to indicate that.  Sorry, I should have said it's in relation to 1 to 3.

88MR MANDY:  I'm instructed that although in D'Alessandro I think the Court of Appeal adopted the approach of sentencing in relation to transmitting child pornography as a serious sexual offender, my preliminary instructions, and this is what's been checked, is that in relation to those Commonwealth counts that State sentencing provision doesn’t apply.

89HER HONOUR:  That's interesting because it seems to be an offence that's listed in the Schedule of the Sentencing Act.

90MR MANDY:  So what I'm instructed is that if someone has previously been sentenced for that Commonwealth provision, that will count towards the calculation as to whether or not they are a serious sexual offender for the sentence that's being imposed on them but doesn’t count as a serious sexual offender if they're being dealt with for that offence.

91HER HONOUR:  I see.  I would appreciated some assistance sooner than this because that was - Mr McDonald's written submissions indicate that and I understood that that wasn’t a difficulty from the Commonwealth's point of view.  But you say that that might be something that doesn’t warrant the serious sexual offender provisions.

92MR MANDY:  Yes.

93HER HONOUR:  All right.  I can indicate that in any event cumulation would have been warranted but the only difference would have been that there wouldn’t have been noted that Mr Palliser would be sentenced as a serious sexual offender in respect of those charges, notwithstanding that I would have imposed cumulation - - -

94MR MANDY:  And the same sentences.

95HER HONOUR:  Yes and the same sentences.

96MR MANDY:  Because Your Honour did indicate that you weren't imposing a disproportionate sentence but that protection of the community was a
focus - - -

97HER HONOUR:  Very well, if you want to check that aspect and that's the aspect you're wanting to look at then we can reconvene tomorrow morning once you’ve clarified that aspect.  In fact, I have two matters tomorrow morning.  It would be best, from my point of view, if we reconvened on Thursday at 9.30 if that's an aspect you wish to address me on further.

98MR MANDY:  I think that - the instructions that I've just got is the position.  So it's a question of whether or not that changes the focus of Your Honour's sentence in any way. If it doesn’t then - - -

99HER HONOUR:  So you're saying that it is the position that in relation to Charges 1 to 3 on the trial indictment that Mr Palliser cannot be sentenced as a serious sexual offender because of the Commonwealth's- - -

100MR MANDY:  Because he's being sentenced as a Commonwealth offender and that when he's sentenced as a Commonwealth offender that section of the State Sentencing Act doesn’t apply to those sentences.

101HER HONOUR:  Yes.

102MR MANDY:  Even though, as Your Honour notes, it counts towards that calculation if you’ve previously been sentenced.

103HER HONOUR:  In that case then, as I've indicated previously, I would have sentenced in the same way because of other matters such as separate offending, separate impacts on victims and therefore it does not impact on the sentences that I impose but insofar as I've made reference to Mr Palliser being sentenced as a serious sexual offender in respect of Charges 1 to 3, I vacate those remarks.

104MR MANDY:  Thank you, Your Honour.

105HER HONOUR:  All right.  Are they the matters?

106MR MANDY:  Yes, Your Honour.

107HER HONOUR:  Yes, thank you.  Anything, Mr McDonald?

108MR McDONALD:  Nothing from our end, Your Honour.

109HER HONOUR:  Yes, thank you.  Yes, you may remove Mr Palliser.  We will now adjourn. 

- - -

[BH1]