Director of Public Prosecutions v Patten, Leslie Charles
[2013] VCC 745
•5 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT HORSHAM
CRIMINAL DIVISION
CR-12-01993
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LESLIE CHARLES PATTEN |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Horsham (Plea) Melbourne (Sentence) | |
DATE OF HEARING: | 15 April (Horsham), 5 June 2013 | |
DATE OF SENTENCE: | 5 June 2013 | |
CASE MAY BE CITED AS: | DPP v Patten, Leslie Charles | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 745 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentencing - Using Carriage Service x 2 - Possession of Child Pornography - Lower Level Offence.
Legislation Cited: Criminal Code (Commonwealth) Crimes Act (Commonwealth) Crimes Act (Victoria)
Cases Cited:
Sentence: 6 Month Sentence - Released On Recognisance For 18 Months on Condition of Sex Offender Program.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Sprague | DPP (Commonwealth) |
| For the Accused | Ms Gwynne (Plea) Mr T. Freeman (Sentence) | Tony Hargreaves & Partners |
HIS HONOUR:
Introduction
1 Leslie Charles Patten, you have pleaded guilty to one charge of using a carriage service to access child pornography over the period 30 September 2009 to 14 April 2010, which carries a maximum penalty of 10 years’ imprisonment, (s.474.19(1) Criminal Code Commonwealth), a second charge of accessing child pornography using a carriage service over the period 15 April 2010 to 26 March 2012, which carries a maximum penalty of 15 years’ imprisonment, and a charge under the Crimes Act 1958 (Vic) of knowingly possessing child pornography on 26 March 2012, which carries a maximum penalty of five years’ imprisonment.
2 The circumstances of the offences are set out in the Crown opening, which was read in open Court, and I will not repeat them in any detail. Essentially, as a result of information received by the AFP as to a particular IP address, they found that it had accessed a video file containing child pornography material. Acting on that information, on 26 March 2012 the police from Victorian Ethical Standards Department raided your home, and in the course of that search seized a computer tower as well as finding some separate video discs and a 13 or 12 page document. When the computer was analysed it was found to contain a number of images and videos which were classified according to the Child Exploitation Tracking System. According to the analysis the result was, as set out in Paragraph 11 of the opening, 88 Category 1 images, four Category 2, five Category 3, eleven Category 4, one Category 5 and 63 Category 6, a total of 172. In relation to videos, one Category 1, three Category 2, three Category 4, a total of seven.
3 The location of the images was analysed and some of them were on a peer to peer software under your profile, some of them were in the recycle bin, some of them were in a backup folder, some of them were described as thumbnail images and some of them were recovered images from the computer.
4 The images were then considered in detail and a sample of them was provided to the Court, and of course they contain the usual terrible images of children, particularly the Category 4 and 5, children being exploited for sexual benefit of adult predators.
5 Also on the material in the computer was found a number of web browser addresses that you had bookmarked including a number that involved bookmark names of "daughter porn, tube, pre-teen models, pedo-teen, girls photography model" and then a number of other sites that were on the web history that include names such as "child rape lover, 15 year old nude girl, assorted cute young, pre-teens, sexy young girls" as set out in Paragraph 15 and 16 of the Crown opening.
6 In addition a computer disk was found which contained a compilation of children under the age of 18 in the various states of undress dancing on the beach in sexually suggestive poses. This had been burnt onto that disk on 25 January 2006. In addition to that a 13 page pornographic story was found entitled "Perverts are us, trailer park kid" which had as an opening introduction saying "the purpose is to stimulate and sustain sexual arousal of paedophiles". This was categorised as Category 4 which is penetrative activity between children and adults and this and the video were the subjects of Count 3.
7 You were interviewed by the Ethical Standards Department and you gave a self-exculpatory account of how you came to be accessing this material. Essentially that you had seen a report on television about someone being arrested for child pornography and then you proceeded to research the matter and download some child pornography in order to try and assist in apprehending any such people. A police investigation indicates that at no time had you been authorised to conduct any such search or examination of child pornography and you never reported having done that to anyone.
8 You were the subject of charges. The matter proceeded to the Horsham Magistrates' Court on 31 October 2012 where, on a hand-up-brief, you pleaded guilty to the charges, and then when the matter came on in the Horsham circuit you also pleaded guilty to the three counts on the presentment.
Seriousness of the offences
9 The seriousness of the offences is to be considered on the basis of the quantum of the images accessed, the period over which they were held and the nature of those images. Here, as set out in Paragraph 7 of the Crown opening, the total number of images is 172. Of these, 12 were at the higher end, being Categories 4 and 5, and there are 63 that are described as animated images which, as submitted by your Counsel, do not involve actual victims. The Crown accepted that although categorised as 6 in the ascending scale of categorisation, they are to be considered as in the lower in the scale of seriousness than those that involve actual victims. From that, it can be seen that about 94 % of the total images that you had accessed were in the lower end of the scale of seriousness, with 87% being in category 1 or 6.
10 That said, however, some of the images at the higher end of the scale in Categories 4 and 5 are, following a perusal of a sample provided, of the usual horrific and degrading nature as seen in this type of material and involving exploitation of young girls somewhere in the world.
11 The next matter to be considered is the circumstances of how the material was accessed. Your Counsel put that there was no use of encrypted passwords or sharing of material with other individuals or even storing them in a position where they could be shared on a later occasion. Indeed, it was accepted by the learned Crown prosecutor that, as set out in paragraph 7 of the Crown opening, around 90 per cent of the images that you were found to have accessed had been found to be deleted or were inaccessible on parts of the computer drive that were seized by the police. This was consistent with what was put by your Counsel that, in fact, you had accessed the material and then proceeded to delete it. Thus, the form in which the accessed material was found by the police when they seized your computer does support the submission that this offending must be seen as in the lower end of the scale.
12 A further matter in relation to the accessing of the material the subject of Charges 1 and 2 was that it involved a course of conduct. You have pleaded guilty to two charges under the Criminal Code Act 1995 (Cth). The two charges are to reflect the fact that midway into your offending the relevant offence penalty was increased by Parliament, thus necessitating two separate offences.
13 A further factor relevant to the seriousness of the offending here is that it was not suggested by the Crown that the accessing was other than for your own use. You were not paying for the material and it was not setup such that you were in a position to share it with others, or even for others to easily access the material.
14 Overall in assessing the objective seriousness of Counts 1 and 2, I regard the relatively low number of items involved, the percentage of them that were in Category 1 and 6, and the fact that the bulk of them had been deleted when found as putting this offending in the lower end of the range of seriousness.
15 In relation to Count 3, which relates to one Category 1 compilation video, and a written pornographic story of around 13 pages, the learned prosecutor accepted that if this count stood alone it would be appropriately dealt with as a summary matter.
16 I accept that concession, and in particular regard the written material as of less potency and not involving the exploitation of children that video or image material involves.
Explanation for offending
17 In evidence was a report from your general practitioner indicating that you had a history of depression, and have some sexual dysfunction. Also in evidence was a report from Wendy Barton Counselling. You had accessed that service on three occasions in May and June 2010 whilst a police officer. She found moderate symptoms of depression and anxiety. At that time you told her that you had been exposed to a number of suicides and fatal accidents in the previous two years.
18 Dr Danny Sullivan, psychiatrist, opines that you had a significant depression that preceded these charges and remains. In Paragraph 35 of his report he says:
"At the time of the alleged offending there was no indication that Mr Patten was unable to make calm or rational choices although depression may have reduced his capacity to think clearly or have impaired his judgment, particularly if his explanation of motivation is accepted".
19
Now the explanation you gave was really disavowed by your counsel but
Dr Sullivan does indicate that depression may have reduced your capacity to think clearly.
20 In the pre-sentence clinical assessment, the clinician opines that it may have been possible that in the presence of lowered mood due to exposure to traumatic events in the police force, you accessed pornography to gain sexual arousal or gratification in an attempt to cope. Your accessing may also have been related to your erectile dysfunction and your relations with your wife.
21 It is difficult to make a definitive assessment. The most important matter that I take from the reports of Dr Sullivan, and the clinician in the Sex Offender Program is that Dr Sullivan regards you as a low risk of re-offending, whilst the clinician places you in the low to moderate category.
22 Also of significance is that since this offending came to light you have engaged with a local counsellor, Ms Neighbour, for depression and anxiety under a mental health plan. You have responded well and she is of the view that counselling ought continue.
23 In the sex offender assessment you have also indicated a willingness to engage in that program.
Matters in mitigation
24 I turn to matters in mitigation. I have of course taken into account all the matters put on your behalf in a comprehensive plea. I have also considered the numerous cases that have been referred to by both the prosecutor and your counsel, even if I have not referred to them specifically in these reasons.
25 You are aged 59 and the Crown accepted that you had pleaded guilty to these offences at the earliest opportunity, having entered a plea to a single charge at the time of the committal.
26 After your arrest you co-operated with the police to the extent that you assisted them to show them where the various materials were found in your house. You participated in a record of interview wherein you minimised your offending conduct and also gave the police an account that sought to minimise your conduct, while admitting that you had committed the offences.
27 There was little evidence of remorse in relation to this offending, although it is sometimes difficult to evidence remorse in circumstances where the victims in this matter are really in an unknown location and unknown to the offender. You did, however, undertake some counselling with a local counsellor. In her report, she indicates that the counselling did address a number of personal issues, including the fact that you had been charged with these offences. It is not clear that the counselling was of itself evidence of insight into your offending.
28 Your counsel relied on a report from Dr Sullivan. He does not refer to you having expressed remorse to him. However, he does provide an explanation for your comments to the police wherein you minimised your involvement in this offending, and he opined that it should not, according to the literature, be held against you in terms of your prospects for rehabilitation. I regard his opinion on this matter as quite significant and a matter relevant to assessing your prospects of rehabilitation.
Your personal circumstances
29 You are, as I said, aged 59. After having left school, you joined the army in 1974 and remained in the service for a period of 23 years, rising to the position of Staff Sergeant. During the course of your career you received two service medals.
30 You married in 1975 and have two children aged 24 and 22 to your wife, who was present in court on the plea along with a number of other family members, including your father. Your wife has profound hearing loss and is on a waiting list for a cochlear implant. Both of your children have been the subject of a difficult upbringing in that one has Asperger’s and the other suffers from depression. Both of them remain at home and are receiving disability support pensions.
31 After you left the army in 1997 you joined the CFA as a volunteer and also worked as a contractor for the railways. In 2001 you joined the Police Force and were able to graduate in the Force and were then assigned to Melton, Maryborough and Warracknabeal stations. You rose to the rank of Senior Constable.
32 In evidence before me were a number of communications from superior officers over the period of your service with the Police Force, giving you commendation for the service to the community through the Force beyond the call of duty. I have taken into account and regard them as important evidence of your service to the community in that office and as going beyond the call of duty.
33 I have also taken into account a number of personal references from family and community members that testify to your good reputation and community involvement.
Your position in the police force
34 You come before the Court with no prior convictions alleged against you and as being a person of good character. As I said, before me were a number of testimonials which indicate your good character and that can also be inferred from your army record, your CFA service, and from your membership of the Police Force.
35 You are entitled, given your prior good character, to have that taken into account as a matter of leniency in the sentencing process. This applies notwithstanding the seriousness of the offending here. The Crown submitted that your good character should attract minimal weight, and cited cases such as R v Gent [2005] 162 A Crim R 29 and DPP v D’Allesandro [2010] 26 VR 477 to that effect. The Crown also referred to cases of R v Nguyen [2004] 149 A Crim R 343 and R v Strawthorn [2008] 185 A Crim R 126 which involved police officers charged with criminal offences.
36 Here, as you were sworn to uphold the law, the fact that you breached the law is a matter that goes against leniency. Your offending has let down all members of the Police Force, and for that reason alone has to be utterly condemned.
37 This applies even though your offending occurred in a personal capacity and time, and did not involve any police equipment or resources. Thus, this offending is to be contrasted with the cases of Strawthorn and Nguyen which involved a breach of trust.
38 Your counsel referred to Ryan v R [2001] HCA 21 in the High Court in support of the proposition that, notwithstanding the offending might involve a breach of trust, then good character is still a matter to be taken into account.
39 A second aspect of the submission was that you have suffered opprobrium within your local community, a small country town. A long time best friend has shunned you. You have suffered loss of face and from being a well known person in the region, engaging with people in your official capacity, you are effectively now in disgrace. In addition to that, you have had to resign from the Force and thus you have suffered a loss of career late in life.
40 Your counsel referred to this as extra-judicial punishment. I would not accept that characterisation and regard the cases of R v Talia [2009] VSCA 260, R v Daetz [2003] 139 A Crim R 398 and R v Chaplin [2010] VSCA 145 that were submitted to me as being distinguishable.
41 The loss of reputation in the local community, loss of your career and shunning are however matters that may be weighted in the sentencing synthesis. Similarly your prior good character, your service to the community, the CFA and the Police Force are also matters on the authority of Ryan at [102], [123] per Kirby J, and [177] per Callinan J are matters that may be taken into account. Notwithstanding that in these type of cases, the Court of Appeal has said that good character has a lesser weight.
42 In Ryan, Callinan J said at [177]:
"Of course the abuse of an office to commit a crime is greatly to be deplored but the crime of a person occupying an office of some prominence will often attract much greater vilification, adverse publicity, public humiliation and personal, social and family stress than a crime by a person not so circumstanced. When these consequences are attracted, they should not be ignored by the sentencing court. So much was conceded and in my view properly so by the respondent. To ignore such matters would be unjust to a prominent person as it would be in the case of a person in a menial position to ignore disadvantages to him peculiar to his position, such as a likely greatly reduced, if not utterly destroyed capacity on release from prison to find any remunerative employment at all. Nor do I think that the appellant should be disqualified from obtaining credit for good character because such good character, as he possesses, has been gained in otherwise diligently doing his duty as a priest. Not everyone in a calling performs as well or as diligently as another or other persons in it. One who does conscientiously perform his or her duty is entitled to the benefit of his or her reputation and character for so doing and to acknowledge that some occupations such as perhaps teaching, nursing, the clergy and the armed forces may attract well-motivated men and women and give them special opportunities to perform public service is not to disparage or demean others."
43 So I take that quotation into account in sentencing you.
44 Your Counsel submitted that the fact that you were a serving police officer at the time of this offending should not be given undue weight, as this behaviour was divorced from your role as a police officer and I accept that submission.
45 Overall, while good character has lesser weight in these circumstances in this type of offending, you are entitled to the benefit of your good character and also the loss of reputation and career associated with this offending to be taken into account in the sentencing synthesis.
46 Your Counsel emphasised your good prospects of rehabilitation. She did this on the basis that your good character until this offending shows that you are a person with good internal mechanisms, which would indicate that with family support and appropriate supervision you will be able to put this offending behind you.
47 The Crown on the other hand submitted that your prospects of rehabilitation should be regarded as guarded. I do not accept that submission and I am prepared to accept the submission that your prospects for rehabilitation are good given the support of your family, the generally positive report from Dr Sullivan and also the generally positive assessment by the sex offender program.
48 As I said, I take into account the fact that you have lost the camaraderie that goes with dealing with members of the public over a wide area of the Wimmera and that you will be shunned in going about your business in a small country town.
Purposes of Sentencing
49 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into the community.
50 The Crown referred me to a number of authorities in relation to dealing with these matters. In dealing with you under the Crimes Act of the Commonwealth, I am also required to have regard to the matters in s.16A and s.17. I am required to regard imprisonment as a sanction of last resort and also implicitly to regard general deterrence as a paramount consideration.
51 I have considered all the submissions by the prosecution and also the responding submissions by your counsel. The most important factors that I have taken into account in deciding not to accede to the submission by the prosecutor that there should be a term of imprisonment to be immediately served are the fact that the bulk of the material had been deleted rather than shared or stored for sharing. I have also considered the relatively low percentage that were in the higher category of seriousness. I have taken into account your prospects of rehabilitation and your prior good character and my assessment of your prospects of rehabilitation and the fact that you have family support and your wife particularly is loyal to you.
52 I have also taken into account the fact that you have engaged in counselling with Ms Neighbour since this occurred, although it does not appear that you have addressed the issue of this offending in that counselling at this stage, but your prior good character is a significant matter in your prospects of rehabilitation.
53 Your counsel submitted that a disposition that did not involve your withdrawal from the community would be the most appropriate. Having weighed the matter anxiously, I am prepared to exceed to that submission. I do so cognisant of the matter stated by Nettle JA in DPP v Smith [2010] VSCA 215 at [23] that a sentence of imprisonment to be served is not always inevitable and, having considered that case and the two footnoted cases that he referred to in that paragraph, I have chosen to place you in that category where a sentence of imprisonment is not to be served immediately.
54 I have also had regard to the sex offender program assessment that indicates that you are of low to moderate risk of re-offending, but clearly you need to engage in that program for the relevant period. I particularly refer to p.13 of that assessment, where the assessor says:
"Although Mr Patten may have held cognitive distortions surrounding children as sexual beings at the time of his offending, in addition to a general sense of inadequacy which appear to have both precipitated and perpetuated his offending, he did not demonstrate pro-offending attitudes or belief and demonstrated a response indicative of shame post offending."
55 She goes on:
"Potentially serving to mitigate future offending by Mr Patten may be the perceived or actual threat of additional loss. Mr Patten's current loss of a career, friendships and status appear to have had a significant impact on his overall wellbeing, which may act as a deterrent for future offending. Mr Patten has retained the support of his family and newly acquired friendships, potentially by partial/minimised disclosures of his offending. Although this may result in his support network being unable to assist him to identify situations of risk and support him to implement risk management strategies, the loss of his current supports that may occur upon further re-offending would appear to be a daunting prospect for Mr Patten."
"Furthermore, Mr Patten's recent attempts to seek assistance at times of personal hardships in addition to his willingness to gain insight to his offending via attendance at the sex offender program may also be a mitigating factor."
56 I have also noted another decision of Judge Mason that was cited to me by defence counsel in reaching the conclusion that a sentence of imprisonment not to be immediately served is within range.
57 I regard the community interests as best served here by a sentence that contains denunciation in terms of a sentence of imprisonment to be suspended and a requirement that you engage with the sex offender program for a period of 18 months under the supervision of the Horsham Community Corrections Office.
58 So, provided you are prepared to consent, I propose to sentence you to a term of imprisonment of six months on Counts 1 and 2, such sentence to be served concurrently, but to release you forthwith on a recognisance that you engage in the sex offender program for the next 18 months and be of good behaviour. I am also proposing to convict and fine you $500 on Count 3 and give you a stay of two months.
59 You have indicated in the assessment that you are prepared to engage in the program.
60 I declare that had you not pleaded guilty, I would have imposed a sentence of six months imprisonment to be immediately served.
61 As a consequence of the convictions on Counts 1 and 2, you are required to be registered under the Sex Offender Registration Act. My associate will fax the relevant document to you. That requires you to be on that program and to report for life. That is not a matter that I have taken into account in sentencing you, but it is a matter consequent on the convictions.
62 OFFENDER: Yes, Your Honour.
63 HIS HONOUR: Mr Sprague?
64 MR SPRAGUE: Your Honour, those orders have been signed as I understand it. Just two matters to raise which can be addressed briefly.
65 HIS HONOUR: Yes?
66 MR SPRAGUE: The first relates to the recognisance amount, which I understand I saw was listed on the order but I do not believe it has been stated in court.
67 HIS HONOUR: Yes. $1000, yes.
68 MR SPRAGUE: Thank you, Your Honour. In relation to s.16F of the Crimes Act, requires the court to explain or cause to be explained the consequences of a breach, so I just raise that for Your Honour.
69 HIS HONOUR: Yes, I will do that now.
70 MR SPRAGUE: Thank you.
71 HIS HONOUR: Mr Patten, as I indicated to you before, on Counts 1 and 2 I am sentencing you to six months imprisonment to be served concurrently, but you have agreed to enter the sex offender program and to enter a recognisance, which is an agreement in the amount of $1000. You do not have to put the money up, but if you commit an offence in the next 18 months or if you do not comply with an order of the community corrections officer or do not engage in the program as directed, then you will breach the recognisance, in which case I will then have to consider whether or not, if you do breach the recognisance then, you will be required, absent exceptional circumstances, to serve the six months imprisonment. Do you understand that?
72 OFFENDER: Yes I do, Your Honour.
73 HIS HONOUR: All right. It also requires you to turn up at the Community Horsham office in the next two days, advise them of change of addresses, not leave with Victoria without permission, obey their lawful instructions. So you have seen all those matters in there and I have explained them to you.
74 OFFENDER: Yes, Your Honour.
75 HIS HONOUR: Is that all, Mr Sprague?
76 MR SPRAGUE: Yes, Your Honour.
77 HIS HONOUR: Yes. Yes, thank you Mr Patten and I thank counsel for their attendance and the Crown prosecutor in this matter. You are excused, both of you are excused.
78 MR SPRAGUE: Thank you, Your Honour.
79 MR FREEMAN: Thank you, Your Honour.
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