Director of Public Prosecutions v Perkins
[2019] VCC 1685
•16 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-00384
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARROD PERKINS |
---
JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 September & 4 October 2019 | |
DATE OF SENTENCE: | 16 October 2019 | |
CASE MAY BE CITED AS: | DPP v Perkins | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1685 | |
REASONS FOR SENTENCE
---
| Subject: | CRIMINAL LAW |
| Catchwords: | Plea of guilty – Possess Child Abuse Material – Distribute Child Abuse Material |
| Cases Cited: | Garside [2016] VSCA 74; Porte [2015] NSWCCA 174; DPP vTokava [2006] VSCA 156; R vMerrett, Piggott & Ferrari [2007] VSCA 1; McEwan v Simmons [2008] NSWSC, 1292; Ivanov v R [2019] VSCA 19; O'Neill [2015] VSCA 325; Boultonv The Queen [2014] VSCA 342; R vVerdins& Ors (2007) 16 VR 269. |
| Legislation Cited: | Sentencing Act 1991; Crimes Act 1958; Controlled Weapons Act 1990; Criminal Procedure Act 2009. |
| Sentence: | Convicted and sentenced to a Community Correction Order for a period of 3 years |
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr T. Brown | Slater & King Lawyers |
HIS HONOUR:
1
This plea took place on 18 September 2019 in Shepparton. Mr Cordy appeared on behalf of the Director, Mr Brown on behalf of Mr Perkins. The matter was adjourned for further plea in Melbourne on 4 October, when both counsel appeared. The matter was further processed, I suppose is the word, on
14 October, when a sample of the materials, were given to me, I have already indicated what I observed. Today I have sought further submissions from counsel given my indication as to my thinking.
2 The indictment is J11304731.2. There are two charges in the indictment laid under the Crimes Act of Victoria. They are that on 17 May 2018, Mr Perkins; (1), Knowingly possessed child abuse material, an offence pursuant to s.51G(1), the seriousness of which is demonstrated by the fact that Parliament has prescribed a maximum penalty of 10 years gaol. (2), In addition he was also charged with an offence under s.51D(1) of distributing child abuse material, which also carries a maximum penalty of 10 years. Again, indicative of the serious view that Parliament takes of such crime. In addition pursuant to s.145 of the Criminal Procedure Act, I was asked to take into account, an offence of possession of a prohibited weapon, which is an offence against s.5AA of the Controlled Weapons Act. The weapon was a large sword.
3 Mr Brown accepted the facts that were set out in the amended statement of the summary of prosecution opening dated 16 August 2019. As to the second charge, given the circumstances as to the downloading of this material as explained by the learned prosecutor and the built-in feature to effect such, in the U.Torrent program, the plea to this 'technical' charge is extremely valuable. As the learned prosecutor accepted such warrants total or near total concurrency given the circumstances.
4 As to Charge 1, I had concerns as to the assessing of the culpability of the prisoner, given the description of the analysis in [4.2] of the prosecution summary. There was no issue as to the 53 videos, albeit the longest of those singularly was one hour and 27 minutes, of the total of three hours and 41 minutes. Hence the other 52 making up the balance of the time. I am conscious when discussing the issue of content of this material, of the words of the Court of Appeal, significantly in an appeal from a decision of mine, in Garside [2016] VSCA 74, [67] and [71] and of Porte [2015] NSWCCA 174, [77] referred to in that decision, as to the danger of a Court giving too much emphasis to the categorisation of such material, and the issue of ensuring that the absence of material in the higher levels, if that was so, does not unconsciously result in minimisation of the objective gravity of possession of lower levels of categorisation.
5 As pointed out in Porte, any level of this type of material is obviously a serious offence for this Court's consideration. However, in this instance, such analysis was very important. As to [4.2] of the prosecution's opening, the subsequent letter (Exhibit C) from the DPP, and the further subsequent letter tendered today (Exhibit E), indicated that of the 6149 images referred to in [4.2], as best as can be estimated 512 of such related to actual children, while the balance, that is 5636, are anime or virtual children. I put to Mr Cordy that the object of the legislation was to protect children, as set out in s.37A, and I considered that there must be a differentiation in culpability when looking at such material.
6 Mr Cordy agreed, and referred the Court to McEwan v Simmons [2008] NSWSC, 1292, a decision of Adams J. It is of assistance to read from that decision, firstly at [5], where His Honour said:
'I am simply seeking by a stark example to point out the fundamental difference between depicting real people and imaginary constructions. Real people can of course be fictional, in the sense they adopt or play the role of others than themselves or fictional characteristics, but they are still real people. There was a tendency in the arguments before me to suggest that distinction is really one of degree. This is quite wrong. Such an approach would trivialise pornography that utilised real children and make far too culpable the possession of representations that did not. Of course the use of imagery material to groom children, would make its possession more serious.'
7 I should add there is no suggestion in this case of any such use. His Honour went on at [6], it is important to point out that this was a decision related to an appeal and a sentence down below, he said;
'In respect of the distinction made in the previous paragraph, it is troubling that the learned magistrate when sentencing the appellant thought it relevant to consider that had the images involved real children, a term of imprisonment would have been necessarily imposed. The fact that no children were or could be involved meant that such a comparison would express the difference as a mere matter of degree, was capable of being seriously misleading. The difference is not a mere matter of degree. In point of culpability the offence is of an altogether different order. There was no evidence that the material was or might be used by the appellant for any criminal purpose.’ (Importantly, and I stress this next paragraph as relevant to my own views.) ‘I would not wish to be misunderstood. I am not suggesting in any way that the parliament cannot make possession of both kinds of images a criminal offence. However, whether it has done so must, in my mind, be considered in light of the profound distinction that I have endeavoured to make.'
8 His Honour went on further to say in that paragraph;
'As I see it, when a person can mean an imagery person in the sense for the purpose of considering an image, is a very different question from that asked in respect of a description in regard to a written work. In short, it does not make sense to distinguish in respect of a written work, between a real and fiction or imaginary person. But, in respect of an image, the distinction is real and fundamental.'
9 Hence, in this case, despite the concern expressed in Garside by the Court of Appeal, it was appropriate to distinguish between the anime and the real child material, because such distinguishment is necessary to assess appropriately the culpability in regard to the totality of the images. Given these circumstances, upon further consideration, I decided to view a sample of the images which made up [4.2], to; (a), see a sample of such child images; (b), to understand what was involved in anime, or virtual images; and (c), to seek to understand the break up if any, of the 53 videos referred to in [4.2].
10
As I have said the view of such material took place in this Court on
14 October 2019. I was assisted by the investigator and I thank him for it. Of the sample of the 512 child images, all were young children, being engaged in penetrative sex, being either oral or penile. The children appeared to be aged six or under, which is consistent with the answers given in the record of interview by Mr Perkins, in particular questions 195 and 209. The anime which I saw pictorially display a full range of sexual deviations, with what appeared to be depictions of youngish children.
11 Insofar as the videos, there is no information before the Court, despite the tendering of Exhibit E today, of precisely what was in the large video. However, in the sample given to me, such involved sexual penetration of what appeared to be a young girl under four. Hence, objectively, the 512 child images and the 53 videos are degrading material, appropriately assessed at the level which has been set out in the summary provided by Mr Cordy, being level four. All the rest of the material is anime, which is assessed at category 6.
12 On the adjourned plea date, filed as a result of my request, were statements from Mr Perkins himself, which became Exhibit 5, that statement being dated 2 October 2019, and from his parents, Crystal and Jeffrey Perkins, dated 4 October 2019. I requested those statements because I did have concerns having read the medical reports in Shepparton (Exhibit 2 and 3), from observing the physical presentation of Mr Perkins in Court, the seriousness of these crimes and the submission of the learned prosecutor, that while an order was open under s.41 of the Sentencing Act, it was the view of the Director taking account of all the material presented on the plea, that such an order is inappropriate because there must be a period of immediate gaol. Albeit that such period is limited, there being no pre-sentence detention in this matter, to a period of 12 months.
13 In the record of interview, Exhibit D, Mr Perkins indicated that he had been searching the internet for many years. Indeed, I make the point that he is not charged for this, he is only charged for what was there on the day of the warrant. However, I think, for at least five years prior to that time, there was evidence that such material had been downloaded. Specifically, he was using various codes, to reach what he described in his own mind as 'taboo', subjects, see answer 70. He would find an 'interesting' folder and masturbate as a result of such. Insofar as the anime he describes such, as having no limitations, question 121, in the sense that he believed that it was something that does not actually exist, he sought 'childlike' size animations, answer 158. That as to real life, the under 10 age, stuff was easier to find, see answer 195, which he would download, view and then delete. Such, would therefore involve the material being in his possession for a period of hours, answer 238. That he accessed what he described as real, 'pre-teen hard core,' see answer 209. That he would download under age incest material, see answer 252.
14 Mr Perkins downloaded using the pseudonym, TOR, to protect his identity, indicating clearly that he knew what he was doing was wrong. Finally he completed the record of interview at question 302, saying to the investigators, that he believed that he needed help, and, what appears to be totally correct, at question 303, that he had fell in with a weird fetish. Given the seriousness of the objective criminality and those statements in the record of interview, it comes then to analyse, as best I can, the person this Court is dealing with.
15
Mr Perkins, as I said, was 28 at the time of these offences. He is now 29, having been born on 6 January 1990. At the time he lived in Euroa with his parents at
Rowe Street. He left school at about 16 or 17. His work experience is extremely limited. From the age of 23 he is effectively unemployed due to the fact that he suffers from chronic anxiety, albeit that he was registered and has been registered since that time with an employment agency. Due to his difficulties the employment agency, in order to seek employment for him and to better prepare him for such employment, sent him to a general practitioner and to a psychologist, where he received treatment for 20 weeks in 2017.
16 Mr Perkins has suffered from isolation since approximately 15-17 years of age. There is a background of bullying of him at school. His anxiety is such that he suffers nausea, and indeed has needed a vomit bag in all of his Court appearances. He was apparently diagnosed some form of medication which I am unaware, as a result of that reference from the employment agency for a period of three months. He has never been hospitalised before the date of the warrant. Dr Darjee, consultant forensic psychiatrist, prepared the report, Exhibit 2, dated 21 August 2019. Mr Perkins in describing his life as an adult, told the psychiatrist that he is a person who is without friends, albeit happy with his own self, that he is a perfectionist in character, that has longstanding feelings of emptiness and a lack of passion for anything, that since the warrant he had attempted suicide and as a result thereof was placed in the Seymour Hospital, where he saw a psychiatrist and was treated and he is, as I understand it, still being treated by the Seymour Mental Health Organisation, who have prescribed drugs for him for anxiety and depression.
17
The nausea issues that I referred to, reduce his social activities and in particular reduce the types of locations that he can attend. It was the opinion of the psychiatrist that Mr Perkins suffers from agoraphobia, from a social anxiety disorder, from schizoid of borderline personality disorder, and the psychiatrist diagnosed a schizoid personality disorder. Diagnosis was also made of a major depressive disorder, such mental disorder having been present with
Mr Perkins for a period of some two years. The combination of those personality issues and in particular the major mental disorder of depression, are at the background of this offending and have contributed to such. It is clear that the mental disorder of depression and these personality disorders are in the opinion of the psychiatrist, behind this offending, [31].
18 At [31] the psychiatrist Dr Rajan Darjee said;
'His isolation, withdrawal and lack of close relationships with others due to his innate temperament, reflected in his schizoid personality traits and his anxiety disorder, agoraphobia, predisposed him to committing the offences, as he spent more and more time alone on his computer. In this context, he developed a depressive disorder, making his isolation and self-esteem worse. He was able to be aroused by child abuse images which temporarily improved his mood when he masturbated to these images, but left him feeling ashamed and disgusted, thus worsening his depressed mood. His personality disorder, agoraphobia, and depression were all therefore relevant to his offending.’
19 While I'm at it I'll come to his view as to the risk of him reoffending, which is obviously an important matter when considering his rehabilitation. At [32] the psychiatrist said;
'In terms of risk of him reoffending, it's important to take into account that further sexual offending (of any kind) of individuals convicted of child abuse image offences is much less common than those convicted of contact sexual offences. In particular, contact sexual offending is very unlikely in individuals convicted of child abuse image offences. It is particularly unlikely where such individuals have no other convictions, which of course applies in this case, no other history of anti-social conduct, no previous allegations of contact offending, do not seek or have contact with children and have no pre-offending attitudes. The number of images, nature of images and the time a person spends accessing such material, have not been shown to be related to the risk of reoffending.'
20 Insofar as the connection between such mental condition and this offending, which is necessary to be rigorously assessed, as set out in O'Neill to which I will refer in due course, the report of the forensic psychologist, Mr Cummins, confirms the psychiatrist's opinion, Exhibit 3, dated 26 April 2019 and I refer in particular to [41]:-
‘In my opinion it's very probable that the fact that he was feeling socially isolated, depressed, had low self-esteem and was having identity problems, played a significant role - perhaps even a causative role - in terms of his offending behaviour. In other words in my opinion, there was a realistic nexus between him suffering from a Major Depressive Disorder and from a Social Anxiety Disorder and his offending behaviour. Simultaneously, it is my opinion, he does have a problem with the expression of his sexuality, and in my opinion, he therefore requires offence specific treatment.’
21 He went on to say, while I am there at [42], [43]:-
'Based on my assessment of Mr Perkins, I would expect his mental health to deteriorate if he was incarcerated, because this would increase his level of social anxiety and would most probably force him to deal with issues of self-identity and issues to do with his sexual identity. It is in my opinion, imperative that he participate in offence specific treatment. In my opinion, he requires mental health treatment.’
That view, that his condition would deteriorate with the imposition of a gaol sentence was also confirmed by the psychiatrist at paragraph 39 in his report.
22 I have given anxious consideration to all relevant sentencing considerations, as detailed so precisely in Garside, and the need for denunciation of material which objectively is clearly serious child abuse material and of a revolting nature, especially the overwhelming need for a general deterrence to be effected in such circumstances. I have however concluded, that in the exceptional circumstances of this case, and I use that phase in the manner as referred to by the Court of Appeal recently in Ivanov v R [2019] VSCA 19, which was a contact sex offence, being a rape in marriage case. The use of the term, while not directly related to the circumstances of this case, related to events which I conclude are similar to this, as being so unusual, that I find the submission of the prosecution, albeit very professional, bringing with it the imposition of immediate imprisonment, should not be accepted.
23 I find in the terms as expressed in O'Neill [2015] VSCA 325, [75], that the combination of the mental illness of depression together with the personality disorders that I have mentioned, resulted in both; firstly, a diminished capacity to reason appropriately as to the wrongfulness of his offending at the time of the offending. I make the point that is not to say he didn't know what he was doing, clearly he did, but there was I find a lack of appreciation in the circumstances of his world of wrongfulness. And secondly, that such mental condition in totality makes the full application of the principles of general deterrence repugnant to the underlying sense of humanity, which guides proper sentencing, upon the particular facts of this case.
24 In so finding I have in particular considered [45], [59] and [72] of O'Neill and the comments of the court as referred in O'Neill. I intend therefore to uphold the submission of Mr Brown that a community correction order, without immediate prison, is the appropriate sentence in all the circumstances. I intend to uphold this submission, given my finding of the unusual circumstances, as I've explained in this case. I find that a community correction order without an immediate period of gaol, is the best means of effecting rehabilitation for Mr Perkins, given the fact that he comes before this Court without any priors, and given the terms of Boultonv The Queen [2014] VSCA 342 and the rigour of a community correction order, as referred therein.
25 I find that in these unusual and exceptional circumstances such is the appropriate punishment for Mr Perkins, despite acknowledging the objective seriousness of his criminality.
26 Importantly in this decision I should say, that after applying the rigorous analysis required, I find all of the six circumstances identified in R vVerdins& Ors (2007) 16 VR 269, apply here, as attested to in the reports of the psychiatrist and the psychologist, to which I have referred. I therefore find reduced moral culpability, a need for a moderation of general deterrence, specific deterrence and a mitigation of punishment, on the basis in particular, of the circumstances of the psychiatric and psychological opinion as to the impact of gaol upon Mr Perkins as set out in circumstances five and six in Verdins.
27
Exhibit B is the community correction report. Can I thank the office for such report, in particular, Rebecca Linnett, and the report being dated
1 October 2019. Such report is extensive and was of assistance. As I said to Mr Cordy I tended to accept the view of the psychiatrist, as to their being no need, given the totality of the circumstances, for specific sexual offence treatment in this case. That is, it is the view of the psychiatrist that the risk proffered by Mr Perkins to the community in this case will be nullified by appropriate mental assistance. However, as I have assessed the objective criminality of this material as serious, and given the availability of such course, I am going to make such an order, even though such courses is only available in Melbourne.
28
This matter has been discussed with Mr Perkins, and he has indicated that if such an order is made he will attend such course as referred to by the psychologist and by the representative of the Department of Justice who provided the community correction report. It is therefore on all charges, my intent to impose a community correction order for a period of three years.
I accept the suggestion in the community correction report, that a work component over that period of 200 hours should be imposed. It may well be that that helps Mr Perkins get some experience to enable him to enter the workforce, which seems to me so important. Also, as recommended, there be treatment and rehabilitation insofar as his mental health, pursuant to s.48D(3)(e), there be treatment rehabilitation insofar as reoffending under 48D(3)(f) and under 48E, he would be subject to supervision.
29 I should also mention, not only did I receive the letters from his parents, those letters no doubt were not easy to draft. Clearly, there was a lack of full understanding by the parents of the full extent of the criminality, in which their son was involved. But I am totally satisfied that they will proffer as they have indicated, total support for their son in trying to get him back on a path where he will not commit crimes such as this. I am confident, given the materials before me, and the fact that he comes before the Court with no priors whatsoever, that he is a person who can effect rehabilitation. In the terms as described in a number of cases by the learned President, despite the seriousness of these crimes, where you are dealing with a young man, and I think such categorization is appropriate for Mr Perkins, steps taken to rehabilitate at this stage are vitally important. See: DPP vTokava [2006] VSCA 156, R vMerrett, Piggott & Ferrari [2007] VSCA 1.
30 Before I make the formal order Mr Brown, it is necessary to assure me that your client understands fully what I intend to impose and if you could satisfy yourself, so you can satisfy me that he understands.
31 MR BROWN: Yes Your Honour. Could I approach the dock Your Honour.
32 HIS HONOUR: Mr Brown while you are there, it is nothing to do with the Court but, as you know,, as it was prescribed or was announced by Mr Cordy, sex offender registration applies in this case pursuant to the Act of Parliament and I think it is - - -
33 MR CORDY: For eight years Your Honour.
34 HIS HONOUR: - - - eight years. And your client's required to sign acknowledgement of that, so I will have my Associate bring that up as well.
35 MR BROWN: Thank you.
36 HIS HONOUR: And Mr Cordy, I think what was sought was a 464ZF and I've signed that order, given the seriousness of the matters. I've signed the 464ZF, haven't I? Yes.
37 MR BROWN: Thank you for that time Your Honour.
38 HIS HONOUR: Yes Mr Brown.
39 MR CORDY: There's forfeiture and disposal orders as well.
40 HIS HONOUR: And forfeiture and all – I think I signed those in Shepparton.
41 MR CORDY: Yes, thank you Your Honour.
42 HIS HONOUR: Yes Mr Brown.
43 MR BROWN: I'm not opposed Your Honour.
44 HIS HONOUR: Sorry?
45 MR BROWN: Sorry, Your Honour?
46 HIS HONOUR: Just seeking what's the position in regard - - -
47 MR BROWN: No, that's not opposed Your Honour. Apologies.
48 HIS HONOUR: Your client understands it and accepts the terms?
49 MR BROWN: Yes Your Honour, he understands it, thank you.
50 HIS HONOUR: Yes if you can stand up please Mr Perkins.
51 Mr Perkins for, as I said, these very serious charges, you will be convicted on all charges, you'll be given a community correction order for a period of three years. I order that there be a work component of 200 hours, to be performed over the totality of that period. You'll be subject to supervision and receive treatment and rehabilitation both in regard to your mental health issues and to assist, to ensure that you do not reoffend. As I said, you have parents here who are there to help you and it is very important to take advantage of the opportunity you have been given today, all right? Good luck.
52 OFFENDER: Thank you.
53
HIS HONOUR: I am required by Parliament to make a declaration under s.6AAA as to what I would have done in this case, had
Mr Perkins not pleaded guilty. Given the intricacy of this case and the totality of factors to try to comply with Parliament's requirement as to just one factor, is almost impossible. However, doing as best I can to comply with Parliament's request, all I can say is that had Mr Perkins not pleaded guilty to these three charges, he certainly wouldn't have got a CCO without any immediate gaol.
54 MR CORDY: As Your Honour pleases.
55 MR BROWN: As Your Honour pleases.
56 HIS HONOUR: Yes, can I thank both counsel very much. As I said earlier, this has not been an easy sentence and I appreciate the assistance I've had from both counsel.
57 MR CORDY: As Your Honour pleases.
58 MR BROWN: As Your Honour pleases.
59 HIS HONOUR: Yes. And finally Mr Brown we'll have to get your client to sign the community correction order and in that will be a reference to him reporting to the local office, which will be set out in the order, within, I think is it, 48 hours or – yes, 48 hours.
60 MR BROWN: Yes Your Honour. Thank you Your Honour.
61 HIS HONOUR: You'll explain that to him.
62 MR BROWN: Yes.
- - -
7
0