Director of Public Prosecutions v Pettersen, Brett
[2013] VCC 189
•21 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| BRETT PETTERSEN |
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JUDGE: | Her Honour Judge Wilmoth | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 18 February 2013 | |
DATE OF SENTENCE: | 21 February 2013 | |
CASE MAY BE CITED AS: | DPP v Pettersen, Brett | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 189 | |
REASONS FOR SENTENCE
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Catchwords: Subject: produce and possess child pornography
serious charges; nature of material at higher end of scale of seriousness; good prospects for rehabilitation; otherwise blameless character; early plea of G; full admissions.
Legislation Cited:
Cases Cited: DPP v Ison [2010] VSCA 286; DPP v Groube [2010] VSCA 150
Sentence: 18 months, NPP 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Jones | Office of Public Prosecutions |
| For the Accused | Dr M. Marich |
HER HONOUR:
1 Brett Linton Pettersen, you have pleaded guilty to one charge of producing child pornography and one charge of possession of child pornography. In my view, general deterrence in this serious case can only be satisfied by a custodial sentence to be served immediately for reasons which I shall explain later in these sentencing remarks.
2 I will impose a relatively short head sentence and a long period of parole which will acknowledge the low risk of your re-offending and your good prospects for rehabilitation.
3 Charge 1 relates to a 14 year old girl whose family's computers were serviced by Forrest Computing, the company where you were working. In the course of your work as an IT technician, you copied the images you found on one of the family's computers to your own computer. These were images of the girl in her school uniform and others of her in a naked state and of her school friends, male and female, all under the age of 18 and all naked. There were 241 of these images. 18 of them fall into Category 1 of the child exploitation tracking system known as CEM which includes images of children with no sexual activity, but naked.
4 The girl has provided a victim impact statement in which she described feeling vulnerable and exposed, with her parents and others now knowing what she did as a naïve young girl.
5 As to Charge 2, you collected and kept in your possession over several years a large number of child pornography movies and images which are the subject of that charge. Approximately 1,171 of the 1,964 movie and image files depict children under the age of 18 years in various sexually explicit and pornographic poses. The majority of children were under 10, some as young as a few months old, who were being subject to digital or penile penetration either orally, anally or vaginally. Many of these children were being penetrated in other ways by various objects and by animals. A number of children seen in the movie files were heard screaming in pain and crying out for their mothers. A number of the image and movie files also depicted children being exploited by the use of sadism, bestiality and humiliation by way of urination, defecation and bondage. You were not identified as being in any of the images or movies.
6 Also found on your computer were graphic stories of child pornography told in particularly revolting detail. All categories of child pornography employed by the Child Exploitation Tracking System, save for Numbers 7 and 9, which are both at the less serious end of the scale, are represented in the movie files. As for the images, all categories are represented except 5, 6, 7 and 9.
7 These categories are set out in the Summary of the Prosecution Opening, a copy of which is to be annexed to these sentencing remarks. Of the movie files, the greatest numbers were in Categories 1, 2 and 4, at the more serious end of the scale. Of the images, the greatest number were in Category 3.
8 After your computer had been seized by the police, you were interviewed and you made full admissions to having downloaded the movie and image files directly onto your computer over a number of years. You stated in your record of interview, during which you made full admissions, that you flicked through them once a week.
9 You are now aged 28 and you were 27 at the time of your arrest. You come from an intact family and, indeed you live with your parents. At the time of your arrest you were engaged to be married and your fiancé also lived in the family home. Together, you had bought land on which you had intended to build and you were saving towards that goal.
10 The background to the prosecution of this matter is that the prosecution regarded the type of material as being too serious for the charges to be heard summarily in the Magistrates' Court and so they were uplifted to this court. You pleaded guilty at the committal mention and for that early plea you are entitled to a discount on your sentence as it has avoided the need for a trial with the attendant expense and inconvenience for witnesses and, importantly, it has avoided the need for them to have to give evidence. I also accept it as an indication of remorse.
11 A further indication of your attitude is that when you were charged, you told your family and friends and your employer what you had done. You have been working for the last six years with Forrest Computing, a company owned by Kelvin Forrest, who has written that you are well regarded there and a decision was made to keep you on after you were charged.
12 Your long term friend, Adam Patten, is the manager of the workshop there. He has written a reference confirming your value to the company and your remorse over the charges. Others who know you well have written to the court confirming your otherwise good character and that you informed them of the charges rather than allowing them to hear of them through the media.
13 Those writers have also confirmed that the relationship with your fiancé did not survive and you have lost your opportunity to complete the purchase of the land on which the two of you had planned to live.
14 More than one of those writers has also observed in you an early lack of confidence which, in their view, you have been able to overcome. Despite that lack of confidence, you were well engaged in sporting activities as a child and teenager, you completed your schooling and, after a slow start, you succeeded in obtaining secure employment. You had been in a relationship with the woman who became your fiancé for some 11 years.
15 You have never used illicit drugs and you drink only occasionally. There is no indication of any previous anti-social activity and you have no prior convictions.
16 As a result of being charged with these offences, you have become severely depressed and according to the psychologist, Mr Gary McMullen, who assessed you in October, you consider - or you did when you spoke to him them - that your life is ruined, unalterably. He regards you as being at risk of suicide.
17 His detailed report includes your account to him of how you came to collect the child pornography following a morbid fascination with images and videos showing violent death, after which you were introduced to particular websites by friends. This became addictive and eventually you sought out even more of this type of horror and became desensitized to it. Mr McMullen thought that this was possibly consistent with your lack of confidence and self-esteem.
18 You then came upon child pornography on the internet which shocked you and you developed a similar morbid interest in pursuing more shocking images. This is consistent with the advice given to investigators by members of the police Sexual Crimes Squad that the types of child pornography they found in this case include some of the worst they have seen. It is also consistent with the weight of numbers of these items falling within the more serious categories.
19 After being charged, you promptly sought counselling with a psychologist, Mr Geoff Broughton, who provided a report dated 3 December 2012. You attended for 13 sessions during the second half of last year during which you expressed to him your understanding that what you had done was wrong, that you had offended by forming an audience for the exploitation and abuse of the children concerned and for that you were sorry. It is certainly difficult to understand, even in the face of Mr McMullen's analysis, why you lent your support to the suffering of the children by viewing the appalling material. Mr Broughton concluded that you were severely depressed and he instituted therapy after which he expects you to recover well with on-going treatment and continued support from those close to you.
20 Your engagement in treatment and your frankness in accepting responsibility for your actions indicate that your prospects for rehabilitation are good. You have strong family support and the support of your employer. You made admissions to the police and assisted them in their investigations. The effects of your arrest and being charged have taken a dramatic toll on your personal life and it would seem that you are very unlikely to offend again.
21 Furthermore, the information placed before me leads me to conclude that you have no paedophilic tendencies. It was part of your bail conditions that you not use your computer for other than employment and banking needs and you have complied with that.
22 All those factors enable me to apply some leniency in sentencing you. But I must also take into account as a matter of significant weight the need for general deterrence. That is, to send a clear message to others who might be inclined to offend in the same way. The production and possession of child pornography are serious crimes and the community, through various means, has expressed a high degree of intolerance for the perpetrators. The legislature has seen fit to provide for a maximum penalty of five years' imprisonment for producing child pornography and ten years for the possession of it.
23 Your offending deserves a penalty that reflects all these matters that I must consider. Dr Marich has referred me to the statistics provided by the Sentencing Advisory Council in its Snapshot of June 2008, and I have also considered the decision in DPP v. Ison (2010). In that case the images located on the offender's computer were not dissimilar to those disclosed in this case, although it must be said that the circumstances of every case are different. The non-custodial sentence in that case was approved on appeal as having been correctly fashioned and not manifestly inadequate but the court noted that the offender was currently serving his community-based sentence and it was considered too harsh to then send him to prison.
24 The case of R v. Groube was another not dissimilar case resulting in a non-custodial sentence which was held on appeal to be manifestly inadequate but was not interfered with partly because of the double jeopardy rule and partly because of the reluctance of the Appeal Court to substitute a non-custodial sentence for one of immediate imprisonment.
25 The prosecution submission as to the appropriate sentence for you, Mr Pettersen, was a head sentence of two to three years and a non-parole period of one to two years. As I said at the beginning of these remarks, given the serious nature of the charges, general deterrence can only be satisfied by a custodial sentence to be served immediately.
26 I sentence you to six months' imprisonment for Charge 1 and 15 months for Charge 2. Three months of the sentence for Charge 1 will be served in cumulation upon the sentence for Charge 2, resulting in a total effective sentence of 18 months. I order that you serve a minimum period of nine months before being eligible for parole.
27 I note that you have not spent any time in custody for this matter before today. If you had pleaded not guilty to these charges, I would have sentenced you to two years' imprisonment with a non-parole period of 15 months.
28 Under the Sex Offenders' Registration Act, you will be required, after your release, to report your details to the police each year for 15 years.
29 The prosecution seeks an order for the forfeiture of the computers concerned. Is that opposed or not opposed, Dr Marich?
30 DR MARICH: Not opposed.
31 HIS HONOUR: Not opposed - I make that order. Any other matters?
My associate will approach Mr Pettersen for the registration form to be signed.
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IN THE COUNTY COURT OF VICTORIA Indictment No: C10894457
AT BENDIGO
IN ITS CRIMINAL JURISDICTION
IN THE MATTER OF :
THE DIRECTOR OF PUBLIC PROSECUTIONS
– v –
BRETT PETTERSEN
SUMMARY OF PROSECUTION OPENING
Date of document: 14th Feb 2013
Filed on behalf of: The Prosecution
Prepared by: Solicitor’s Code : XXXX
CRAIG HYLAND Telephone: (03) XXXX XXXX
Solicitor for Prosecutions Fax: (03) XXXX XXXX
565 Lonsdale Street Ref: Justine McLeod
Melbourne. Vic. 3000
The Accused is Brett Pettersen. He was aged 27 years at the time Police executed a search warrant on 2nd April 2012. The Accused was employed as an IT consultant with a local computer company – Forrest Computing, in Epsom.
The Victoria Police Sexual Crimes Squad Internet Child Exploitation Team has an automated software tool that browses the internet. This process identifies Internet Protocol Addresses (IP’s) that have suspect material being broadcast or received.
Each IP has an address and the team identifies this address. The Accused’s internet account was identified as having accessed a large quantity of child exploitation material. The Accused’s address was [address omitted], White Hills. He was living at that address, the home of his parents, with his fiancé [Name omitted].
At 9.10am on 2nd April 2012, Detective Sergeant Mills from The Sexual Crimes Squad and Bendigo detectives executed a warrant on the Accused’s premises. After entry had been gained the premises were searched.
Officers Nichols and Eposito from E-Crime attended the premises. They examined computers located throughout the house.
The Accused arrived home at the house at about 10.20am. The Accused told police he worked for Forrest Computing in Epsom. He admitted to downloading child pornography and showed police a computer tower which contained the imaged. Pettersen at the time, was an IT technician
CHARGE 1: PRODUCE CHILD PORNOGRAPHY
During the analysis of the accused's computer a personal resume was located in the name of [name omitted], aged 14 years at the time of the offence. It was established by investigators that the accused had used his position within his employment, when repairing the computer belonging to [name omitted] father, to copy the data from her computer to the accused's own.
The accused copied images of [name omitted] naked and also images of [name omitted] in her school uniform. The accused was aware [name omitted] was of school age. The accused also copied images [name omitted] had on her computer of fellow school students, males and females under the age of 18, naked.
The accused had copied a total of 241 images and videos from [name omitted] computer onto his own. Of the 241, 18 were found to be of category 1 in the ANVIL scale and 17 of category 8. All other images and videos were of ignorable content.
The accused had no permission to copy data from [name omitted] computer onto his own.
CHARGE 2: POSSESS CHILD PORNOGRPHY
In the study at the accused’s home, he had a set up a stand alone central processing unit/computer, which required a password only known to the accused, to access. The accused used a network cable to enable remote access to the data stored on that computer. Once the accused logged into that central processing unit / computer he was then able to view the material on the screen to which remote access was gained through.
Subsequent forensic analysis of the central processing unit seized, revealed that the computer contained a large number of movie and image files.
Members of the Victoria Police Sexual Crimes Squad and E-Crime Unit, advised investigators the amount of child pornography and the scenes they viewed, are some of the worst they have ever seen.
Approximately 1171 of the 1964 movie and image files were identified as depicting children under the age of 18 years in various sexually explicit and pornographic poses. The majority of children viewed were under ten (10) years of age, some as young as only a few months old, whom were being digitally or penile penetrated orally, anally and vaginally.
Many of these children were being penetrated by objects including sex aids, children's toys, drinking glasses and other household implements. A number of children were being penetrated by animals. Some of the children viewed in the movie files were heard screaming and crying in pain and crying out for their mother. A number of the image and movie files also depicted children being exploited by the use of sadism, bestiality and humiliation by way of urination, defecation and bondage.
The accused was not identified as being in any of the movie or image files.
The central processing unit also contained graphic detailed stories of child pornography.
The movie files ( total 1394 ) were categorised using the CETS (Child Exploitation Tracking System) classification, resulting in the following:
Category 1:
Depictions of children with no sexual activity, includes nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination.
111 files located
Category 2:
Non-penetrative sexual activity between children of solo masturbation by a child
185 files located
Category 3:
Non penetrative sexual activity between children and adults, mutual masturbation and other non penetrative sexual activity.
33 files located
Category 4:
Penetrative sexual activity between children or between children and adults including but not limited to intercourse, cunnilingus and fellatio.
660 files located
Category 5:
Sadism, bestiality of humiliation, including but not limited to urination, defecation, vomit, bondage etc… of Child Abuse
104 files located
Category 6:
Animation, cartoons, comics and drawings depicting children engaged in sexual poses or activity.
1 file located
Category 7:
Non-illegal child material (believed to form part of a series of CEM)
0 files located
Category 8:
All pornography material not considered CEM related.
300 files located
Category 9: Ignorable material
0 files located
The image files ( total 570 ) were categorised using the CETS (Child Exploitation Tracking System) classification, resulting in the following:
Category 1:
Depictions of children with no sexual activity, includes nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination.
11 files located
Category 2:
Non-penetrative sexual activity between children of solo masturbation by a child
7 files located
Category 3:
Non penetrative sexual activity between children and adults, mutual masturbation and other non penetrative sexual activity.
52 files located
Category 4:
Penetrative sexual activity between children or between children and adults including but not limited to intercourse, cunnilingus and fellatio.
7 files located
Category 5:
Sadism, bestiality of humiliation, including but not limited to urination, defecation, vomit, bondage etc… of Child Abuse
0 files located
Category 6:
Animation, cartoons, comics and drawings depicting children engaged in sexual poses or activity.
0 files located
Category 7:
Non-illegal child material (believed to form part of a series of CEM)
0 files located
Category 8:
All pornography material not considered CEM related.
493 files located
Category 9: Ignorable material
0 files located
The Accused was interviewed on the day of the search. He made full admissions to downloading the movie and image files directly onto his computer. He said he was the only person in the house that used the computer and that he had been downloading child pornography movies and images for years. He further stated a Q128 of the ROI that he flicked through them once a week.
- It should be noted the prosecution intend to tender evidence from police officers as to the fact that the material relating to charge 2 was the worst example of child exploitation material they had seen in their careers.
Maximum Penalties
Possess child pornography: s. 70(1) Crimes Act
Level 6: 5 years
Produce child pornography: s. 68 Crimes Act
Level 5: 10 years
Sex Offenders Registration Act
The Prosecution submits that mandatory registration applies for a reporting period of 15 years.
Stage of Plea
The Accused pleaded guilty at the first committal mention on 22 Aug 2012
Pre-sentence detention
The Accused has spend no days in custody for these offences
Forfeiture
The Prosecution will make an application for forfeiture of the computers seized
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