Director of Public Prosecutions v Powell
[2017] VCC 1268
•31 August 2017
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-00702
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS POWELL |
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JUDGE: | HIS HONOUR JUDGE C J RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August 2017 | |
DATE OF SENTENCE: | 31 August 2017 | |
CASE MAY BE CITED AS: | DPP v Powell | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1268 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Use a carriage service to transmit child porn – Knowingly possess child porn – Possess drug of dependence – Plea of guilty
Legislation cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Criminal Code Act (Cth) 1995; Sex Offenders Registration Act 2004; Sentencing Act 1991
Cases cited: R v Verdins (2007) 16 VR 269; Marrah v The Queen [2014] VSCA 119
Sentence:252 days imprisonment; Community Correction Order for a period of 3 years with supervision and treatment and rehabilitation conditions in respect of, drug abuse, medical conditions, mental health, risk of reoffending; $100 fine. 252 days pre-sentence detention. Section 6AAA declaration: 2 years imprisonment with a non-parole period of 15 months’ imprisonment. Subject to the provisions of the Sex Offenders Registration Act 2004 for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Albore | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr M. Allen | Stary Norton Halphen |
HIS HONOUR:
1Thomas Powell, on 22 August you pleaded guilty to:
2Charge 1, use a carriage service to transmit child pornography material, contrary to s474.19(1)(a)(iii) of the Criminal Code (Cth);
3Charge 2, knowingly possess child pornography, contrary to s70(1) of the Crimes Act 1958 (Vic); and
4Charge 3, possess a drug of dependence, contrary to s73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
5The maximum penalties for these offences are 15 years’ imprisonment, 10 years’ imprisonment, and 5 penalty units respectively.
6You admitted your prior criminal history.
7Tendered as Exhibit A on the plea, and read aloud in court, was the prosecution opening on plea. On 4 August 2015 you engaged in sexually explicit text-based communications via ‘airG’ messages using the call-sign or username ‘Crackd1’ with another person whose call-sign or username was ‘raivenrogers’. The communication or chats contained child pornography material in written form. The details of the exchanges are set out in the Crown opening, and I will not repeat them, save to say that you discussed with ‘raivenrogers’ the fact that you had sexually penetrated your sister when she was eight years old and you were aged twelve years, and that you continued to penetrate her with your penis repeatedly over a period of three years. In your words:
“I fucked all her holes it stopped cos we nearly got caught.”
8Your correspondent communicated to you that he had been interfering with his son and daughter since they had come home from hospital, and enquired whether you had any pictures of young girls. You told ‘raivenrogers’ that you had repeatedly raped your six-year-old brother by having him perform fellatio on you and you anally penetrated him until he liked it. Further, you said:
“I filled his ass with my cum.”
9‘AirG’ captured your internet protocol (IP) address and identified that you were using an Android mobile. Further, ‘airG’ identified the make and telephone number of that mobile telephone and that it was registered to your stepfather’s address in Wyndham Vale.
10On 7 March 2016 police officers executed a search warrant at your stepfather’s address. Your telephone was seized, and interviews both field and formal were conducted with you. In summary, you told investigating officers that you did not remember anything in relation to child pornography on the phone, because the only time you actually used ‘airG’ you were completely off your head on methamphetamine. You told police that you could not remember if you had ever searched for child pornography, and that if there was child pornography on your phone it would have been because you were on ice.
11Analysis of your mobile phone revealed 114 images and four videos of child pornography material. Also located on your mobile phone was a ‘web bookmark’ that shows the ‘airG’ application saved as a bookmark on 5 May 2015, the day after the chats that found Charge 1. The child pornography found in your possession on 7 March 2016 founds Charge 2.
12During the search of your stepfather’s home a small amount of cannabis was found in your possession (Charge 3).
13The child pornography material found on your phone was classified using the Australian National Victim Image Library (ANVIL). Of the images found on your mobile phone, five fell in Category 1, two images in Category 2, two images in Category 4, and 105 images in Category 5, whilst in respect to the videos, one video was classified under Category 2, and the remaining three videos were classified under Category 4.
14Annexed to Exhibit A is a document described as Item 2 – Description of sample image and video from each category. This document describes in detail a sample of the images found on your mobile phone. I will not repeat the contents of that document. During the course of the plea I was provided with a sample of still images from the child pornography material contained on your phone.
15In my opinion the contents of the conversations that found Charge 1 are depraved. The images found on your telephone are of girls aged between 10 and 16 years. In one image the girl exposes her vagina. In another the girl is shown being held down while a male holds his erect penis on the outside of her vagina. Another image depicts a girl lying on a couch, blindfolded, being penetrated. The video that falls within Category 4 contains images of a girl aged between 12 and 15 years being penetrated orally, vaginally, and anally.
16Mr Allen of counsel, who appeared on your behalf, acknowledged that the offences involving child pornography were very serious, and conceded that general deterrence was a paramount consideration in such cases. Further, Mr Allen conceded on your behalf that the only sentencing option open was one of a term of imprisonment. Ultimately, however, he submitted that a sentence involving time served by you on remand, when combined in the case of
Charge 2 with a community corrections order, would meet adequately all of the purposes of sentencing appropriate to you and your offending.17An analysis of your criminal record reveals that you were sentenced to a community-based order for two years with conditions by His Honour Judge Smallwood on 20 May 2010 for one charge of sexual penetration of a child under sixteen years. You failed to comply with that community-based order. I will return to that matter later in these reasons.
18Tendered on the plea before His Honour Judge Smallwood and before me was a bundle of reports (Exhibit 2). As at May 2010, when aged twenty-one years, you were referred to YSAS for accommodation, support, and treatment for substance abuse. Jesuit Social Services were involved with you, and you were referred for psychiatric assessment.
19As well, a report from Dr Stephen Barron, psychologist, set out your personal history, including that you suffered – and, I interpolate, continue to suffer – from hydrocephalus, a condition where the brain is unable to drain excess cerebrospinal fluid, and that you had, and still have, a shunt implanted into your head to decrease intracranial pressure. This condition caused you to suffer from frequent and chronic pain.
20However, on assessment Dr Barron opined:
“Mr Powell’s mental state examination did not indicate any abnormality of thought or process. His cognitive and other functioning appears normal. His present anxieties are well explained by his present financial, family and personal circumstances and do not indicate any underlying psychosis"
21Similar findings were made by Dr Pandurangi. (See Exhibit 1 paragraphs 35-37).
22Returning to the breach of the community-based order imposed on you by his Honour Judge Smallwood, Exhibit 3 on the plea is the breach report. You commenced the order satisfactorily; however, your compliance deteriorated over time. The deterioration appears to be linked to you becoming too old to receive services from YSAS, and this proved to be the catalyst that brought about your continued non-compliance and outbursts of anger and frustration in the presence of those supervising you.
23Your criminal record thereafter reveals that you have a number of prior convictions for failing to comply with the provisions of the Sex Offenders Registration Act, which obligation arose from your conviction in May 2010. Further, you have a number of convictions for drug offences as well as weapon offences.
24An analysis of your criminal history reveals that in the main you have complied with orders made by the courts.
25As to your personal circumstances, Mr Powell, you are twenty-seven years of age. Your parents separated when you were aged four. Your father died in 2015. Your relationship with him seems to have been a troubled one.
26Tendered as Exhibit 1 on the plea was the report of Dr Pandurangi, psychiatrist, dated 18 August 2017. You told Dr Pandurangi that you were repeatedly hospitalised as a child to re‑cannulate the shunt. You recounted that on one occasion you went into cardiac arrest and as a consequence suffered brain damage, which resulted in you having to undergo intensive speech therapy and physiotherapy.
27You lived with your mother until you were thirteen or fourteen years of age, thereafter you went into the care of the Department of Human Services. Your relationship with your mother was troubled. You told Dr Barron that she was “a manipulative bitch” yet it appears that you spent most of your weekends at her house for some years prior up to and including the period immediately prior to the instant offending.
28In consultation with Dr Pandurangi you alluded to physical and sexual abuse during your time in the care of the Department of Human Services.
29At the time of your offending, when not staying with your mother, the balance of the week was spent living with your stepfather, as you were at the time that you appeared before his Honour Judge Smallwood for sentence.
30Your time at school was marked by bullying and an inability to understand what you were being taught. You were unable to participate in sport. You attended a special school from Year 8 and completed Year 11, and thereafter gained a Certificate II in Hospitality from the William Angliss Institute.
31You have a limited work history, and have been in receipt of the disability support pension for some years.
32You commenced to abuse cannabis in your early teens, and began using ice at eighteen. You have little insight into the negative effects of illicit drugs on you. You have a history of depressive episodes. Your upbringing resulted in you being hostile towards the outside world. You have never had a relationship, and profess not to know what it means to have a relationship.
33You are isolated in prison, and your anti-social and abrasive personality, which results in emotional outbursts and impulsive behaviour, in my view contributes to your feeling of isolation whilst in prison.
34Dr Pandurangi describes the constellation of behaviours that I have described as “personality dysfunction”. No reliance was placed on R v Verdins by your counsel.
35You have found life in prison difficult. Your stepfather died whilst you were on remand, and you grieve for him and your inability to have been with him in the days prior to his death.
36It was put on your behalf that your relationship with your mother is “broken”. Your mother has not visited you whilst you have been in prison, and it was put that your only visitors have been “lawyers and doctors”.
37Until recently you were prescribed Sertraline, an anti-depressant, and Seroquel, an anti-psychotic. However, you were recently removed from this regime of medication, and this resulted in your mental condition deteriorating, and you were housed in the psychiatric observation unit at the Hopkins Correctional Centre and in the acute assessment ward at the Metropolitan Remand Centre. You are currently prescribed Valproate, but you experience adverse side-effects from this drug by way of a rash on your legs and general pain and discomfort.
38Generally speaking, your time in prison has been difficult for you. Any further time that you are compelled to spend in prison will be more onerous for you than it would be for prisoners who do not suffer from the constellation of disabilities that you present with.
39Mr Allen placed particular reliance on Marrah v The Queen [2014] VSCA 119 at paragraph [16]. I must and I do give weight to your deprived, abusive and disadvantaged background. However, it does not provide an excuse for your offending behaviour. In respect to the instant offending, general deterrence is of paramount importance in the exercise of my sentencing discretion.
40Whilst in respect to Charge 2 you were not in possession of a great volume of images, the children depicted appear to be aged between 10 and 15 years. The children’s faces were, in the main, clearly depicted. Whilst many of the factors relevant to sentencing for this offence are absent in your case, it must never be forgotten that each child is a victim, and that you have contributed to the market for this pernicious trade.
41You entered your plea at the earliest opportunity, and accordingly you are entitled to the benefits that flow to you from your plea, being that it has utilitarian benefit and that it is some evidence of your remorse.
42In your case, Mr Powell, I am of the view that you have little insight into the gravity of your offending, including its deleterious effects on you personally. In my view your prospects for rehabilitation are poor. When assessed for a Community Corrections Order, unsurprisingly you were assessed as a high risk of reoffending. You need to be specifically deterred from reoffending.
43Counsel for the Crown accepted on the plea that time served, when combined with a Community corrections Order in respect of the State offence, was within the range of sentences available in your circumstances. Doing the best I can to balance all of the factors to be applied to you in the exercise of my sentencing discretion, I am of the view that time served, together with a Community Corrections Order, does not adequately punish you, denounce your conduct, nor deter you specifically and others from offending in the manner that you did on 4 August 2015 and again on 7 March 2016.
44In respect of Charge 1 on the indictment, I sentence you to 252 days’ imprisonment to commence today.
45In respect of Charge 2, I sentence you to 12 months’ imprisonment together with a Community Corrections Order for a period of three years with conditions:
(a)You undertake treatment and rehabilitation in respect of your drug abuse,
(b)You undertake treatment and rehabilitation in respect to your medical conditions,
(c)You undertake treatment and rehabilitation in respect to your mental health,
(d)You undertake treatment and rehabilitation in particular by undertaking programs that will reduce your risk of reoffending, and
(e)You be subject to the supervision of the Secretary of the Department.
46In respect to this aspect of the Community Corrections Order, do you consent to that order?
47OFFENDER: Yes Your Honour, I agree.
48HIS HONOUR: Thank you.
49In respect of Charge 3 you are convicted and fined $100, and I grant a stay of three months for the payment of that fine.
50I declare that you have spent 252 days by way of pre-sentence detention.
51Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you in respect of Charge 2 on the indictment to two years’ imprisonment with a non-parole period of 15 months’ imprisonment.
52I direct that you be subject to the provisions of the Sex Offenders Registration Act 2004 for life.
53In respect to the sentences imposed on Commonwealth and State offences, insofar as I am required to, I order that they be served concurrently.
54In respect to the Commonwealth sentence insofar as I am required pursuant to statute, to give reasons why I have not imposed a Recognisance Release Order, it is because it is not possible as the prisoner has been sentenced to time served and that sentence will lapse today.
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HIS HONOUR: What will now take place is my associate will bring you a series of documents that relate to the Community Corrections Order aspect of my sentence. Yes Mr Albore.
MR ALBORE: Your Honour, just in respect to orders for concurrency, cumulation, I interpreted Your Honour's sentence to mean that there be an order for total concurrency between Federal and State charges.
HIS HONOUR: Correct.
MR ALBORE: Is that correct?
HIS HONOUR: Yes.
MR ALBORE: If Your Honour pleases. And Your Honour, just - - -
HIS HONOUR: Pursuant to the Commonwealth Crimes Act am I obliged to make an order in respect to concurrency or cumulation? Or does the State provision take place in that orders of sentences of this kind are by force of statute concurrent.
MR ALBORE: Your Honour would be inclined to make a declaration.
HIS HONOUR: All right.
MR ALBORE: That the total effective sentence between the Federal sentence and the State sentence are to be served concurrently.
HIS HONOUR: All right.
MR ALBORE: In relation to the Federal sentence Your Honour, as Your Honour has declined to impose a recognisance release order.
HIS HONOUR: How can I.
MR ALBORE: Yes, well Your Honour will be required to declare that it's inappropriate to do so pursuant to s.19AC(4).
HIS HONOUR: Apart from the fact that it's physically impossible - - -
MR ALBORE: Yes.
HIS HONOUR: - - - to declare a recognisance release order when he's been sentenced to time served.
MR ALBORE: Yes.
HIS HONOUR: In that respect then - - -
MR ALBORE: And that can be the effect of the orders Your Honour.
HIS HONOUR: Then in respect to the sentences imposed on Commonwealth and State offences, insofar as I am required to, I order that they be served concurrently. In respect to the Commonwealth sentence insofar as I am required pursuant to statute to give reasons why I have not imposed a Recognisance Release Order, it is because it is not possible as the prisoner has been sentenced to time served and that sentence will lapse today.
MR ALBORE: As Your Honour pleases.
HIS HONOUR: Mr Allen, it's the practice of this court if you wish to leave the Bar table and approach your client you ask me.
MR ALLEN:Thank you Your Honour, for that.
HIS HONOUR: Now Mr Powell, will you please stand up. What I've done in respect of the Commonwealth offences, I've sentenced you to time served. So that sentence is over at the end of today. In respect to the cannabis you've been fined $100. And three months to pay for that fine. In respect of the second charge which was the pornography charge, the State pornography charge, I have sentenced you to 12 months' gaol. In addition to that I've put you on a Community Corrections Order for a period of three years. What will happen at the end of that 12 months' sentence which will take into account the 252 days that you've spent by way of pre-sentence detention, you will be released from prison and that's when the Community Corrections Order commences. Do you understand?
OFFENDER: Yes sir.
HIS HONOUR: All right. So the order will last for three years and it commences on 22 December of this year and it will end on 21 December of 2020, that is a period of three years. Now there are a number of statutory conditions that apply to such an order but in particular I have imposed specific orders which are in the main therapeutic and one which is not. You musts undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. You must undergo any medical assessment and treatment that may include general or specialist medical treatment, or treatment in a hospital or residential facility as directed by the regional manager.
You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager. You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager. And finally, you must be under the supervision of a Community Corrections Officer for a period of three years. Now if you breach this Community Corrections Order you come back to me. Pursuant to the provisions of the Sentencing Act, I am entitled to re-sentence you anew. Do not breach this order.
OFFENDER: Yes Your Honour.
HIS HONOUR: You will be provided with a copy of the order as will each of counsel. Yes Mr Albore.
MR ALBORE: Your Honour, I also wish to hand up two copies, two separate orders.
HIS HONOUR: You've got a bit of competition at the moment. Now am I pronouncing your surname correctly?
MR ALBORE: Yes you are Your Honour.
HIS HONOUR: Yes. All right now if you'd provide those to counsel please and one to the accused. Mr Powell, that sets out the terms of the order and where you must attend in respect of your compliance with that Community Corrections Order and that is for your records. All right?
OFFENDER: Yes sir.
HIS HONOUR: Yes Mr Albore.
MR ALBORE: Thank you Your Honour. I have two separate orders for the forfeiture Your Honour, of the offender's mobile phone.
HIS HONOUR: Yes.
MR ALBORE: Which I just wish to hand up to Your Honour. And a separate order for Your Honour to make in relation to the destruction of the cannabis subject of Charge 3.
HIS HONOUR: Yes.
MR ALBORE: That order Your Honour, is sought pursuant to s.70A of the Confiscation Act.
HIS HONOUR: Perhaps you'll mark a cross where I'm supposed to sign that order because I can't find it.
MR ALBORE: Your Honour, in relation to Your Honour is not required to sign the order.
HIS HONOUR: Yes.
MR ALBORE: Your Honour can just retain a copy of the order onto the court file.
HIS HONOUR: Right you are and that's what will be done. Are there any other ancillary matters?
MR ALBORE: No other ancillary matters, no, from the Crown Your Honour.
MR ALLEN:Not from me Your Honour.
HIS HONOUR: I'd like to thank counsel for their assistance in the matter. Would you remove the prisoner please.
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