Director of Public Prosecutions v Raith

[2023] VCC 916

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR 22-02032

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

DUNCAN RAITH

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2023
DATE OF SENTENCE:	29 May 2023
CASE MAY BE CITED AS:	DPP v Raith
MEDIUM NEUTRAL CITATION:	[2023] VCC 916

REASONS FOR SENTENCE
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Subject:Criminal law - sentence   

Catchwords:              Pleaded guilty to one charge of possessing or controlling child abuse material -  4 images under category 2 , 264 images under category 3 – offending at lowest end of range of seriousness -  now aged 62 -  clear remorse -  recurrent major depressive disorder  - PTSD from working as nurse in Afghanistan – good prospects of rehabilitation

Sentence:                  12 Month good behaviour order with conviction under s 21A of Commonwealth Crimes Act – $1000  surety  - 8 years SORA

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Dhanapala	CDPP
For the Accused	Mr M. Brennan	Emma Turnbull Lawyers

HER HONOUR:

1Duncan Edward Raith, you have pleaded guilty to one charge of possessing or controlling child abuse material.

2You were charged after the police searched your home on 22 July 2022 and found images on your phone.  There were four images of naked boys in sexual poses categorised under category 2, of the Australian Child Abuse Categorisation Scheme[1].

[1] ACACS

3There were 264 image files under category 3, which are not child abuse material but which can be useful in the investigation process by for example, assisting in the identification of victims and/or perpetrators.

4There was other data found on your phone, such as search items and web bookmarks, which by their titles indicated your interest in young teenage boys who were sexually exploited.

5The maximum penalty for this offence is 15 years' imprisonment.  Your offending was at the lowest end of the range of seriousness, which was conceded by the prosecution and when combined with your personal circumstances, the most appropriate sentence is one which avoids imprisonment.  Therefore, I will be sentencing you to an order under s21A of the Commonwealth Crimes Act.  It will require you to be of good behaviour for 12 months with a condition for treatment.

6I have reached this conclusion after taking into account the important sentencing considerations of general and specific deterrence.  Section 16 of the Commonwealth Crimes Act sets out a number of matters I must consider in sentencing you and general deterrence is of prime importance because of the vulnerability of children online.

7Material which exposes children is an infliction of harm upon them, and the criminalisation of that exploitation with a considerable maximum penalty is intended to protect those children and the community in general.  You have been assessed as being a low risk for this type of reoffending, and other factors also satisfy me that specific deterrence is not a significant factor in this sentencing exercise.

8There is a wide range of sentencing options available to the courts, and an offender's particular circumstances must be taken into account.  Some of those other factors include your early plea of guilty and your remorse.  In avoiding a trial, the plea has saved  expense and inconvenience, and while a backlog of cases from the COVID-19 pandemic still affects the court, a considerable discount on your sentence is warranted.

9Your plea also indicates remorse, which you have expressed in very clear terms to the psychologist Mr Newton, when he assessed you recently.  Indeed, your remorse extends to an understanding that the boys concerned were victims and you are concerned for them.

10In matters involving sexual offending, the character and antecedence of the offender are to be given less weight.  But in your case, the service you have given to the community must be accorded significant weight.  In addition  it bears some relevance to the type of offending you committed, because you have used access to pornography in general to help cope with the trauma of dealing with horrific injuries inflicted in warfare.

11

You were born in the UK and you are now aged 62.  You joined the British Army aged 17, training as a recovery mechanic and army driver and achieved the rank of staff sergeant.  You left the army in 2000 after serving 22 years, and studied nursing.  You qualified in 2003 and came to Australia, where you joined the Australian Army.  You quickly became a citizen and brought your wife and

two children to Australia.  In the army here, you were a recovery mechanic and then a theatre nurse. 

12In the Nursing Corps you were promoted from sergeant to lieutenant and in order to move away from barracks work you joined the navy.  In 2012, you were sent to Afghanistan where for six months as a nurse you treated casualties of all types, allied soldiers, civilians and Taliban.  Injuries often included gross mutilations, and on your return to Sydney in late 2012, changes in your behaviour were noted, leading to the diagnosis of post-traumatic stress disorder and major depressive disorder.  In 2014, you were hospitalised for treatment of those conditions.

13Around this time, you and your wife separated after 23 years of marriage and you were divorced in 2014.  Your coming out as a gay man had been a partial precipitator of the end of your marriage and this caused a continuing rift between you and your elder son. 

14You then had psychological treatment with Dr Rosemary Stevenson for two and a half years and ongoing treatment with Ms Amelia Frid since October 2022.

15

Mr Newton considers you are still suffering from both the previously diagnosed conditions, and that you would deteriorate if imprisoned.  Mr Newton diagnosed the depressive disorder as now being a recurrent major depressive disorder. 

He has described you as, and I quote from his report,

'… an introverted, socially reserved, but pro-social man who has clear views about moral and ethical matters and who aspires to high personal standards of conduct.'

16You told Mr Newton that you have ceased accessing pornographic material as you now recognise that using it as a coping mechanism to escape emotional distress is counterproductive.  You are committed to continuing treatment in order to address issues of communication and conflict which arose in your relationship.

17You have the support of your long-term partner Mr Zhang and you lead a quiet life, mostly at home.  You regret the loss of opportunities you used to have to engage as a volunteer in various activities such as a coastguard and Riding for the Disabled, and most importantly, you regret never being able to return to your nursing career.

18I have read a large number of references provided by friends who know you well, and have written about your good qualities and your remorse.  I should add that you have no prior convictions.

19

Your prospects for rehabilitation are very good.  Weighing all the mitigatory factors and balancing them against the importance of general deterrence, I am satisfied that it is appropriate to release you on an undertaking to be of good behaviour for one year with the condition that you continue in treatment with

Ms Frid or another suitably qualified psychologist for at least 12 months.

20

This is an order under s21A of the Act.  I am required to fix a surety and I do so in the sum of $1,000 which is not a sum you have to pay now.  The conviction will be recorded.  If you were to breach the order you could be brought back to court and that surety would then be forfeited.  If you had pleaded not guilty to these charges, I would have imposed a good behaviour bond of

three years with a fine of $1,000 in addition.

21Now are there any other matters?  First of all, Mr Dhanapala.

22MR DHANAPALA:  No, Your Honour that's all fine.

23HER HONOUR:  All right.  Sorry, anything from you Mr Brennan?

24MR BRENNAN:  No, there's not .

25HER HONOUR:  The order's ready for signature by - well there's two matters, there's the bond and the Sex Offenders Registration Act that applies for eight years.

26MR BRENNAN:  Yes, Your Honour.

27

HER HONOUR:  Would you like to approach the dock with my associate

Mr Brennan?

28MR BRENNAN:  I will, thank you.

29HER HONOUR:  Mr Brennan I'll just add for your client's information that the order under the Sex Offenders Registration Act requires him to provide his contact details to the police every year for eight years.

30MR BRENNAN:  Yes, thank you.

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