Director of Public Prosecutions v Ramirez
[2020] VCC 172
•27 February 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-00910
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDGARD RAMIREZ |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 February 2020 |
| DATE OF SENTENCE: | 27 February 2020 |
| CASE MAY BE CITED AS: | DPP v Ramirez |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 172 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Criminal law – sentencing – one charge of import Tier 2 goods (child pornography), one charge of access child pornography using carriage service and one charge of distribute child pornography material outside of Australia - imprisonment with release on Recognisance Release Order
Legislation Cited: Customs Act 1901 (Cth); Criminal Code 1995 (Cth); Sex Offenders Registration Act 2004 (Vic)
Cases Cited: R v De Leeuw [2015] NSWCCA 183
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Carlander | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms E. Ramsay | Victoria Legal Aid |
HER HONOUR:
1Edgard Ramirez, you have pleaded guilty to three charges on indictment, being one charge of import Tier 2 goods, namely child pornography, on 29 November 2018, contrary to s.233BA(5) of the Customs Act (Cth) 1901, one charge of access child pornography using carriage service between 29 July 2017 and
27 October 2018, contrary to s.474.19(1) of the Criminal Code (Cth) 1995 and one charge of distribute child pornography material outside of Australia contrary to s.273.5 (1) of the Criminal Code (Cth) 1995.2Each of the charges are serious and that is reflected in the maximum penalties being -: 10 years' imprisonment for the first charge of importation of Tier 2 goods and 15 years' imprisonment in respect to the remaining two charges.
3I shall proceed to sentence you on the basis of the prosecution opening that was read out during the plea hearing and that was accepted as being accurate by your counsel, Ms Ramsay.
4You are a national of The Philippines. You were aged between 29 and 31 at the time of these offences. You first came to Australia in 2016 as a tourist. You were granted a skilled independent working visa in March 2018 to enable you to come to work in Australia as a surgical nurse and you were so employed at the time of the offending.
Charge 1- Importing Child Pornography
5Charge 1, the importation of child pornography charge, deals with you being arrested on 29 November 2019. When you arrived at the Melbourne International Airport returning from a vacation in the United States. You were the subject of a baggage examination by the Australia Border Force officers.
As well, your mobile phone and Apple iPad were reviewed and were found to contain child pornography images and videos. The devices were seized and later analysed. A total of 1,018 child pornography files were located and saved onto your phone and iPad as set out in the table. That is the table set out in paragraph 6 of the opening.
Analysis of Oppo phone and Apple iPad mini
Category
Images
Videos
1: CEM – No Sexual Activity
60
26
2: CEM – Solo/Sex Acts b/n Child
19
61
3: CEM – Adult Non-penetrative
56
207
4: CEM – Child/Adult penetrative
23
474
5: CEM – Sadism/Bestiality/Child Abuse
3
12
6: CEM – Animated or Virtual
52
25
213
805
1,018
Charge 2 – Access Child Pornography
6You were arrested by Australia Federal Police on 29 November 2018 and then you participated in a formal record of interview. You made numerous admissions concerning accessing the internet and using an account on Kik to chat. You said that once you were there, you were sent files by others with links and you would click on the links and they would direct you to the images and videos that you would then save on your phone. You admitted that there were pictures and videos of preteens and children aged 18 and below and you admitted to saving videos and files for personal use and that is fully particularised in paragraph 7 of the prosecution opening.
7You told police you viewed the material probably twice or three times a month. During your record of interview, you said that you would access adult pornography and that would lead you to images containing children and that you would download the files containing the children as well (question 158). You said that you were not really looking for child pornography but you were curious and you would continue linking and it would just continue (question 160). You admitted that at first you were a bit curious but afterwards, you desired to look at the images and would pleasure yourself (paraphrasing question 163).
8You acknowledge that it was not legal and it should have been deleted but you did not delete (paraphrasing question 168). You had multiple accounts and you told police you would use cloud accounts until they were full and then make up other accounts.
No one else had access to your accounts. Two of the accounts were named “Katie07” and “Cairns Angel” and when you lost access to your accounts, you would make up new ones (questions 321 and 322).9You also used your iPad to view child pornography and you told police that only you had the PIN number to that device (questions 348 to 358). You said that you had gone to the United States to visit your mother and a brother who lived there and you denied being sexually attracted to children (question 423). You told police you were really ashamed and embarrassed by what you did and you knew what you did was wrong (question 439).
10Following review of the iPad, it was discovered that you had multiple different accounts on different platforms, namely Box, MEGA and Dropbox. There were 29 active accounts on MEGA, four active accounts on Box and three active accounts on Dropbox. Additionally, there were nine accounts on the platform MEGA that were terminated due to the breach of the terms of service and as such, they were unable to be accessed or reviewed. In total, the accounts contained approximately 234,194 files, comprising both image and video files.
11Of those files, a sample was analysed from each platform and a total of 5,050 child pornography files were categorised in accordance with the table set out in paragraph 12 of the opening. The table was amended at the plea hearing.
Cloud Accounts
Category
Images
Videos
1: CEM – No Sexual Activity
2389
100
2: CEM – Solo/Sex Acts b/n Child
520
140
3: CEM – Adult Non-penetrative
402
130
4: CEM – Child/Adult penetrative
452
731
5: CEM – Sadism/Bestiality/Child Abuse
121
46
6: CEM – Animated or Virtual
19
0
3903
1147
5,050
12The first account was created on 29 July 2017 and on that date, child pornography was added. Numerous accounts were created, accessed and uploaded from that date up until the time of the arrest.
13The cloud storage account table created by the informant, Federal Agent Roger, shows that the bulk of the offending occurred as part of a pattern of offending from April 2018 until the date of your arrest, the last date being 27 November 2018.
14Charge 3- distribute child pornography outside Australia.
15When your iPad and Kik account was analysed, it was found to contain chats that you engaged in using the account name “02Cairns Angel”. During those chats, you would pose as a 12 to 13 year old girl named “Angel” and engaged in sexually explicit chat including sending child pornography images to other users.
16The sexually explicit chat is by way of context only and you are to be sentenced with respect to distributing the child pornography images to other users only.
17Over the period 9 November to 26 November 2018, whilst you were in the United States, posting as Angel, you sent pornography images to 40 users on approximately 75 occasions and that is the gravamen of this offence and that is what you will be punished for.
18The images transmitted by you in those chats were located on your mobile phone as well as various cloud storage devices and folders titled 'Angel' or 'Angel alter pic.' When chatting, you would engage with the other person and find out their age and then send them the face of a female child around the same age and then you would send an image of a vagina of a female child (Category 1).
19Paragraphs 22 to 28 of the Crown opening sets out in graphic detail the descriptions of various images and videos that were located in each category across your cloud accounts and the files located on your phone and iPad.
20I have had regard to those descriptions when formulating the appropriate sentence. Given the specific and graphic nature of those descriptions, I do not consider that it is necessary for the sample material to have been viewed separately. I am also very familiar with the categorisation model for child exploitation material as set out in the Australian National Victim Image Library, known as “ANVIL” that was referred to in the descriptions.
21Mr Ramirez, you were charged on 29 November 2018 and bailed and following a committal mention, your matter was adjourned for plea discussions.
Finally, a plea of guilty was entered on 10 May 2019.22Your matter then proceeded by way of straight hand up brief and it is accepted by the prosecution that the plea was entered at an early opportunity.
23Ms Ramsay, on your behalf, conceded the offending was serious and that the only appropriate sentence was a term of imprisonment. She submitted that the court ought consider a term of imprisonment of three years with immediate release on a Recognizance Release Order.
24Ms Carlander, on behalf of the Crown, submitted the only appropriate sentencing option was a sentence of immediate imprisonment with a non-parole period being fixed.
25It is well established that child pornography offences are considered especially grave by both the courts and the legislature and that is reflected in part by the high maximum penalty that is prescribed by Parliament. These types of offences facilitate the sexual abuse of innocent and vulnerable children.
They involve young children being subjected to degrading and humiliating conduct. By your actions, you are perpetuating the harm that is caused to those vulnerable children who are exploited to produce such material.26General deterrence is of particular significance in your case and I have had regard to the principles of sentencing in respect to child pornography offences. I refer there to The Queen v DeLeeuw[1].
[1] [2015] NSWCA 183.
27Generally, personal mitigating factors and prospects of rehabilitation must be accorded less weight than would otherwise be given.
28Offending involving the distribution of child pornography occurs at an international level and has been increasingly prevalent with the advent of the internet that provides ease of access and also means that offending often occurs without detection. It is important for courts to send a message to those who access such material that they will be punished severely.
29The victims in the various images and videos, the subject of your charges, are not known. However, there is a public and paramount public interest in promoting the protection of children because children have been sexually abused in order to supply the market with the images that were contained within the videos and stills. On behalf of the community, I condemn your behaviour.
30I am required by law to impose a sentence that is of severity appropriate in all the circumstances. I have been guided by the factors set out in s.16A(2) of the Crimes Act (Cth) and have taken into account such matters that are known and are relevant.
31I have taken into account your cooperation with the Federal Agents at the time of your arrest and interview and the degree of candour that you expressed in your answers during the lengthy record of interview. Your cooperation meant that the federal agents were provided with passwords and were able to access the various devices without difficulty.
32I have regard to your early plea of guilty. It is of great utility. You have spared the cost and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.
33I accept that the plea is some evidence of remorse on your behalf and an acknowledgement that your conduct was wrong.
34Your remorse and insight is also reflected in the content of the discussion between yourself and Mr Newton, a consultant psychologist, whose report dated 26 January 2020 was provided to the court.
35Mr Newton detailed your past history and background and I accept that you are a person who otherwise has no prior criminal history. He describes you as being a very reserved man who is not accustomed in discussing your feelings in detail but he said that he made the observation that you seemed motivated to engage in the assessment despite your obvious discomfort.
36You were born in The Philippines and grew up in Calapan City and you come from a complex family constellation. You have one full brother. Your mother married twice before you were born and there are three half siblings from those relationships. In addition, you have an unknown number of half siblings in respect to subsequent relationships that your father has had following your parents' separation.
37Your parents separated when you were only an infant and from about the age of nine months, you were cared for and reared by your paternal grandmother. In the past you had little contact with your father. You stayed with your paternal grandmother until you were aged 12. You lived in poverty and experienced great hardship and insecurity of your childhood years.
38After the age of 12, you went to live with an adult half-sister in Manila and your living conditions did not improve greatly. Life was a real struggle for you in a large city where you found it very difficult to establish social networks.
39Your first language is Tagalog and your learnt English at primary school.
You completed schooling in The Philippines and you were able to graduate with a Bachelor of Nursing degree in 2008. You continued working as a surgical nurse in a major hospital in The Philippines between 2011 and 2016.40Between October 2016 and January 2017, you completed an Australian bridging course to enable your Australian registration as a nurse. You were offered a job at a hospital in regional Victoria in March 2017.
41You migrated to Australia to take up that position and you have in the past been granted permanent residency. You were dismissed from your position in December 2018 following being charged with these offences. You were then unemployed for some months and recently you secured some casual work in a factory manufacturing engine coolants.
42Mr Newton detailed your limited experience with sustained relationships.
You told him that you prioritised work and study and that you did not have time for relationships.43After your arrival in Australia, you told Mr Newton you became intensely involved with social media and through that, you began to access online pornography. You accessed material using social media applications, primarily Kik, and you would typically follow links provided by those with whom you were in contact. Your initial exposure to child abuse material occurred in such circumstances where you were shocked at first but became more curious and then you actively sought out more examples of it, and that is reflected in the log that was created of your storage accounts that is noted at pp.76-77 of the depositions.
44You admitted to being aroused by the material and acknowledged that you masturbated to the material as well as develop sexual fantasies based upon it while doing so and that you saved the material that you downloaded on multiple online accounts. You also told him you engaged in sexualised chat with others using social media applications, adopting the role of an underage female while doing so and transmitted both written and visual material in the process.
You found that experience arousing and captivating.45Mr Newton concluded that you were an introverted and socially awkward man who tended to lead a very isolated life socially. He did not consider that your personality traits were such to meet the criteria for personality disorder.
He thought you had limited insight and demonstrated no awareness of the harm caused to the children who are shown in the child abuse material that you accessed. You also seemed oblivious to the way in which your own conduct had contributed to the demand not only for the images but also for the abuse of the children in order to produce them.46He considers that there is a real need for structured offence specific treatment as soon as practicable and I urge the authorities to take up his suggestion.
47He assesses you as possessing a moderate risk of repeat offending, sexual offending, based on the RSVP test and that your most important factor to reduce the risk of repeat offending would be to successfully complete a comprehensive offence specific treatment and that would reduce your risk over the medium term. He sees your sexual adjustment to be deeply problematic and therefore you require comprehensive offence specific treatment and he believes that should take place at the earliest practicable opportunity and again, I commend the correctional authorities to that recommendation.
48Given the nature of your offending and your current degree of insight,
Mr Newton states there would likely be benefit in you having time to take your treatment in a group based program. Overall, he considered that for you, an immediate term of imprisonment with your interpersonal challenges, cultural diversity, isolation from family, naivety to the prison environment and offence type would all combine to make you a comparatively vulnerable prisoner and I accept that assessment. I have taken that into account. He recommends close support during the early stage of any time in custody and again, that recommendation will be made known to the correctional authorities on the return of prisoner form. Mr Newton's report will be made available to correctional authorities to assist them.49At the plea hearing, a bundle of reference material was provided from family members and friends that attest to your commitment to work as a nurse and confirms that you are otherwise considered to be a kind, caring, compassionate person. Each describe the devastation they experienced upon learning of these criminal charges. Nonetheless, members of your family as well as friends, remain supportive of you and are present in court here today. It is intended at the completion of the sentence that you will return to live in The Philippines with your sister.
50Since the charges have been laid, you have now been more open with your family and friends and have discussed with them your involvement in the offending. I am satisfied that you are now developing insight, that is evolving and that needs to be further explored by way of the treatment that has been suggested by Mr Newton.
51You have expressed a willingness to participate in programs to address your offending behaviour. Overall, I consider that you do have reasonable prospects for rehabilitation.
52I have assessed the gravity of the offending. I consider that Charge 1 is an example of importing child pornography that is towards the mid-range of this sort of offending, there being a total of 1,018 child exploitation material files located on your two devices and of those, 805 were videos, 58 per cent of which were Category 4 which involves child adult penetrative type videos and 12 were Category 5, which involves sadism, bestiality and child abuse videos and
25 were Category 6, animated or virtual videos.53Charge 2 concerns you accessing child abuse material over a relatively lengthy period from 29 July to 27 October 2018 and concerns a very large amount of material located across the multiple different cloud accounts that you held.
A total of 5,050 child pornography files from the sample was taken an analysed and then categorised and the majority of that material was Category 4, being 731 videos and 452 images and Category 5, 121 images and 46 videos.
You admitted to police accessing the material probably twice or three times a month on your phone and access details for the account revealed that the account was first created on 29 July 2017 with intense periods of downloading occurring towards the end of the offending material from April 2018 up until the day before your arrest. I consider that this is a serious example of this offence.54Charge 3 involves you sending images to 40 different Kik users, totalling 75 instances of transmitting child pornography images. It is accepted the same set of images were sent to different users and depicted a vagina of a child.
55I agree with Ms Ramsay's submission in relation to this charge that it was relatively discrete offending between the period 9 November 2018 and
26 November 2018 involving the same set of images.56I accept that this is offending at the lower end of the scale of seriousness for this sort of offence but nonetheless, it does still continue the business of distributing online child pornography material.
57Ms Carlander considered that there was duplication of the images that were found on your iPad and iPhone with those that were discovered on cloud accounts but she was unable to precisely quantify the degree of duplication.
Of those discovered on the cloud accounts, only 5,050 were analysed. It is unclear and it could not be categorically stated that all of the images were a duplication but nonetheless, the Crown made this concession that some of the images were duplicated.58Ms Carlander submitted, and I agree, that in relation to Charge 2, what is of significance is the length of time over which the offending occurred and that is a particular aggravating feature of the offending. In relation to Charge 3, you were specifically aware of 40 different people accessing your files and you disseminated to those 40 different individuals 75 transmissions.
59It is accepted that you did not seek to profit from your activities.
60One aspect of your situation is that convictions and sentences in respect to these charges will mean that you do face the likelihood, a very real likelihood, of deportation due to your permanent residency being cancelled by the relevant minister and it is accepted that currently you will be deported.
61The Crown concedes that that can be taken into account because of the particular impact upon you, that is you will be denied the opportunity to remain in Australia long term and to continue to have employment here. That is a particularly powerful feature of your case given the very real effort that you went to, to secure your ability to come to this country to work, and that is particularly so in view of your background of poverty and struggling in The Philippines.
62Both parties referred the court to a number of cases that provided guidance in terms of the principles to be applied in these sorts of cases as some yardstick as to the type of sentence that can be imposed. As was discussed in the plea hearing, none are particular comparative and there are distinguishing features in most of those cases.
63Overall, I consider that a term of imprisonment is the only sentence to be imposed.
64I make the following formal orders and I ask that you now stand please,
Mr Ramirez.65On each charge, you will be convicted and sentenced as follows. Charge 1, the import Tier 2 goods charge, 12 months' imprisonment, commencement date is six months prior to the expiration of the sentence imposed on Charge 2. Charge 2, access child pornography using a carriage service, you will be convicted and sentenced to two years' imprisonment to commence on today's date, 27 February 2020. Charge 3, distribute child pornography material outside Australia, you will be convicted and sentenced to nine months' imprisonment to commence three months prior to the expiration of the sentence imposed on Charge 1. Effectively, that means you have been sentenced to a period of three years' imprisonment. I direct that you be released on a Recognizance Release Order after serving one year and nine months' imprisonment.
66The Recognizance is in the sum of $1,000 and what that means is that you will be released on that Recognizance Release Order on the undertaking to pay $1,000 if you do not comply with the conditions. The conditions are that you must be of good behaviour for two years following your release.
67You have had explained to you by Ms Ramsay the purpose and the effect of the order, the consequences that may follow if you fail without reasonable excuse to comply with the conditions of the order and the fact that the order can be varied or discharged in certain circumstances and you have agreed to be bound in accordance with the order and agree that you will be given a copy of the order.
68I make the following s.6AAA declaration. But for your plea of guilty, I would have sentenced you to four years' imprisonment to serve three years.
69Finally, each of the three charges on the indictment are considered to be
Class 2 offences under the Sex Offenders Registration Act (Vic) and are registrable offences and upon your sentence, you will now be a registrable offender as defined in s.34(1)(c)(iii) of that Act. Therefore, you are required to comply with reporting obligations for life and you will shortly receive a notice setting out all the relevant reporting obligations under legislation. I do ask that you acknowledge receipt of that notice.70That concludes my sentencing remarks.
71I will give my associate the Recognizance Release Order so that she can copy that and provide that to
you, Mr Ramirez. I just ask Ms Ramsay, that you accompany my associate, and ask your client to sign the acknowledgement of the Notice under SORA.72MS RAMSAY: Yes, I will, Your Honour.
73HER HONOUR: Yes.
74All right so that documentation will be made available to you, Ms Ramsay.
75The only thing I need to ask you, Ms Carlander, has the prosecution provided the amended opening?
76MS CARLANDER: Yes, Your Honour, that was e-filed.
77HER HONOUR: That has been e-filed?
78MS CARLANDER: Yes, Your Honour.
79HER HONOUR: All right, thank you. Thank you both for your assistance, we can adjourn.
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