Director of Public Prosecutions v Richardson
[2016] VCC 1435
•28 September 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-00803
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL RICHARDSON |
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| JUDGE: | HER HONOUR JUDGE QUIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 28 September 2016 |
| CASE MAY BE CITED AS: | DPP v Richardson |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1435 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Dhillon | |
| For the Accused | Mr B. Wilkinson |
HER HONOUR:
1Michael Richardson, you had pleaded guilty to eight offences on two separate indictments. Indictment 14-00803, or Indictment 1, contains four charges: one, access child pornography using a carriage service; two, using a carriage service to procure a person under 16 years of age for sexual activity; three, using a carriage service to transmit indecent communications to a person under 16 years of age, and; four, possess child pornography. This latter charge is a State charge.
2Indictment 15-01852, or Indictment 2, contains four charges. Charges 1, 2 and 4, using a carriage service to transmit indecent communications to a person under 16 years of age, and Charge 3, soliciting child pornography using a carriage service.
3The maximum penalties for these offences are as follows. The various Commonwealth offences of using a carriage service: one, to access child pornography, 15 years; two, to procure a person under 16 for sexual activity, 15 years; three, to transmit indecent communications to a person under 16 years, seven years, and four; to solicit child pornography, 15 years.
4As to the state charge of possession of child pornography, the maximum penalty is five years.
5The circumstances of your offending are set out in the prosecution opening for plea of guilty, dated 14 September 2016 (Exhibit A). Your offending can be summarised as follows:
6On 26 September 2013, police executed a search warrant at your house in Noble Park. As a consequence of the search, police seized a notebook laptop computer, a Samsung Galaxy tab 10.1 or mobile phone, a desktop computer with two hard drives, and a Seagate external hard drive. Each of these items was forensically examined.
7Between 19 February 2012 and 8 July 2013, or for a period of approximately 16 months, you used the internet to access 1,052 images and three videos, the contents of which constituted child pornography. Your conduct in accessing these images on the internet constitutes Charge 1, Indictment 1.
8This material was classified in accordance with the Australian National Victim Image Library, or ANVIL, categories, of which there are seven classifications. The relevant criteria for classification is set out in paragraph 5 of Exhibit A.
9Located on the notebook were the following: 905 Level 1 images; 25 Level 2 images; 44 Level 3 images; 69 Level 4 images; seven Level 5 images, and; two Level 6 images. That comes to a total of 1,052 images.
10In addition, there was one Level 1 video and two Level 4 videos. The range of child pornography material in each of those categories is described in paragraph 7 of the opening (Exhibit A).
11Located on the other three devices was material also classified as child pornography. This material is the subject of the possession of child pornography charge in addition to the material the subject of Charge 1.
12On these three devices, you had in your possession 1,582 Level 1 images, 130 Level 2 images, 69 Level 3 images, 183 Level 4 images, 43 Level 5 images, and 46 Level 6 images, a total of 2,053 images.
13Further, there were eight Level 1 videos, four Level 4 videos, three Level 3 videos, 51 Level 4 videos, and eight Level 5 videos, a total of 74 videos. Therefore in respect of all the devices you were in possession of, 3,105 images and 77 videos of differing classifications under the ANVIL categories.
14I was provided with a sample of some of these videos, and with the consent of parties, viewed them in my chambers. None of the child pornography files have been deleted, and they were all readily accessible by you.
15In respect of Charges 2 and 3 on Indictment 1, between 29 December 2012 and 11 May 2013, a Queensland police officer was performing covert duties investigating sexual offences involving children. He adopted the persona "Bree Smith", a 14-year-old girl.
16On 29 December, you, using the identity "Lurker76", contacted Bree Smith on the Netlog social networking site. Your profile said you were aged 36, and she informed you that she was 14. Your conversation quickly became sexually explicit, with questions and instructions regarding her masturbating, and the sexual habits of herself and her friends. She again told you her age, but you continued to instruct her to masturbate. You requested her to take photos of herself and to send them to you. You sent a photo of a penis to her and continued to engage in sexually explicit conversations. The sending of the photo constitutes Charge 3, Indictment 1.
17You had other sexually explicit conversations with Bree Smith on 31 March, the 14th, 15th and 16 April, and 11 May 2013. These conversations were in a similar vein to those outlined above, and included instructions for her to masturbate, discussions regarding the photo that you sent in December, requests for explicit pictures of her, and the details of the sexual experiences of her friends. You also indicated you would go to Brisbane to see her (Charge 2, Indictment 1).
18In respect of the offences on Indictment 2, between 20 May and 23 July 2013, you communicated with three other people who you believed to be under the age of 16 using Skype. The first was Melissa, whose profile photo depicted her as a teenager. In discussions, she told you she was 15. You communicated with her four times. In the course of these communications, you discussed with her masturbating, performing oral sex, and vaginal and anal intercourse (Charge 1, Indictment 2).
19The second was with Sasha. Her profile indicated she was 11 years old and in the UK. You communicated with her regarding her masturbating, and you asking to lick her (Charge 2, Indictment 2). On 25 May you asked for Sasha to send you photos, and she transmitted three photos of her exposed breasts to you (Charge 3, Indictment 2).
20The third was with Laura. On 7 July you engaged in a lengthy conversation, whereby she told you she wanted to engage in sexual activity with her 16-year-old friend, by first rendering her unconscious. She told you she was 15. You suggested Rohypnol, and also indicated that you would like to participate in any such sexual activity. You spoke about other possible drugs. You continued to discuss sexually explicit matters.
21She sent to you three photos, one of her friend, a close-up of a vagina, and one depicting a female's genitals and breasts. Each of these photos were located on your Samsung laptop under the directory with her name. You also transmitted four photos to her, depicting females' breasts, genitals and buttocks (Charge 4, Indictment 2).
22You were interviewed by police on 26 September, though the questions were directed to the matters in Indictment 1. In the course of the interview, you said that you did not think that you actually had engaged in such conversations with teenage girls, rather you thought they were men, who like you were engaged in fantasy. You maintained that you never intended to meet up with any of those with whom you communicated. You maintained you were not aware it was illegal to send explicit photos. You said you had dozens of pictures of child pornography, but that you thought it had been deleted.
23You consistently maintained that you thought you were communicating with men pretending to be girls, and that within this fantasy, it took you away from your depressed state. You did not remember any specific conversations with Bree.
24In sentencing for Commonwealth matters, s.16A(2) of the Code provides a non-exclusive list of factors that the court must take into account where relevant and known to the court. Similar matters apply in relation to sentencing for State matters.
25As to the impact on victims, I did not receive any victim impact statements. However, with child pornography offences, though no specific or individual victims are identified as such, it is not a victimless crime, with children clearly being sexually exploited and/or abused to support a market.
26As to your character, antecedence, age, means and physical and mental condition, I received a report from Patrick Newton, forensic and clinical psychologist, dated 16 September 2016. I also heard evidence from your maternal aunt, Rae Ferguson.
27You are currently aged 39. Your parents separated when you were young, and you have two older brothers. You were brought up by your mother, and later your stepfather, both of whom were in court with you. You reported to Mr Newton that you had been sexually abused by a family friend when you were aged about eight. You received some counselling in relation to that when you were 12. The perpetrator was sentenced to a 12-month YTC.
28You completed Year 12 and obtained a science degree from Deakin University, though you have not worked in that field. You have worked as a theatre technician most of your working life.
29You have been married twice. Your first marriage was when you were young, and broke down after about seven years. Your second marriage was more turbulent and problematic, with your wife suffering from mental health issues. Your state throughout this marriage was of heightened anxiety, and you progressively became more depressed. It was during this time that you became more immersed in viewing child pornography and online communications. You sought counselling during this relationship, which you found beneficial, however you ultimately divorced in 2012.
30You are currently in a relationship with your partner, Jacinta, who remains supportive of you and attended court. You have no children. You have never had issues with drugs or alcohol. You have no prior convictions, and apart from the circumstances of this offending, were otherwise of good character.
31I received a character reference from Glen Probstall, who worked with you within the Southern Umpires Association, and I take that material into account.
32You first saw Mr Newton in June-July 2015. You were described at the initial assessment as being in a "mildly downcast state", and as having a range of symptoms consistent with an experience of reactive depression. When you were reviewed by him more recently in August 2016, though you still experienced similar symptoms, they were at considerably milder levels. Mr Newton was of the opinion that your symptoms were not such as to be sufficiently severe to meet the criteria for any psychological disorder.
33Mr Newton is of the opinion that your offending raised concerns about your sexual adjustment. He is of the view that your own childhood sexual abuse experience and subsequent immersion into the deviant world of online pornography resulted in you having a range of severely problematic cognitive distortions about underage girls.
34You came to the view prepubescent individuals possessed precocious sexual interests and abilities, which allowed you to rationalise that sexual contact between them and adults was not harmful, and thus facilitated this offending.
35Mr Newton is of the opinion that you have begun to challenge these distorted ways of thinking, but that you require participation in a specialist sex offender treatment program.
36I take into account your plea of guilty. Though it is not an early plea, I accept that there was ongoing, extensive negotiations with delays in full access to the material, and that resolution was always likely. There is a utilitarian benefit in the plea, and you have avoided the need for a trial. You have saved cost to the community and avoided the likely embarrassment and/or trauma of any of the witnesses giving evidence, particularly in respect of the matters on Indictment 2.
37I accept that your plea is indicative of remorse. Your aunt gave evidence as to your recognition of the seriousness of your offending, and awareness that you had done the wrong thing. Mr Newton remarks that in your most recent interview, you were able to demonstrate some insight into your offending.
38Also relevant is the circumstance of delay. Police attended at your home on
23 September 2013, and you were charged almost immediately in relation to matters on the first indictment. I understand that you had indicated an intention to plead not guilty to these matters until the e-crime material was made available for viewing. This did not occur until 29 April 2015, and you soon thereafter indicated an intention to plead to the matters on Indictment 1. You were arraigned on 8 May 2015.39You were however charged with 26 additional matters arising from the material seized on 23 September 2013 on 23 July 2015. This development meant that the plea date for the first indictment was vacated. Ultimately you indicated you would plead to all matters after discussions had been held between your legal representatives and the Commonwealth, and the number of charges on the second indictment was significantly reduced.
40It has, therefore, been a significant period of delay since the police were first involved. It is three years that you have had these matters hanging over your head, and I accept that you have always indicated you wished to resolve these matters dependent on the content of the material and when it was available.
41It has been three years since your offending was discovered, and you have not been in trouble during that time. As to the risk of your reoffending, Mr Newton provides this opinion:
The main issues identified are those related to dysfunctional arousal patterns and deviant cognitions, which are intrinsic to the offending itself. In particular, the diversity of your paraphilic interests together with the compulsive nature of your online activities are deeply concerning. Beyond such matters, the continuing effects of your own experience of child abuse also raises concerns. In combination, these dynamic risk factors are assessed as raising your risk of recidivism beyond a low-risk range into the moderate-risk range overall. The single most important factor likely to reduce your recidivism would be participation in a comprehensive specialist sex offender treatment program. The sooner that participation in such a program can commence, the better."
42I accept Mr Newton's opinion that provided you participate in treatment in a timely manner, that there is guarded optimism as to your rehabilitation prospects, particularly given your family support and work history.
43In respect of both the online and the child pornography offending, I was provided with a number of cases by the prosecution. In respect of this kind of offending, it was noted in Western Australia v Collier (2007) 178 ACR 310 at 43, and approved by the Court of Appeal in R v Gajjar (2008) 192 ACR 76 at 61, that:
"It is important to say as clearly as one can that adult persons who make the use of the internet to locate and make contact with children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of imprisonment. As with offences concerning possession of child pornography, there is a paramount public interest in protecting children from sexual abuse."
44As to your online offending, these charges were created and designed to regulate and prohibit the use of modern technology in the abuse of children. You believed Bree to be a 14-year-old, and the offence was committed over a four and a half month period. You said you wanted to meet her, and by your plea, intended to engage in sexual activity.
45An offender's conduct is not to be regarded as no more morally reprehensible because the person to whom the communication was made was, unbeknown to him, an undercover police operative (see Gajjar at 56). In transmitting indecent material, you disguised your true identity and were predatory in seeking out the four victims. I accept you were never in a position to actually meet any of the victims, who were real children, however particularly relating to offences of this kind involving children, the Court of Appeal has said:
"Even though the perpetrator of an offence of this kind may have no intention of acting out the fantasy or fantasies in which he is indulging, the conduct has a significant deleterious impact upon any child participating in it (see Adamson at 48)."
46In cases involving child pornography, the relevant sentencing principles are set out most recently in DPP (Cth} & DPP v Garside [2016] VSCA 74 at 25, and can be summarised as follows:
"General deterrence is the primary sentencing consideration. Limited or less weight is to be given to an offender's prior good character. Offending involving child pornography occurs on an international level, and has become increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography. Offending involving child pornography is difficult to detect, given the anonymity of individuals provided by the internet. The possession of child pornography material creates a market for the continued corruption and exploitation of children. There is a paramount public interest objective in promoting the protection of children, as the possession of child pornography is not a victimless crime. Children are sexually abused in order to supply the market. The fact an offender does not pay to access a child pornography website, or was not involved in the distribution or sale of child pornography, does not mitigate the offending."
47Taking those matters into account, and of particular relevance to you, the objective seriousness of the offending is determined by reference to the matters listed below:
48The nature and gravity of the offence. In considering this factor, the following is relevant: the nature and content of the material, in particular the age of the children and gravity of the sexual activity depicted; the number of images or items possessed; whether the material is for the purpose of sale or distribution; whether the offender profits from the offence. Where, as in this case, the child pornography is for personal use, the number of children depicted and thereby victims is also regarded as a relevant consideration, as is the length of time for which the material was possessed.
49I turn then to the nature and content of material in age of children and gravity. Approximately 80 per cent of your images were Category 1, relating to depictions of children aged between seven and 15 engaging in sexually suggestive behaviour. This material does not involve participation in actual sexual activity, and though it is still serious, it is at the lowest level of classification. That is not to denigrate from the serious of this kind of offending, as such exploitation and abuse of children can cause irreparable and psychological harm to them. As Harper AJ said in D'Alessandro at 23:
"What they see is not merely a titillating picture, but the degradation of human beings too young to avoid the exploitation to which they are being subjected."
50Approximately 69 per cent of your videos were Category 4, depicting children engaged in sexually penetrative activity with adults. Clearly, the material in this category, and Category 5, was very serious and disturbing, involving many different victims.
51As to the number of images, many of these cases involve thousands of images. Comparatively, you had a small amount of images. Additionally, they were not highly organised or compartmentalised in your system, and it was relatively easy for authorities to discover the material.
52The prosecution conceded the material was at the lower end in terms of volume, but highlighted the inherent seriousness of each image depicting different victims, and the high proportion of Category 4 videos.
53There was no suggestion that this material was downloaded by you or was in your possession for the purposes of sale or further distribution, or that you were motivated by profit, all of which would have amounted to aggravating features. The possession offence relates to a single date. It is unclear how long you had all of this material in your possession. Your accessing this material on the internet though was between 19 February 2012 and 18 July 2013, about 16 months.
54It is authoritatively established that general deterrence is the paramount consideration when sentencing for offences of this kind. The existence of cyberspace provides a place where adults can easily deceive children and young people as to their true identity, and inveigle them into sexual behaviours beyond their maturity. Given the circumstances of this offending, it is also difficult to detect. The creation of these kind of offences to accommodate the occurrence of sexual exploitation of children via this popular medium serves to protect this vulnerable class of victim.
55The prevalence and ready availability of child pornography on the internet makes general deterrence an important consideration. With a readily accessible market and demand for this prohibited product, those minded to exploit children in this manner must be aware that they will be severely punished. The Court of Appeal has made it clear on a number of occasions general deterrence is the paramount consideration for offending of this grave nature.
56The maximum penalty for some of these offences, 15 years, reflects the seriousness with which the offence is viewed by Parliament. I was provided with a number of authorities and other comparative cases, and they provide some assistance, but each case must be determined on its own facts.
57As to specific deterrence, I accept that dependent on you successfully undertaking specialist sex offender treatment as recommended by Mr Newton that specific deterrence, though relevant, has more limited application to you.
58The prosecution submitted that given the relevant sentencing principles to cases of this kind, an immediate custodial sentence was warranted in this case. Defence submitted that all sentencing purposes could be properly served with the imposition of a combined custodial term and community correction order. In sentencing, I have taken into account all relevant matters, including those listed under s.16A(2) of the Code. These cases present a very difficult sentencing task, given the disturbing nature of some of the material and the impact on many victims, vulnerable children. However, this needs to be properly balanced with an assessment of the seriousness of your offending in your particular case, matters personal to you, delay, and your prospects for rehabilitation.
59As dictated by the Code, the court must impose a sentence that is of a severity appropriate in all of the circumstances. It must not impose a sentence of imprisonment unless it is satisfied no other sentence is appropriate in all the circumstances of the case. I accept that all relevant sentencing considerations can only be properly met by the imposition of a sentence that involves an immediate incarceration, but also involves for conditional release for continued monitoring and rehabilitation.
60I have determined that you should spend a period of time in custody before you are released on a recognisance release order with the condition that you participate in a sexual offender treatment program. I will refer to the charge number and each indictment as I sentence you, if you could please stand Mr Richardson?
61On State Charge 4, Indictment 1, I impose a sentence of 12 months' imprisonment.
62On Charge 2, Indictment 1, I impose a sentence of 15 months to commence at the expiration of the State sentence.
63On Charge 3, Indictment 2, I impose a sentence of 12 months to commence nine months before the expiration of the sentence imposed on Charge 2, Indictment 1.
64On Charge 1, Indictment 1, I impose a sentence of nine months to commence seven months before the expiration of the sentence imposed on Charge 3, Indictment 2.
65On Charge 3, Indictment 1, I impose a sentence of three months to commence two months before the expiration of the sentence imposed on Charge 1 on Indictment 1.
66Charge 1, Indictment 2, I impose a sentence of three months to commence two months before the expiration of sentence imposed on Charge 3, Indictment 1.
67On Charge 2, Indictment 2, I impose a sentence of two months to commence one month before the expiration of sentence imposed on Charge 1, Indictment 2.
68And on Charge 4, Indictment 2, I impose a sentence of two months to commence one month before the expiration of sentence imposed on Charge 2, Indictment 2.
69As a consequence of the partial concurrency proposed in respect of your sentence, the total effective sentence is 36 months.
70I am required to consider the making of a recognisance release order given that total effective sentence, and it is my intention that you be required to serve 15 months of that sentence. That is, you will be released after serving a period of 15 months upon giving the security in the sum of $1,000 to be of good behaviour for a period of two years. You must not, during that period of two years, commit any further breaches of the law. If that occurs, you will be in breach of the terms of the recognisance and should expect to be brought before the court and ordered to serve the whole of the sentence that I have just imposed.
71As part of the order, I have included a condition you participate in a sex offender treatment program. The purpose of making this order is to give you the opportunity not to serve the whole of the terms of imprisonment imposed and to give you the chance to continue to work on your issues and continue you progress to ultimately make a valuable contribution to society.
72You have pleaded guilty to eight registrable Class 2 offences under the Sex Offenders Registration Act. By virtue of the relevant provisions, you are required to report for the remainder of your life. You are now to be provided with a notice which includes your reporting obligations and the consequences that may arise if you fail to comply with those obligations.
73Pursuant to s.6AAA, you had not pleaded guilty to these matters, I would have imposed a sentence of imprisonment of 30 months to serve.
74Would the parties please check those calculations that I made in accordance with the sentence order?
75MR DHILLON: Yes, Your Honour.
76MR WILKINSON: Check the ‑ ‑ ‑
77HER HONOUR: Check that my calculations are correct in terms of ‑ ‑ ‑
78MR WILKINSON: Yes, I have got a problem here, Your Honour. I have got confused along the way, and have not written it out the right way, if I could have something ‑ ‑ ‑
79HER HONOUR: All right. What I can do is provide to you the last couple of pages, which sets it out.
80MR WILKINSON: Yes, thank you Your Honour.
81HER HONOUR: And if the parties ‑ ‑ ‑
82MR WILKINSON: We will sit down together and have a look at it that way.
83HER HONOUR: Yes, if the parties would not mind just sitting down and checking that, and then I will return to the Bench to have the sex offenders registration order signed and the recognisance release, thank you.
84(Short adjournment.)
85HER HONOUR: Mr Dhillon, can I just check with you please ‑ ‑ ‑
86MR DHILLON: Yes?
87HER HONOUR: - - -What my intention was, was that Mr Richardson serve a period of 15 months and then be released on the recognisance release order.
88MR DHILLON: Yes.
89HER HONOUR: Looking at the terms of the recognisance release order, because there is a State sentence of 12 months to serve first, should the recognisance release order then say - refer to a 24-month sentence with release after three months, or should it refer to a three-year sentence with release after 15 months? Because the recognisance release order is referrable to the Commonwealth sentence, as opposed to the State sentence.
90MR DHILLON: That is so. And I think it should only refer to the Commonwealth.
91HER HONOUR: The Commonwealth.
92MR DHILLON: Yes.
93HER HONOUR: Yes, all right.
94MR DHILLON: There will be a copy of the entire set of orders that Your Honour makes provided also to the Federal sentencing body that manages these matters.
95HER HONOUR: Yes, so we will ensure that the 12 months is served first.
96MR DHILLON: Yes.
97HER HONOUR: What I did not want is a situation whereby it says 12 months, then 15 months.
98MR DHILLON: Yes.
99HER HONOUR: And that is, I think, what the effect of that order would be.
100MR DHILLON: Yes.
101HER HONOUR: I really want to - my intention I want to make clear to the parties is that I am intending that Mr Richardson serve a period of 15 months, and then be released on the recognisance release.
102MR DHILLON: Thank you, Your Honour, yes that is understandable.
103HER HONOUR: Thank you, so my associate is just going to amend that on the order.
104MR DHILLON: Okay.
105HER HONOUR: And have the sex offender registration papers been printed?
106OFFENDER: Yeah, yeah I have got them.
107HER HONOUR: All right, so we can do that now too, thank you. Yes, thank you.
108MR WILKINSON: May I accompany ‑ ‑ ‑
109HER HONOUR: Yes, certainly. All right, thank you. I will just stand down for a moment, thank you.
110(Short adjournment.)
111HER HONOUR: Sorry, I forgot to declare presentence detention.
112MR DHILLON: Yes.
113HER HONOUR: How many days is it?
114MR DHILLON: Eight days.
115HER HONOUR: Eight days presentence detention is declared. Thank you.
116MR DHILLON: Thank you, Your Honour.
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