Director of Public Prosecutions v Rogers

[2016] VCC 2046

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01048

THE QUEEN

v

BRIAN ROGERS

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 December 2016
CASE MAY BE CITED AS:	DPP v Rogers
MEDIUM NEUTRAL CITATION:	[2016] VCC 2046

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Crouch
For the Accused	Ms Altman

Pages 1 - 15

 

 

HER HONOUR:

1Brian Rogers, you have pleaded guilty to the following offences:  Charge 1, accessing child pornography using a carriage service between 11 April 2014 and 1 January 2016 contrary to the Commonwealth Criminal Code; Charge 2, transmitting child pornography using a carriage service between 17 November 2015 and 21 December 2015 again contrary to the Commonwealth Criminal Code; and Charge 3, possession of child pornography on 25 February 2016 contrary to s.70(1) of the Crimes Act (Vic). The maximum penalty for Charges 1 and 2 is 15 years and for Charge 3 is five years.

2The circumstances of this offending are set out in Exhibit A, summary of prosecution opening for plea.  I have also available a sample of the child pornography material the subject of these offences and with the agreement of the parties, viewed it in my chambers.  As to the circumstances of the offence, on 14 May 2014 the Australian Federal Police received information that child pornography material was being uploaded to a Microsoft SkyDrive account by the user of email account ‘[email protected]’.  The user of this email account was utilising an IP address that was linked to your residential address.

3On 25 February 2016, AFP officers executed a warrant at your address and a mobile phone and laptop were seized.  The material located on these devices was analysed and classified in accordance with the Australian National Victim Image Library (ANVIL), categories of which there are six classifications.  The relevant criteria for classifications are set out in paragraph 6 of Exhibit A. 

4As to Charge 1, that relates to both material on the phone and the laptop.  Analysis of the phone revealed one child pornography video file classified Level 4.  The file creation date was 25 February 2015 and the video depicts a young child of approximately two to three years lying on their back being forced to perform oral sex on an adult male.  The laptop contained a total of 178 child pornography files classified as follows:  Level 1, there were 50 files or 28 per cent; Level 2, 25 files or 14 per cent; Level 3, 19 files or approximately 14 per cent; and Level 4, 83 files or 46 per cent.  There was also one Level 5 file.

5The earliest recorded child pornography file creation date was 11 April 2014.  The last recorded child pornography file creation date was 1 January 2016, hence the between dates in the charge.  Sample file names included "Parts to Mexican 11-year-old rape" and "Little Michelle 7 years".  The age range of the children depicted was from approximately two years old up to 14 years of age.  On inquiry from me, no further breakdown of the age of those depicted was available in terms of the number of images relating to specific age groups.  I note that approximately half of the images were of various penetrative sexual acts between children and adults or categorised Level 4.

6Forensic analysis of the Wahoo messenger program on your laptop also revealed that five child pornography files had been transferred to other uses via the Wahoo program.  All of these files were categorised as Level 1 and one Level 3.  The earliest recorded file transmission occurred on 17 November 2015 and the last transmission on 21 December 2015, hence the date of offending for Charge 2.

7In respect of Charge 3, you had in your possession 132 child pornography files.  These files are also the subject of Charge 1, that is, files that you intentionally saved to relevant devices rather than just being accessed or viewed by you.  I was not informed of the relevant categories of these files other than that they are part of the 178 files classified under Charge 1.  There was also the one Level 4 video that had been saved on your phone referred to above.

8During the course of the search at your home, you spoke with AFP officers and admitted that you had looked at child pornography material on the internet and that you knew it was illegal.  You admitted that it was your internet and email account and offered to provide details of others who were involved in chat activity with you.  You said you saved the child porn images on your laptop and this had happened on average once a week.  You said you were aware that you were doing the wrong thing and indicated that you knew that the day would come when you would be caught and that you were, in your own words, “stupid and glad” to be discovered.

9You were subsequently arrested and conveyed to the Keilor Downs police station and participated in a record of interview.  You provided further detail regarding the method of accessing the material and the nature of it.  You told police how your wife discovered some of the material on your phone some six months before, and that she had left you, telling you to fix yourself up.  You continued to make full and frank admissions admitting that the material related to children of all ages.  You stated you had progressed from viewing adult porn to this material.  A more detailed summary of the contents of both your initial conversation with police and your formal interview are contained in paragraphs 26 and 27 in Exhibit A.

10As to your personal circumstances, most of the detail regarding your personal circumstances was provided in a report prepared by clinical psychologist Rachel MacKenzie dated 12 December 2016.  I note your wife was also interviewed by Dr MacKenzie.  Various psychological tests were conducted by Dr MacKenzie, the results of which are comprehensively set out in her report.  I take all the material contained in her report into account.

11You are currently aged 45 and are the eldest of four children and were born in Korumburra.  Your parents separated when you were aged 11 and you initially had contact with your father, though ultimately you became estranged.  Your mother struggled financially and repeated relocations of the family led to you experiencing disruptive schooling.  You left school at 17.  I was informed your mother passed away in 1997 and that you have no contact with your siblings. 

12You have a solid employment history in relatively unskilled jobs working various factory jobs as a machine operator.  In 2008, you gained employment with Qantas as a baggage handler and currently still have that employment.

13You met your wife Kerry in 2000 and you married in 2002.  You took on the role of father to her two young children from a previous relationship.  They are now aged 21 and 18.  You bought a home together in Sydenham and you supported your wife while she was trained and qualified as a midwife.  You and your wife separated and she left the home with the children in August 2015, out of concerns relating to this offending.  However, your wife remains supportive of you and it is hoped that you will reconcile and live together again in the near future.

14You reported to Dr MacKenzie alcohol consumption since the age of about 24 years though admitted increased usage over at least the last 10 years, recognising it was at a problematic level.  Dr MacKenzie administered a relevant test in relation to your alcohol use, the results of which placed you in the range of individuals who have a level of hazardous and harmful alcohol consumption requiring specialist psychological intervention. 

15Other personality testing revealed you to be a person with a drinking problem who is confused and socially isolated.  Your alcohol consumption was linked to you accessing the material related to this offending.  As Dr MacKenzie notes, your use of alcohol would not only appear to have developed as a maladaptive coping mechanism in order to avoid dealing with distressing emotions, but it is also associated with your offending in that it had a disinhibiting effect and impeded your judgement.  Though alcohol use does not excuse your behaviour or is it a factor in mitigation, it does provide some explanation for it.

16I heard evidence from your wife.  It is apparent to me that she remains supportive of you and that you have been a good father to her children.  She has attempted to address your offending with you, which she indicated she has discussed with you at length.  She understood that you recognised that you needed help and that once the police became involved, steps were taken in relation to you seeing a psychologist, though neither of you had understood that that was only for the purposes of a court report and not more extended counselling to deal with both this offending and/or your alcohol issues.

17As to your plea of guilty and the degree to which you have shown contrition and your degree of cooperation with authorities, I take into account your plea of guilty.  This was an early plea and the prosecution conceded that it was at the first opportunity.  There is a utilitarian benefit in the plea and you have avoided the need for a trial, and saved the community the cost of any trial.  I accept your plea is indicative of remorse.  The material presented on your behalf, including in your conversation and interview with police, reveal that you are ashamed and embarrassed about your conduct.  You were forthcoming with police regarding details, contents and method of your communications.

18The prosecution questioned your level of remorse, submitting that it was more an expression of regret for you being caught than a genuine understanding of the wrongfulness of your activities.  However, your wife gave evidence which I accept, of a recognition by you regarding the impact of this material on children victims and Dr MacKenzie also reported that you are remorseful over your offending.

19You were cooperative with authorities, offering to write down details of chatrooms, and by going online and providing names of people who offered to provide photos.  You informed police about details regarding the duration of your activities that would not have been able to be proved, such as that you had been engaged in this conduct on and off for four and a half years.  The prosecution submitted the usefulness of such information was limited given the anonymous nature of much of the activity.  However it was not disputed that such assistance was forthcoming and it is, in my view, also consistent with remorse.

20As to the objective circumstances of the offence and sentencing principles applicable to child pornography cases, in cases involving child pornography, the relevant sentencing principles are set out in DPP (Cth) v D’Alessandro (2010) 26 VR 477, recently approved in DPP (Cth) and DPP v Garside [2016] VSCA 74 at paragraph 24 where six propositions are listed as relevant to sentencing for this kind of offending. I have considered each of those matters.

21It is noted that general deterrence is a paramount consideration and that less or limited weight is to be given to an offender's prior good character as it is the experience of the courts that such offences are committed frequently by persons otherwise of good character.  A sentence of immediate imprisonment will ordinarily be warranted but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded. 

22The nature and gravity of the offending ordinarily is determined by reference to four criteria:  (a) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted; (b) the number of images or items possessed; (c) whether the materials were for the purpose of sale or further distribution; and (d) whether the offender will profit from the events.  In the case of child pornography for personal use, the number of children depicted and thereby victims is also regarded as a relevant consideration.

23Approximately half of your images were classified in the serious category of Level 4.  The age range of the children depicted was between two and 14.  The duration of your offending in respect of Charge 1 was 22 months.  I note that the total number of images both accessed and possessed can be contrasted with many of the cases before this court where the amount of images is in the hundreds or thousands.  There were only five files the subject of the transmission charge.  There were still, of course, a significant amount of children or victims depicted.  There was no suggestion that any of the material was for the purpose of sale or that you were to profit from it.  The period of possession of the material was limited.

24As to your prospects of rehabilitation and sentencing disposition.  You appear to have offended in circumstances where you had become socially isolated and disinhibited with the excessive consumption of alcohol.  It is of concern to me that you did not desist in this activity when your wife discovered some of the material and left you in August 2015.  It was submitted on your behalf that you lacked the resourcefulness and financial means to embark upon addressing both your offending behaviour and alcohol use prior to this court appearance.  I was informed that since February this year, you no longer have access to a computer.

25Reliance was placed on the opinion of Dr MacKenzie who reported as follows: 

"CEM (child exploitation material) users with no other offence history have been found to be a low risk of reoffending either online or offline.  These findings become pertinent in that Mr Rogers has no criminal history or general antisocial behaviours or attitudes.  He also has the protective factor of the ongoing support of his wife and has demonstrated his willingness to comply with the legal directives whilst he has been on bail which increases the likelihood that he will comply with treatment conditions... 

"My conclusion is that while Mr Rogers currently poses moderate risk of future online offending and low risk of committing contact offence, this risk level will be reduced with him engaging in appropriate treatment that addresses his specific risk factors."

See also:  paragraph 76 of Dr MacKenzie's report.

26Dr MacKenzie recommended specifically the effectiveness of one-on-one counselling under the auspices of the Forensicare problem behaviour program.  Your rehabilitation prospects clearly depend on you properly engaging in treatment to address the nature of this offending and your alcohol issues.  Other positive indicators include the support of your wife, your expressions of a willingness to engage in treatment, along with your full and frank admissions in relation to this offending.  These augur well for your rehabilitation.

27As to general deterrence, the prevalence in 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 matter must be aware they will be severely punished.  The Court of Appeal has made it clear on a number of occasions that general deterrence is the paramount consideration for offending of this grave nature. 

28As to specific deterrence, you are of previous good character with no prior convictions.  As previously noted however, in cases such as these, more limited weight is to be given to specific deterrence.

29Given there are Commonwealth offences, provisions of the Commonwealth sentencing legislation apply to those charges. Pursuant to s.16A of the Crimes Act 1914 (Cth), the Act, I must impose a sentence of a severity appropriate in all the circumstances of the offence. Section 16A(2) obliges me in sentencing you to take into account matters referred to within that section that are known to the court and I have done so.

30Your counsel submitted that I should impose a sentence of imprisonment for the access and transmission offences with a recognisance release order that would allow for treatment under a CCO that could be imposed in relation to the possession charge.  It was submitted on your behalf that treatment under a community corrections order would be in the community's interests. 

31The prosecution submitted that an immediate custodial sentence was warranted in this case given all of the matters raised in the written submissions particularly the importance of general deterrence and the nature and circumstances of this offending.  The prosecution also submitted that the charges relate to separate activities regarding child pornography and that a degree of cumulation was warranted.

32These cases present a very difficult sentencing task given the disturbing nature of the material, its volume, the maximum penalties and the impact on so many victims, vulnerable children.  This needs to be balanced with matters in your favour such as your plea, remorse and rehabilitation prospects.  I do accept that the sentencing considerations outlined above can be properly met by the imposition of a sentence that does not involve immediate incarceration but provides for conditions to ensure a level of punishment, continuing monitoring and rehabilitation.

33As indicated at the outset, you are to be sentenced to both two Commonwealth offences and a state offence relating to child pornography.  I received a pre-sentence report from Corrections Victoria regarding your suitability for a community corrections order.  You have been deemed suitable with conditions including you participating in offending behaviour programs as directed.  The program that is anticipated as being suitable for you takes 18 months to complete.  It is also recommended that you commence treatment and counselling regarding alcohol and that this should be monitored.  It is recommended that there be a work component of the order and the report indicates that you consent to the making of such an order.

34Mr Rogers, if you could please stand up.

35In respect of Charge 1, I sentence you to a period of 12 months' imprisonment. 

36In respect of Charge 2, I sentence you to a period of three months' imprisonment.

37The sentence imposed in respect of Charge 2 is to commence one month before the expiration of the sentence imposed in respect of Charge 1. 

38I order that you are to be released forthwith on a recognisance in the sum of $1,000 to be of good behaviour for the period of two years.  You will be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his/her nominee for a period of two years.  You are to attend for assessment and if assessed as suitable, treatment for sexual offender program or programs to reduce reoffending as directed.

39I am required to explain the purpose and consequences of the making of a recognisance release order that I have just made.  The order reflects the gravity of your offence but also mitigating factors which I have referred to in the course of these reasons.  If you are of good behaviour over the following two-year period and comply with the conditions, that is the end of the sentencing process in respect of those charges as far as the court's concerned.  If you are not of good behaviour, in all likelihood you will be brought back before this court and depending on the nature and seriousness of the transgression the court may either take no action, impose a fine, extend the period of your good behaviour or impose a different penalty, or revoke the recognisance release order or send you to prison for the balance of your sentence.

40In respect of Charge 3, I impose a community corrections order and it will include the same condition or a similar condition to that as incorporated with the recognisance release order.  The community corrections order will be for a period of two years.  There will be a work component of 250 hours that you will be required to do.  There will be a condition regarding the sex offender advice and treatment services and also a condition regarding alcohol treatment and counselling as directed by Corrections.  You will be supervised by the Sunshine Community Corrections office.  Again, if you breach the community corrections order, you will come back before me for resentencing and I will have very limited options in respect of the dispositions that I can impose.

41By virtue of your convictions for these offences, you will be placed on the Sex Offenders Register. These offences are all Class 2 offences under the Sex Offenders Registration Act and you will have a reporting period of life pursuant to s.34(1)(c)(ii) of the Act.

42Pursuant to s.6AAA, if you had not pleaded guilty to this matter I would have sentenced you to a period in respect of each of the charges that would have made a total effective sentence of 18 months but I would have fixed a recognisance release order for a period of six months.

43MS ALTMAN:  If it please Your Honour.

44HER HONOUR:  Are there any other orders that I need to make?

45MR CROUCH:  I just note for completeness, Your Honour, that you should say that the sentence will start today for Charge 1, I think that's all.

46HER HONOUR:  Yes.  Well, the sentence would start today for 12 - would start for Charge 1 except that he is going to be immediately released on the recognisance release order.

47MR CROUCH:  Yes, yes, yes.

48HER HONOUR:  Yes, thank you.

49MS ALTMAN:  If it please Your Honour.

50HER HONOUR:  Do you have the recognisance release order prepared?

51MR CROUCH:  I do, I just need to fill it in.

52HER HONOUR:  Thank you, if you could fill in those details and there's a community corrections order, Ms Altman, would you please go and speak to your client about that?

53MS ALTMAN:  Yes.

54(Community corrections order signed and acknowledged.)

55MR CROUCH:  Sorry, Your Honour, what was the recognisance amount?

56HER HONOUR:  A thousand dollars.

57MR CROUCH:  Your Honour, sorry, one issue is ‑ ‑ ‑

58HER HONOUR:  Yes.

59MR CROUCH:  ‑ ‑ ‑ with the RRO, there would normally be a reporting condition with a specific time for reporting.

60HER HONOUR:  Well, that's on the CCO anyway so let's just incorporate the same one that's on the CCO.

61MR CROUCH:  So maybe I just cross that out of the RRO form?

62HER HONOUR:  Yes.  Unless that invalidates the order, it doesn't, does it?

63MR CROUCH:  I can't see why it would, no.

64HER HONOUR:  No, all right.

65MS ALTMAN:  Thank you, Your Honour.

66HER HONOUR:  Mr Rogers, you are very fortunate to have the support of your wife and it is not going to be easy for you to deal with these issues and I'm hoping that you will.

67OFFENDER:  I know, Your Honour.  Thank you.

68HER HONOUR:  Mr Crouch, the second page of the recognisance release order ‑ ‑ ‑

69MR CROUCH:  Yes.

70HER HONOUR:  ‑ ‑ ‑ says this order has been issues because the defendant was charged with the following offences and the court has sentenced the defendant to a term of X imprisonment.  Now is it the - is it 12 - do I say 12 months and three months respectively or something?

71MR CROUCH:  I think just 13 months.

72HER HONOUR:  I'll just have a quick look.

73MR CROUCH:  ‑ ‑ ‑ before the expiration which would have the effect - sorry ‑ ‑ ‑

74HER HONOUR:  Which would make it two months cumulative.

75MS ALTMAN:  Two months cumulative.

76MR CROUCH:  Two months, yes, two months.  So it would be 14 months.

77HER HONOUR:  So 14 months.

78MR CROUCH:  Yes.

79HER HONOUR:  Thanks. 

80(Recognisance release order signed and acknowledged.)

81Thank you, Your Honour.

82HER HONOUR:  Thank you.  Just adjourn the court, thank you.

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