Director of Public Prosecutions v Sames-Pickersgill

[2017] VCC 608

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

AT MELBOURNE
CRIMINAL JURISDICTION  CR-16-01605

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN SAMES-PICKERSGILL

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATES OF HEARING:	6 April 2017, 12 April 2017
DATE OF SENTENCE:	16 May 2017
CASE MAY BE CITED AS:	DPP v Sames-Pickersgill
MEDIUM NEUTRAL CITATION:	[2017] VCC 608

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords:   Pleas of guilty to ten charges relating to child pornography and two charges of cultivation and possession of cannabis – significant quantities of images covering all levels of seriousness – offender aged 29 – high-achieving post-graduate student – through internet access to child pornography developed paedophilia during extended period of depression and loneliness – previous good character – cooperation with authorities – early plea – voluntary engagement in treatment – insight into gravity of offending – remorse – good prospects for rehabilitation – low risk of reoffending – general and specific deterrence.

Legislation Cited:

Cases Cited:R v Verdins [2007] VSCA 102; DPP v Kilic [2016] HCA 48 at par 20; DPP v Gent [2005] NSWCCA 370.

Sentence: 6 years and 7 months, non-parole period of 3 years and 6 months. 

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APPEARANCES: Counsel Solicitors

For the Director of Public Prosecutions	Ms K. Breckweg	CDPP
For the Accused	Mr R.J. De Vietri	VLA

HER HONOUR:

1Benjamin Sames-Pickersgill, you have pleaded guilty to a number of child pornography charges and two drug-related charges.

THE CHARGES

2Charge 1 is a charge of knowingly possessing child pornography and Charge 2 is a charge of producing child pornography.  They are both State charges with maximum penalties of five years and ten years' imprisonment respectively.  The five year maximum penalty for Charge 1 changed to ten years from 1 December 2015, and this offence occurred between 11 January 2015 and 8 November 2015.

3Charge 3 is accessing child pornography using a carriage service, Charge 4 is transmitting the material using a carriage service and Charge 5 is making the material available using a carriage service.  Charge 6 is engaging in sexual activity with children under 16 using a carriage service and Charge 7 is a further charge of transmitting child pornography.  They are all Commonwealth offences for each of which the maximum penalty is 15 years' imprisonment.

4Charge 8 is using a carriage service to cause offence with a maximum penalty of three years, also a Commonwealth offence.  Charge 9 is a charge of producing child pornography and Charge 10 is knowingly possessing child pornography.  Each of those is a State offence and the maximum penalty is ten years for each charge.

5I note just for clarity that Charge 10 occurred on 28 January 2016, after the maximum sentence was increased on 1 December 2015.

6Charge 11 is cultivation of a narcotic plant, namely cannabis, and Charge 12 is possession of a drug of dependence, cannabis.  They are both State offences and the maximum penalty is imprisonment for one year.

DETAILS OF THE OFFENCES

7On 8 November 2015 a member of the public found a USB stick in Carlton which contained child pornography material, together with other files including your resume’.  It was handed to Victoria Police and an investigation began.  There were 62 items of child pornography on the USB stick, most of which were of level one seriousness, meaning at the lower end of range of seriousness according to the ANVIL scale[1].  This is Charge 1, knowingly possessing child pornography.  The Level 1 images in relation to this and the other charges included material that is extremely offensive, and thoroughly demeaning and humiliating to the children concerned, according to the descriptions contained in the prosecution summary.  Except for some samples of videos, I have not viewed any of the material, finding it unnecessary to do so given the descriptions provided.

[1] Level 1 – depictions of children with no sexual activity

Level 2 – solo masturbation  by a child or non-penetrative sex acts between children

Level 3 – Non-penetrative sexual activity between adults and children

Level 4 – Penetrative sexual activity between children and adults

Level 5 – Sadism, bestiality or humiliation or child abuse

Level 6 – Anime, cartoon, comics and drawings depicting children engaged in sexual  poses or activity

8On 28 January 2016 a search warrant was executed at your home in Elmore, at which time police seized an HP Pavilion G series laptop, a Huawei mobile phone with micro SD card, six cannabis plants approximately 40 centimetres tall, two cannabis plants approximately 80 centimetres tall, seven cannabis cuttings, one of which had grown roots, heater lamps and fans.  That relates to Charges 11 and 12.

9Your laptop and mobile phone contained significant quantities of child exploitation material.  The total number of images and videos was 15,429, undoubtedly a very large number in comparison with some other cases.  However, the emphasis in assessing the gravity of the offending should arguably be less on the number of images and more focused on the number of children involved, and there were very many in this case.

PRODUCE CHILD PORNOGRAPHY (CHARGE 2)

10Analysis of your laptop computer revealed that you were a prolific user of the Omegle online chat service.  This service allows a user to send messages, pictures or communicate live via video with random other people.

11Between February 2014 and April 2015 you produced child pornography on 187 occasions by using the Omegle site to send female children pornographic images of adult men and then recording their reactions with screen recording software.  On 132 of the occasions you used either a pre-recorded video of yourself stroking your penis or showed yourself doing this live through your webcam.  On 55 of the occasions you used software to display pre-recorded videos of various other males doing this.  That is Charge 2.

12In his carefully constructed submissions your counsel, quite justifiably, ranked this charge as being the second most serious of all the charges, and I adopt his ranking in relation to that and the other charges.  The charge ranked most serious is Charge 4, the transmission of material, carrying a maximum penalty of 15 years' imprisonment.

TRANSMISSION OF CHILD PORNOGRAPHY(CHARGE 4)

13Between February 2014 and April 2015 you used Omegle to search for girls aged between six and 12 years to chat with.  On 125 occasions during that period you used software to display child pornography videos to children on Omegle.  You showed a variety of videos to the children with whom you were communicating, including a video of a girl who appeared to be under two years old being abused.  It is not necessary for me to repeat the details of these images, other than to note that many of the teenage children who were showed this extremely depraved child pornography material through Omegle, expressed horror and disgust before terminating the chat.

14I shall move back now to Charge 3 then forward to Charge 10.  Having accessed material, which is Charge 3, you were also charged with possessing it, which is Charge 10.

ACCESS CHILD PORNOGRAPHY (CHARGE 3)

POSSESS CHILD PORNOGRAPHY (CHARGE 10)

15As I have said, analysis of your laptop revealed that at the time of seizure of the computer you were in possession of 15,429 child pornography images and videos, the majority of which you admitted you accessed via the internet.  This material was classified in accordance with the ANVIL scale as covering all levels of seriousness, mostly in Level 1 but about half as many again in Level 4 and some in Levels 5 and 6.  Most of the material depicted girls aged between five and 12 years.  Level 1 material ranged from images of children in sexually provocative poses to close-up images of their genitals.  Level 4 images included a depiction of a naked child who appears to be around one year or younger in a sexually abusive situation of an appalling nature.  An example of a Level 5 image depicts a naked girl aged between 12 and 15 involved in a form of bestiality.

USE CARRIAGE SERVICE TO MAKE AVAILABLE CHILD PORNOGRAPHY (CHARGE 5)

16Between February 2014 and September 2015 you made child pornography available to others by providing passwords to cloud-drop boxes to which you had previously uploaded child pornography.  This is Charge 5.

USE A CARRIAGE SERVICE FOR SEXUAL ACTIVITY (CHARGE 6)

17Between February 2014 and April 2014 you used Omegle to engage in online sexual activity with nine child victims in eight separate incidents.  All these instances are contained within Charge 6 and there is no need for me to describe them in detail.

TRANSMISSION OF CHILD PORNOGRAPHY (CHARGE 7)

18Between April 2014 and August 2015 on ten occasions you transmitted child pornography videos to unknown others, either by uploading the files to a cloud-based drop box or a Russian image trading website or by emailing the files directly to recipients.  That is Charge 7.

USE CARRIAGE SERVICE TO CAUSE OFFENCE (CHARGE 8)

19Between December 2014 and March 2015 you engaged in 29 separate Omegle communications with 46 children, during which you posted a message to the children asking them what they would do if an adult man offered them $50 to watch him masturbate in the park.  That is Charge 8.

PRODUCE CHILD PORNOGRAPHY (CHARGE 9)

20Over a week in July 2015 you used video editing software to create new child pornography videos by combining video scenes from existing child pornography videos with video scenes of yourself masturbating which you had recorded, giving the impression that you were involved in the acts depicted.

21I viewed a sample of these videos in order to comprehend what the children would have seen and found them horrifying in their depravity.  Other videos showed a young boy performing penetrative sexual acts on very young girls with you claiming to be the 15 year old boy.  You created 15 separate videos in this manner and each is classified as Level 4.  That is Charge 9.

CULTIVATE AND POSSESS CANNABIS (CHARGE 11 – 12)

22At the time of the execution of the search warrant at your home on 28 January 2015, police found 386 grams of cannabis, nine cannabis plants, as I have already described, heat lamps and fans.  You admitted that the cannabis was yours and that you cultivated and possessed the cannabis for personal use.  Those matters, as I said, are Charges 11 and 12.

RECORD OF INTERVIEW

23When interviewed by the police you admitted that you had child pornography on your computer, after you had started looking at normal pornography.  You became interested in child pornography after a site depicting children in swimwear came up on your screen.  You were predominantly looking at images of girls aged eight to 12.  You said you initially located child pornography with Google searches, then found a Russian website and eventually started trading child pornography.  You said you had accumulated thousands of images and videos which included non-violent sex and also some with violent sex, but some of it did not interest you and you only had it for the purposes of trading. 

24For this purpose you had created 20 to 30 email accounts for trading child pornography because they were often shut down.  This trading resulted in some repetition of images, meaning that you came to be in possession of more than one copy of the same image. 

25You said you had used Omegle and exposed yourself or displayed child pornography to other users. 

26You said you did not remember going to Carlton immediately before the finding of the USB drive, or losing any USB drives, but you acknowledged that it belonged to you. 

HISTORY OF PROCEEDINGS

27You were arrested and bailed on 28 January 2016.  On 16 September 2016 at the committal hearing you entered a plea of guilty to the charges.  Your admissions and your early plea mean that you are entitled to a discount on your sentence for having avoided what may have been a complex trial and for having facilitated the course of justice.

28I accept the plea as an indication of remorse, which you have also expressed in a letter to the court and which you expressed to your treating psychologist and to Mr Warren Simmons, who assessed you and provided a report.  Indeed you said you were disgusted with yourself and both sorry and horrified when you understood the effect upon victims, something you had apparently not understood initially.

PERSONAL BACKGROUND

29You are a single man aged 33 and you were aged between 29 and 32 during the three year period of the offending.  You grew up in the Blue Mountains in New South Wales in an intact family.  Your parents were both educated and your experience of childhood was positive.  You did very well at school and studied for an Arts degree, majoring in philosophy at Newcastle University. 

30Sadly, when you were aged 16, your mother died and you fell out with your father soon afterwards.  You moved away from home at that time and finished your secondary schooling without any family support.  While you were still a university student your sister, nine years younger than you, came to live with you and you supervised her schooling and looked after her.  She also was a high achiever at school and gained a place at university.

31While studying you worked at several jobs and had a long-term relationship with a young woman.  You achieved first-class Honours in your Degree and pursued your ambition of attending Oxford University for post-graduate studies.  You gained a part scholarship to Oxford but without a full scholarship you were unable to go, and this dashed your hopes leaving you deeply disappointed.

32About two years later, in 2012, you first came across child-related material on the internet.  The following year when you were enrolled as a PhD student at Melbourne University, you became depressed and suffered what you have described as a breakdown.  Your dog, who was your close companion, died.  You were studying for long hours but finding it difficult and you discontinued your course in mid-2014.

33You worked in a pizza shop to pay the rent and you cut yourself off from your family and saw no-one socially.  You were drinking heavily and using cannabis.  It was in this context that you began looking at the material.

34In May 2015, still in the depressed state, you moved to Elmore, and at this time you tried to regulate the offending behaviour by ceasing use of the internet and not downloading any new material but using only what you already had.  You continued to live an isolated existence.

35After your arrest you moved back to live with your father for support and company but without telling him or your sister about the nature of the offending.  You began consulting a psychologist almost immediately and have continued to restrict your internet use and to re-engage with your family and with a wider social group.  You ceased using drugs and reduced your alcohol consumption.

36Before the plea hearing you had been involved with a local bowls club and in earlier years with a cricket club, having been a successful basketball player when younger. 

37It was submitted to me that your offending behaviour can be viewed as an aberration and uncharacteristic when seen against the background of your earlier conduct.  You believe now that you are capable of returning to that state.

38You were placed on stringent bail conditions, requiring weekly reporting to a police station 50 kilometres from your home, with access only by public transport.  In addition, you were closely monitored by the police, with them visiting your home five days a week initially, then three days a week.  You complied with those conditions throughout.

39Your psychologist provided a report in which he described treatment for depression, anxiety and adjustment disorders, with a diagnosis of major depressive disorder and adjustment disorder.  He reported that you have been anxious to engage in rehabilitation with a specialist in the area of sexual offending.  That, of course, will happen as part of your sentence.

40It was submitted by your counsel that this material demonstrates a causal link between your state of mental health during the period of the offending with the commission of the offences, to result in lowering your criminal responsibility.

41The prosecution's submission in opposition is that I could not be satisfied that you were depressed at the relevant time with only self-reporting to rely on, despite Mr Simmons' opinion, and that the true diagnosis is paedophilia.

42It can be hypothesised that the condition of paedophilia must arise from some cause and that the mental state your described in your record of interview, that is the urge to continue having access to the material, may have arisen from inappropriate arousal patterns, which your psychologist says may have developed.  Perhaps that is at the core of the condition of paedophilia as diagnosed, however, that is a mere hypothesis and it is chiefly of relevance as an indicator for treatment and as a factor influencing prospects for rehabilitation and the risk of re-offending.

43After careful consideration I am not satisfied that this limb of the decision in the case of  Verdins[2] is enlivened.  Your depressed state remains a relevant factor to be taken into account as a partial explanation for the influences in your life at the time and it is a matter which, to your credit, you have continued to address ever since your arrest.  Your condition of depression will likely make the experience of prison more difficult than for others who do not suffer similarly and I take that into account relying on the relevant limb in the decision of Verdins.

[2] R v Verdins [2007] VSCA 102

44You are a person of previously good character in that you have never been in trouble with the law before in Victoria, although you reported to your psychologist some drug-related offending in New South Wales.  Good character is a factor to which I can give only diminished weight, according to the authorities in these cases, because of the importance of general deterrence and the prevalence of such cases in the community.  However, you have been co-operative with the police from the beginning and have clearly indicated your remorse and regret.  It seems that you have come to understand the real gravity of your offending and the fact that children are victims of the existence of the material you viewed, retained and transmitted.  In your case the offending extended well beyond these boundaries to communication with some of the children, and that adds to the gravity of the offending.

45As to the question of harm, it cannot be known what harm may have been suffered by these particular children, and indeed all the children who were the victims in this case, but it is well known that children are vulnerable to harm and corruption from exposure to such material.  Indeed, there is a presumption that such harm does occur.  One indicator of likely harm in this case was the disgusted reaction of young teenagers who viewed images of young children being sexually penetrated.

46This is a case of serious offending and of serious examples of the particular offences in relation to most of the charges, particularly those which are rolled-up charges covering multiple occasions of the same activity, meaning the level of criminality is greater.

47An additional factor is the duration of the offending over three years.  Having considered the reasoning in the High Court decision of DPP v Kilic[3], I am satisfied that the offending is grave enough to warrant severe punishment.  There is no question in this case but that a lengthy prison sentence, to be served immediately, should be imposed, partly for the purpose of just and appropriate punishment and also to serve as a deterrent to others.

[3] DPP v Kilic [2016 HCA 48 at par 20

48The ages of the children depicted and with whom contact was made ranged from babies to early teenagers and all levels of gravity was represented.  There was a large number of images and videos, and although there was no profit motive involved, you engaged in the trading of images and retained some just for that purpose.  The fact that the USB drive was found on the street containing 62 images is an aggravating factor given that it could have been found by a child, and that the inference to be drawn was that you were using it to make the material available to you in a conveniently transportable fashion.  Accordingly, taking all these matters into account, the objective seriousness of the offending is high[4].

[4] See DPP v Gent [2005] NSWCCA 370; 162 A Crim R 29

49The need for general deterrence is of paramount importance in this case, and others like it, as I have already said.  That is partly because of its prevalence and easy availability.  Because of these factors children anywhere in the world can become victims, even by accessing the material.  In addition, the community regards such offending with great abhorrence and the courts should condemn it sternly and with appropriately severe punishment.

50As for specific deterrence, your co-operation with the authorities, your early attention to your rehabilitation and the development of some insight into the reasons for your offending and the gravity of it, suggests that it is a matter requiring a lesser focus.

51With reference again to the psychologist, Mr Simmons, he considered that you had a history of depression beginning about four years previously, that is in 2012, and further, that you meet the DSM5 criteria for paedophilia, because your interest in the material continued for more than six months.

52Mr Simmons considered your risk of re-offending as low but that you would benefit from a sex offender treatment program to further explore your offending behaviour and deal with any inappropriate arousal patterns that may have developed.

53There are several mitigating factors which suggest that you do have good prospects for rehabilitation.  I have referred to the treatment you have had until very recently, your developed insight and your remorse, the co-operation that you have demonstrated throughout the proceedings and your recognition of the need to reintegrate in society, as opposed to removing yourself from it.  The poor judgments you made during that period have brought you here today, I have already observed, and it is sad to see a person of your intelligence and achievements now having to face these consequences.

54Turning now to your sentence, I preface this by saying that although all the offences involving child pornography are obviously related, the principle of totality requires that their differences and varying gravity and the period of time over which they occurred, call for some cumulation.

SENTENCE

55I will deal with the State charges first and the sentences for those charges will begin today.

56Charge 1, two years' imprisonment;

Charge 2, three years' imprisonment;

Charge 9, three years and

Charge 10 three years. 

57The sentence for Charge 2 in that group is the base sentence for the purposes of cumulation.  Three months of the sentence on Charges 1,9 and 10 to be served cumulatively on each other and on the base sentence. 

58The total effective sentence is three years and nine months.

59Turning  to the Commonwealth charges.

Charge 4, four year's imprisonment.  That sentence begins on 16 May 2018. 

Charge 3, three years, to begin on 16 January 2020. 

Charge 8, 12 months, to begin on 16 March 2020. 

Charge 5, three years, to begin on 16 June 2020. 

Charge 6, three years, to begin on 16 September 2020. 

Charge 7, three years, to begin on 16 December 2020.

60The total effective sentence in that group is six years and seven months.

(Recording malfunction)

There is 12 months cumulation between State and Commonwealth sentences.

61I fix a non-parole period for the State sentences of 1 year (today until 16/5/18), and a non-parole period for the Commonwealth charges of two and a half years, starting on the 16 May 2018.

62There is a global non-parole period of 3½ years, from today until the 16 November 2020. That is your earliest possible release date.

63In summary, there is a global total effective sentence of 6 years and 7 months, from today until 16 December 2023, a Commonwealth total effective sentence of 5 years and 7 months, from 16 May 2018 until 16 December 2023, and a  State total effective sentence of 3 years and 9 months, from today until 16 February 2021.

64In relation to Charges  11 and 12, the drug charges, I impose an aggregate fine of $500.

65Pursuant to s.6AAA of the Sentencing Act, I declare that if you had pleaded not guilty to these charges, I would have sentenced you to 8 years with a non-parole period of 5 years.

66Having pleaded guilty to nine Class 2 offences as identified in Schedule 2 of the Sex Offender Registration Act 2004  you will have to report your details to the police every year for the rest of your life.

67You are dealt with as a serious sexual offender for charges 9 and 10, but the prosecution does not seek a disproportionate sentence for those charges.

68You have been in custody for 34 days, not including today. I declare that time as having already been served, and I shall cause that to be noted on the court record.

69The structure of the sentence as I have just set it out, has been checked by the learned prosecutor Ms Breckwreg, with the knowledge of Mr De Vietri, who appeared on your behalf on the plea, and was also checked by Central Records, to ensure accuracy in terms of dates. I am grateful to all those parties for having assisted in this technically complex and difficult process.

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