Director of Public Prosecutions v Sanford (a pseudonym)
[2022] VCC 784
•12 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEON SANFORD (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 March 2022 |
DATE OF SENTENCE: | 12 April 2022 |
CASE MAY BE CITED AS: | DPP v SANFORD (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 784 |
REASONS FOR SENTENCE
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Subject: Criminal Law.
Catchwords: Knowingly possessed and distributed child abuse material –
Contravened a condition of the supervision order – Early plea of guilty
during Covid-19 - Serious sexual offender.
Legislation Cited: Serious Offenders Act 2018; Sex Offenders Registration Act 2004;
Serious Sex Offenders (Detention and Supervision) Act 2009;
Sentencing Act 1991 (Vic).
Cases Cited: DPP v DAK [2004] VSCA 175; Worboyes v The Queen [2021] VSCA
169.
Sentence: Total effective sentence of 473 days imprisonment without being eligible
for parole. Sex Offender Registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office Of Public Prosecutions |
For the Accused | Ms R. Zaydan | Stary Norton Halphen – Criminal Law Specialists |
HIS HONOUR:
1Leon Sanford,[1] you came before the Court on appeal from the Ballarat Magistrates' Court decision of 26 November 2021, where an aggregate sentence was imposed for knowingly possessed child abuse material, in January 2021, for having distributed child abuse material from 1 October 2020 to 7 January 2021.
[1] A pseudonym.
2The effective term of imprisonment was 323 days, which was time that you had been held in custody, which was reckoned as a period already served under the sentence.
3Also before the Court is a charge brought pursuant to s169 of the Serious Offenders Act 2018, for which application was made for a summary hearing, pursuant to s174 of the Act before this Court, which I allowed and which the prosecution did not oppose.
4That charge to which you pleaded guilty alleges that on 7 January 2021, whilst being subject to a supervision order made on 4 May 2011 and which was then in force, you did, without reasonable excuse, fail to comply with a condition of your supervision order, namely condition 5.1, by committing a serious sex offence by possessing child abuse material.
5The circumstances of your offending, subject to the appeal and the charge for summarily, were described in a prosecution summary, which I will outline, together with some relevant chronological references, which clarify the background in which the offending took place.
6On 7 July 2004, you were convicted in this Court of five charges of incest. The victim was your three‑year‑old granddaughter. The offending had taken place between 1 April 2003 and 30 April 2003. The offending related to rubbing and penetrating a child's vagina with your fingers and tongue. You also masturbated on to ejaculation in her presence. You had attempted to ensure the child did not tell her parents by telling her if she did, you would be in trouble and go to gaol.
7The five charges of incest were Class 1 offences under Schedule 1 of the Sex Offenders Registration Act 2004. You were aged 42 at the time of the offences and on 7 July 2004, you were convicted and sentenced for a total effective sentence of five years imprisonment with a non‑parole period of three years. You were sentenced as a serious sexual offender.
8The Director of Public Prosecutions appealed that sentence on the ground of manifest inadequacy and in September 2004, the Court of Appeal allowed the appeal and resentenced you to a total effective sentence of seven years and fixed a non-parole period of five years.
9During the course of that appeal, the Court took into account significant antecedents, 12 prior convictions from four court appearances between December 1993 and December 2002.
10The 1993 convictions, which led to a community corrections order, were for commission of an indecent act with a child under 16 and seven charges of wilful and obscene exposure in a public place.
11In 1994, a three-month sentence of imprisonment and a fine was imposed for engagement in an indecent act with a child under 16. That sentence was varied on appeal to this court for imprisonment for one month, service suspended for two years.
12In 1995, you were again convicted for committing an indecent act with a child under 16 and sentenced to four months imprisonment.
13In 2002, you were then convicted of indecent assault on an adult female and placed on a community-based order for 18 months, which required participation in a sex offenders' program.
14A psychiatric report tendered to the court in relation to the incest charges identified a symptom profile indicative of paedophilia, with very strong paedophiliac tendencies representing a continuing danger to young persons. See DPP v DAK [2004] VSCA 175.
15You were released on parole on 1 April 2011 and a supervision order was made on 4 May 2011 by Her Honour Judge Cotterell. That order was for a period of 12 years.
16Chronologically, in August 2014, you were fined for theft at the Shepparton Magistrates' Court. In November 2014, you were fined for failure to comply with the reporting obligations under the supervision order and fined. In April 2015, you were fined for cannabis use and in December 2015, you were again fined for failure to comply with the supervision order.
17The supervision order, which was originally made under the Serious Sex Offenders (Detention and Supervision) Act 2009, was made in May 2011 and set for a period of 12 years. It was reviewed and renewed by Her Honour in December 2014 and December 2017 and by His Honour Judge Pillay in June 2020. It is soon to be again reviewed by His Honour.
18The failure to comply with the order for which you were convicted and fined in December 2015 by Her Honour Judge Cotterell, relevantly, was that between December 2014 and January 2015 you were in possession of over 30 images of children under the age of 16, which were found on your laptop but were not sexual images.
19You are now 61 years of age and are a registered sex offender, pursuant to s6 of the Sex Offenders Registration Act 2004. The offending subject to this appeal of possession and distribution of child abuse material also means you failed to comply with conditions 5.1 and 6.10 of the supervision order to which you are subject. 5.1 is breached by you committing a serious sex offence, namely possessing child abuse material. 6.10 is breaching by using a computer for the purpose of accessing and storing images of children under the age of 16.
20In May 2015, you were returned to Corella Place from private accommodation in Shepparton, and after the December 2015 failure to comply, you were transferred to accommodation at Emu Creek, where these offences the subject of the appeal took place. Emu Creek is managed by Corrections Victoria and is in Trawalla. You had been provided with a computer or phone to access internet on certain conditions, which prohibited access or downloading images or storing or transmitting images of children under 16 and you breached these prohibitions.
21A search was conducted of your unit on 7 January 2021. Police located nine data storage devices, including USBs, a micro-SD card and a Walkman MP3 player in your bedroom. Another micro-SD card was found in a diabetes equipment pouch on your bedside table.
22You were arrested and you were interviewed. You were cooperative and of good demeanour. You admitted possessing images of children on the two USB sticks and that you owned them. Another resident, you said, had offered to procure pornography for you, for which you paid, and you provided the USB sticks for that purpose. When they were returned, they contained pornographic videos and picture files, which included child abuse material involving children as young as five years of age.
23You told police that you had viewed the material and asserted you had deleted what was child abuse material but said that prior to receiving the USB sticks from the other resident, you were unaware that it would contain images of children or child abuse material. This assertion in the interview is not credible.
24You said that after deleting the offensive material, you took the USB stick and another USB device on a supervised outing. For some unexplained reason, you had been permitted to take your laptop computer and, during the trip, you copied files from the USB stick out onto the second device to 'lend the material' to other residents of Emu Creek, who would take it for an hour or two and then return it to you at no cost to them. This was the basis for the distribution Charge 2 on the appeal.
25You also admitted to transferring images into a micro-SD card, that you had hidden it in the diabetes pouch to prevent seizure in a search of your unit. You admitted to an interest in images of naked children for purposes of sexual gratification, as well as adult pornography. You were charged and remanded in custody.
26Police subsequently reviewed the devices seized from your unit. The first USB stick contained 10 pornographic images and one pornographic video. The micro-SD card contained 10 pornographic images, duplicates of the 10 contained on the USB stick, one pornographic video, duplicate of the video on the USB, 112 other images and 46 videos. Two further USBs were found and analysed and contained duplicate pornography contained in the first USB and micro-SD cards.
27I add here that this duplication appears to me to be irrelevant and does not mitigate or lessen the offending. Six other storage devices did not contain illicit material.
28The 112 images of the micro-SD card were classified according to the child exploitation material categorisation. Ten were Category 4, that is child adult penetrative child abuse material; 17 Category 7, that is not illegal but connected to child abuse material or indicative of an interest in child pornography but are not illegal; 70 Category 8, that is adult pornography; and 15 Category 9, that are images that do not fall into any other category and ignorable as such, but which in this category could become Category 7 if there is a link to a suspect or an offence. Of the 46 videos, one was a Category 4, that is a penetrative child to child or adult child material and 45 were Category 8, adult pornography.
29Possession of child abuse material, Charge 1 on the appeal matter, carries a 10‑year maximum. It is also a registration class two offence, as is distribution of child abuse material, Charge 2 on the appeal, which also carries a 10‑year maximum.
30Given that these two charges are before me on appeal from the Magistrates' Court, I am bound by s113, 113A and B of the Sentencing Act. That is, a maximum of two years imprisonment for a single offence or a maximum of five years for a cumulative sentence, across multiple offences.
31The breach of the supervision order charge, which are being heard as summary hearing, carries a two‑year maximum, as I am exercising Magistrates' Court jurisdiction.
32Condition 5.1 of the supervision order, which was contravened, is a restrictive condition. A restrictive condition means a core condition, referred to in a number of subsections of s31 of the Serious Offenders Act 2018.
33Section 31, in describing core conditions of the supervision order, includes 31(2), 'The offender must not commit a serious sex offence in Victoria or elsewhere.' Serious sexual offences are then listed under Schedule 1 of the Act and Charge 1 of the appeal appears there at No.30, referenced to the relevant sections of the Crimes Act s51G.
34The note to s169 of the Serious Offenders Act states that:
In case of intentional or reckless contravention of a restrictive condition of a supervision order, s10A and B of the Sentencing Act requires that a term of imprisonment of not less that 12 months be imposed for an offence against s169, unless the court finds under s10A of that Act that a special reason exists.
35I note that there was no submission put forward that in your case a special reason existed, so that this provision exemption does not apply to your case.
36The offending occurred in October 2020, and you were remanded when you were arrested and charged on 7 January 2021 and 14 January 2021, respectively, with the matter concerning contravention of the supervision order, which charge was then transferred to the County Court.
37On 1 February 2021, you were charged with the two charges of possession and distribution. A number of directions hearings were administratively adjourned in 2021 up to November due to the pandemic situation then prevailing in this state.
38On 26 November 2021, you were sentenced. Direction hearings were adjourned in December 2021 and February 2022, up until the hearing of this matter in early March, by which time you had served 323 days up to the Magistrates' Court sentence and a further 102 days beyond that date, a total then of 425 days. As of today, you have served, excluding today, 454 days.
39I have recited this chronology in some detail because there was some confusion in the written and oral submissions made to the Court in relation to what was referred to as Charges 1 and 2 and the charge under the Serious Offenders Act. In the prosecution summary dated 4 March 2022, the charges over possession and distribution are referred to as Charges 1 and 2 and also the contravention matters as Charges 1 and 2. The chart provided clearly refers to the appeal that as a possession and distribution as Charge 1 and 2.
40Charge 1, which pertains to condition 6.10 of the supervision order, was transferred to the County Court on 8 January 2021. Charge 2, which was unfortunately also marked as Charge 1 on the charge sheet, pertains to condition 5.1 of the supervision order and was transferred to this Court on 27 January 2021.
41The defence written submissions of 7 March 2022 refers to two charges, 1 and 2, relating to the two contraventions of the supervision order, conditions 5.1 and 6.10 respectively, the subject of the plea and the Charges 1 and 2 the subject of the appeal. Provisions of s10AB of the Sentencing Act applied only to Charge 2; that is, the contravention charge pertaining to 5.1 of the conditions.
42In sentencing submissions, the prosecution submitted a term of imprisonment was appropriate in the circumstances of the breach of the supervision order. It highlighted specific deterrence, given your history of serious sexual offending and previous breaches of your supervision order, by being in possession of images of children. It also stressed general deterrence as a relevant factor.
43As to the appeal matters, the prosecution highlighted the objective seriousness of the offending, considering the nature and content of the material, the number of images, their categorisation and relatedness to child exploitation.
44You copied pornographic images of adults and children onto separate devices and provided that material to other residents. Other devices were used by you in an attempt to avoid detection of this material. You admitted being in possession of the USB for approximately three months after the offer by another person to procure pornography for you, although the number of images was relatively low, as was the number of children depicted.
45The fact of the supervision order to which you were subject is an aggravating factor in your offending on the two appeal matters. The order was in place to prohibit and deter you from using computers, telecommunication and digital devices for illicit and prohibited purposes.
46I am aware of the need to avoid double punishment for the offences before me, but in my view, the contravention charges, which pertain to the supervision order, are discrete and must be met by some cumulative punishment to enforce the statutory scheme, its obligations and seriousness of the contraventions.
47I agree that in your case, special deterrence must be a sentence purpose of some significant importance, as is general deterrence. Pornography and images depicting children is an abhorrent market with real victims and this kind of possession of images for sexual gratification must be denounced and punished and deterred, within the proper parameters of sentencing principles.
48In sentencing you as a serious offender, I will note for the records of the Court, I am to consider protection of the community as a principal purpose for which the sentence is imposed, and I note also the provisions as to cumulation in 6E of the Sentencing Act, which reverses the provisions of s16(1A) as to concurrency, in the case of serious offenders.
49Protection of the community, in any event, when sentencing in matters pertaining to possession and distribution of child abuse material is of primary importance. The defence submitted that no special reason existed to create an exemption to the provisions of s10AB of the Sentencing Act, which require a term of 12 months to be imposed on Charge 2 of the plea.
50Counsel submitted that your pre‑sentence detention period, in total, exceeded 12 months, so that I should then consider issues of totality and concurrency, given that it was said the factual context of the plea charges is that derived from the appeal charges. I noted during the plea that although this was broadly the case, the charges on the plea address different and discrete criminality, that is the breach of the supervision order.
51I take into account that you pleaded guilty at an early opportunity to all charges and that you made full admissions to the police. The plea has a utilitarian value to be taken into account, and I do. The plea is made at a time of pandemic, so it facilitates to finality this matter at a time when the pandemic has made justice outcomes very difficult. Further, it is made at a time when prospects of imprisonment are a greater burden and significant limitations on movements, transfers, programs, victims, and I also should consider that the pre‑sentence detention has been undertaken in this difficult period, which has included quarantine, isolation and more burdensome conditions on prisoners.
52It was submitted that your cooperation was an acceptance of responsibility and remorse. While I accept the first proposition, remorse is more difficult to assess. The plea I accept may be an indication of some remorse but, given your antecedents and the extensive period of your offending, I am unpersuaded that you are fully remorseful.
53You have spent your remand period mainly at the Hopkins Correctional Centre and once you are eventually released, you will in all likelihood be returned either to Corella Place or Emu Creek, where you've now been for about six years and most likely subject to a further period of supervision.
54Your background and personal circumstances were referred to briefly during the plea, by reference to the judgment of the Court of Appeal in the abovementioned sentence of 2004. It was there said by the Court that you had an unfortunate background with early years marred by experiences of sexual abuse, both of yourself and within your family. You witnessed your father abusing your sister on a number of occasions. Your older brother abused your daughter, and you were also abused by non‑family members.
55Your father was a member of the Air Force and as a consequence, your education was disrupted and itinerant. You finished Year 10 and secured employment despite this. After leaving school, you worked in semi‑skilled jobs until you worked as a truck driver, which remained your primary occupation until 1993, when you were injured in two accidents. You commenced your own transport business in 1998 in Sydney but gave that up after two years due to physical difficulties. You married when about 20 years of age and that marriage lasted until your imprisonment in 1996.
56Your time in custody has been more onerous, not only because of the pandemic conditions but by severe and incapacitating neck and shoulder and back nerve pain. There was also heart disease, high blood pressure, high cholesterol and type 2 diabetes you contend with. In 2017, a kidney was removed from you due to cancer. You had a heart attack and surgery in May 2020. In July 2021, you underwent a total knee replacement whilst incarcerated. You have used a walker and the Justice health records produced and sighted by the court list a significant number of prescribed medications.
57I take these difficulties into account, which together with Worboyes considerations, which pertain to pandemic conditions, will ameliorate your sentence. Your plea will reduce your sentence and the admissions made by you during your interview by police, which have to some extent facilitated the charges of appeal, will also reduce the sentence.
58By the maximum's application to the charges, the legislators have indicated the level of seriousness of this offending. In my view, the sentence of the learned magistrate was appropriate but not for that reason and, having re‑examined all the relevant factors, I intend to reimpose that term.
59The more complex exercise is the imposition of penalties on the two charges to which you have pleaded, which pertain to supervision order contraventions. Clearly, I should and do consider Charge 2, which pertains to restrictive condition 5.1, somewhat more serious than Charge 1 and one which, in any event, calls by legislative effect to the imposition of a sentence of not less than 12 months. I am conscious of the principle of totality and other considerations I have mentioned, and I will sentence you in this way.
60The order of the magistrate is set aside. I will reimpose the sentence of 323 days as an aggregate sentence on the two offences of knowingly possess and distribute child pornography and I will declare that you have served 323 days by way of pre‑sentence detention and note that in the Court's records.
61As to Charge 1 on the plea, you are convicted and sentenced to three months imprisonment. On Charge 2, you are convicted and sentenced to twelve months imprisonment. I order sentence on Charge 1 to be wholly concurrent on Charge 2 on the plea. I order that five months on Charge 1 be cumulative on the appeal sentence making a total effective sentence of 473 days imprisonment.
62I declare that you have served 137 days by way of pre‑sentence detention, which is referable to these charges, just over four months. I will not fix a non‑parole period.
63I note for the records of the Court that I sentence you as a serious sex offender, having previously been sentenced to five counts of incest, being Class 1 offences under Schedule of the Sex Offenders Registration Act, and as both Charge 1 and 2 of the appeal are registrable offences within Schedule 2 of the Sex Offenders Registration Act, you are to be registered for life.
64I have signed a forfeiture order in relation to Charges 1 and 2.
65Mr Moore, is the effect of the sentence clear?
66MR MOORE: It is to me, Your Honour.
67HIS HONOUR: Thank you, Mr Moore. Do you wish to raise anything with me, Ms Zaydan?
68MS ZAYDAN: Nothing further to raise, Your Honour.
69HIS HONOUR: Thank you.
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