Director of Public Prosecutions v Schulz
[2018] VCC 615
•16 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.17-01830
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MORGAN SCHULZ |
---
JUDGE: | HER HONOUR JUDGE SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2018 | |
DATE OF SENTENCE: | 16 April 2018 | |
CASE MAY BE CITED AS: | DPP v Schulz | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 615 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law – Sexual Offences
Catchwords: Possession of child pornography
Sentence: Adjourned Undertaking for a period of 12 months with no conviction
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Holding | DPP |
| For the Accused | Ms A. Roodenburg | Aitken Partners |
HER HONOUR:
1 As this matter involves a sexual offences case, I propose to use a pseudonym for the name of the complainant. She will be known as Natalie Graham and so I will refer to her as that throughout these remarks.
2 Mr Schulz, you pleaded guilty before this court to one charge of possession of child pornography which has a maximum sentence of ten years' imprisonment.
3 I sentence you on the basis of the prosecution opening[1] although I have regard to the submission that I heard from counsel about the circumstances in which the phone which had the images on it was located.
[1] Exhibit A
4 The facts in this case are very unusual and that is conceded by the prosecution. The situation is that you knew the victim Natalie Graham through both your school, also through the scout group that you were both connected with, and also through the church. At the time of the offence which was on one occasion, that is the way that these charges are laid, you were aged 18 and Natalie Graham was aged 14 and you were aware of that difference in age because of your knowledge of her.
5 For a number of months you and Natalie had been exchanging Facebook communications and in the course of that although it is not known exactly when, she sent you five images of herself showing her naked and showing her breasts and genital area. I am told they are not close up shots. However through your Facebook application there was apparently an automatic download of the photographs to your phone although there may have been screen shot of some of the surrounding comments with the sending of the images which you took. I am told by your counsel that you then forgot they were on your phone until they were located by police as I will come to in a moment.
6 The actual conversation throughout the Facebook communications was not necessarily sexual but you did reply after the photographs were sent. You became aware that this seemed to indicate that Natalie was keen on you and you tried to distance yourself and otherwise advise her to look elsewhere and the messaging between you stopped altogether by the end of December. However the communications proceeded the undeniable fact is that you did not ask for these images to be sent, they were sent by Natalie of her own volition.
7 On 3 January the police attended your house with a search warrant as part of of an investigation into your father concerning the same victim, Natalie. You were not under investigation but as part of that search a phone was located in your room and seized and on investigation of that phone, the five images of Natalie were located. And so it is that you are charged with possession of those images on 3 January 2017. As I said you were aged 18 and a few months at that time and the images were of Natalie aged 14.
8 Your counsel made submissions about how I should consider the seriousness of this offending. I accept her submissions that having regard to the way that the court is to look at these things, that the material was of a category 1 level which did not involve sexual activity being depicted; there were only five images as I have said; you did not actively seek those images in any way either by going online or by asking for them; you did not do anything else with the images; and although you had possession of the images, I am told that that was because you forgot about them and therefore did nothing about deleting them. In the end that is your crime, the fact that you did not delete them from your phone.
9 So I am satisfied that this is a very low level example of what is otherwise a very serious offence of possession of child pornography.
10 Usually I say to people who are being sentenced that they must have understood the probable consequences of their actions, but I accept because of your young age and nativity perhaps, and also because this was the first time you had ever seen such material, I accept you did not understand the consequences of your actions, but that has now been explained to you.
11 Natalie was offered the opportunity of providing a victim impact statement but has chosen not to do so. However when it comes to children, as she was at the time and still is, it is presumed by the law that they suffer harm from such an offence being committed against them, harm which can be both long term and serious and both physical and psychological and which includes future harm[2]. I have no evidence before me to rebut that presumption but I take into account that in another unusual aspect to this case, your father has been charged with other sexual offending (I do not have the details) and in fact convicted of such after a trial and he is currently on remand awaiting sentence before another judge. In that circumstance it would be very difficult to try and separate any harm that might have been occasioned to Natalie by your possession of those images and any harm that might have been done to her elsewhere by another person.
[2]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]; Adamson v R [2015] VSCA 194 at [56]
12 However, I do take into account that there is a presumption of harm and that the point about the law against possession of child pornography is not just that other people must not possess this material, but also that the reality is that people under 18 and particularly under 16 are often too socially immature to understand the consequences of their own actions.
13 This case is an example of how young people on social media may say and do things that they may not say or do in person and they may later regret these things. I do not have information about that in Natalie’s case but I take that aspect into account in trying to assess what harm may have been caused to Natalie. In saying all this of course I am not for one second suggesting that it is her fault; even though she voluntarily sent the material to you, she is a person who is to be protected by the law and you as the adult albeit, only a few months into adulthood, had the responsibility to immediately delete those images and you now know that. But insofar as I can, I take into account that there is this presumption of harm.
14 Overall though I am satisfied that your offence is at the very low end of offending and that your moral culpability is extremely low in the circumstances of this case. It is very different to the usual child pornography possession cases.
15 A number of matters were put to me in mitigation of your sentence and they are all important matters. First of all you have pleaded guilty to this offence and you did so at what I consider to be the earliest possible time once all the other matters had been withdrawn. So I take that into account in your favour. I also take into account that, as I have been mentioning, you were very young, just over 18 at the time of the offending and you are still young, being aged 19. That means that being a youthful offender the court must take into account that your rehabilitation is one of the most important principles in sentencing you.
16 Next I take into account that you have no criminal history and have nothing coming up in the future. Further, you have what might be described as an active good character, not just being of good character by virtue of not having a criminal record. The material before me shows that you have been an active volunteer in a number of areas, principally with the scouts over many years including taking leadership roles, and also through the Macedon Ranges Shire Council where you have been awarded for your work and have been actively involved again in youth and in particular youth mental health projects. Those matters count very much in your favour as being of good character but also count towards you being a young man capable of rehabilitating yourself from this criminal offence.
17 I am satisfied as a result of all of these matters including the support you have from your family, (having regard to the unusual situation your family is in with your father's convictions), and also the support of other friends, adult friends all of whom have supplied references[3] that I have read, all point to me being satisfied that you have excellent prospects for rehabilitation. An example of this is that your being charged with this offence led to you losing your Working With Children check and that meant that the employment that you had, had to cease. You were only unemployed for about three months before you began a whole new career taking on an apprenticeship as a carpenter. You had undertaken some certificate courses before then but you are now pursuing a Certificate III in carpentry. You have been working and studying in that area and you continue to work in that area.
[3] Exhibit 3
18 So whilst you were affected by the charge being laid and in fact sought some counselling which was important to enable you to regain some stability in your outlook, you went on, very much to your credit, to access employment and have a good future in that. So all of that points to you having excellent prospects of rehabilitation and being of excellent character, with this offence being the only blemish on your record.
19 I turn next to assess the risk of you re-offending. If there were nothing else before me I would be satisfied that your risk was low for all the reasons that I have just been outlining. But helpfully I also have before me a report from a forensic psychologist Jeffrey Cummins and he details his assessment of you and that using the assessment showed you to be of low - moderate risk of re-offending[4]. He thought that overstated your situation and on his clinical assessment he assessed you as being a low risk of re-offending and that you did not need any offence specific treatment.
[4] Exhibit B
20 Your counsel also referred me to the assessment undertaken by the Chief Commissioner of Police for the Sexual Offender Registration Exemption application which also showed you to be of low - moderate risk. On my own assessment I am satisfied that you are a low risk of re-offending.
21 Usually for sexual offences against children and the possession of child pornography, the question of deterrence, especially general deterrence, is of considerable importance, and specific deterrence can also be of importance. General deterrence means that by my sentence usually I must send a message to others who might be minded to possess child pornography.
22 Your counsel has submitted that general deterrence is perhaps of less importance in this case because of the unusual circumstances, and she referred me to another case of possession of child pornography in this court where the sentencing judge in that case said that the message still has to get out to everybody that sexual images of children must not be kept on phones or computers or any other form of equipment[5]. I agree with that, but the judge in that case was dealing with an adult of mature years although there were also unusual circumstances. In your case whilst general deterrence is still of some importance and it cannot be of no importance in cases of child pornography, I do accept that it is of less importance because of your situation and your young age.
[5]DPP v Ortell [2016] VCC 1459
23 In terms of specific deterrence, that means that my sentence of you must usually deter you from re-offending in future. I am satisfied that that is of very little importance in this case for all of the reasons that I have already given, that you are of a low risk of re-offending, you are of good character, that you have set yourself back on a path of employment, you are well supported and I have no doubt that your process through the criminal justice system has already deterred you such that you will not want to find yourself sitting at the back of a court again. And I do not dismiss the impact on you of your father's progress through the criminal justice system as having also specifically deterred you.
24 So that brings me to the sentence that your counsel submitted should be the ultimate disposition in this case. It was submitted that for all of the reasons that were put in the written submissions and outlined before me today, that I should proceed to adjourn the case for a period of time on you undertaking to be of good behaviour with or without other conditions or a fine to be the ultimate sentence. It was submitted that there should not be a conviction for the reasons I will go through in a moment.
25 The prosecutor in submissions conceded that this is an unusual case, that it was an isolated offence, that you are of good character and submitted ultimately that there was no restraint on the sentencing options that were available to me.
26 In considering whether I proceed to impose a conviction or not, I have had regard to the nature of the offence which I have already outlined as a low level example of a serious offence, I have had regard to your character and your past history as I have outlined, and I also have regard to the impact of the recording of a conviction on your economic or social well-being, and also on your employment prospects. Although I do not have specific information about that or evidence before me about that, I am aware that as a person of 19 now, that proceeding through life with a conviction could have an impact on you. And for all of the reasons that I have already expressed I am prepared to not impose a conviction in this matter. Ultimately I have decided that there should be a without conviction adjourned undertaking as your counsel submitted to me. That will be for a period of 12 months.
27 I have decided not to impose any other conditions in all the circumstances. I considered making a condition that you make a “donation” to a charity but I had regard to all of the volunteer and charitable works that you have already undertaken and I think that there does not need to be a message sent to you about the importance of those matters.
28 I will make the final orders in a moment but if I can turn then to the final two matters that I have to have regard to. This offence would normally require you to be registered as a sex offender and the registration process would apply automatically. You have applied through your counsel to be exempt from such registration and I received the relevant material both on your behalf and from the Chief Commissioner of Police, and the prosecutor made submissions in respect of that on behalf of the Chief Commissioner. I confirm that you are eligible to make such an application because you were 18 at the time of the offence, that you are not otherwise a registrable offender for any other reason, and there is only one victim. I am satisfied that you were 18 and are now 19, that the victim Natalie was aged 14 at the time. I am satisfied that you are a low risk of re-offending having regard to the level of seriousness of the offence as I have already outlined, the ages of both you and Natalie, that she was not under your care, supervision or authority nor cognitively impaired or mentally ill as defined. There is just the one offence and I have had regard to the risk assessments that I have referred to previously in respect of other matters.
29 The Chief Commissioner of Police does not oppose the application for you to be exempted from being registered and you are not otherwise a registrable offender. Therefore I will ultimately, when I make the orders, declare that you are not a registrable offender in respect of this offence.
30 Finally there was an application made by the prosecution for a forensic sample to be taken from you and through your counsel you opposed this application because of you being a young offender, because it was your first offence, because of it being a low level offence and because of your low risk of re-offending. The utility of the database of forensic samples is not just to detect other offending by the same person in future, but also to increase the size of the database and therefore the reliability of results obtained. However in the circumstances of this case for the reasons already put forward, I have decided that I will not make an order for there to be a forensic sample taken from you.
31 So if you could stand up please Mr Schulz.
32 On the plea of guilty having been made by you, the finding of guilt is entered onto the court records. On the charge of possession of child pornography I order that without conviction the matter be adjourned for 12 months on you undertaking to be of good behaviour in that time. You will attend court if required to do so but not unless required to do so. Being of good behaviour of course means not committing any offences. If you are of good behaviour in that time, then you will not be required to attend court at the end of that 12 months and the matter will be at an end.
33 As I have said, I have decided in all the circumstances that there be no other conditions attached to that adjourned undertaking.
34 I declare that you are not a registrable offender under the Sex Offender Registration Act and I refuse the application for a forensic sample offence.
- - -
HER HONOUR: Now the undertaking needs to be signed by you to show that you agree to be bound by the terms of that, so Mr Schulz if you can step out of the dock now and come and take a seat next to your mother then we will have that document printed out. I should have added that of course if you were to commit another offence not only would you be dealt with for that offence but you will be brought back before the court to be re-sentenced on this offence. There may also be a fine involved. So if you can just come forward and Ms Roodenburg will just make sure you understand the terms of the order. Thank you. So I have signed that order as well Mr Schulz, so that is now in force. We will have a copy of that taken and that will be provided for you before you leave today. So as I said in the unusual circumstances of this case, I do not expect that I will be seeing you again. Are there any other orders required?
MR HOLDING: No Your Honour.
HER HONOUR: All right so could I thank both counsel for their assistance and their instructors. And I will adjourn now until 2.15.
- - -
0
4
0