Director of Public Prosecutions v Scott
[2017] VCC 1815
•23 November 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTIONCR-16-01936
CR-16-01937
CR-16-01938
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES SCOTT |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 14 November 2017 |
| DATE OF SENTENCE: | 23 November 2017 |
| CASE MAY BE CITED AS: | DPP v Scott |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1815 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Produce child pornography - Possess child pornography - Sexual penetration of child under 16
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:
Sentence:8 month’s imprisonment and 5-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Ms A. Beech | GTC Lawyers |
HIS HONOUR:
1James Scott, you have pleaded guilty to two charges of producing child pornography, one charge of sexual penetration of a child under 16, and one charge of possessing child pornography.
- Producing child pornography carries a maximum penalty of 10 years' imprisonment.
- Sexual penetration of a child under 16, when the child is under 12, carries a maximum penalty of 25 years' imprisonment.
- Possessing child pornography carries a maximum penalty of 10 years' imprisonment.
2You are presently 34 years of age, having been born on 8 June 1983, and you were aged from 16 to 32 when this offending occurred between 8 June 1999 and 7 January 2016.
3You do not have any prior criminal history.
4By way of background, since approximately 1998 you have lived with your domestic partner, Jesse Taylor Thomas (born 22 August 1973) in the Ballarat area at various addresses. Mr Thomas is a co-offender in relation to Charge 1.
5On 23 June 2015 police identified an Australian user accessing a Russian website known to police as facilitating trade in child exploitation material. This user posted 15 pictures of boys who appeared to be younger than 16 years of age, and made the comment, "If these pics interest you, email links and receive links in return J".
6Police linked that user to an internet account in the name of James Scott, at an address in Ballarat.
7On 7 January 2016 police executed a search warrant at that address.
8You were there, and directed police to two USB devices and disclosed that they contained child exploitation material.
9Mr Thomas, who also resided at that address, directed police to devices belonging to him that contained child exploitation material.
10You were interviewed on 7 January 2016 and made full admissions to possessing child pornography. Mr Thomas was also interviewed in relation to possessing child pornography and made full admissions.
11You subsequently contacted police requesting to participate in a further record of interview. On 15 March 2016, you attended at the Ballarat Police Station and took part in a second interview. During this interview you confessed to sexual offending against a child named ‘Andrew’ [Webster][1] in approximately 1999, and sexual offending against a child named Brett Howell[2] between 2008 and 2011. You also revealed to police the existence of a storage facility where Mr Thomas kept child exploitation materials.
[1] Andrew Webster is a pseudonym.
[2] Brett Howell is a pseudonym.
12As a result of this interview, police conducted further investigations at the storage facility. Items seized from the facility resulted in a third record of interview being conducted with you on 13 July 2016. During that interview you made admissions to engaging in certain conduct with your co-offender Mr Thomas; however there are no charges in relation to those admissions.
13As to the charges on the indictment, Charge 1, producing child pornography: at the time of this offending you were aged 16 years and living with Mr Thomas at premises in Wendouree.
14Between 8 June 1999 and 19 September 1999, Andrew Webster was with two other children, one male and one female, at Stocklands Wendouree Plaza. Andrew approached you and asked you for a cigarette. You stated that they would need to go to your home to get a cigarette.
15Before arriving at your home, the other two children left.
16When you arrived at the house with Andrew, Mr Thomas was there, and Andrew was given a cigarette by him. Andrew began playing with the dog that belonged to the owner of the house. Mr Thomas took photos of him playing with the dog. Mr Thomas asked Andrew to remove his upper clothing and show you his muscles. You and Mr Thomas took photos, to be developed later that day.
17On subsequent days later Andrew returned to the flat and various events took place, including:
· Mr Thomas taking Polaroid photos of Andrew's anus and penis and showing them to you;
· you taking photos of Mr Thomas sexually assaulting Andrew - this includes photographs of Mr Thomas placing his penis in Andrew's mouth, and Andrew placing his penis in the mouth of Mr Thomas;
· at some later time, these Polaroid images were scanned and saved onto Mr Thomas' computer and hard drive.
18Andrew Webster was born in 1990. At the time of the offence he was around nine years old.
19On 25 May 2016, police spoke to you in relation to the offending against Andrew Webster. During this conversation you gave police the information in relation to further child exploitation material being held at a storage unit rented by Mr Thomas.
20In the record of interview conducted on 15 March 2016 you made a lengthy confessional statement regarding this offending.
21Police also located scanned copies of the Polaroid photos on Mr Thomas' hard drives that were seized on 7 January 2016.
22Police located Andrew Webster, who made a statement to police on 12 May 2016. Andrew recalled going to the unit, having photos taken of him with a Polaroid camera, and playing with a dog. He recalled there was a younger guy, an older guy and a lady. Andrew identified himself in the photo where Mr Thomas' penis was in his mouth. Andrew could not recall the other photos.
23As a result of the information you provided, police executed a search warrant at a storage unit in Delacombe which was rented by Mr Thomas. Police located a blue photo album containing the original hardcopy Polaroid photos of Andrew.
24As to Charge 2, producing child pornography, and Charge 3, sexual penetration of a child under 16: the victim, Brett Howell, was born on 15 April 2004 and was aged between four and seven years at the time of the offending. You were aged between 25 and 28 years.
25At the time of the offending, you were living with Mr Thomas and working at Rivers Clothing Store. You became friends with a co-worker at Rivers who was Brett Howell’s father.
26You would regularly attend the Howells' house in Wendouree and spend time with the parents and their son Brett. You also babysat Brett on occasion. Brett's parents considered you to be a ‘big brother’ to Brett. They both placed great trust in you. You would take Brett to the playground, and occasionally to the beach or to friends' houses.
27On one occasion when you were babysitting Brett, who was aged at the time approximately four to five years, you asked him to show you his naked buttocks to ensure that he had cleaned himself properly after using the toilet. Brett complied, and you took two photographs of Brett's exposed anus. This is represented by Charge 2, producing child pornography.
28That evening, you showed the images to Mr Thomas, who placed them on his collection. You were 25 to 26 at this time.
29In approximately 2010 to 2011, when Brett was between six to seven years old, you took Brett to your flat to play. You were 27 to 28.
30You and Brett were playing hide and seek. You found Brett and asked him if you could put your finger in his anus. Brett agreed and you told him to move into a position to enable this to occur. This penetration lasted for a few moments. You then told Brett to pull his pants up. You apologised and gave him a hug. This conduct is represented by Charge 3, sexual penetration of a child under 16.
31Again, in the record of interview conducted on 15 March 2016 you made a lengthy confessional statement regarding this offending.
32You also confessed to engaging in further behaviour with Brett Howell. This behaviour is uncharged. However, it is included in the sentence to provide context.
33Your further confession reads:
"During this relationship with his parents I was instructed that if necessary, with absolute responsibility, I was allowed to discipline this child, who was at this time quite troublesome… But because of the nature of the pornography I had been witness to, I had an unhealthy habit of enjoying sexual acts that would involve a spanking-type fetish... I would intentionally spank him quite hard if he would be deserving of such disciplinary action. But I did it for the smallest of reasons and I did it because it would satisfy my sexual nature at the time".
34Further on in the confession, you said this:
“when I was a child of his age… my mother… used to rub my back until I would sleep… so I proceeded to do that with this child. I would sleep in his bed with him and I would ask him if he wished I could do that and he said yes…After two or three times of that on a difference occasion he would start to request it… I would rub his back and proceed to run my hand across his backside and I thought that was wrong and I still proceeded to do it. To the extent that I would remove his underwear while he lay and proceed to gently run my hands down his back and across his backside, and again in the reverse order”.
35You said, "I never openly shared the fact that I shared a bed with their child". You were asked, "Did you get some sexual gratification out of rubbing his back and his backside?" And you answered, "A form of lust, yes".
36Police have since located the images of Brett Howell within the seized devices belonging to Mr Thomas that contain child exploitation material.
37Brett Howell’s parents declined the informant's request to conduct an interview with Brett, and these charges, Charges 2 and 3, are based solely on the admissions that you made, together with the images that were subsequently located by police.
38As to Charge 4, possessing child pornography: on 23 June 2015 an Australian user, as I have indicated before, of a Russian website, posted 15 pictures of boys who appeared to be under 16 years old, and made the comments, "These pics interest you, email links and receive links in return J". This website is known to police as facilitating the trade in child exploitation material.
39This user was only identified by username and primary email account. The user first registered with this website on 28 January 2015. Subscriber checks on the internet protocol data resulted in the user account being identified as being in your name.
40On 7 January 2016 at approximately 7.15 am, police executed a search warrant at your address. You were present at the address and you allowed police entry. Police searched for multi-media devices. You voluntarily disclosed to police which devices belonged to you and contained child exploitation material.
41You directed police to your bedroom where you pointed out a red suitcase, indicating that there were two USB drives in the suitcase containing child exploitation material. Police seized both USB thumb drives.
42You were subsequently arrested and conveyed to the Ballarat Police Station for interview.
43The two USBs seized by police were forensically analysed. Images and videos were then categorised to determine whether these files constituted child exploitation material. Both USB drives were found to contain child exploitation material.
44The material was subsequently analysed and categorised in accordance with the ANVIL/CETS (Australian National Victim Image Library/Child Exploitation Tracking System) chart into the various category levels from one to nine according to their content.
45For the purposes of this sentence today, I will not recite the results of those categories and the images that were represented. It will appear in the final edited sentence[3], and I will refer to the levels and my findings about them a little later.
[3]46You were interviewed by police on 7 January 2016 and made full admissions in relation to possessing child pornography. You denied using the identified primary email address or username. You admitted knowing that the identified Russian website was a website for sharing pornography, and that you had viewed it before, but not shared images via it.
47You admitted to viewing child pornography ever since you and Mr Thomas got the internet in 2007. However, you said it was always Mr Thomas who accessed the pornography, because “he was adamant he was doing it safely and that he knew what he was doing”.
48When asked if there had been any contact-related offences or whether you and Mr Thomas ever met any boys, you answered “no”. You referred to you and Mr Thomas making your own child pornography in 1999 or 2000, but did not give any further detail and you were not asked further questions by the interviewing officer.
49There are two victim impact statements in this matter from the parents of your victim Brett Howell, and I will refer to these in some detail later.
50The matter resolved on 27 October 2016. You entered a plea of guilty on 3 November 2016 at the second committal mention, and the matter proceeded by way of straight hand-up brief.
51Your co-offender, Jesse Thomas, has also been charged with multiple offences, including offences against you when you were a child. He has pleaded guilty to 12 charges involving child exploitation. The evidence for these charges was revealed by you to police, and the subsequent seizures made possible by you revealing his storage facility.
52Jesse Thomas has pleaded not guilty to multiple further offences which were revealed from diary entries made by him, and which were recovered from the storage facility. Mr Thomas' matters are likely to be heard early next year, and you have given an undertaking on oath to provide evidence in relation to those matters.
53I now turn to your personal circumstances.
54As I noted earlier, you are presently 34 years of age, you were aged from 16 to 32 when this offending occurred from 8 June 1999 to 7 January 2016, and you have no prior criminal history.
55You are both a co-offender with Jesse Thomas, now aged 44, and his victim.
56You were born in Melbourne and had two older male siblings. Your mother died when you were 12 after a protracted illness. Your father was distant to you, and you had been very much attached to your mother to the extent of having an intense emotional dependence. After your mother died, you experienced a prolonged period of grief, sadness and a sense of helplessness. You became disruptive, your father was unable to care for you and you were placed in the care of the Department of Human Services. You were thirteen.
57You spent time in various organisations, including the Royal Children's Hospital Mental Health Team, Travancore Mental Health Services and Baptist Community Care. Compounding matters for you, your father remarried, which you also found very distressing.
58You experienced learning difficulties and behavioural issues during your early life, and were assessed by a speech pathologist when you were four-and-a-half. You had considerable difficulties attaining basic literary and numeracy skills after commencing primary school, and continued to experience learning problems throughout your schooling. You have admitted to being constantly disruptive and antagonistic in class, were expelled from your primary school in 1995, and then referred to Travancore, a specialist school for boys with emotional and behavioural problems.
59You commenced secondary school, but did not attend any further schooling after the first term of year 7. Your paternal grandparents also passed away between September 1996 and early 1997.
60You were unemployed for several years after leaving school, and were receiving Centrelink benefits from 1999 to 2005 whilst living with Mr Thomas in Ballarat. There were times when you had to attend the Salvation Army for food during this time.
61Subsequently, you have been employed in various jobs over the years, including as a shopfitter and warehouse worker for 11 years from 2005. You enjoyed this job, and it only ceased by termination when the current charges came to light. More recently, you have maintained consistent work as a removalist.
62You finally left your home when you were 15 to live with Jesse Thomas, who was ten years older than you and had been a friend of one of your brothers. You had met Mr Thomas late in 1997 when you were 14. He befriended you and gave you a lot of attention, and you developed a real affection for him. Initially, you visited him when your brother was sharing a house with him in Fawkner. The two of you would "hang out" and play videogames. Mr Thomas would buy you cigarettes and food, and sometimes take you out for dinner and to the movies.
63The relationship developed with Mr Thomas and you watching pornography together - both heterosexual and homosexual. You had already recognised yourself as being sexually interested in boys, and when Mr Thomas asked you if you would be his boyfriend, you agreed. Kissing developed, and you began sleeping in Mr Thomas' bed.
64After a short while, Mr Thomas expressed interest in sexual contact with you. Various indecent acts took place, which represent Charges 1 to 4 now indicted against Mr Thomas, and to which Mr Thomas has now pleaded guilty.
65The following year when you were 15, you and Mr Thomas moved into your family home in Airport West. Your father was spending more time away from home, and he made the arrangement principally to have an older male present to care for you. Your father was unaware of the nature of the developing relationship between you and Mr Thomas.
66Whilst at your home at Airport West, two acts of sexual penetration took place, represented by Charges 5 and 6 on Mr Thomas' indictment, and again to which he has pleaded guilty.
67By the next year, 1999, your father asked you both to leave the home. You moved out together with Mr Thomas, and lived in various houses in the Ballarat area. In 1999 you were living together in a house in Wendouree, and it was here, when you were aged 16, that the first of your offending took place with your co-offender Jesse Thomas.
68You continued to live with Jesse Thomas for the next 17 years. Throughout much of this period, that is 1999 to 2015, you had no contact with your family. Contact was firmly re-established after the death of your other brother in 2015, and then following you being charged with this offending.
69Over the past nine years to 2016, child pornography was accumulated from the internet.
70You have described your time with Jesse Thomas as being highly dysfunctional, with Mr Thomas being domineering, abusive, manipulative, controlling and demanding subservience from you. You wanted to leave the relationship, but felt powerless to make the change. A diary kept by Mr Thomas for the period 2004 to 2006 and seized by police gives credence to your claims.
71A psychological report from Dr Matthew Barth was tendered on your plea. Dr Barth also gave evidence.
72You have also participated in extensive one-on-one psychological treatment with provisional psychologist, Mr Peter Hanley.
73In Dr Barth's opinion you have experienced significant mental health issues due to a traumatic life, and you continue to present as very psychologically vulnerable. You have a long history of emotional problems dating back to your childhood. According to Dr Barth, your personality adjustment has been dysfunctional since your childhood years and is an entrenched personality pathology, and these traits are sufficiently severe to warrant a diagnosis of ‘Borderline Personality Disorder with Dependent Features’.
74You have been very candid with Dr Barth in admitting your sexual attraction to prepubescent males, your pathological adjustment was reinforced by the abusive nature of your longstanding involvement with Mr Thomas and through your access to child pornography material on the internet. Your history and the context of the offending indicates an entrenched psychosexual pathology meeting a diagnosis of ‘Paedophilic Disorder - Exclusive type - Sexually attracted to males’.
75Dr Barth further reported that, following a detailed review of your personal history, his observations of you during the assessment process and analysing the results to extensive psychological testing, you also meet the criteria for a diagnosis of ‘Major Depressive Disorder - Recurrent Episodes of Mild to Moderate Severity’.
76In evidence, Dr Barth said that in his opinion your depressive disorder is longstanding and that you suffered from this disorder before you were charged with these offences. Dr Barth's opinion was based not only on your detailed history but collateral information from your time at Travancore which discusses your very erratic and depressive moods and suicide ideation. The 1998 report is referred to in Dr Barth's statement at paragraph 5.
77At the present time, your mental health has been exacerbated by the stress of your ongoing legal matters and you continue to experience some degree of suicidal ideation. Dr Barth notes that treatment with Mr Hanley has assisted in containing the severity of those thoughts.
78Mr Hanley has reported that as at April this year, you had consulted with him on 54 occasions. These consultations have been at your own expense with some help from your father. You have been consistent in your attendances and have not missed any appointment since February 2016.
79The consultations have involved treatment in a designated Sex Offender Treatment Program run by Mr Hanley through Central Melbourne Psychology, in consultation with Dr Barth. In essence, the treatment structure involves emotional containment and coping skills training, development of insight, relapse prevention, interpersonal and social skills, cognitive restructuring, victim empathy and fantasy management.
80Mr Hanley reports that your engagement with treatment has been very promising. Whilst your troubling history and sexual and behavioural issues will require long-term treatment if they are to be adequately addressed, Mr Hanley is optimistic that such engagement will not only benefit you but would reduce the risk of recidivism.
81Whilst you have for some time been prescribed anti-depressant medication and developed skills to reduce anxiety and rumination, and exhibited a gradual reduction in the intensity of your depression, you have continued to display significant self-harming behaviour and emotional instability. You have engaged in multiple suicidal gestures between 24 January and 31 March 2017. Counselling has improved your mood significantly; however your behaviour is indicative of a severe emotional vulnerability, and in Mr Hanley's opinion highlights the need for intense treatment of your underlying psychological issues.
82Dr Barth endorses Mr Hanley's opinion. In his report, Dr Barth states:
"Mr Scott continues to suffer with significant emotional, interpersonal and sexual issues. To his credit he has voluntarily instituted intensive offence-specific treatment and has made very good progress. Whilst the chronic nature of his problems requires further long-term intervention and management, his progress and commitment to treatment provides a basis for guarded optimism, provided he remains engaged in the specialist treatment he requires. The most critical factor when considering Mr Scott's prospects in the community is his continued participation in sex-offender treatment".
83In evidence Dr Barth said that as to the risk of recidivism, Mr Scott is currently assessed as “Moderate/High Risk”. Dr Barth expanded on this as follows:
"… Essentially what that means is probably slightly above average of the type of men that would commit this sort of offending. And the main reason for that was, despite his engagement with rehabilitation and the progress he's made, you can't really escape the fact that those issues are still fairly entrenched. It's going to be a long term process".
84By "those issues" Dr Barth was referring to the issues with sexuality, personality disorder and the fact of having committed both contact and non-contact offences.
85Dr Barth also opined that your noteworthy mental health issues, pathological interpersonal dependency and poor social skills will make you a particularly vulnerable prisoner. You would be at significant risk of further deterioration of your moods in the immediate aftermath of offending, and would require close monitoring by prison mental health staff to prevent you from acts of self-harm. You would be at elevated risk for episodes of mood disturbance throughout any time in custody. In short, imprisonment is likely to weigh more heavily on you when compared with an individual who does not suffer with your pre-existing depressive disorder and severe interpersonal problems.
86The crimes to which you have pleaded guilty constitute very serious offending. The victim in the offence represented by Charge 1, producing pornography, was a child aged about nine at the time. You were 16.
87The victim in the offence represented by Charge 2 was aged between four and five. You were about 25 to 26. The same victim was aged between six and seven in the act of penetration represented by Charge 3. You were aged 27 to 28. Your acts in both offences constituted a dreadful breach of trust that had been placed in you by the victim’s parents, who saw you as a caring older brother figure for their son. The sentences must reflect appropriate denunciation and general deterrence, as well as specific deterrence to you.
88The child pornography material, whilst not being in the worst type of category, either in volume or degree of depravity compared with other cases, represented a moderate to high level of seriousness - around 25 per cent of the Transcend 8 USB being in the category 4 of penetrative images. The Verbatim USB contained 71 images at categories 1 and 4, including one image of a child aged four to five with his anus being penetrated by a foreign object and category 4 video images involving penetrative sex with boys six to 12 years old. The overwhelming majority of images in the Verbatim USB were category 9, being non-objectionable graphics.[4]
[4] Appendix 2: Analyses of the contents of the two USB drives seized by police on 7 January 2016
89When considering the gravity of the offences to which you have pleaded guilty, general deterrence must be the paramount consideration along with denunciation. The authorities require that I take into account those who are harmed by the production of pornographic images. The fact that persons are prepared to possess and access child pornography necessarily creates a market for the corruption and exploitation of children. The accessing of child pornography and its possession quite rightly outrages the Australian community and usually calls for punishment by way of immediate imprisonment.
90Furthermore, it is legitimate to give less weight to previous good character as a mitigating factor. Positive personal antecedents and a reduced need for specific deterrence are relatively commonplace amongst offenders in possession of child pornography.
91The victim impact statements from Brett Howell's parents provide telling testimony of the enduring anguish, heartbreak and hurt such breach of trust can bring. You heard Brett’s father's victim impact statement read in court.
92In mitigation, I take into account the matters urged on your behalf by your counsel Ms Beech, both in her oral as well as her written submissions, including:
· your pleas of guilty and the time they were entered, both for the practical effect and as an expression of remorse;
· your previous reputation indicated by the absence of any prior convictions and the letters of support for your otherwise good character from your father and Mr Mendez;
· the remorse you have expressed through your records of interview, counselling sessions and your direct letter to the court;
· your complete and pro-active co-operation with the police investigation - this was significant, substantial, and involved the following:
- your full admissions to the possession of the child pornography in your possession;
- your voluntary disclosure of your sexual assaults upon Brett Howell - these events were otherwise unknown to the police;
- your voluntary disclosure of your acts in relation to Andrew Webster - this was otherwise unknown to the police;
- your voluntary disclosure to the involvement in child sexual abuse by Mr Thomas against you - this was otherwise unknown to the police;
- your voluntary disclosure of the involvement in child sexual abuse by Mr Thomas against Andrew Webster - this was otherwise unknown to the police;
- your voluntary disclosure of child pornographic material possessed by Mr Thomas and the place where it was held - this was otherwise unknown to police; and
- your voluntary statement to police revealing the further conduct of Mr Thomas, and your sworn undertaking to provide evidence in relation to those charges. The prosecution accepts that your proposed evidence is of high value. I have read the statement and I agree with that assessment.
· the efforts you have undertaken in seeking, commencing, and maintaining over a very extended period, intensive specialist psychological treatment with a view to your rehabilitation;
· the progress you have made through the treatment you have undertaken;
· your remorse, both which has been expressed and which I infer from your conduct and which I accept is genuine;
· your troubled and dislocated adolescence, which involved losing your mother, with whom you were very close, at the age of 12, your emotional vulnerability, then living in the care of Mr Thomas, who was a paedophile and who exploited and sexually abused you from the age of 15 and beyond.
(Whilst it is apparent that you were already disposed to paedophilic tendencies before living with Mr Thomas, the nature of his engagement with you, the age disparity, his dominating and manipulative influence and example at an early and vulnerable stage of a sexual development cannot be ignored.)
· the context of your psychological disorders including long-term depression and borderline personality disorder, which likely made you less capable of removing yourself from Mr Thomas' controlling influence - support for that proposition is also shown in the diary entries of Mr Thomas;
· that your time in prison will be more burdensome because of your disorders; and
· that in respect of Charge 1 you were a child yourself at the time of the commission of the offence, and had been subject to the corrosive and corrupting influence of Mr Thomas, and but for the extreme delay would ordinarily have fallen to be sentenced within the Children's Court jurisdiction.
93The basic purposes for which a court may impose a sentence are punishment, deterrence (being specific to you and general to make an example of your conduct in order to deter others who might be likeminded), rehabilitation, denunciation and the protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct and punishment, with the interests in the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
94Your very real commitment to treatment is to be lauded; however, you remain a danger to the public, and you should be encouraged to maintain you commitment through intensive psychological counselling. Your counsel has submitted that a community correction order without time spent in custody is the appropriate sentencing outcome.
95The sentencing statistics and other cases reveal that ordinarily an offender in these circumstances should expect a sentence to an immediate term of imprisonment and for a significant period.
96The circumstances in your case, however, provide a stark example as to how each case must be considered and decided according to its own particular facts.
97The combination of the discount to be applied for your voluntary disclosure of evidence against yourself and Mr Thomas, resulting in Mr Thomas' pleas of guilty to significant child sex abuse and you yourself being charged with serious sexual offences, your commitment to giving further evidence in a trial for other child sex offences against Mr Thomas together with the mitigating evidence of your own psychological damage, your vulnerability, exploitation and the continuing influence of Mr Thomas dating from your time as a child and your significant commitment to treatment in combination forms a highly significant mitigatory circumstance that in my experience is exceptional, if not unique.
98After careful consideration, I have concluded that in light of the objective gravity of the offending, and taking into account all your personal circumstances, the purpose or purposes for which the sentence is to be imposed, cannot be achieved without a sentence of imprisonment involving some time in confined custody.
99Whilst I accept that throughout the period of your offending you were psychologically vulnerable and subject to the control and denigration by Mr Thomas, you were capable of understanding the gravity of your conduct, which continued for an extended period.
100In my view a disposition which is limited to a community correction order alone, notwithstanding the extended period to which it can operate and the restrictions on and obligations in your life, does not adequately deal with the elements of punishment and denunciation which should be expected. There is a presumption of great harm to children by your acts, and the pain and suffering to actual victims in this case is manifest in the victim impact statements.
101It is clear that the imposition of any time in prison is likely to impact on you quite severely, and you will need assistance in that regard. It is my view that any time in prison further to the time that I will direct is likely to be counter-productive to any realistic hope of your rehabilitation.
102In light of the mitigating circumstances, I accept that it is in both your and the community's best interests that your very significant effort towards your rehabilitation be encouraged and assisted by the opportunity to serve a significant part of your sentence by way of a community correction order. The ability to continue with your progress, although interrupted for some time, some short time, will provide the best available basis for you to engage in one-to-one treatment, to the community's best advantage of your rehabilitation.
103Balancing all the circumstances I have concluded that the protection of the public is best served by giving support and encouragement to your own committed and significant attempts to manage your range of mental health issues. At the same time I have to give appropriate expression to the principle of general deterrence which, as I have said, means to make an example by this sentence in order to deter other like-minded individuals.
104Specific deterrence is moderated by the fact of you being a first offender, by your significant cooperation in the investigation and by your rehabilitative efforts.
105You have been assessed as suitable for a community correction order.
106Under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment on two sexual offence charges, I am required on the sexual offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.
107This means that the sentencing task in respect of Charges 3 and 4 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentences are imposed, and to achieve that purpose sentences may be imposed longer than that which is proportionate to the gravity of the offence considered in light of its objective circumstances.
108However, because of the circumstances and mitigating factors which I have expressed in your case, I do not propose to do so.
109Section 6E of the Sentencing Act also requires that, unless I otherwise direct, with respect to Charges 3 and 4 the sentences I impose are to be served cumulatively. Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation other than that ordered.
110I note here the Crown did not call for a disproportionate sentence or for the cumulation contemplated by either s.6D or 6E of the Sentencing Act.
111I also note that I have given consideration to the very significant assistance given by you in the police investigation, both as to your complicity and that of your co-offender Mr Thomas. Accordingly in sentencing you, I have allowed for these matters by imposing a less severe sentence than would otherwise have been imposed, and this will be noted in the court records as required by sub-s.5(2AB) of the Sentencing Act 1991.
112Mr Scott, would you please now stand.
113On Charge 1 of producing child pornography, you are convicted and sentenced to one month's imprisonment.
114On Charge 2 of producing child pornography, you are convicted and sentenced to three months' imprisonment.
115On Charge 3 of sexual penetration of a child under 16 you are convicted and sentenced to five months' imprisonment.
116On Charge 4 of possessing child pornography, you are convicted and sentenced to four months' imprisonment.
117Charge 3 is the base sentence.
118I direct that two months of the sentence imposed on Charge 4 and one month of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 3 and upon each other. The sentences are otherwise concurrent.
119The total effective sentence is eight months' imprisonment.
120On Charges 1, 2, 3 and 4, you are also ordered to serve a community correction order for a period of five years.
121The community correction order commences immediately upon your release from prison, and ends five years from that date. The Corrections centre you will attend is the Broadmeadows Correctional Services at 24-27 Dimboola Road, Broadmeadows, and you must attend there within two clear working days after the completion of your imprisonment term.
122All the mandatory terms of the community correction order apply, and the additional conditions I impose are that:
· you be under the supervision of a Community Corrections officer;
· you undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric, if necessary in a hospital or residential facility as directed by the regional manager;
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager, with a recommendation of the Sex Offender Advanced Treatment Service, and it is likely that you will be referred, if you are prepared to consent to it, to continue the work you are doing with Mr Hanley.
· you attend for judicial monitoring on Thursday 25 October 2018 at 10 am in Melbourne - and that is approximately three months after your release from prison and after you have started the community correction order, and that judicial monitoring will continue so that the court can maintain a continual observance of your commitment to the community correction order, and to ensure that you continue to get the appropriate supervision and treatment that is intended by the order.
123I have not ordered an unpaid work order condition, on the basis that you will have already served a period of punishment in actual custody, and as I say, I have accepted that your time in custody will be felt more severely upon you than on a person in normal health, and it is to better enable you to obtain and maintain employment and the continuation and maintenance of your regular treatment program.
124I believe from the pre-sentence report, you have had the mandatory terms of the community correction order explained to you. However, it is appropriate that I briefly summarise them here.
125The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Corrections Centre - such things as not attending drug- or alcohol-affected;
· you must report to and receive visits from a Community Corrections officer;
· you must report to the Community Corrections Centre, that is the Broadmeadows Centre, within two clear working days of the order starting, and as I have already indicated, the order commences immediately upon your release from prison;
· you must notify a Community Corrections officer of any change of address or employment within two clear working days after that change.
· you must not leave Victoria without first getting permission to do from a Community Corrections officer; and
· you must obey all lawful instructions from and directions of Community Corrections officers - such directions may be given either orally or in writing.
126Do you understand and agree to those conditions, Mr Scott?
127OFFENDER: I do, Your Honour, yes.
128HIS HONOUR: If you get sick, or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case, you must notify the Broadmeadows Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.
129However, I must warn you that if you breach any of the conditions of this order over the period of the order, which is extensive, for five years, you will be brought back to court, and that will be before me. One of the options open to me is to cancel the community corrections order and resentence you on all the original charges, and I may also deal with you for the breach by sending you to prison for up to three months as a breach offence.
130So Mr Scott, do you understand the consequences of breaching your community correction order?
131OFFENDER: I do, Your Honour, yes.
132HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act 1991, but for your pleas of guilty, the sentence that would have been imposed is a total effective sentence on all charges of four years' imprisonment with two-and-a-half years to be immediately served.
133Now, there is a further matter to which I need attend. You may take a seat for the moment, Mr Scott.
134OFFENDER: Thank you, Your Honour.
135HIS HONOUR: The offences to which you have pleaded guilty are registrable offences pursuant to the provisions of the Sex Offenders Registration Act, and by reason of you being sentenced for these offences you are a registrable offender, obliged to comply with reporting obligations imposed by that Act.
136As required by s.5 of the Sentencing Act, sub-s.2BC, in sentencing you I have ignored any consequence that may arise and in this case do arise under that Act, from the imposition of the sentence today. In other words, the reporting burden that you carry as a registered offender, is not a matter that can objectively influence the imposition of a just sentence.
137Further, pursuant to s.50 of the Sex Offenders Registration Act, I am required to give you a written notice of your reporting obligations and the consequences that may arise if you do fail to comply with those obligations.
138I am also required to inform you of the length of your reporting period, which in your case is for life.
139All right, my associate will hand to you in a moment the notification of reporting obligations, which I have already signed. Your representative in court today will ensure that you understand the requirements set out in this form, and I have asked you once it is given to you, to sign the acknowledgment that you have received the notification form, and to return the acknowledgment to my associate.
140At the plea hearing, the Crown sought an order, to which you consented, for the taking of a forensic sample, and I have made that order today for the reasons noted on the order, namely the seriousness of the circumstances of the offending warrants the making of the order; the order is by consent; and the granting of the order is in the public interest.
141I must inform you that if at the time of the request you do not consent for the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable the forensic procedure to be conducted. Do you understand that, Mr Scott?
142OFFENDER: I do, Your Honour, yes.
143HIS HONOUR: The Crown also sought a disposal order, to which you consented. I have made that order today. All right, the Sex Offenders Registration materials may be passed to Mr Scott, and the terms of the Correction order.
144Well, that concludes my sentencing remarks. Was there anything from either counsel following that?
145MR O'DOHERTY: No.
146HIS HONOUR: No. My order will be passed through to the Corrections officers shortly. I just want to make clear that within the order, there are custody management issues, and they are noted as risk of self-harm, suicide risk and psychiatric illness.
147So I want to make it quite clear that the authorities are conscious of those matters, and that there has been a history of the difficulties that are represented by those expressions in the past with Mr Scott, and great care needs to be taken.
148As for you, Mr Scott, you should see this process as a path towards continuing what you have been able to achieve through your work with Mr Hanley, and do not let yourself get overwhelmed. If you find yourself getting overwhelmed, there are processes within the Corrections facility for you to get the appropriate assistance and help you need for your troubles. Do you understand that?
149OFFENDER: I do, Your Honour.
150HIS HONOUR: If you apply yourself like that, then you will work through this matter to the benefit not only of yourself, but the community, who will then perhaps not be more troubled by acts that you can perform. All right, I will just pass these down.
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APPENDIX 1
The ANVIL/CETS (Australian National Victim Image Library / Child Exploitation Tracking System) chart
Category 1:Depictions of Children with No Sexual Activity – Must be sexually suggestive or sexual in nature. Can include nudity, surreptitious images showing underwear (upskirting), sexually suggestive posing, explicit emphasis on genital area, solo urination by a child.
Category 2:Solo masturbation by a child or sexual acts between children only in which penetration of any office does not occur. Includes the penetrative use of sex toys by the victim only.
Category 3:Non-penetrative sexual activity between child and adult(s). May include mutual masturbation and other non-penetrative sexual activity.
Category 4:Penetrative sexual activity between children only or adult(s) and children – may include but is not limited to, vagina / anal intercourse, cunnilingus and fellatio. Penetrative use of sex toys and / or foreign objects.
Category 5:Sadism, bestiality or humiliation (urination, defecation, vomit, bondage etc) or Child Abuse as per CCA 1995.
Category 6:Anime, cartoons, comics and drawings depicting children engaged in sexual poses or activity.
Other relevant material (not child pornography material) were categorised into the following levels:
Category 7:Non-illegal material which is related to child exploitation material. Can include – material which forms part of a series or is a non-illegal depiction of a victim; depictions of offence locations (crime scene); depictions of offenders; material while not illegal, is suggestive on an inappropriate interest in children.
Category 8:All pornographic material assessed as not depicting person under 18 or otherwise CEM-related.
Category 9:Banners and other non-objectionable graphics useful for establishing proportionality. System files and unrelated images – holiday snaps, landscape, family photos etc.
APPENDIX 2
Analyses of the contents of the two USB drives seized by police on 7 January 2016
1. The ‘Transcend 8GB USB’ contained a total of 289 files consisting of only images:
153 at Category 1
19 at Category 2
20 at Category 3
69 at Category 4
3 at Category 5
0 at Category 6
16 at Category 7
0 at Category 8
9 at Category 9
1. All images consisted of boys aged between 5 – 10 years old. Where a face could not be seen but a bottom was exposed, it appeared to be that of a child.
2. Category 1 images were of boys spreading their bottom exposing their anus, close ups of this, bending over, and shower photos.
3. Category 2 images were of boys holding their erect penis simulating masturbation, photos suggestive of oral sex between boys, and one boy’s mouth near another boy’s anus.
4. Category 3 images were of an adult’s erect penis exposed and close up to a child’s anus and in some images touching same. An adult hand on a child’s penis, and an adult finger simulating penetrating a child’s anus.
5. Category 4 images were of a boy’s anus penetrated with objects, and an adult having anal sex with a boy.
6. Category 5 images were of a boy with his hands tied behind his back and a choker around his neck. Other images were of a boy exposing his bottom and an adult hand holding a belt close to his bottom simulating smacking him with same.
2. The ‘Verbatim USB with Samsung Adaptor’ contained a total of 2032 files consisting of images and videos:
43 at Category 1
1 at Category 2
0 at Category 3
28 at Category 4
0 at Category 5
0 at Category 6
11 at Category 7
1 at Category 8
1948 at Category 9
1. Category 1 images were of boys aged between 5 to 13 years old and also girls 5 to 7 years old. Sexualised posing in underwear, photos of children entering a bath or getting changed.
2. Category 2 was a single image of boys aged approximately 5 years old in underwear on top of each other with one boy’s penis close to the other boy’s face.
3. Category 4 consisted of 1 image and the remaining files being videos. The image was of a child aged 4 to 5 years old with his anus penetrated with a foreign object. The videos were of a male penetrating (penis/anus) boys aged 6 to 12 years old, also receiving and performing oral sex on these children. Other videos of children using foreign objects to anally penetrate each other.
See Appendix 1: The ANVIL/CETS (Australian National Victim Image Library / Child Exploitation
Tracking System) chart
andAppendix 2: Analyses of the contents of the two USB drives seized by police on 7 January 2016
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