Director of Public Prosecutions v Smith
[2024] VCC 760
•28 May 2024
,
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01292
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| LEE ANTHONY SMITH |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2024 | |
DATE OF SENTENCE: | 28 May 2024 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 760 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Access child abuse material, possess child abuse material, over 500,000 images
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:R v Verdins [2007] VSCA 62, DPP (Cth) v Hardy [2021] VCC 856 and Hutchinson v The King [2022] VSCA 217
Sentence: TES: 3 years 3 months, NPP: 22 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Frendo | Office of Public Prosecutions |
| For the Offender | Mr R. Malhotra | MK Law |
HER HONOUR:
1Lee Smith, you have pleaded guilty before me to one charge of accessing child abuse material between 13 May 2019 and 19 January 2021 and one charge of possessing child abuse material on 2 March 2021.
2The maximum penalty for each offence is 10 years’ imprisonment.
3While you have no prior criminal history, the offending before me is so serious that I must impose a period of immediate imprisonment.
Circumstances of offending
4The circumstances of your offending were comprehensively outlined in the summary of prosecution opening for plea dated 14 November 2023. I will summarise those facts here.
5The Joint Anti Child Exploitation Team were advised by several peer-to-peer sharing sites that child abuse material (CAM) had been shared between 13 May 2019 and 19 January 2021 from a particular IP address. Enquiries showed the IP address was connected to a network with an account in your mother’s name.
6Police commenced an investigation and executed a search warrant at your home address on 2 March 2021. You arrived home while the search was being conducted and told police that you knew why they were there, before directing them to the electronic devices you knew contained CAM.
7Police seized 34 electronic devices including phones, tablets, cameras and hard drives. Seven of the devices contained CAM, being a Matrix Tower, a Seagate 1 terabyte hard drive, a Samsung phone, a Maxtor 1 terabyte hard drive, an MSI computer, a Coolmaster Tower and a ThermalTake computer.
8Analysis of the devices showed that the CAM was accessed through ‘torrent’ files, used to download content and share it with others online.
9Another program called Shareaza was located on some of the devices, allowing the download of files on peer-to-peer networks.
10The CAM was compressed into ZIP or RAR files.
11Three of the seven devices were used to download and search for CAM.
12Your search histories were analysed. The hard drives revealed 137 search terms including specific child focused searches. The CoolMaster Tower revealed a further 42 searches of concern, some including the search terms ‘opva’ and ‘pthc’ which are commonly used in the realm of child abuse material.
13A total of 516,061 images and videos were stored across the seven devices, 276,673 items falling into Category 1 CAM and 239,388 items falling into Category 2 CAM classifications.
14A representative sample of the CAM found across the devices and accounts was detailed in the prosecution summary and will not be repeated here given the graphic and distressing nature of the content.
15You were interviewed by police on 22 October 2021. When asked about the CAM you stated the following:
a)It was curiosity, you did not know why it started or how;
b)You explained the process of acquiring the CAM using your computer and peer-to-peer software;
c)You would look at the hard drives depending on what was going on in your life at the time;
d)You knew it was wrong; and
e)You knew that the parties in the photos and videos were under age.
16Through your counsel you accepted that you said the words in the record of interview but you maintain that when police asked you about child pornography you did not fully understand what was being said and instead answered in relation to adult pornography.
17I do not accept this proposition. You are not without cognitive limitations but you do not have an intellectual disability and you are able to follow and carry on coherent conversation according to forensic psychologist Ms. Carla Ferrari whose report I will return to.
Offence gravity
18It is well established that the objective seriousness of offending involving child abuse material is ordinarily determined by reference to a number of factors, including:
(a) The nature and content of material, noting the age of the children and the gravity of the sexual activity depicted;
(b) The number of items or images possessed;
(c) Whether the material is for the purpose of sale or further distribution;
(d) Whether an offender will profit from the offence;
(e) The number of children depicted and thereby victimised; and
(f) The length of time for which the pornographic material was possessed.
19Here the nature and content of the material was depraved. It included children between the ages of two to 14 engaged in various penetrative and non-penetrative sexual acts.
20The sheer number of images you possessed is quite astounding, being over 500,000. I accept that some of the images were duplicates, however, they were possessed over seven devices.
21While you are charged with possession on a single day, the access fell over a period of one year and eight months. I accept that the material was not for distribution or profit.
22Child abuse material offences are not victimless crimes, each and every image involves a child victim. The number of images represents a vast number of such victims who were harmed in the production of these items. These are crimes which cause real and lasting harm to the children depicted, they are subjected to horrific abuse for the gratification of those who access and possess the images.
23I consider the nature and volume of the child abuse material items involved in your offending to be at a high level.
Moral culpability
24You had over 500,000 images in your possession. You maintain that you only looked at a few of the images, about 10. I find this an absurd suggestion given you conducted in excess of 170 specific searches for child pornography material, some embedded with specific search terms. You maintain you cut and pasted the search terms. This seems unlikely but, in any event, you conducted numerous specific individual searches. I consider your moral culpability to be high.
Plea of guilty
25Your plea of guilty was entered at an early opportunity. You have saved the community the time and expense of running a trial. As such, you have facilitated the administration of justice and you are entitled to a benefit for that.
26By your plea of guilty, you have demonstrated some acceptance of responsibility for your offending.
27You have repeatedly expressed shame and remorse to the psychologists who have assessed you in relation to this matter, however, you continue to deny having looked at the images.
Personal circumstances
28You are now 49 years of age, having been born in May 1975. You have a younger sister and while your parents separated when you were in your early teens, you maintain good relationships with both of them.
29Your mother remarried when you were approximately 21 years old and you are also supported by your stepfather. You have always lived at home with your mother and stepfather and both were in court to support you, the latter providing a written reference.
30You completed Year 12 but have some literacy issues. You then completed an advanced certificate in electronics at TAFE, with some assistance with reading and writing assignments.
31You have held several jobs and you now work in warehousing. You have both your forklift and stock picker licences.
32You report having had several relationships. You are not particularly social and state you have three good friends and have recently had a relationship of sorts with a local woman. She does not know of your offending and you do not know the current status of your relationship.
33You struggle to function independently, for example, you lost your job when your mother and stepfather left you alone to go on a holiday. You rarely leave the house except to attend employment.
34You suffer from epilepsy and are medicated for this condition.
35I received a report and an addendum from forensic psychologist, Ms Carla Ferrari. She reports that you have struggled with depression and anxiety throughout your life, together with chronic suicidality. I take all of these conditions into account.
36When interviewed by Ms. Ferrari, you denied ever searching specifically for child abuse material. This is contrary to the search history located by investigators. Ms Ferrari opines that you are of low average intelligence but nevertheless display fair insight and judgment into your mental health and your offending.
37Ms. Ferrari reports that you ‘expressed being disgusted in [your]self since having reflected on [your] behaviour, recognising that [you] were becoming aroused to underage individuals.’ You went on to tell her that you were not sexually aroused by the CAM material specifically.
38Although you do have reduced cognitive functioning, you do not meet the criteria for intellectual disability. Your presentation was such, however, that you were also assessed by a neuropsychologist, Dr Nadja Berberovic.
39Dr Berberovic found that:
‘In a nutshell, as per the assessment, Mr Smith struggles with verbal and non-verbal social communication skills including inconsistent eye contact and difficulties reading between the lines. Furthermore, Mr. Smith was noted to experience difficulties with developing and maintaining friendships and social relationships. He also displays sensory sensitivities towards certain stimuli, such as noise, and shows a preference towards routines. As such, results of the assessment indicate that Mr. Smith shows a pattern of behaviour typically seen in individuals with autism.’
40You therefore meet the criteria for autism spectrum disorder of Level 1, meaning you require some support but not of substantial or very substantial level. Your social interactions are affected by this condition. Some of your impairments may also be attributed to your psychiatric history, anti-epileptic medication and epilepsy. I take this into account. Further, it was found you may have a specific learning disorder.
41You engage regularly with a psychologist and a psychiatrist. I received a report from your treating psychologist Dr. Zahra Noori. She opines that you have shown a commendable level of commitment to treatment. I note this has not been sex offender specific treatment but it is nevertheless a positive step in your rehabilitation.
Sentencing principles and factors
42Mr Smith, these are most serious charges. Your explanation of the offending, namely that you just did not look at it, lacks credibility in light of the number of items downloaded and the number of specific searches you conducted. You do not have any prior criminal history but to access and possess such a large collection of child abuse material is alarming and reprehensible conduct which must be strongly denounced.
43You suffer from autism spectrum disorder and have some limitations on your cognitive function but not such that I consider there to be any nexus between that and your offending. Contrary to the submissions of your counsel, I do not find that Limb 1 of R v Verdins [2007] VSCA 62 is engaged. Accordingly, your moral culpability is not mitigated by your psychological conditions, although I do take them into account in a general way.
44I consider specific deterrence to have application to you, although your risk profile suggests you are a low risk of reoffending (at 4.9 per cent risk). You must be deterred from accessing and possessing child abuse material in future, despite your denials that you have done so on more than a few occasions in the past.
45I consider that your prospects of rehabilitation are good if you successfully complete sex offender treatment programs and engage with your treating psychologist and psychiatrist upon your release from custody.
46General deterrence is of paramount importance. Members of the public must be made aware that engaging in this kind of vile conduct to such an extraordinary extent will result in substantial punishment. The sentence I impose must serve to deter others from doing as you have done.
47Given the offence gravity and your moral culpability, I must also consider just punishment as a sentencing consideration.
48Community protection is also an important consideration given the number of very young children portrayed in the child abuse material, the impact on whom I have already referred to.
49I accept you will be vulnerable in a custodial setting given your naivety, mental health and personality traits. Verdins Limbs 5 and 6 are engaged and I moderate the sentence accordingly, accepting that prison will be more difficult for you than for others without your conditions and that these conditions may be exacerbated in custody.
50The prosecutor provided a number of comparable cases for the assistance of the court including DPP (Cth) v Hardy [2021] VCC 856 and Hutchinson v The King [2022] VSCA 217. While not factually the same as the instant matter, they provide some guidance as to current sentencing practices, which I take into account.
51Your counsel, Mr. Malhotra, submitted that a community corrections order alone or in the alternative, in combination with a period of imprisonment, would be within range for this offending. Mr. Petric, for the prosecution, submitted that a head sentence and non-parole period was called for. I do not find that a community corrections order, either alone or in combination with imprisonment, would adequately reflect the sentencing considerations in this matter.
52I further consider that there must be some cumulation between the charges to reflect both the searching and access of the materials over a lengthy period and then the possession of such a vast collection of items.
53Could you please stand, Mr Smith.
Disposition
54On Charge 1, access child abuse material, you are sentenced to 18 months’ imprisonment.
55On Charge 2, possess child abuse material, you are sentenced to two years and three months’ imprisonment.
56I direct that Charge 2 be the base sentence.
57I direct that 12 months of the sentence on Charge 1 be served cumulatively on the sentence imposed on Charge 2. This makes a total effective sentence of three years and three months’ imprisonment.
58I direct that you serve a minimum non-parole period of 22 months’ imprisonment before being eligible for parole.
59I declare that you have served 12 days by way of pre-sentence detention pursuant to s18 of the Sentencing Act 1991, excluding today.
60Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty, the sentence I would have imposed would have been a total effective sentence of four years and six months with a minimum non-parole period of two years 10 months.
61Charges 1 and 2 are registrable Class 2 offences pursuant to s34(1)(b)(ii) of the Sex Offenders Registration Act 2004. You are therefore registrable for 15 years. You will be provided with the necessary acknowledgement of registration paperwork in a moment.
62Pursuant to s6Fof the Sentencing Act 1991, having been sentenced to a period of imprisonment on each of two qualifying offences, I declare that you are a serious sexual offender on Charge 2. This will be noted on the record.
63I grant the disposal order sought by the prosecution.
64I will now have you provided with the sex offender registration acknowledgement paperwork. Thank you, Mr Smith, you may be seated for a moment. Is there anything else from either party?
65MR MALHOTRA: Nothing from the defence, Your Honour. I have provided your associate with the medication list and she has indicated that - - -
66HER HONOUR: We will add that to the record of order.
67MR MALHOTRA: Thank you, Your Honour, that’s the only matter.
68HER HONOUR: Is there anything from the prosecution?
69MS FRENDO: No, Your Honour.
70HER HONOUR: You can take Mr Smith out, thank you. We will adjourn the court, thank you.
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