Director of Public Prosecutions v Smith

[2016] VCC 1529

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-02198

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN SMITH

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 October 2016
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2016] VCC 1529

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms L. Skoblar
For the Accused	Mr J. McLoughlin

HER HONOUR:

1Benjamin James Smith, you have pleaded guilty to one charge of using a carriage service to access child pornography material, Charge 1 and one charge of knowingly possessing child pornography, Charge 2.  The maximum penalty for using a carriage service is 15 years imprisonment.  The maximum penalty for knowingly possessing child pornography is five years imprisonment.

2The circumstances of your offending are set out in the Summary of Prosecution Opening which was dated 13 October 2016, Exhibit A.  In brief, the circumstances of your offending are as follows.  On 6 May 2015, police executed a search warrant at your home.  Investigators using detection software had identified that child exploitation material may have been downloaded to a computer at that address.  Police seized a Thermaltake Tower computer system and a Sandisk USB device from your home.

3The contents of those two items were analysed.  Analysis of the Sandisk USB device showed 25 child exploitation material images saved in folders.  The bulk of the images were children engaged in sexual activity and were animated or virtual.  That material is the subject matter of Charge 2.

4Analysis of the Thermaltake Tower computer system showed that there were two hard drives which were analysed, being Hard Drive 2 and Hard Drive 3.  On Hard Drive 2, there were 164 child exploitation images detected. Of these 126 were deleted, leaving nine files accessible.  These had been downloaded but not deleted. Of the movie files, nine had been deleted and 10 were downloaded but not deleted.  These had not been opened or reviewed.

5On Hard Drive 3, there were detected 333 images and 50 movies of child exploitation material.  Of the images, 309 were virtual depictions of children engaged in sexual activity.  Some material had been re-accessed after it had been created and not deleted after a second access.  That material is the subject matter of Charge 2.

6Some of material showed no evidence of having been viewed.  There were 34 child pornography files.  Of those, 25 child exploitation material images were found. Thirteen of those images are the subject matter of Charge 1. Twelve of the images are the subject matter of Charge 2.  The difference depends on whether there is evidence that the images or files had been opened or viewed.

7Of the movies, the bulk show sexual activity between children and they are the subject of Charge 2. 

8On Hard Drive 3, there were ten images which included images of a child known to you.  Some of the images showed the genital area of that child, with her clothing on.  That child was subsequently identified by police as the ten year old daughter of someone with whom you had been sharing a house.

9You were interviewed twice by police.  You said that you downloaded pornography from time to time.  You said you had poor eyesight and did not look closely at the material each time.  You said you would delete child pornography when you went through the downloads.  You denied any sexual interest in children.  You denied any sexual interest in the child known to you.  You also denied taking photographs of her. I note that there is no evidence and it is not put by the prosecution, that you did take the images of that child. 

10In summary, there are a total of 1,080 images which are the subject matter of Charge 1 and 347 images or files which are the subject matter of Charge 2.  The 347 are non-deleted files which were found in your possession.

11In sentencing you, I have taken into account your personal circumstances which were described by your counsel and in the psychological report of Mr Jeffery Cummins dated 28 July 2016, Exhibit 1.  You are now 34 years old.

12You grew up in suburban Melbourne.  Your parents separated when you were 12 or 13 years old.  You lived with your mother initially but have lived independently since you were 15.  Your father was an alcoholic and sometimes violent towards you.  You remain close to your mother.  You are also fairly close to an older brother.  You have little contact with two younger siblings.

13You left school after Year 8.  You worked in various jobs including panel beating and installing a wireless network.  In the last six years, you have worked as a self-employed maintenance worker.  You have two young children.  You separated from their mother about three years ago.  The Department of Health and Human Services has been involved with those children.

14You have in more recent times had regular contact with them and periods where you have cared for them.  I accept that you are very attached to your children.  A report was tendered as Exhibit 3 from Tweddle which is an early parenting centre.  That lengthy and comprehensive report dated
28 November 2014 was compiled after you had spent ten days in a live-in program at that centre, in order to assess your ability to care for your children. That report is generally is very positive in respect of your relationship with your children, your ability to care for them and your interactions with other people at the centre.  There are some reservations but generally speaking, it is a very positive report. 

15In speaking to Mr Cummins, you said that you had no interest in child pornography but accepted that you were reckless in downloading pornography relating to teens.  You told Mr Cummins it was your intention to be viewing material which showed images of adults who looked relatively young.  You said you had no intention of looking at under aged people. Mr Cummins assessed you as being at low risk of future offending, although he considered it would be prudent for you to participate in a sex offender treatment program. 

16Mr Cummins assessed you as having an adjustment disorder with mixed anxiety and depressed mood.  He was of the opinion that your mental health would deteriorate if you were incarcerated.

17A further significant matter in relation to your health has been your situation with your eyes.  The material Exhibit 2 confirms that in 2008, you were treated in respect of a history of blurred central vision.  You were diagnosed with bilateral posterior uveitis.  It appears that that was not able to be successfully treated. 

18You were assessed in custody on 21 September 2015 as having a medical condition effecting both your eyes.  You had been assessed by the optometrist and were said to be legally blind.  That material is set out in Exhibit 6 which is a medical certificate from a doctor at the Hopkins Correctional Centre.  As I understand it, that doctor has advised your counsel's instructor that you have been referred to the Eye and Ear Hospital, but have not yet received further treatment.

19Your counsel provided a definition from Vision Australia which provides useful assistance in what legally blind means.  That information says that a person is considered legally blind if they cannot see at six metres what someone with normal vision can see at 60 metres or if their field of vision is less than 20 degrees in diameter. That type of difficulty is entirely consistent with your description that you have vision problems which impact on the clarity of what you see, your ability to see in low light and the reduction of your field of vision.  You say you have difficulty moving around in custody, and that on occasion, you bump into people if you have not seen them.  You say you have now been issued with a card which you can show people if this happens.

20In sentencing submissions, your counsel relied on the circumstances of your offending which he described as being at low level, involving the reckless downloading of material.  He referred to the deletion of child related material and the smaller number of items that were knowingly possessed.  He also referred to the bulk of the child related material being animated.

21Your counsel submitted that the appropriate sentence would be a community correction order.  In mitigation, he particularly relied on your plea of guilty, your remorse, your lack of prior criminal history, the impact on your mental health if you were incarcerated, your low risk of reoffending, your vision problems and your separation from your daughter.

22Your counsel also said that it should be taken into account that your computer would be forfeited and you had spent considerable time and expense in respect of that computer.

23The prosecutor in sentencing submissions, outlined the applicable sentencing principles and submitted that a sentence of imprisonment would be the appropriate sentence.  The prosecutor particularly referred to the principles reiterated in the DPP Commonwealth v Garsi [2016] VSCA 74 at paragraph 25.

24The production and distribution of child pornography is a very serious matter.  The production and distribution of child pornography particularly that uses real children, clearly harms the children involved but also harms society generally.

25The harm caused by the production and distribution of animated child exploitation material is likely to have no direct harmful impact on children but may have an indirect harmful impact on children.  It certainly, in my view, has an indirect harmful impact on society generally in terms of encouraging attitudes that children are available for sexual exploitation.  With that said, I consider there to be a distinct difference between material which relates to real children compared to material which relates to virtual children.

26Much of the content of the material that you downloaded and possessed was animated or cartoon type material but there were also images of children, including images of the child who was known to you.  Where there are images of real children, they are generally at a lower level in terms of this type of offending.  There is little material of significant gravity involving actual children.

27The number of images downloaded or possessed is moderate in number.  There is nothing to suggest you were in any way involved selling or making any profit out of this material.  I accept that the material was received by you in the context of downloading adult pornography or pornography with the word "teen" in the search title. You did nothing to prevent that occurring.  You did not delete all of the material, even though you knew that this was what was happening.  The nature of the material that you viewed and possessed suggests particular lines of interest, including sexual activity between children and in depictions of the genital area of children.  This is also evident in the image of the child known to you which I have viewed.

28There appears to be some selectivity in the images kept and a sexual interest of some type, in children.  I accept that you genuinely may believe that you do not have any such interest but I agree with Mr Cummins that that issue ought have further exploration.  It is very concerning that you kept those images of a child known to you, which are clearly consistent with a sexual interest.

29I have taken a number of matters into account in mitigation of sentence.  You pleaded at what, in practical terms, was an early stage.  I accept that that plea of guilty is some indication of remorse but your remorse is limited.  I accept that you have had some extra curial punishment in the loss of your computer system.  You have no prior criminal history.  You have good prospects of rehabilitation, especially if you engage in appropriate programs or counselling.

30I accept that your mental health is such that imprisonment will be more difficult for you.  At this stage, it appears that your mental health has not deteriorated significantly during imprisonment but I have taken into account, in imposing the sentence that I am imposing, that there is some risk that your mental health will deteriorate.

31I accept that your eyesight difficulties will make imprisonment considerably more difficult for you.  I also accept that imprisonment will be difficult for you because of the separation from your children.  Together with the risk of you losing your accommodation because you are sharing a house with your brother.

32General deterrence remains a very important sentencing consideration.  Even with the matters set out in mitigation, a sentence of imprisonment is warranted for the purposes of denunciation, general deterrence and just punishment.  I consider that specific deterrence also has a role to play in sentencing you.

33Specific deterrence must be given some weight because you must understand, that if you further offend, the penalties will become more severe.  I have had you assessed for a community correction order.  You were assessed as not suitable because of an assessment by the officer that you would not have a sufficiently cooperative attitude and may struggle with a community correction order and complying with the directions.

34Your counsel says there has been some change of attitude since the period on remand.  You repeat what you have said since the beginning, that you would be prepared to do a community correction order. In view of those matters, I have decided that a sentence of imprisonment, combined with community correction order would satisfy the sentencing considerations I have set out and encourage your rehabilitation which is in the interests of yourself and community protection.

35I have taken the principles of parsimony and totality into account and in determining that the sentences ought to be served concurrently because of the close linkage between the offending.  Could you please stand up Mr Smith.

36On Charge 1, you are convicted and sentenced to three months imprisonment.  On Charge 2, you are convicted and sentenced to three months imprisonment.  On Charge 2, the sentence of imprisonment is to be followed by a community correction order of two years.  The conditions of that community correction order will be the mandatory conditions and special conditions that you be under the supervision of the Corrections officers, that you undergo any mental health assessment and treatment and that you participate in programs or courses that address factors relating to your offending behaviour as directed.

37If you breach the community correction order by not doing what you are directed to do or by further offending, you can be brought back before me and resentenced.  Do you consent to that community correction order being made Mr Smith?

38OFFENDER:  Yes.

39HER HONOUR:  Thank you.  I declare that you have served 55 days of this sentence by way of pre-sentence detention. 

40Each of the offences to which you have pleaded guilty is a Class 2 offence.  The required reporting period is 15 years under the Sexual Offenders Registration Act 2004.  You will shortly be provided with documentation which sets out the requirements of that legislation.  You will be asked to sign a document to say that you have received that documentation.

41But for your plea of guilty, I would have sentenced you to a term of imprisonment of nine months, to be followed by a community correction order of two years. 

42Thank you Mr Smith, could you take your seat.  We will get the community corrections order printed out and we will get the Sex Offender Registration material printed out.  Mr McLoughlin, if you would not mind accompanying
Ms Dawson and obtaining ‑ ‑ ‑

43MR McLOUGHLIN:  Yes sure.

44HER HONOUR:  ‑ ‑ ‑ Mr Smith's signature, thank you.  Was there anything about the sentencing anyone needed repeating, or that I have forgotten to deal with?

45MR McLOUGHLIN:  No, I don't believe so, Your Honour.

46HER HONOUR:  All right, thank you.

47MS SKOBLAR:  Your Honour, we note for completeness that there's obviously - and this is indicated by Mr McLoughlin in his submissions, consent to forfeiture of the computers and document confirming consent will be signed.

48HER HONOUR:  No I had no - I knew that they would be forfeited, I thought they must be some automatic forfeiture by ‑ ‑ ‑

49MS SKOBLAR:  No.

50HER HONOUR:  ‑ ‑ ‑ what was said because I don't have - didn't have any application.

51MS SKOBLAR:  No, Your Honour.

52HER HONOUR:  And I didn't know anything about that.  Sorry,
Mr McLoughlin can you tell me what the situation is?

53MR McLOUGHLIN:  I'm sure that there is a document which we - which has been signed, but I understand my learned friend has another ‑ ‑ ‑

54HER HONOUR:  So there's consent is there?

55MR McLOUGHLIN:  There's consent to a forfeiture ‑ ‑ ‑

56HER HONOUR:  I should add that.  Consent to the forfeiture order.

57MR McLOUGHLIN:  Of that ‑ ‑ ‑

58HER HONOUR:  Consent to the forfeiture of the ‑ ‑ ‑

59MR McLOUGHLIN:  Yes.

60HER HONOUR:  ‑ ‑ ‑ computer equipment seized?

61MR McLOUGHLIN:  Yes.  And there were some other stuff seized which was I think returned at an earlier stage. 

62HER HONOUR:  Then if those orders are sent, I will sign them, but whether they need to - and I will make a note that that application for forfeiture was made and consented to. 

63MR McLOUGHLIN:  Yes, Your Honour.

64HER HONOUR:  I'm sorry I should have put that in.  Thank you. 

65MR McLOUGHLIN:  That's done, Your Honour.

66HER HONOUR:  All right.

67MR McLOUGHLIN:  And the community correction order is - there's that.

68HER HONOUR:  All right, done.

69MR McLOUGHLIN:  The back page.

70HER HONOUR:  Could you please both have a look at the orders that have been made and make sure when, you know, in a cold hard light of day that they ‑ ‑ ‑

71MR McLOUGHLIN:  Yes.

72HER HONOUR:  That they comply with what I have said.

73MR McLOUGHLIN:  I believe that they do, Your Honour, but we'll double check.

74HER HONOUR:  Yes, very well, thank you.  Thank you very much.  Thank you, Ms Skoblar.  Thank you, Mr Smith.  Thank you, Mr Smith can be taken down now, thank you.

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