Director of Public Prosecutions v Soebadio

[2017] VCC 129

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00776

DIRECTOR OF PUBLIC PROSECUTIONS

v

IWAN SOEBADIO

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 February 2017
CASE MAY BE CITED AS:	DPP v Soebadio
MEDIUM NEUTRAL CITATION:	[2017] VCC 129

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Kerlin
For the Accused	Mr R Roberts

HER HONOUR:

1Iwan Soebadio, you have pleaded guilty before me to one charge of accessing child pornography material using a carriage service, contrary to s.474.19(1)(i) of the Criminal Code (Cth). The maximum penalty for that offence is 15 years' imprisonment.

2You have also pleaded to one charge of making available child pornography material using a carriage service, contrary to s.474.19(1)(iii) of the Criminal Code.  The maximum penalty for that offence is also 15 years' imprisonment.

3Further, you have pleaded guilty to one charge of knowingly possessing child pornography, contrary to s.70(1) of the Crimes Act (Vic). The maximum penalty for that offence is ten years' imprisonment.

4The facts of the matter were opened by the prosecution, and a summary of the opening was tendered as Exhibit A on the plea.  You have pleaded guilty to accessing child pornography, as stipulated in Charge 1, and then downloading that material in order to keep a collection of child pornography (that is, in relation to Charge 3).

5MR KERLIN:  Your Honour, if I may just briefly interject?

6HER HONOUR:  Yes.

7MR KERLIN:  There was just one matter to raise, which is the maximum penalty in relation to Charge 3.

8HER HONOUR:  Yes.

9MR KERLIN:  It is now ten years' imprisonment, but at the time of the offending it was five, Your Honour.

10HER HONOUR:  It was five years, yes.  I should - I will amend that.

11The summary of the opening was tended as Exhibit A.  You have pleaded guilty to accessing child pornography as set out in Charge 1, then downloading the material to keep a collection of child pornography (that is, Charge 3), and you shared the material that you downloaded to other users via a web program called "EMUL", which is what is related to Charge 2.

12The offences were detected when Interpol investigators identified a particular video file created and shared on 27 May 2014 through that program EMUL, and your IP address was identified as having accessed the file.  The information was assessed at the Australian Federal Police Assessment Centre to confirm that it was in fact child pornography, and in the intervening period up to April 2015, three additional files were identified as being accessed via the IP address linked to you.  They were also classified as child pornography.

13As a result of the investigations, on 4 June 2015 a search warrant was executed at your home on St Kilda Road, Melbourne, and your desktop computer, four hard drives, and another external hard drive was seized.

14At the time of the execution of the warrant, your computer was on and operating.  The logged-in username was "Iwan".  Several webpages were displayed, including ones relating to military aircraft.  The file-sharing application I earlier referred to, EMUL, was running, and there were files being downloaded, though none of them at that time were child pornography.

15A preliminary forensic examination of the seized computer and hard drives revealed that they indeed all contained child pornography.  EMUL enables users to search for the material that they are interested in.  Results are displayed, listing file names.

16Child pornography files are listed with detailed filenames, containing multiple descriptive terms indicative of the type of content.  Files are then downloaded by right-clicking or selecting files, and manually clicking the download option.  The user is required to select which files are to be downloaded.  There is no automatic downloading.

17You downloaded the files to a directory, and then manually moved them to a separate directory labelled "AD" for "Adult".

18During the execution of the search warrant on
4 June 2015, a conversation with you was recorded by the informant.  You stated that you wanted to be fully cooperative, and that you understood how serious the situation was.  You further stated that you were full of remorse, and that you were disgusted with yourself.

19You indicated that child pornography was on only one of your devices, and that you were not part of any specific group or paedophile ring, and had not engaged in any direct messaging or chat groups.

20You further indicated that "stuff had just accumulated over time".  You told the informant that you would download files and save them in the "AD" for "Adult" folder, which also included normal adult porn.

21You were aware that you were sharing files with people all over the world, and you used EMUL because it resulted in credit, making downloads faster.  The more files you shared, the faster your download possibilities were.

22You further apologised, and indicated that you were regretful for the situation.  You declined to participate however, in a formal interview. 

23The analysis of your computer revealed a total of 12,112 images, and 109 videos, which could be classified as child pornography material.  They were located on your "AD" folder.  The unique images and unique videos were then classified according to the CEM, or Child Exploitation Material scale, which was created by the Australian National Victim Image Library.

24The majority of the files fell within Category 1, that is, images depicting underage persons nude or in erotic poses, with no sexual activity, but with explicit emphasis on genital areas.  11,847 picture files and 55 video files were in that Category 1.

25Category 2 contains images of masturbation by a child, or sexual acts between children, with no penetration at all.  There were 34 picture files and five video files in Category 2 recovered from your computer.

26Category 3 is non-penetrative sexual activity between child and adults, and may include mutual masturbation.  There were 140 unique picture files and three videos of Category 3 material located.

27Category 4 is penetrative sexual activity between child and adults of all kinds, including use of sex toys and/or foreign objects.  There were 87 images and 40 videos located that were categorised as Category 4.

28Category 5 includes sadism, bestiality, humiliation, including urination, defecation, vomit and bondage, torture, or any other form of child abuse.  There were four pictures and six videos in this category located. 

29There were no images or videos classified as Category 6, which are anime, cartoons, or computer-generated graphics.

30Category 7, which does not relate directly to child pornography, but is material which is indicative of an interest in child pornography was applicable to an additional 5,659 files. 

31This matter resolved to a plea just prior to the final directions hearing in this court, and you were arraigned and entered your plea on 20 October 2016 to all charges on the indictment.

32You have no prior convictions for any criminal offending, and have been on bail in relation these offences since 4 June 2015.  There has been considerable delay, and you have made use of that delay in finding treatment for yourself.

33This offending is regarded as extremely serious, illustrated by the fact that Parliament has seen fit to impose terms of imprisonment of 15 years in relation to two of the charges.  The children subjected to, and involved, in the behaviour depicted in the material seized in the raid at your home are the nameless victims of worldwide exploitation of helpless children.  This is serious offending, and you have participated in this repulsive market, which has no borders, geographical, moral, or humanitarian, and which thrives on the indefensible subjection of children all over the world to the perversity of adults.

34I turn to matters personal to you.  Your personal history is set out in a report from Mr Jeffrey Cummins, dated 30 January 2017, and tendered as Exhibit 2.

35You were born in Jakarta on 10 April 1968, and are now 48 years of age.  You live alone in an apartment owned by your brother and sister, and you have a complicated family background.  Your mother's parents were American, and came to Australia in 1959, when she was an infant.

36Your grandfather worked as a solar energy engineer.  Your father was born in Western Java, and met your mother at Melbourne University.  They married in Jakarta in 1966, and you and your brother were born there. 

37Your parents separated, and your mother returned to Melbourne when you were about seven.  You also have a sister born after that separation.  You then lived in Blackrock with your maternal grandparents for some five to six years. 

38Your mother remarried, and eventually had a position at Deakin University, heading the Indonesian language unit.  You remained close to your mother and her second husband.

39Your father remarried, and a daughter and two sons were born from that later union.  Your mother had other significant relationships in her life before she remarried.  You have, from your father's relationships, two half-sisters and an older half-brother, and you have your full sibling relationship with your 44-year-old brother and your sister.

40Your brother, who is close to you, has supported you in court.  Your sister lives in New Zealand.  You have infrequent contact with her, and she is unaware of your current legal predicament.

41In 1981, during a period of conflict between your mother and her then-partner, you and your brother returned to Jakarta and lived with your father.  You lived there until about 1987.  You returned then to Melbourne, and lived with your mother and her then-partner until 1991, when you went to reside with your maternal grandfather in Gembrook for the next two years.

42When you did return from Jakarta, you effectively had a year off, taking odd jobs where you found them.  I have gone into detail in relation to your background, because it is illustrative of a very dysfunctional upbringing, where you were relocated from country to country at various stages.

43You did, however, complete Holmesglen TAFE with an Advanced Certificate and Associate Diploma in Marketing, and studied a number of subjects as part of a Bachelor's Degree in Business Management, which you did through the New Zealand Open Polytechnic Scheme.  You did not complete those latter courses.

44You have had very limited relationships with the opposite sex through your life.  You were engaged to an Egyptian woman through an arrangement between your parents, however that marriage, though consummated, never occurred. 

45You returned to Melbourne, and around the year 2000, you had various positions of employment, and in 2002 you had a second relationship, which was also unsuccessful.  At that stage, you completed the six-week patient services assistance course, and were employed in, and from 2004, as a patient services assistant, or PSA, at the Royal Melbourne Hospital.  You are currently on long service leave, and work there on permanent night staff, and including weekends.  And what is to come of that employment is unsure.

46Tendered as Exhibit 4 was a psychiatric report from the consultant psychiatrist Dr Paul Brown.  It was actually a supplementary report.  He had written an initial report, which was not tendered to me, although I was provided with a copy.

47He first saw you in September 2015, shortly after you were charged with these offences.  He diagnosed you as suffering from a major depressive disorder dating from childhood, dramatic grief at the loss of your two major heterosexual relationships, and the maturity onset of diabetes of some two years standing, which also affected you emotionally and psychologically.

48You also had features of cognitive impairment, which however proved to be partly due to your depressive grief disorder, and partly to the shock of being charged with these offences.  It appears that you do not in fact suffer a cognitive impairment. 

49Dr Brown noted there was suicidal depression in your mother's family, and that you had attended a psychiatrist at the time of your relationship failures.

50Dr Brown reported your progress, as you had returned to him in August 2016, and have engaged in fortnightly counselling.  The psychotherapy focused on your emotional failures, and your moral failure.

51Dr Brown, in his report, indicates that you have matured emotionally and morally in treatment, and have developed a conscience sufficient to experience and express genuine remorse.  He writes that you are no longer depressed, you have resolved your grief issues, and are optimistic about rebuilding your life.  Your prognosis is excellent, provided that you remain in psychological counselling for the near future.

52Mr Cummins - Jeffrey Cummins, also carried out assessments on you and states in his report that you had indeed been attending psychiatrist Dr Brown, and indicated your ongoing treatment.  Mr Cummins indicated in his report that you reported symptoms of depression during your mid to late-childhood, which he presumed would be related to your disrupted and dysfunctional upbringing.  You also informed Mr Cummins that you had received psychiatric treatment for depression in the 1990s.

53His opinion (that is, Mr Cummins' opinion), is that you are psychosexually immature, having had difficulty in finding a steady partner, and you have never maintained any steady relationship with a partner for a long period.  Against this background, Mr Cummins states that you turned to viewing adult pornography, and eventually drifted into child pornography.

54Through the treatment with Dr Brown, the psychiatrist I referred to, you are receiving assistance in developing strategies for meeting age-appropriate partners.

55Mr Cummins assesses your risk for offending again as low, and indicates that you have a positive prognosis.  In his opinion, you are genuinely remorseful in relation to your offending.

56Tendered as Exhibit 3 were a bundle of reference letters written to the court on your behalf.  Your brother, Indra Soebadio, who I have referred to earlier, writes of you being a loving brother, with a very good relationship with his children and his wife.  He describes you as an introvert who has always preferred quieter pastimes, rather than socialising, and eventually you began exploring the internet, and that is how you found your way to adult and then child pornography.

57Your brother writes that the discovery of this material and your being charged has been a very big intervention in your life, and you understand your responsibility when making choices as to what you do, even in the privacy of your own home, and he attests to the fact that you have sought professional counselling, and have changed in a positive sense.

58Your brother also refers to the deteriorating condition of your mother and father, both in their 70s, who are requiring increasing care.  Your mother has been diagnosed with Alzheimer's Disease, and with your experience as a patient services assistant, you have been crucial in their care.

59He writes that in the past year, you have been fundamental in providing care to both your mother and her husband, your stepfather. 

60Letters from other friends, Nicholas Saunders, Ricky Smith and Practesh Patel all indicate their surprise at you being charged with such offending, and indicate your deep remorse that you have expressed to them since your apprehension.

61Each indicates that you wish only to rehabilitate yourself and to be a productive member of society again, and each indicates that they have seen a positive change in you since you have begun seeking treatment, and I take all those matters into account.

62A letter from Brendan Frank Clarey was tendered, who also gave evidence in Court. He writes of your deep guilt and remorse, and your struggling with depression and trying to come to terms with your mother's illness.

63He writes that your arrest in June 2015 was "the tipping point in Iwan's struggle that he desperately needed".  He indicates that you were open, honest, always as a person, and even through this ordeal, you have been incapable of lying. 

64All of these testaments are an endorsement of you as a close friend, and as a person of integrity in most areas of your life.  I take all those matters into account in deciding your sentence.

65Your counsel also made a submission on the mitigating factors in your favour, and I take those submissions into account.  He emphasised that the vast majority of the pornography located on your computer fell into the Category 1 images, and that the images which fall into Categories 2, 3, 4 and 5 represented somewhere between two and five per cent of all of the material, and I do take that into account.

66His submissions, in essence, are that you are a single man in full employment, you have no prior convictions, your history is one of depression and low self-esteem, and you are the product of a disturbed childhood.  You live an isolated life, and work permanent night shifts and weekends as a hospital orderly.  You are not connected with any group or paedophile ring.  You immediately confessed to the police and expressed your remorse and disgust.  You cooperated totally in the search, you have clearly indicated you intention from the beginning to plead guilty at the earliest possible stage of the investigation, and you have cooperated and facilitated the course of justice.

67I do take all of those matters into account. I have also taken into account the current sentencing practices, and the submissions made on behalf of the Department of Public Prosecutions. And I also take into account the other matters that I am required to take into account pursuant to s.2 of the Crimes Act 1914 (Cth).

68I am required to take into account specific deterrence.  That is, any sentence should deter you from acting in the way you acted in committing these offences in the future.  I have however regarded this as a less important factor in your particular case, as you have shown from the moment of your apprehension a willingness to cooperate, remorse, and self-disgust.  I consider that you have already been significantly deterred from being involved in this sort of behaviour again.

69I have also taken into account the circumstances and nature of the offence.  This is very serious offending, which, as pointed out by counsel for the Director of Public Prosecutions, normally attracts a term of imprisonment.  I am also required to consider your character and antecedence, and I do.

70I take into account your total cooperation, and the prospects of your rehabilitation, all included in the material I have before me, and all the material I have gives cause for optimism as to your rehabilitation. 

71Also, I denounce your conduct on behalf of the community.  The treatment of children in the ways depicted in the material found at your home will not be tolerated, and cannot be tolerated in a civilised society.  I take into account the seriousness of your offending, and your culpability, together with your personal circumstances.

72On balancing all of those matters, including a matter which I am not required to take into account pursuant to s.16A, but which I need to take into account anyway, is that others be deterred from acting as you have.  And I am not sure if I have repeated that, but clearly that is the driving force behind the sentence which I am going to impose.  That is, the necessity for others to understand that there are serious consequences that flow, even though these acts occur in private in your own home, because all of those children are victims of the creation viewing and distribution of that material.  So I certainly take that as the driving force behind my imposing this sentence.

73On balancing all of those matters, including your immediate cooperation, your early plea, your rehabilitation, I have concluded that the only appropriate sentence in order to represent the seriousness of this offending, and in order to deter others, is a term of imprisonment. As I indicated to you earlier today, I note that in relation to Charge 3, I take into account that you will be sentenced as a serious sexual offender for the purposes of s.6E of the Sentencing Act.  I am required to regard the protection of the community as the principal sentencing purpose.  However, as I indicated, I consider it neither necessary nor appropriate to achieve that purpose by imposing a sentence that is longer than that which is proportionate to the gravity of your offending, and all the other matters put before me on your behalf in relation to this plea.

74As a result of being sentenced, you will be required to be registered pursuant to s.11 of the Sex Offenders Registration Act, and you will be required to comply with your obligations under that Act for life.  At the end of the sentence, I will have my associate hand to you a form which notifies you of those reporting obligations, and I will ask you to sign that.  Would you please stand for me?

75On Charges 1 and 2, you are convicted and sentenced to 12 months' imprisonment.  You are to be released on a recognisance release order after serving three months of that sentence. The amount of the Recognisance will be $5,000 and you are required t be of good behaviour for a period f 12 months.

76In relation to Charge 3, you are convicted and released on a community corrections order of 20 months, which will have the following conditions:

77You must perform 150 hours of unpaid community work over a period of 20 months, as directed by the regional manager;

78You must be under the supervision of a Community Corrections officer for a period of 20 months;

79You must undergo any mental health assessment and treatment, that may include psychological, neuropsychological, psychiatric, or treatment as directed by the regional manager of the Office of Corrections;

80You must participle in programs and/or courses that address factors relating to your offending behaviour as directed by the regional manager.

81I have a report indicating that you understand the conditions that I am imposing, and that you are willing to comply with such an order.

82You will be required to attend the Carlton Corrections office within two working days of being released, following that term of imprisonment. 

83In relation to s.6AAA, I declare that but for your plea of guilty, I would have sentenced you to 20 months' imprisonment, to be released after serving nine months, with a community corrections order for 30 months, and 200 hours unpaid community work.  So that is the substantial reduction that is given to you for the fact that you have pleaded guilty during these proceedings.

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