Director of Public Prosecutions v Stephen Ward
[2014] VCC 314
•13 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-01749
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Stephen Mark Ward |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2014 | |
DATE OF SENTENCE: | 13 March 2014 | |
CASE MAY BE CITED AS: | DPP v Stephen Ward | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 314 | |
REASONS FOR SENTENCE
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Subject: Child pornography – State and Commonwealth charges
Sentence: Total effective sentence of 12 months’ imprisonment with immediate release upon entering into a recognisance in the sum of $1000 and complying with conditions
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr J Manning | CDPP |
| For the Accused | Mr J Buxton | Paul Vale Solicitors |
HER HONOUR:
1 Steven Mark Ward, you have pleaded guilty to two Commonwealth charges. The first is a charge of using a carriage service to access child pornography material contrary to section 474.19(1)(a)(i) of the Criminal Code (Cth); which carries a maximum penalty of 15 years’ imprisonment. The second is a charge of using a carriage service to make available child pornography material contrary to subsection 474.19(1)(a)(iii) of the Criminal Code (Cth), which also carries a maximum penalty of 15 years’ imprisonment. You have also pleaded guilty to one charge of knowingly possessing child pornography contrary to section 70(1) of the Crimes Act 1958 (Vic), for which the maximum penalty is 5 years’ imprisonment.
2 I heard the plea on 28 February 2014. On 5 March 2014 I invited counsel to make any further submissions in the light of the recent decision of DPP (Cth) v Guest [2014] VSCA 29 which was handed down on 3 March 2014. I also sought written clarification from the prosecution of the precise conduct relating to each charge. I received that clarification along with brief written submissions concerning DPP v Guest, on 6 and 7 March 2014. On 7 March I received submissions in reply from your counsel. I accept that while Guest’s case is a useful restatement of the principles applicable to this type of offending, particularly in the light of the increase in maximum penalty for the Commonwealth offences, the offending contained in that case is not factually analogous to this case, in terms of the numbers of child pornography files possessed and accessed, and in particular the number of files distributed.
3 Charge 1 concerns offending during the period 15 September 2012 to 19 June 2013. Forensic analysis of your Acer computer which was seized by police revealed that you accessed on the Internet and downloaded 1372 files, comprising images and videos indicative of child pornography material.
4 I viewed a sample of the images and videos in court during the plea. The prosecution opening, which is Exhibit 1, categorised the images and videos in ascending levels of seriousness from one to five in the following way. Approximately 637 Level 1 images depicted dressed, semi-dressed and nude predominantly female children, ranging from posed model shots to amateur candid shots. There were 53 Level 1 videos consisting mainly of female children being filmed naked while undressing.
5 There were 58 Level 2 images and 55 Level 2 videos. The Level 2 images and videos depicted mainly female children involved in solo masturbation or sexual activity with other children.
6 There were 127 Level 4 images and 200 Level 4 videos mainly depicting female children engaged in penetrative sexual acts with adult males or other children. The penetration involved the use of vibrators, fingers, tongues, mouths and penises.
7 There were 41 Level 5 images and 22 Level 5 videos depicting female children involved in sexual activity while being blindfolded, tied up or with an animal. Some videos also involved the child being urinated on.
8 In the final category, Level 6, depictions of anime, cartoons, comics and drawings depicting children engaged in sexual poses or activity, there were 179 images.
9 Charge 2 relates to forensic analysis of your computer accounts which reveals that between 1 February and 30 March 2013 16 files (that is, 8 files which were shared twice) containing child pornography material were made available by you to other users on Gigatribe. The material shared was not categorised and for this reason the Crown does not allege a higher categorisation than that of Level 1 in relation to the 8 files.
Charge 3 10 is put on the basis that 1,372 files stored on your Acer Computer were possessed on 19 June 2013, the date on which the Australian Federal Police executed a search warrant at your residence.
11 It was common ground that you made a number of admissions to police when interviewed, although you answered “no comment” to some questions, and that you pleaded guilty at the first available opportunity, that is, at the committal mention. You have no relevant prior convictions but one conviction in September 2008 for recklessly cause injury, when you received a fine.
12 The material tendered on your behalf on the plea includes a chronology and an outline of submissions prepared by your counsel, a letter from your ex-wife, Suzanne Ward, a medical report from your current general practitioner, Dr Lucas De Siqueira, a psychological report from Mr Jeffrey Cummins, forensic psychologist, dated 27 February 2014, and some medical documentation concerning your respiratory condition. I have taken all this material into account.
13 Your childhood was a difficult one. Your parents split up before you were one due to your father’s family violence. You have had no contact with him since then. You, your mother and siblings then lived with your uncle and grandmother in crowded circumstances between 1966 and 1972. During those years you were frequently sexually abused by your uncle, including anal and oral penetration. You were also abused on one occasion by another adult male not connected to your uncle. The abuse was not reported. Your uncle died in the 1990’s.
14 In 1972 your mother formed a relationship with a man you regarded as your step-father, and you and she and one sister lived with him until your mother died of cancer in 1978. You left school in Year 9 and with the help of your stepfather got work in the construction industry spraying asbestos and later other fire retardant materials. You have mainly done this kind of work all your working life, apart from a year or so during which you unsuccessfully ran your own cleaning business. You had a relationship with a woman for four years from 1978 and had two sons with her. In 1986 you entered into a relationship with Suzanne Ward, and lived with her and two of her children. You married in 1988. You were a caring father substitute for her two young children, and did a lot together as a family. In 2001 she suffered a brain aneurysm. In her letter she stated that you cared for her daily in hospital and then at home afterwards and cooked for her. The marriage broke up in 2003 but you remained good friends. Since 2001 you have been working for the same employer, often working 6 days and sometimes acting as supervisor. You earn around $1,200 per week. If you are imprisoned, you will lose your job. After your marriage broke up, you became very depressed and started drinking heavily. You were diagnosed with depression in 2009 and commenced antidepressant medication. You went to work in Perth for the same employer between 2009 and 2011 and stopped taking your medication. You were drinking heavily and were depressed. When you returned to Melbourne to your old job you lived with Suzanne Ward and her partner for about 15 months. In 2013 you moved into your own flat. You live alone, although Suzanne stayed with you for some time after her relationship with her partner ended. She stated in her letter that you tend to stay home at night and drink. Mrs Ward was present in court during the plea hearing to support you. Dr De Siqueira reported that you suffer from Chronic Obstructive Pulmonary Disease and the additional medical documentation suggests that you have limited lung function and have pleural changes in the lungs consistent with exposure to asbestos. You were also started on anti depressants in July 2013 and had some psychological treatment.
15 Mr Cummins reported that after separating from your wife in 2003 you were drinking heavily, up to half a slab of heavy beer per day. You never took illicit drugs. At the time of your offending you were often drunk and bored. You had also been under financial pressure for the past two years, with about $25,000 in credit card debt. The offending took place over six months prior to detection. Before then you were regularly viewing adult pornography on the internet. You then drifted into viewing child pornography out of boredom and curiosity. You told Mr Cummins that you would never have any sexual contact with an underage female or male. You knew that you were doing the wrong thing in viewing child pornography but did not realise that the persons depicted were themselves victims of sexual abuse. You were very remorseful for your actions.
16 Mr Cummins concluded that at the time of your offending you were suffering from a Chronic Adjustment Disorder and may also have been suffering from a Persistent Depressive Disorder, both conditions being precipitated by the breakdown of the marriage. These resulted in your having problems with intimate relationships and your choosing not to have another sexual partner. These conditions affected your perception, judgment and problem solving ability, and compromised your overall level of culpability. Instead of seeking mental health treatment, you made a very bad judgment to progress from viewing adult pornography to viewing child pornography. He felt that you were addicted to child pornography. He felt that your work is a very important stabiliser in your life and that if imprisoned your mental health would deteriorate and you would risk becoming a recluse upon release. He felt that you now appreciate that you need mental health treatment in relation to your offending and in relation to your current conditions. Mr Cummins indicated that he would be prepared to treat you in accordance with a court imposed order. You have expressed to him a preference for one to one treatment because of your own sexual abuse history. Mr Cummins indicated that the risk of your reoffending is low.
17 The Crown submitted that your offending was serious and that you knew your conduct was wrong at the time. The Crown pointed to contextual matters including that you engaged in email and chat sessions with others which included matters relating to child pornography and that you kept printed photographs of clothed female children which you kept under your bed. It was submitted that general deterrence was a paramount consideration in offences of this type, and that adequate punishment must be imposed. However, the Crown conceded that you pleaded guilty at the earliest opportunity, showed some remorse and insight by cooperating with police at the time of the search warrant and by making some admissions when you were interviewed as well as asking for help in relation to your behaviour; that you have good prospects for rehabilitation and that further treatment is appropriate. No issue was taken with the psychological report of Mr Cummins. The Crown noted that although a term of imprisonment was usually warranted in child pornography cases, in a number of other comparable cases, that is, cases involving similar charges where the total number of files ranged from 600 to 2400 files, offenders have been sentenced to terms of imprisonment but released forthwith upon entering into recognizance orders. The Crown provided me with a table of such comparable cases and the sentencing remarks in relation to a selection of the comparable cases which most closely resembled your case. I note that although you are to be sentenced on charge 3 as a serious offender within the terms of s6C of the Sentencing Act 1991, the Crown did not seek any disproportionate sentence in relation to charge 3.
18 Your counsel relied on the Crown’s concessions and submitted that a sentence not involving immediate imprisonment is appropriate in your case. He acknowledged the importance of general and specific deterrence but also emphasised, in your case, the importance of rehabilitation. In particular, he noted your long and successful work history and submitted that imprisonment will result in you losing your job and will effectively devastate you as you will be unable to pay off your debts, keep your accommodation, or pay for treatment. He relied on the report of Mr Cummins to the effect that your moral culpability was reduced by the psychological conditions you suffered at the time of the offending, that these conditions would make imprisonment more difficult for you than for offenders without your mental health problems, and that imprisonment was likely to exacerbate your mental health issues. Your counsel emphasised the fact that at the time of detection you had expressed your intention to get rid of the computer containing the child pornography material, that you have sought treatment for your offending, and for your mental health issues, including taking anti-depressants, have limited your drinking and are committed to ongoing forensic psychological treatment to help you come to terms with your own past. For these reasons he submitted that specific deterrence was not as central a sentencing consideration as it might be in other cases.
19 In terms of the nature and content of the material, and the number of images or items possessed for your personal use, I consider that your offending, while serious, is at the lower end of seriousness. Your involvement in pornography is relatively recent. The number of images accessed and possessed is significant but only about one-tenth of the volume of material in Guest’s case. Over half the images and videos were Level 1, although there was material in categories 4 and 5. Relevantly, the accessing and possession involves the same material. Further, the chat material does not form part of the charges and the make available charge involves sharing 8 files twice. In relation to the State charge, I note that your offence of possessing the child pornography was not associated with the making, production or sale of such material for commercial gain. However, the conduct is to be denounced. The Crown provided me with a chart containing a number of comparable cases, in terms of numbers of images and videos, in which a variety of sentences on the State offence were imposed, ranging from fines with conviction, Intensive corrections orders, wholly suspended sentences, partly suspended sentences and sentences involving immediate imprisonment for 3 months, and on the Commonwealth charges which also involved a range of terms of imprisonment with release on recognisance orders.
20 I acknowledge that general deterrence is the paramount consideration in sentencing for offences of this kind, and that ordinarily a sentence of imprisonment would be warranted, although it is recognised by the authorities that there are cases where a sentence which does not involve a period of actual custody is not precluded.
21 I note your prior good character but also note that in cases such as these, less weight is to be given to you for it because of the public interest in stamping out the provision and use of child pornography and because often offenders in these cases offend later in life and have no prior convictions. I accept the material put by your counsel on the plea in terms of your remorse, your early admissions and plea of guilty, your reduced moral culpability in the light of your mental health conditions at the time of the offending, your very good prospects of rehabilitation, Mr Cummins’ opinion that your risk of reoffending is low, your solid and ongoing work history, your engagement with treatment and your commitment to ongoing treatment. You did not offend in this way until the age of 53. For these reasons, specific deterrence is in my view a lesser consideration.
22 I have had regard to the table of comparable cases provided by the Crown and the sentencing remarks in relation to a selection of those cases. Each case falls to be determined on its own facts.
23 In all the circumstances of this case, I consider for the reasons outlined above that a disposition not involving immediate imprisonment is the appropriate sentencing disposition.
24 Would you please stand.
25 On Charge 1, you are convicted and sentenced to imprisonment for a term of 12 months. This sentence is to commence today. I propose to release you forthwith, pursuant to s20(1)(b) of the Crimes Act 1914, upon your entering into a recognisance release order for the sum of $1,000 for a period of 2 years with the following conditions:
· You must be of good behaviour;
· You are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee ; and
· You are to attend for assessment and, if assessed as suitable, treatment for a sex offender program or programs to reduce re-offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee;
· You are to report to the Carlton Community Corrections Centre, of 444 Swanston Street by 4 pm on 17 March 2014; and
· You are to report to and receive visits from a community corrections office or officers; and
· You are to notify an officer at the specified community corrections centre of any change of address or employment within two clear working days after the change; and
· You are not to leave Victoria except with the permission of an officer at the specified community corrections centre; and
· You are to obey all lawful instructions and directions of community corrections officer.
26 If you fail, without reasonable excuse, to comply with this order, it may be discharged or varied and you would be brought back to court to be resentenced. There is a strong likelihood if that occurs that you will be sentenced to a term of immediate imprisonment. You would also forfeit the $1000. Do you understand everything I have said about the recognisance release order?
27 OFFENDER: Yes, Your Honour.
28 HER HONOUR: Thank you.
29 On Charge 2, you are convicted and sentenced to a term of imprisonment for 6 months, to be served concurrently with the sentence imposed in respect of Charge 1. I propose to release you forthwith, upon your entering into the same recognisance release order imposed in respect of Charge 1. This sentence is to commence today.
30 On Charge 3, you are sentenced as a serious offender. You are convicted and sentenced to 6 months imprisonment, wholly suspended for a period of 2 years. I direct pursuant to s 6E of the Sentencing Act that this sentence is to be served concurrently with the sentence imposed on Charge 1.
31 As I hope I have expressed correctly, the total effective sentence for Commonwealth and State charges is 12 months imprisonment, with immediate release upon your entering into a recognisance in the sum of $1,000 and complying with the conditions I have read out to you.
32 I indicate pursuant to s 6 AAA of the Sentencing Act that but for your pleas of guilty I would have imposed a term of imprisonment of 12 months’ with the requirement that you serve 9 months before being released upon recognisance.
33 Your offending attracts the provisions of the Sex Offenders Registration Act 2004. You have been convicted of three Class 2 offences and as a result you have become a registrable offender for life and must comply with the reporting conditions of that Act. A document specifying your obligations will be given to you by my associate. Those are my intentions and I will just need your assistance in relation to filling out the details. My Associate has got the text of the order but I understand that the convention is that your office prepares the recognisance release orders.
34 MR MANNING: Yes, that is right, Your Honour. If I could have a moment I will fill out those details. There were just a couple of matters.
35 HER HONOUR: Yes.
36 MR MANNING: In relation to the good behaviour period.
37 HER HONOUR: Yes.
38 MR MANNING: Usually the period of time is specified and quite commonly the balance - - -
39 HER HONOUR: All right. So it will be two years.
40 MR MANNING: Thank you.
41 HER HONOUR: Yes.
42 MR MANNING: The Corrections Centre is typically Carlton Community Corrections Centre at 444 Swanston St, Melbourne, and I will fill that out.
43 HER HONOUR: Thank you.
44 MR MANNING: And the convention is for two days to report, so I will include that as well.
45 HER HONOUR: Thank you. And in relation to the treatment by Mr Cummins, Mr Buxton, your client indicated a willingness to - - -
46 MR BUXTON: Yes.
47 HER HONOUR: Is there any difficulty with the imposition of that condition?
48 MR BUXTON: No there is not, Your Honour.
49
HER HONOUR: All right. It is fairly open-ended in terms of the intervals,
but - - -
50 MR BUXTON: Yes.
51 HER HONOUR: All right. Well if there are no other matters we can - so we have got a draft order for you to look at. So what I will do is I will just adjourn briefly, wait outside while you have a look at the order.
52 MR MANNING: Thank you, Your Honour.
53 HER HONOUR: And you can just direct me if there are any other problems, thank you.
(Short adjournment.)
54 HER HONOUR: Thank you. Do I need to read these out again just to include the amendments or you are quite happy with the amendments?
55 MR MANNING: Quite happy with that.
56 MR BUXTON: I am content with that, Your Honour, thank you.
57 HER HONOUR: All right, excellent. Well thank you very much for your assistance and we will just - CLMS is a mystery to me but the form in which these orders have to be expressed appears to be sort of regulated by the defaults on the system, so just check that there is nothing incorrect on that if you would not mind - you have.
58 MR MANNING: Yes I have had a look at that, Your Honour.
59 HER HONOUR: All right, thank you.
60 MR MANNING: Thanks.
61 HER HONOUR: While the technical problems are being dealt with I might just leave the Bench. Before I do so I just wanted to thank you both for your assistance in providing the material in relation to the queries I raised.
62 MR MANNING: If Your Honour pleases.
63 MR BUXTON: Thank you, Your Honour. As Your Honour pleases.
64 HER HONOUR: Thank you very much.
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