Director of Public Prosecutions v Stevenson
[2015] VCC 1019
•24 July 2015
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-02229
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN STEVENSON |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 March 2015 |
| DATE OF SENTENCE: | 24 July 2015 |
| CASE MAY BE CITED AS: | DPP v Stevenson |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1019 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - Use carriage service to access child pornography – Knowingly possess child pornography – Very deprived upbringing characterised by physical and emotional abuse and neglect – Persistent depressive disorder
Legislation Cited: Sex Offenders Registration Act2004; Crimes Act1914 (Cth).
Cases Cited:Boulton v R [2014] VSCA 342; DPP v Zarb [2014] VSCA 347; R v Cole [2015] VSCA 44; DPP v Power, [2015] VCC 133; Atanackovic v The Queen [2015] VSCA 136
Sentence:Charge 1 – 18 months’ imprisonment to be released forthwith upon Recognisance Order of $3,000 and to be of good behaviour for 5 years – Charge 2 – Community Corrections Order for period of 5 years – s.6AAA Sentencing Act 1991 – Ancillary orders – Forfeiture order and Sex Offender Registration
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Skoblar | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P. A. Dunn QC with Ms K. Ballard | Doogue O’Brien George |
HER HONOUR:
1Alan Philip Stevenson, you have pleaded guilty to one charge of using a carriage service to access child pornography, which has a maximum penalty of 15 years' imprisonment, and one charge of knowingly possessing child pornography, which has a maximum penalty of five years' imprisonment.
2Your offending was opened as follows:
3The Australian Federal Police ("AFP") traced to your address an IP address which was using "E-mule", a file sharing program in relation to child pornography. On 10 September police executed a search warrant at your home which was also occupied by your partner. You were at the house when this was done and were co-operative during execution of the warrant. You took part in a recorded conversation with police as the search was conducted.
4Police seized a computer tower, a 500GB hard drive and a laptop computer, which were subsequently forensically analysed and found to contain child pornography.
5In the taped conversation with police you said that you used “E-mule” to download child pornography, and that you had done this for at least three or four years. You had not deleted what you had downloaded, which would be confirmed by your computer search history. You offered to provide passwords for the computers that required them and you agreed that a child pornography image was plainly visible on your computer.
6After the search at your house you were taken to the local police station where you said that you were too unwell to take part in a formal taped record of interview.
7Child pornography was found on all seized storage devices. A total of 21,475 images and 886 videos were seized, with a total of 22,361 child pornography files.
8The child pornography was categorised as follows:
·Category 1: which is in relation to no sexual activity but depictions of children in sexually suggestive poses and the like; there were 17,977 images and 147 videos.
·Category 2, a category which involves solo sexual acts by a child or between children and the like; there were 527 images and 72 videos.
·Category 3, a category which involves non-penetrative sexual activity between children and adults; there were 1,351 images and 111 videos.
·Category 4, penetrative sexual activity between children only or adults and children; there were 1,476 images and 535 videos.
·Category 5, a category which involves sadism, bestiality or humiliation of a child; there were 141 images and 21 videos.
·Category 6, a category encompassing anime or cartoons of children engaging in sexual poses or sexual activity; there were three images found and no videos.
9The child pornography which was found relates to both counts on the indictment.
10In relation to Charge 1, the earliest date that you accessed child pornography was 29 December 2010 and the most recent file creation date where you used a carriage service to access was 10 September 2014. You regularly accessed child pornography during this period of almost four years. As said previously, the total number of child pornography files was 22,361.
11Charge 2 relates to all child pornography files in your possession as at the date that the search warrant was executed. Therefore, Charge 2 relates to the possession of all files accessed and which are referred to in the context of Charge 1. Therefore, there is a good deal of overlap between Charges 1 and 2, and I must be careful not to doubly punish you, notwithstanding that the elements of each of the offences and the conduct pertaining to them are somewhat different.
12Mr Stevenson, your offending is most serious. You regularly accessed child pornography over nearly four years, and the quantity, nature and content of the material is most disturbing. While it is true that about 90 per cent of the material fell within Categories 1, 2 and 3, and that a high percentage of the total figure of images and videos fell within Category 1, you also had 2,011 images or videos in Category 4, which is a most substantial quantity. You also had 162 images or videos in Category 5, which is also considerable. Images which fell within Categories 1, 2 and 3 are nevertheless serious categories and that should not be understated.
13Your conduct calls for a punishment which is just and adequate in all of the circumstances and your conduct must also be denounced. Further, strong weight must attach to general deterrence in a bid to deter others from behaving as you have. In fact, the law says that general deterrence must be given paramount weight in cases of this nature.
14In accessing this material you have helped the evil industry of child pornography to flourish. The victims of these crimes are innocents, completely vulnerable to the wants of those despicable adults who, for their own selfish purposes, force them to take part in poses and acts which defy every sense of decency that any society ought possess. The victims are re-victimised every time their images are accessed by people like you, with the potential for their images to be displayed in perpetuity, without any ability by the victim to control this.
15I have seen a representative sample of the images and videos and they are sick making; little wonder your own counsel resisted the invitation to view these; but Mr Dunn, of Queen's Counsel, did view the sample that I was shown and agreed that this was a fair representation of the various categories of child exploitation material which was accessed and possessed by you.
16In sentencing you, I have factored in that you did not share these images, nor were you involved in the offending for profit. Had these factors been present, your offending would have been even more serious than it already is.
17You have no prior or subsequent convictions, which is a matter that counts in your favour, as does the fact that you were fully co-operative with the authorities as soon as you were discovered. Further, you have genuine contrition for what you have done and with the assistance of counselling, you are developing some insight and victim empathy, which was sadly lacking when you committed these crimes.
18You pleaded guilty at the earliest opportunity and this of itself entitles you to a significant discount in the sentence that you would otherwise receive, as you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.
19Further, I make an allowance in your favour for your co-operation from the outset, which involved you disclosing computer passwords and taking part in a recorded conversation with the police. In doing so, you have done what you can to facilitate justice.
20I take into account your background, which is a most unfortunate one. As
Dr Rachael McKenzie, clinical psychologist, noted, your childhood was marked by poverty, neglect and physical and emotional abuse at the hands of your mother. Your parents separated when you were five and you remained with your mother who appears to have been mentally and/or emotionally unstable, manifesting in cruelty toward you. You were constantly physically and mentally abused by your mother and subjected to abuse by various of her partners. You spent time in a women’s refuge at one point because of one such person, a heroin addict, from whom your mother had fled. At times, you were kicked out of home and were left to live on the streets or else with your father or grandfather. You and your siblings were placed in foster care at another stage before being returned to your mother. You have a sister and brother and three half-brothers who have different fathers to each other. When you went to live with your natural father as a teenager, your stepmother turned you and another sibling out of their house and you were forced to fend for yourselves. You attended five different primary schools and four different high schools. You were bullied and teased at school and felt like an outsider.21Despite all of this adversity, you managed to complete your Year 12 whilst homeless and without money. You failed English on your first attempt at
Year 12, but passed in your second attempt. You excelled at physics. You commenced a science degree with a specialty in microbiology but failed some subjects and had to leave university. In 2004, you commenced a laboratory techniques diploma and were able to continue on with your science degree in 2005. However, you were forced to defer the course due to a lack of funding. You then worked in order to be able to finance your studies, returning to them in 2008. To your credit, you attained your degree at the end of last year.22Therefore, you have worked tirelessly in the past to improve your lot over the years, and have been able to complete a science degree whilst also working as a laboratory assistant and then in the microbiology field. You have worked in the latter field since 2009, performing night shift duties from 6 pm to 2 am each day. In the past, you have also worked in unskilled positions, and as a security guard for a time.
23Although your brother and sister have serious drug problems, you have not turned to substance abuse. You are estranged from your brother but have the support of your sister, who has managed to overcome her drug addiction. In a detailed reference in support of you, your sister also describes the shocking childhood that you suffered.
24You have been in a relationship with a young woman for five years, although this has been somewhat difficult at times, and you perceive that this has resulted in you being socially isolated. The young lady was in court at the plea hearing in support of you. She teaches music, and your relationship has been under significant strain for some time because of your night shift commitments and her work in which she engages during the day. Consequently, you hardly see each other during the working week and you have been committed to your university studies on weekends. You have experienced suicidal thoughts and reported experiencing increasing depression, and it was in this context that you committed the offences.
25Mr Dunn of Queen's Counsel did not submit that you were suffering any impairment of mental function which impacted on your offending so as to reduce your moral culpability. However, I have taken into account the report of Dr Rachael McKenzie, dated 21 March 2015, in a general way. In particular, I have regard to her diagnosis that you are suffering persistent depressive disorder with persistent major depressive episode. The disorder would make time in gaol harsher for you than for someone without these difficulties. I also factor in that you do not attract a diagnosis of paedophilia.
26I have factored in your very deprived background, your ability to rise above this, and the difficulties you were operating under at the time you committed these offences.
27I understand that you are a talented scientist with the potential to make an important contribution to the community in this field.
28I accept that you are of otherwise good character and that you have the intelligence and sufficient appreciation of the seriousness of your conduct to know that you must not ever put yourself in this dire situation again. Do you understand that?
29OFFENDER: Yes, I do.
30HER HONOUR: To your credit, you have attended a number of counselling sessions with Dr McKenzie and you have started to show some progress, although you have a good way to go. These sessions have been quite painful for you as you have started to unravel your own difficult past in the context of developing victim empathy for the children seen in the child exploitation material which you accessed and possessed.
31I also factor in the report of Dr Godfredson, dated 20 March 2015. In particular, I factor in his assessment that you present as a moderate risk of re-offending insofar as the current type of offences are concerned, and are at low risk of contact sexual offending. Dr Godfredson opines that although you have a way to go, you are developing some valuable insight into your offending. I presume that, with developing insight, the risk that you will re-offend decreases. I have also taken into account that the assessing officer at Community Corrections assessed you as being at low risk of re-offending.
32In all of the circumstances, and on the basis that you continue with counselling, I find that your prospects of rehabilitation are fairly good and that I need place fairly minimal weight on specific deterrence. It is important that you look to supports in the community to assist you in your rehabilitation, including the support of your partner and of any counsellor who has supervision over you.
33At the original plea hearing, Mr Dunn submitted that in view of the recent guideline judgement of Boulton v R [2014] VSCA 342, that a suitably structured community corrections order could adequately address all relevant sentencing principles in your case. The learned prosecutor submitted that this was not appropriate without a sentence of immediate imprisonment also being imposed.
34I was provided with a table of sentences in respect of offending of the kind in which you engaged, but none of these post-dated Boulton. I have had regard to that table and submissions made by each of the parties on the basis of this. The learned prosecutor submitted that as general deterrence was the paramount consideration in respect of offending such as yours, this could only be achieved by the imposition of an immediate prison term, with or without a community corrections order. However, I understood the learned prosecutor to be saying that the Commonwealth considered itself bound by Boulton as at that time, notwithstanding that the submission was that a community corrections order alone was inappropriate. In Boulton, the Court of Appeal clearly envisaged that a community corrections order with appropriately crafted punitive aspects could "provide substantial general deterrence". This must be read now, of course, in the context of state offences. In the course of that judgment a number of offences were mentioned by way of example, where it was said that a community corrections order might well be appropriate. A number of these were offences of a type where general deterrence would have had a primary role to play.
35I have also had regard to the learned prosecutor’s submissions in respect of
DPP v Zarb [2014] VSCA 347, which was decided just before Boulton and which was referred to with approval in Boulton. Having reviewed the relevant authorities, I do not accept that there is clear authority for the proposition that it would only be in exceptional circumstances that a non-custodial disposition would be imposed in cases like yours. However, this is not to say that your offending is not serious or not deserving of a custodial sentence. As the learned prosecutor pointed out at the original plea hearing, the offending in Zarb insofar as the accessing charge was concerned could be said to be less serious than yours, and yet Mr Zarb was required to serve three months' gaol and to undergo a two year community corrections order in respect of the transmission charges. Although the community corrections orders that were also imposed by the majority of the Court attached to the transmission charges, it is apparent that the gaol term and community corrections order were imposed as an overall disposition to address the entire offending (see paragraph 52 of Zarb). Part of Mr Zarb’s offending involved most unpalatable conversations with an undercover operative, during which time he transmitted images of child pornography.36I do not accept Defence’s submission that the case of R v Cole [2015] VSCA 44 provides me with much assistance. That was a very different case to the one before me. I have also considered the remarks of my brother judge, His Honour Acting Chief Judge McInerney in DPP v Power, [2015] VCC 133, bearing in mind that ours is not a court of precedent. In respect of Mr Dunn’s submissions regarding the ease of access to child pornography, as I said in discussion with him, whilst this might be so, a vast number of people in our society choose not to access it. For those who do, they ought not be able to blame the Commonwealth or anyone else for what they have chosen to do.
37In any event, no one case can provide a tariff for offences of a particular type, and the fact is that Boulton could not be applied to Zarb, albeit that the Full Bench referred to the latter case with apparent approval. Also, there were the differences in Zarb to your case to which I previously referred. Every case is different, and in your case with your particular circumstances, and in light of Boulton and of course the most recent decision of the Court of Appeal concerning Commonwealth offences of Atanackovic v The Queen [2015] VSCA 136, the question for me is whether all sentencing considerations can be given appropriate weight by a custodial sentence which does not involve an immediate term, in league with an appropriately crafted community corrections order.
38I had adjourned your matter for a full report to be obtained from community corrections so that I could act in the light of all available information. I have now considered that report, which deems you suitable for a community corrections order, although it is a matter for me as to whether this disposition is imposed, and if so, whether it is imposed in conjunction with an immediate term of gaol.
39Since the original plea hearing, the Commonwealth Director made submissions to the Court of Appeal in the matter of Atanackovic v The Queen, [2015] VSCA 136, saying that they do not consider themselves bound by
Boulton. Your sentence had to be adjourned off to await the outcome of that matter. I must say that it is a pity that the Commonwealth Crown had an inconsistent approach to this question, which was evident in respect of matters in this Court before the stance taken by the Commonwealth Director in Atanackovic. In any event, the decision is now to hand and our Court of Appeal has decided that Boulton does not bind the Commonwealth in respect of Commonwealth matters heard in this state. However, your matter is complicated by the fact that you face a Commonwealth and state charge.
40In Boulton, a full Bench of the Court of Appeal made it clear that community corrections orders had dramatically changed the sentencing landscape and ought be utilised in many more cases than they had been, even those which are relatively serious and which might have previously attracted a medium term of imprisonment. The Court recognised that gaol often had a negative impact on offenders, harming their prospects of rehabilitation rather than enhancing them. The Court observed that such an impact on an offender did not advance the interests of the community at all. Apparently the sentencing landscape for Commonwealth offenders has not been dramatically changed, but in your case, you face both the state and Commonwealth sentencing regimes. So, on the one hand, Boulton does apply and on the other, it does not apply to one and the same person. I accept that general deterrence must be given primacy in respect of offending such as yours, but I do not accept that this means that all other sentencing considerations are drowned out by this, or that the only way to give general deterrence primacy is to impose an immediate term of imprisonment.
41In all of the circumstances, in my view, the objectives of both sentencing regimes, which both have an interest in reclaiming offenders, one presumes, can be best accommodated by a sentence which does not require you to serve a sentence of imprisonment immediately. However, in respect of the Commonwealth matters, I intend to impose a term of imprisonment which will hang over your head for some time, which will act as a punishment and which will also serve to adequately address all relevant sentencing principles, including that of general deterrence. Insofar as the state regime is concerned, I intend to place you on a community corrections order, which also serves to adequately address all relevant sentencing considerations insofar as
Charge 2 is concerned and in respect of you overall.42Would you please stand up, Mr Stevenson.
43You are convicted of each of the charges on the indictments.
44First, I make ancillary orders as follows:
45 Under the Sex Offenders Registration Act2004, by reason of your convictions of these offences, you are to be recorded as a registrable offender for
15 years. You must report your personal details to the Chief Commissioner of Police annually for the next 15 years. You must first do so, that is, report, within seven days from today. Details in writing of these reporting conditions will be served shortly upon you by my associate. I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.
46 Secondly, I make a forfeiture order in the terms of the document that was handed to me this morning by the learned prosecutor and which is consented to by you.
47In respect of Charge 1, I sentence you to a term of imprisonment of 18 months, which is to begin today, but I direct that you be released immediately upon you entering into a recognizance in the sum of $3,000 to be of good behaviour for a period of five years. I have imposed this sentence because of the seriousness of the offending and the weight which I must give to all relevant sentencing factors. I have allowed for your immediate release in view of the mitigating factors in your case, including your personal circumstances and also because I want you to undertake a community corrections order in respect of the state charge, so as to be supervised and to continue on a treatment and rehabilitation regime which you have well and truly commenced.
48 If you commit a further offence in breach of the recognizance to be of good behaviour in the next five years, then unless you can show a reasonable excuse for committing a further offence or offences you will have to pay $3,000 and also serve 18 months' imprisonment immediately. I should also tell you that you, or an authorised person, may apply to the court to vary or discharge the recognizance in accordance with s.20AA of the Crimes Act1914 (Cth).
49In respect of Charge 2, I intend to sentence you to a community corrections order for a period of five years, but I can only do so with your consent, so please listen carefully to the order that I propose to make.
50As I said, the duration of the order would be for a period of five years. The mandatory terms that apply to all community correction orders are:
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 any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations2011;
You must report to and receive visits from the Secretary to the Department of Justice or his or her delegate;
You must report to Box Hill Community Correctional Services before
4 pm on Tuesday 28 July 2015;You must let a community corrections officer know within two clear working days of you changing your address or job;
You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate;
You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.
51The conditions that apply in addition to the mandatory terms listed would be the following:
Firstly, that you undergo 300 hours unpaid community work within the next three years. Factoring in your other work obligations, I have arrived at that number of hours to be completed within that duration.
Also, you are to pay the sum of $1,000 to the Gatehouse Foundation within eight months of today's date and provide proof that you have made this payment by providing a receipt to County Court Registry by 1 March 2016.
Supervision
You must be under the supervision of a Community Corrections Officer for a period of five years.
Treatment and Rehabilitation
You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.
You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager. In particular, you are to undergo the sex offenders program.
Judicial Monitoring
You must attend the Melbourne County Court on Friday 28 November 2015 at 9.30 am to be reviewed by me and you may be required to attend for further reviews by me from time to time for the duration of the order. I will ask that a progress report be prepared by Community Corrections ahead of that judicial monitoring appointment so that I am aware of how you are going on the order.
52Mr Stevenson, having heard all those proposed conditions of the order, do you consent to the terms and conditions of the order?
53OFFENDER: Yes, I do, Your Honour.
54HER HONOUR: I should tell you that if you do not comply with all of the requirements of the community corrections order then you will face breach proceedings before me. You will then be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a period of imprisonment. Do you understand that?
55OFFENDER: Yes, I do.
56HER HONOUR: I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order. Do you understand this?
57OFFENDER: Yes, I do.
58HER HONOUR: Do you maintain your consent to the order?
59OFFENDER: Yes, I do.
60HER HONOUR: Therefore in relation to Charge 2, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out.
61I indicate if not for your pleas of guilty in relation to the Charges 1 and 2, I would have sentenced you to a total effective sentence of four years, three months' imprisonment, with a non-parole period of two years, six months, so a period of imprisonment immediately to be served with a non-parole period.
62I will ask that your counsel and instructor, or your instructor approach the dock. In fact you can step out of the dock at this stage and perhaps approach your counsel and instructor and assistance will be provided in order to sign the various documents including the community corrections order.
63MR DUNN: Thank you, Your Honour.
64(Community corrections order signed and acknowledged.)
65(Sex offenders registration order signed and acknowledged.)
66(Forfeiture order signed and acknowledged.)
67(Recognizance release order signed and acknowledged.)
68HER HONOUR: Is there anything further?
69MR DUNN: No, Your Honour.
70MS SKOBLAE: No, Your Honour.
71HER HONOUR: I notice that I have somehow deleted, I think, the year in which the offending occurred, which was a slip; 10 September 2014. In my revised reasons I will also insert the citations that I omitted.
72MR DUNN: Thank you, Your Honour.
73HER HONOUR: Yes, thank you. Yes, we will now adjourn.
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