Director of Public Prosecutions v Taylor
[2014] VCC 1340
•12 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-00819
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAUN TAYLOR |
---
| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 August 2014 |
| DATE OF SENTENCE: | 12 August 2014 |
| CASE MAY BE CITED AS: | DPP v TAYLOR |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1340 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited:
Cases Cited: DPP v Smith [2010] VSCA 215
Sentence: Community Correction Order---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Breckweg | The Office of the Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J Behan | Robert Stary & Associates |
HIS HONOUR:
1Shaun Taylor, you have pleaded guilty to one charge of accessing child pornography material using a carriage service contrary to s.474.19(1) of the Criminal Code Act of the Commonwealth between the dates of 28 September 2013 and 14 December 2013. The offence carries a maximum penalty of imprisonment of 15 years.
2In January 2014, forensic analysis of your laptop computer revealed that there was no child pornography material physically present on the computer, however searches conducted indicated that you had searched for websites containing child pornography material and it ultimately accessed such sites. Those sites accessed were classified as containing Category 1 child exploitation material, that is images and videos depicting erotic posing of children, but with no sexual activity.
3In a record of interview conducted on 15 and 21 January 2014, you made admissions that you had used the laptop to access child pornography material at your home, but had deleted the images after viewing them. You are currently aged 32. At the time of this offence you were aged 31. You have been married for about five years. You have a four year old son, and you also play a parental role with your wife's 12 year old son from a previous relationship.
4This is your second offence of this nature. You were previously convicted in the Sunshine Magistrates' Court on 19 December 2013 on a charge of knowingly possessing child pornography. On that occasion, you were without conviction placed on an adjourned undertaking and ordered to continue to engage in counselling. The earlier offence or offences appear to have been committed in 2012.
5The offence for which you are currently before this court was committed at a time after you had been charged with the earlier offence, and whilst you were still waiting for that matter to come before the court. That is a matter of some concern to me.
6Although the earlier offence is not a prior conviction as such, the fact that you committed the current offence soon after you were charged with the earlier offence is of relevance. A report of Mr Patrick Newton, a forensic and clinical psychologist dated 1 August 2014 was tendered. He has seen you only on the one occasion. He concluded the following matters:
(i). That you were experiencing mild elevated anxiety and were understandably worried about your forthcoming court case and its implications for you.
(ii). That your reported history was strongly suggestive of a diagnosis of a panic disorder, but that condition was in full remission and had been for some time.
(iii). You were at the time that he saw you, not manifesting any active symptoms of a psychological disorder.
(iv). You had engaged in heavy consumption of alcohol from your mid-teens, being reliant on alcohol to manage your anxiety.
(v). Your drinking has been sufficiently severe to warrant the diagnosis of moderate alcohol use disorder.
(vi). You remained a heighten risk for relapse to severe alcohol problems, and require ongoing specialist treatment.
(vii). When your relationship became trouble, your dependent attachment to her and poor social skills were such that rather than deal with marital issues directly, your involvement with pornography became increasingly excessive.
(viii). You would actively search for the material in question, and utilised it for masturbatory purposes.
(ix). You were classed as being a moderate risk for re-offending. The fact that you had re-offended whilst awaiting your earlier sentence, and whilst undergoing treatment for this problem raised significant concerns.
7I have read a letter that you prepared for the court, and also provided to Mr Newton. In that letter you stated that since December 2013, you have not accessed any child pornography. Further, since that time, you have commenced alcohol related counselling at the Kaleidoscope Counselling Centre in Werribee which you consider has been helpful for you. You have apparently abstained from alcohol since that time.
8I accept that consumption of alcohol and your perceived need or desire to access pornographic material bear a direct correlation. You appear to understand that correlation now, and are aware that consumption of alcohol may lead to a resumption of these illegal activities.
9You have been treated by Dr Matthew Barth a psychologist between September 2013 and June 2014. You have expressed a strong desire to continue with ongoing treatment from him, and a further appointment has been scheduled for 19 August in about a week's time.
10In an earlier case in the Court of Appeal of this state, Nettle JA said the following:
"The precepts which apply to the sentencing of offenders for offences of possessing child pornography are tolerably clear.
First, the nature and gravity of the offending ordinarily falls to be determined by reference to four criteria:
a) The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
b) The number of images or items possessed;
c) Whether the material is for the purpose of sale or further distribution;
d) Whether the offender will profit from the offence.
In the case of child pornography for personal use, the number of children depicted and thereby victims, is also regarded as a relevant consideration.
Secondly, general deterrence is regarded as the paramount sentencing consideration, because of the public interest in stifling the provision and use of child pornography; and less or limited weight is given to an offender's prior good character, because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character.
Thirdly, a sentence of immediate imprisonment would ordinarily be warranted, but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded".[1]
[1]DPP v Smith [2010] VSCA 215, [23]
11Although those comments were made in relation to a charge of possession of pornographic material, they are in my opinion largely relevant to the charge of accessing such material. Here, it is relevant that the material does not appear to have been downloaded, or in so far as it was downloaded, it was soon after deleted. Secondly, regarding the nature and content of the material, it appears that it was all Category 1 material. Thirdly, none of the images or items appear to have been retained, let alone sold or further distributed. Fourthly, there is no suggestion that you had profited or will profit from the offence.
12The gravity of the material was probably at the lower end of the spectrum. The period of possession was at the lower end of the range, however it is difficult to make any judgment regarding the overall quantity of the material.
13At the hearing of your plea, evidence was given by your wife, who told me of the closeness of the relationship between you and your son and your step-son. She told me or previously responsible position as a sales manager which, since your convictions, has been lost. You are now working as a labourer, although there is some possibility of a return to more productive and skilled work in the future.
14Your wife confirmed your difficulties with alcohol, which she had put down to stress relating from a change of your job which led to increase consumption of alcohol. She confirmed that you had been undergoing alcohol counselling, and that attendance for that counselling had been a condition for her reconciliation with you. She will no longer tolerate you being intoxicated at home, or in the presence of your children.
15I am satisfied that you have come to recognise the seriousness of your position. You have undertaken three forms of specific counselling. Firstly general counselling from Dr Barth, secondly alcohol counselling with Kaleidoscope and thirdly your marriage counselling.
16I am satisfied that your plea of guilty was made at a relatively early stage, although your counsel conceded that it was made in the context of a strong prosecution case.
17I am satisfied that you have expressed genuine remorse for your offending. I am satisfied that there is a reasonable prospect for rehabilitation, notwithstanding Mr Newton's view that you have a moderate prospect of re-offending. More particularly, I am satisfied that continuation of your current counselling is likely to lead to a far better prospect for rehabilitation then serving time in prison.
18I am also conscious of the provisions of s.17A of the Commonwealth Crimes Act, which provides that a court shall not pass a sentence of imprisonment on any person for a federal offence, unless the court, after having considered all other available sentences is satisfied that no other sentence is appropriate in all the circumstances of the case.
19Here, your counsel has submitted that imposition of a community corrections order is open and appropriate, in that it is in the interests of the community, and in your own interests for you to be rehabilitated.
20Whilst I accept that ordinarily offences of this type will involve a period of immediate imprisonment, I consider the imposition of a community corrections order is appropriate here. Counsel for the prosecution has conceded that such an order is within my discretion.
21I have also taken into account the serious nature of offending, and the fact that Parliament has impose a maximum penalty of 15 years imprisonment, thus indicating the seriousness in which the community, through Parliament, views the offence.
22In respect of specific deterrence, I have taken into account the circumstances of the earlier offending, and the fact that the current charge relates to conduct, whilst waiting for those earlier charges to come before the court. Ordinarily, this would emphasise the need for my sentence to reflect a specific deterrent.
23I have taken into account the letter that you have written to the court, and particularly note that you now seem to understand that this is not a victimless crime. I have received a report from Community Correctional Services dated 5 August 2014. The assessing officer considers that you are suitable for such a community correction order.
24He has recommended that the conditions be included in such order for unpaid community work, treatment and rehabilitation for alcohol, a supervision order, mental health assessment and treatment and offending behaviour programs.
25Taking all of these matters into account, I have determined to make a community corrections order with a number of conditions, if you consent to such an order. I intend to make this order with those conditions, effect of which is to avoid sentencing you to prison, largely because of the following.
26Firstly, you appear to be currently in a reasonable stable home environment. Secondly, you have genuine remorse for your conduct. Thirdly, you are in stable employment at present, and there is a real prospect of your return to work of the sort previously performed by you. Fourthly, you appear to have good prospects for rehabilitation. Fifthly, Corrections Victoria consider that you are at present a suitable person for a community correction order and finally, because of the direction provided in s.17A of the Commonwealth Crimes Act.
27Now I just break for a moment. Ms Breckweg, if this was an offence pursuant to a Victorian Act.
28MS BRECKWEG: Yes Your Honour.
29HIS HONOUR: I would be required to impose the usual term set out in s.45(1) of our Sentencing Act.
30MS BRECKWEG: Yes Your Honour.
31HIS HONOUR: Does it flow across to the Commonwealth?
32MS BRECKWEG: It does Your Honour.
33HIS HONOUR: All right.
34MS BRECKWEG: The only difference is that in the Commonwealth regime you can't have a non-conviction ‑ ‑ ‑
35HIS HONOUR: Yes.
36MS BRECKWEG: Community corrections order.
37HIS HONOUR: I wasn't intending that.
38MS BRECKWEG: Yes Your Honour, but no, they are identical.
39HIS HONOUR: All right, well let me go through those with you Mr Taylor. The terms of a community corrections order would include those terms set out in s.45(1) of the Sentencing Act namely, that you must not commit whether in or outside Victoria, during the period of the order, which I can tell you will be 18 months an offence punishable by imprisonment.
40Secondly, that you must comply with any obligations or requirement prescribed by regulations. Thirdly, that you must report to and receive visits from the Secretary of the Department of Justice during the period of the order. Fourthly, that you must report to Community Corrections Centre specified in the order within two clear working days after this order comes into effect, that is today.
41Fifthly, that you must notify the Secretary of any change of address of employment within two clear working days of that change. Sixthly, you must not leave Victoria except with the permission of the Secretary and seventh, that you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with this order.
42In addition to those general or usual terms, there will be conditions as follows:
43You must perform unpaid community work of 150 hours during the course of the 18 months of this order. You must undergo treatment directed by the Secretary with regard to assessment and treatment including testing for alcohol and dependency. Any program that addresses factors relating to your offending behaviour. Any mental health assessment and treatment, including psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility.
44I would not make such an order unless you consented to such an order being made. Do you consent to a community corrections order in those terms and conditions?
45OFFENDER: Yes Your Honour.
46HIS HONOUR: Thank you. It must be clear to you now that should you reappear before a court in the future charged with these sort of offences that you are before the court today, it would be virtually certain that you will go to gaol. Do you understand that?
47OFFENDER: Yes Your Honour.
48HIS HONOUR: Just remain standing for a moment please Mr Taylor.
49Shaun Taylor, you are convicted of one count of accessing child pornography material using a carriage service contrary to s.474.191 of the Commonwealth Criminal Code, between 28 September 2013 and 14 December 2013. You were sentenced to a community corrections order for 18 from this date. The order shall contain the conditions to which I have previously referred.
50Now I think s.6AAA was what I had a discussion with you on the previous occasion?
51MS BRECKWEG: Yes Your Honour.
52HIS HONOUR: Although I may not be required to make this declaration, I do. Had you not pleaded guilty to these charges, I would have sentenced you to imprisonment for a term of 18 months, with a minimum non-parole period of nine months. Are there ancillary orders under 464ZF of the Crimes Act required?
53MS BRECKWEG: No Your Honour. The sex offenders registration.
54HIS HONOUR: All right. Under the Sex Offenders Registration Act of 2004, by reason of your conviction for this offence, you are to be recorded as a registrable offender for a period of 15 years. You must report your personal details to the Chief Commission of Police annually during that period. You must first report within seven days of this date. Details in writing of these reporting conditions will be served shortly by my associate with you.
55MS BRECKWEG: Your Honour, there was just one minor matter.
56HIS HONOUR: Yes.
57MS BRECKWEG: It probably doesn't matter, strictly speaking, but just so that it's technically correct. With the s.6AAA declaration, under Commonwealth sentencing, Your Honour cannot impose a non-parole period unless the term of imprisonment is three years or higher. So if I could suggest Your Honour that the s.6AAA declaration be worded - - -
58HIS HONOUR: Which is the Commonwealth provision that - - -
59MS BRECKWEG: Section 21(b).
60HIS HONOUR: Capital B.
61MS BRECKWEG: Little (b) in brackets, Paragraph (b).
62HIS HONOUR: Yes, of the Commonwealth Crimes Act?
63MS BRECKWEG: Yes Your Honour. And it's basically worded, but for the plea of guilty I would've sentenced you to 18 months imprisonment. To be released after serving nine months imprisonment on a recognisance release order.
64HIS HONOUR: I just wonder if you've got the right section there or I've written it down wrong? There doesn't appear to be, in my copy of the Commonwealth Crimes Act - - -
65MS BRECKWEG: Section 20(1)(b) Your Honour. I may have said it as in 21(b) when I mean 20.
66HIS HONOUR: No, I clarified that, but in my copy of the Act, it goes from s.20(C) to s.21(D). There being no s.21. I've got the right Act, Act Number 12 of 1914?
67MS BRECKWEG: Yes Your Honour.
68HIS HONOUR: Have you got a copy of it there?
69MS BRECKWEG: No I don't. My learned friend is just getting it up on his screen. Perhaps Your Honour I could try and find it in yours.
70HIS HONOUR: Let me hand it down to you, yes. That's Volume 1 which appears to be the - - -
71MS BRECKWEG: It's just here Your Honour.
72HIS HONOUR: Section 20(1)(b).
73MS BRECKWEG: Yes Your Honour.
74HIS HONOUR: There you go.
75MS BRECKWEG: It's sort of hidden away isn't it? Right at the very end.
76HIS HONOUR: Well what it seems to say is "Where a person is convicted of a federal offence or offences, the court before which he or she is convicted may, if it thinks fit, sentence the person to imprisonment in respect of the offence or each offence, but direct by order that the person be released upon giving security of the kind referred to in Paragraph A" which effectively is a good behaviour bond et cetera, "Either forthwith or after he or she is served a specified period of imprisonment in respect of that offence".
77MS BRECKWEG: It's 19 - that's the mechanism to release after a certain period, but the section that relates to how long is 19(A)(B) Your Honour. That's when the court must fix a non-parole period or make an order. I'll just hand that up to Your Honour.
78HIS HONOUR: Yes, you better hand that back, I think I'm - - -
79MS BRECKWEG: This is the section that - I suppose directs the court that they can't do a non-parole period, unless it's more than three years.
80HIS HONOUR: What subsection do you say it is? 19(A)(B) which - - -
81MS BRECKWEG: It's the first one Your Honour.
82HIS HONOUR: "Where a person is" - - -
83MS BRECKWEG: "Convicted of a federal offence".
84HIS HONOUR: Yes, "And the court imposes a sentence that exceeds in the aggregate three years".
85MS BRECKWEG: Yes. "The court must" - - -
86HIS HONOUR: "The court must fix a single non-parole period for those" - well that doesn't apply here does it? I'm not sentencing in excess of three years.
87MS BRECKWEG: Yes. What it means Your Honour is that because it says where there's a sentencing that exceeds in the aggregate three years, you have an option of either fixing a non-parole period in respect of the sentence, or making - - -
88HIS HONOUR: But where it say if it's less than three years I can't?
89MS BRECKWEG: I'll just find that Your Honour.
90HIS HONOUR: That's somewhere else do you think?
91MS BRECKWEG: I think it probably is.
92HIS HONOUR: All right, it's probably 19(A)(C)?
93MS BRECKWEG: Yes it is Your Honour, the next page.
94HIS HONOUR: "Must not fix a non-parole period (A)(C)(2).
95MS BRECKWEG: That's it Your Honour.
96HIS HONOUR: Yes, all right.
97MS BRECKWEG: Sorry Your Honour. I haven't looked at this for a while, so it normally - - -
98HIS HONOUR: Well that makes two of us.
99MS BRECKWEG: Some time ago it would come straight off the top of my head.
100HIS HONOUR: So how do you - if I said had you not pleaded guilty to these charges I would have sentenced you to a term of imprisonment for 18 months.
101MS BRECKWEG: To be released - - -
102HIS HONOUR: And - - -
103MS BRECKWEG: Sorry.
104HIS HONOUR: That - now which sentence are you guiding me to now?
105MS BRECKWEG: The standard way that it's phrased Your Honour using 19(A)(C) is but for the plea of guilty, I would have sentenced you to 18 months imprisonment, to be released after serving nine months of the term of imprisonment upon entering into a recognisance pursuant to s.20(1)(b) Crimes Act 1914.
106HIS HONOUR: Yes, well I make the order in those terms, thank you.
107MS BRECKWEG: Your Honour, if I could just interrupt just for - just to be completely cautious. I don't think Your Honour needs to do this, but often, usually when a recognisance is imposed as an amount recognisance, in the sum of - to be of good behaviour for however long, but I don't think Your Honour needs to do that, given that it's really just for the purposes of s.6AAA.
108HIS HONOUR: In any event, I don't think I'm required to do it, I'm doing this as more of a guide, not only to the offender, but to others in the community I suppose. The actual exact terms of the recognisance I do not think are relevant.
109MS BRECKWEG: No, thank you Your Honour.
110HIS HONOUR: All right, thank you. Is there anything else that you consider that I should attend to?
111MS BRECKWEG: No Your Honour.
112MR BEHAN: No Your Honour.
113HIS HONOUR: Mr Behan.
114MR BEHAN: Your Honour.
115HIS HONOUR: I'll hand this down to you. This is the notification of the reporting obligations pursuant to the sex offenders registration regulations. You might want to - - -
116MR BEHAN: I will discuss those with Mr Taylor Your Honour.
117HIS HONOUR: I mean they're serious and they should not just be signed without it being read.
118MR BEHAN: No.
119HIS HONOUR: At the same time, I'll hand down to you the acknowledgement of reporting obligations which are required to be signed by your client.
120MR BEHAN: Yes Your Honour.
121HIS HONOUR: And also need some careful explanation.
122MR BEHAN: Can I indicate to Your Honour that I will go through those documents in detail with Mr Taylor.
123HIS HONOUR: Yes.
124MR BEHAN: As a result of the previous sentence imposed at the Sunshine Magistrates Court, he has been placed on the registry already. So he is well aware of the conditions, but I will take him through those again.
125
HIS HONOUR: All right. What was the time limit of that - probably a lesser
- - -
126MR BEHAN: I understand it was eight years Your Honour, it was eight years.
127HIS HONOUR: Yes, and now it's 15.
128MR BEHAN: Yes.
129HIS HONOUR: I'll stand the matter down for five minutes just while you go through it, and I'll come on the Bench when you're ready.
130MR BEHAN: I'm grateful Your Honour.
131(Short adjournment.)
132MR BEHAN: Thank you for that time Your Honour. Mr Taylor now understands the requirements under the community corrections order, as detailed in Your Honour's order.
133HIS HONOUR: Good.
134MR BEHAN: And also the requirements for the sex offenders registry for a period of 15 years.
135HIS HONOUR: Yes. Those documents have all been signed have they?
136MR BEHAN: They have Your Honour.
137HIS HONOUR: Thank you. Is there anything more that I need to say?
138MS BRECKWEG: No Your Honour.
139MR BEHAN: No Your Honour.
140HIS HONOUR: All right. I wish you well Mr Taylor and I can only repeat that I think you have received two big chances from both the Magistrates Court last year and this court and I do not think there can be anymore.
141MR BEHAN: As Your Honour pleases.
142HIS HONOUR: Yes. Adjourn the court until 10.30 tomorrow morning.
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