Director of Public Prosecutions v Taylor

[2024] VCC 1867

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT BAIRNSDALE

CRIMINAL JURISDICTION

CR 24-00419

DIRECTOR OF PUBLIC PROSECUTIONS

(CTH)

v

MURRAY TAYLOR

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Bairnsdale
DATE OF HEARING:	31 October 2024
DATE OF SENTENCE:	20 November 2024
CASE MAY BE CITED AS:	DPP v Taylor
MEDIUM NEUTRAL CITATION:	[2024] VCC 1867

REASONS FOR SENTENCE

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Subject:   CRIMINAL LAW- SENTENCE

Catchwords: Possess or control child abuse material obtained or accessed using a carriage service, contrary to sub-section 474.22A(1) of the Criminal Code Act 1995 (Cth).

Legislation Cited: s 20 Crimes Act 1914 (Cth); s 474.22A(1) of Criminal Code Act 1995 (Cth);

Cases Cited: Crowder v The Queen (a pseudonym) [2024] VSCA 211; DPP (Cth) vGarside [2016] VSCA 74 [20]; Fitzgeraldv R [2015] NSWCCA 266; DPP v Watson [2016] VSCA 73; Hasan v The Queen [2010] VSCA 352; Phibbs v The King [2023] VSCA 123; DPP v Dalgleish (a pseudonym) [2017] ALJR 91.

Sentence: 14 months imprisonment. Pursuant to s 20(1) Crimes Act 1914 (Cth) released immediately on recognisance in the sum of $2000 and to be of good behaviour for three years.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms B. Hill	Office of Public Prosecutions
For the Accused	Ms J. Allen	Daniel Taylor Lawyers

HIS HONOUR:

1In this matter, Mr Murray Taylor appeared in the County Court sitting at Bairnsdale on 31 October of this year, and entered a plea to a Commonwealth indictment signed 30 August 2024.  Appearing for the Commonwealth Director of Public Prosecutions was Ms Hill, who appears today, Ms Allen appeared on behalf of Mr Murray Taylor at the plea and today Mr Taylor, solicitor, appears on behalf of Mr Murray Taylor.

2The crime to which Mr Taylor pleaded guilty was being a breach of s 474.22A(1) of the Criminal Code Act 1995 (Cth), possess child abuse material, having been accessed using a carriage service. The maximum sentence imposed for such offence is 15 years' imprisonment. At the time of this offence Mr Taylor was aged 69, he is now 70, having been born in January 1954, he is a pensioner.

3The documents tendered at the hearing were Exhibit A, the prosecution opening, and Exhibit B, the sentencing submissions of the Director dated 30 October 2024.  For the defence, Exhibit 1, defence outline of submissions dated 29 October 2024, Exhibit 2 was a defence addendum to those submissions dated 29 October 2024, and finally Exhibit 3 was the psychological report of Mr Geoffrey Burrows dated 30 October 2024.

4Insofar as Exhibit A is concerned, the prosecution opening, Ms Allen, on behalf of Mr Murray Taylor, accepted the facts as set out in that opening as the facts upon which I am to sentence Mr Taylor.  There was no material put before the Court as to why and for what reason the warrant that was executed at Mr Taylor's premises on 30 May 2023 was issued.  One presumes because of the worldwide authority based in America giving notice, but I have no basis before me apart from my assumption.

5An analysis of the computers held by Mr Taylor showed some 306 images, 21 of which were Category 1, 285 of which were Category 2.  In addition there were 38 videos, 13 of those were Category 1, and 25 of which were Category 2.  That categorisation was detailed in Annexure A to Exhibit A.

6As I said at the hearing, that categorisation is not particularly helpful to the Court.  The only basis of the categorisation is, Category 1 relates to CAM material of children under the age of 12, Category 2 relates to persons over the age of 12.  Ms Hill, I think I said to you my dissatisfaction with that system, and why I struggle to understand why the Commonwealth are not using the ANVIL and/or COPINE system which we have had and I would hope that that message at least has been sent through.

7MS HILL:  Yes, Your Honour.

8HIS HONOUR:  Thank you.  In trying to assess what the material in fact contained, I downloaded the affidavit of Detective Leading Senior Constable Fitzpatrick, however apart from indicating the CAM being present, that was of not great assistance either.  One however did have an analysis set out in the opening, in particular at paragraphs 9 and 11, to which I will come to.

9The material as to the images appears to not include any penetrative material and [9.1] describes an image of a prepubescent female between eight to 10, wearing no pants, with the genital area facing the camera.  The prepubescent female's fingers are parting the buttock cheeks to expose the anus.

10Then at [9.2] apparently of the 306 images, there is 115 image series, that is well over a third, which are images of a prepubescent female between the ages of nine and 11 wearing black lace stockings with leather style bondage themed suspender belt and high heels.  She is depicted in various sexual poses, including sitting on a small rocking horse, standing on a pedestal against a wall, and on her stomach on the bed with legs in the air. Again there is no indication of any penetrative action.

11Finally, in regard to the images at [9.3], an image of a prepubescent female aged between the ages of eight and 10 in the bathroom with her nightie pulled up and legs open exposing her vagina.

12Coming then to the videos, at [11] is a summary of the videos which is not only far more concerning, but clearly contains degrading material in regard to [11.1], [2] and [3], and appears to be Category 1, as best as I can understand, [11.1] is a video depicting a naked prepubescent female between eight and nine years of age posing in front of a camera. She is apparently rubbing her vagina with some object.

13[11.2] is a video depicting a young female licking the penis of a prepubescent male, also apparently under the age of 12, and then [11.3] is a video of a prepubescent female somewhere between 10 and 11, who removes her shorts and underwear, spreads her labia to expose her vagina and buttock cheek, exposing her anus to the camera, and who rubs her vagina with her hand under her shorts.

14Then there is [11.4] and [11.5], which again appear to me to contain both Category 1 and Category 2 in the sense of age.  [11.4] is a video of a naked pubescent female between 13 and 15, guiding a prepubescent female between six and seven of age in the bathroom and somehow rubbing their vaginas together. At [11.5] classified on the current system used by the Commonwealth, again contains Category 1 and 2, which is a video of a pubescent female between 13 and 15 performing cunnilingus on a naked prepubescent female aged between six and seven, who is lying on her back in a bathroom.

15As I said, the material in the videos is much more concerning, confronting, and certainly degrading as to the victims. 

16Mr Taylor has served no presentence detention.  There is forfeiture sought in regard to all of the downloads and devices.  That will be signed today.  I make the point that the SORA obligations are for a period of eight years. Insofar as Mr Taylor is concerned, he has no priors of any sort, much less priors of this type.

17As to culpability, the seriousness of these crimes is inherent from the fact that Parliament has prescribed a maximum penalty of 15 years imprisonment.  The moral culpability is considerable, particularly in regard to the degrading videos that I have identified.  The concern of Parliament and the Australian community, as to these offences, is demonstrated from the fact that in 2010 Parliament increased the maximum penalty for this crime to 15 years imprisonment.

18Insofar as sentencing for this crime, the principles have been set out by various Courts of Appeal throughout Australia.  Insofar as Victoria, we have the decision, which was a sentence of mine, of the Court of Appeal in DPP (Cth) v Garside [2016] VSCA 74 [20], the decision of the New South Wales Court of Criminal Appeal in Fitzgerald v R [2015] NSWCCA 266, the matter of Watson, which again was a sentence of mine, DPP v Watson [2016] VSCA 73 by our Court of Appeal, and the most recent that I have considered is Phibbs, a further decision of our Court of Appeal, Phibbs v The King [2023] VSCA 123.

19Such cases clearly indicate that in these offences general deterrence is paramount.  People such as Mr Taylor decide to degrade young children in the manner in which he has, and by that I mean being part of the system, there is no suggestion that he has any role in producing or transferring this material, but the very fact of downloading this material illustrates the importance of general deterrence.

20Such crime which he has committed deserves to be punished and denounced.  Why general deterrence is so important, as set out in those cases, is that severe penalties are necessary to deter others in the community and thereby protect the community and its children from abuse.

21In that regard, and analysing the totality of the criminality in this matter, the prosecution indicated in its sentencing submission that, albeit it was of the view that imprisonment was necessary, the circumstances are such that a recognisance release order would be available. This of course brings into operation s 20 of the Crimes Act 1914 (Cth), and at [55] of Exhibit B the prosecution submissions as to sentence was that the only appropriate sentence in the circumstances was one of immediate imprisonment for Mr Taylor.

22The defence submissions accept the prosecution assessment as to the seriousness of the offending, the need for imprisonment, and a sentence which effects general deterrence. The issue in regard to this sentence, as identified from the start by both counsel, was whether such imprisonment must be immediate, and whether s 20(b)(iii) can operate on the basis of exceptional circumstances.

23As to the test in regard to exceptional circumstances, I refer to Crowder v The Queen (a pseudonym) [2024] VSCA 211, [39] to [45]. I also refer to [292] to [298] of Hansard 2019, being the explanatory memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) 2019 (Vic), insofar as it refers to the operation of this section. This explanatory memorandum was circulated with the authority of the then Attorney-General, Christian Porter MP.

24Each party handed me authorities and made submissions in that regard.  I have perused these authorities, and I utilise them in the manner described by the Court of Appeal in Hasan v The Queen [2010] VSCA 352, [44] to [47].

25Mr Taylor is of course entitled to a just and individualised sentence based upon the facts of this case as detailed by the High Court in DPP v Dalgleish (a pseudonym) [2017] ALJR 91, 1063, 1092, [49].

26Having considered the submissions of both counsel and all relevant factors, I have determined that s 20(b)(iii) is satisfied, given the totality of the factors in the case which I do indeed find exceptional. In that regard I took into account the matters set out in R v Brown [2019] VSCA 751, [65] to [66].

27I now go to the factors upon which I made the determination as to exceptional circumstances.  The first of these factors is that Mr Taylor, was 69 when he committed this serious offence, and is now 70.  He has no prior offences whatsoever.  That fact alone made me consider initially the possibility of imposing a community correction order, given the totality of the circumstances. However, given the comments of the Court of Appeal in Phibbs, [57], I determined that that would be an inappropriate sentence.

28The second is that Mr Taylor has sought treatment and that such, including his rehabilitation is a factor specifically referred to in the Act at s 16A(2AAA). He has expressed appreciation as to the impact on the victims and the need for their protection. He has seen Mr Burrows, psychologist, on 22 occasions since September this year.  Each of the appointments lasted some 60 minutes and the attendance and statements that I've referred to have been confirmed by Mr Burrows in his report, Exhibit 3.  Mr Burrows notes that Mr Taylor has made during those appointments excellent progress, but needs more treatment.

29The third factor is his background, apart from the fact of having no priors, he holds a tertiary degree, being a BA.  He has had a successful working life, in particular in artistic fields.  He is now a pensioner, having been part of a stable family environment.

30The fourth factor is that he has been in a long term relationship for over 30 years.  He has been impacted by curial punishment to the degree that as a result of this crime coming to light, a separation was effected as a result of him being charged.  Albeit that, as I understand as a result of economic circumstances, they still share their home in Lakes Entrance, that separation is in effect.

31The fifth factor is an analysis of the materials themselves, albeit my analysis of them as degrading.  The possession by way of volume is relatively low, as I have said, 306 images and 38 videos.  I compare in particular that for example to Garside, where the possession was in the thousands.  Albeit the analysis of the degrading material in regard to the videos, there is significant material, in particular the Category 1 images which do not involve penetrative action.  There is no displayed patent physical violence, albeit that these crimes involve violence, because of the concerning degrading material.

32The sixth factor is that this became a plea by way of hand up brief, Mr Taylor is entitled to a discount by way of mitigation as a result of such valuable plea.  I accept that the plea exhibits remorse, is utilitarian, and the proposition put by counsel on behalf of Mr Taylor that he has certainly been shamed by his gross offending.

33The seventh factor are the principles set out in the Crimes Act 1914 (Cth), in particular s 16A, and specifically ss 16A(2AAA) and 17A.

34The eighth factor relates to the conditions which will apply, providing those conditions are accepted by Mr Taylor, to the recognisance release order.

35Mr Taylor, as in solicitor Mr Taylor, what I intend to do is to sentence your client to a period of imprisonment, and to then pursuant to s 21 release him immediately on a recognisance release order to be of good behaviour for three years, on his own recognisance of $2,000.

36I intend that he make reparation to the Victorian community, and indeed the broader community of children who are so sexually abused from the material that he has downloaded, in the sum of $3,025 by the payment of such sum to the Bravehearts organisation, such sum represents what is described in the Act as 11 penalty units of $275.  Subject to your advice, Mr Taylor, as in solicitor, I would be happy to allow instalments in that regard.  Your client however may feel, given his good fortune in not being sent immediately to gaol, it appropriate to pay it immediately, however I will hear from you in that regard.

37The third condition will be that he be subject to supervision of a probation officer, which I understand is a probation officer appointed by the Victorian Corrections Community Service, pursuant to arrangement with the Commonwealth Director of Public Prosecutions.

38Fourth, that as a part of that recognisance release order Mr Taylor obey all reasonable requirements and directions of the probation officer so appointed.  Fifth, that he not travel interstate or overseas without the written permission of the probation officer so appointed, and sixth, that he undertake all treatment and rehabilitation programs that the probation officer reasonably directs.

39Do you want some time to discuss that with your client?

40MR TAYLOR:  Perhaps just a moment, Your Honour.

41MR TAYLOR:  He does consent and understand those conditions and would agree to such order, Your Honour.

42HIS HONOUR:  Thank you, Mr Taylor. 

43HIS HONOUR: As he has indicated through his solicitor that he will be prepared to consent, I will have you stand please, Mr Taylor. Mr Taylor, you will be convicted of this crime. You will be sentenced to imprisonment for 14 months. Pursuant to s 20(1) of the Crimes Act 1914 (Cth) you will be released immediately on your own recognisance to be of good behaviour for three years. I will set the recognisance sum at $2,000.

44That recognisance will be subject to the following conditions. 

45Firstly, that you make reparation in the sum of $3,025 to the Victorian community, and to those abused children who were downloaded pursuant to your crime, by payment of such sum to the Bravehearts organisation. 

46What is the position, Mr Taylor?  Is there time sought to pay that figure?

47MR TAYLOR:  He can pay it immediately, Your Honour.

48HIS HONOUR:  Thank you, such sum to be paid to the registrar at Bairnsdale Court.  What I was going to add, Mr Taylor, was that he produce a receipt to the registrar of this court by a certain date.  That is probably the answer, is it not?

49MR TAYLOR:  Yes, Your Honour.

50HIS HONOUR:  What I might say is that he produce a receipt from the Bravehearts organization to this Court by 19 December.  That is the easiest way or are you happy if it comes to the Court?

51MS HILL:  Happy if it comes to the Court, Your Honour.

52HIS HONOUR:  The second condition is that he be subject to supervision of a probation officer appointed pursuant to an arrangement between the Commonwealth Director of Public Prosecutions and Community Corrections Services Victoria.

53Three, that he obey all reasonable requirements and directions of the probation officer so appointed. 

54Four, that he not travel interstate or overseas without written permission of the probation officer so appointed. 

55Five, that he undertake such treatment or rehabilitation programs that the probation officer so appointed reasonably directs.

56I will sign the forfeiture order and the SORA obligations have already been effected.  Madam Prosecutor, I think that is all we need to do.

57MS HILL:  Yes, Your Honour.  I will just note with respect to forfeiture, in the event that the solicitor, Mr Taylor, can have the offender, Mr Taylor, sign a consent to forfeiture an order will not need to be made by the Court if they can provide that to us, however I have also provided a draft order if it is your practice just to sign the formal order.

58HIS HONOUR:  Does it include everything, the materials plus the devices?

59MS HILL:  Yes, it is the machines, Your Honour.  It is the two laptops that the informant seeks.  The remaining devices can be returned.  I have provided some correspondence to the solicitor's office with respect to those remaining items.

60HIS HONOUR:  Mr Taylor, are you happy to do that?

61MR TAYLOR:  Yes, he is, Your Honour.

62HIS HONOUR:  Are you happy, Mr Taylor, as in solicitor, to have that signed and forwarded on to the Commonwealth DPP?

63MR TAYLOR:  Yes, Your Honour.

64HIS HONOUR:  I will not need to make the order?

65MS HILL:  Your Honour, you will not need to make the order if he signs it.

66HIS HONOUR:  Are you happy with that?

67MS HILL:  Happy with that, Your Honour.

68HIS HONOUR:  We will not make the forfeiture order.

69MS HILL:  Thank you, Your Honour.

70HIS HONOUR:  Can I thank both counsel and Mr Taylor for their assistance in this matter?

71MS HILL:  Your Honour, apologies, just one more.  There is the 6AAA declaration.

72HIS HONOUR:  This of course is always a very difficult declaration to make, 6AAA, in circumstances where there has been a multiplicity of factors taken into account.  Certainly had there not been a plea of guilty there would have been no recognizance release order, I would not have come to a determination in regard to exceptional circumstances as I had.  I think really that as best as I can do complying with 6AAA.  Thank you.

73Mr Taylor, what we have got to go through are the formalities of the recognizance release order.  As I understand you always have a draft of these.  We will prepare it here and have it approved by the prosecutor.  We will send it down for your client to sign and then you will have to send it back here to my associate and then I will sign it.

74MR TAYLOR:  Yes, Your Honour.  Will we require a reappearance?

75HIS HONOUR:  I will require you to stay there until we do it, until the order is signed we cannot finish the hearing.

76MR TAYLOR:  If the Court pleases.

77HIS HONOUR:  I will just stand down while my associate perhaps talks to you and we will get Ms Hill to approve it first and once that is done we will forward it to you.  That can be sent as a copy to me and then I can sign that.  I will just stand down while that is organized.

78(Short adjournment.)

79HIS HONOUR: Mr Taylor, before your client signs it, it with great respect, Madam Prosecutor, is not all that well drafted. 'The Court orders the release of the defendant under paragraph 21(1B) of the Crimes Act'. Mr Taylor, can you just put in there, 'Having been sentenced'?

80MR TAYLOR:  Yes.

81HIS HONOUR:  So we have got to add in the words, 'Having been sentenced to a term of imprisonment of 14 months, to be released forthwith upon the defendant giving security via recognisance of $2,000 to comply with the conditions of the defendant'.  That is all okay.  Then if we go down to conditions, the last set of conditions, there is (g) and (h), (h) should be cut out and then (i) and (j) can be (h) and (i), (g) and (h) currently are all part of the same condition.  Is that clear?

82MR TAYLOR:  You might have to walk me through that last one, Your Honour.

83HIS HONOUR:  So (g) is, 'Report to the Bairnsdale' - and then of a new sub-condition, it is all part of (g), 'within two clear working days'.

84MR TAYLOR:  Yes, just get rid of the (h), yes, Your Honour.

85HIS HONOUR:  Get rid of that and renumerate the others (h) and (i).

86MR TAYLOR:  Yes, understood.

87HIS HONOUR:  So if your client can not only sign that, I will initial those when the original comes back or when my copy comes back.

88MR TAYLOR:  He has signed those, Your Honour.

89HIS HONOUR:  I want to indicate to you, Mr Taylor, before it comes back to me for signature, Mr Taylor, as in Murray Taylor, Mr Taylor, you will realise that you have been very fortunate from the decision that has been passed today.  It would not be of assistance to you if you breached any of these conditions.  Do you understand?

90OFFENDER:  I do, Your Honour.

91HIS HONOUR:  Because if you did, you run the risk of being brought back here and the sentence may well involve immediate imprisonment.  Do you understand that?  Thank you.  We need now for Mr Taylor to get this back to us and I think that is going to take place now.

92Madam Prosecutor, I will just initial those two alterations and sign it.

93MS HILL:  Yes, no concerns, Your Honour.  If I could just ask for an electronic copy once the matter is completed, thank you.

94HIS HONOUR:  Just in regard to Bravehearts, my Associate made enquiries and they are apparently an organization that is particularly involved in this type of crime.

95MS HILL:  Unfortunately, I have not had the opportunity to hear about them.

96HIS HONOUR:  They specialise in assisting children who have been abused in this way.

97MS HILL:  That is good to know for future reference, Your Honour, thank you.

98MR TAYLOR:  We are assured it is on its way.

99HIS HONOUR:  Mr Taylor, you will take the opportunity no doubt with your client to confirm the matters that I have put to him and indicate to him the importance of him following through with the obligations?

100MR TAYLOR:  Yes, Your Honour, I will take him to my office and walk him through all the conditions, particularly in relation to both the order and the SORA obligations.

101HIS HONOUR:  Thank you for that.  It has arrived.  We will give you a copy.

102MS HILL:  Thank you, Your Honour.

103HIS HONOUR:  We will forward obviously back to your office, Mr Taylor.

104MR TAYLOR:  Yes, Your Honour.

105HIS HONOUR:  We will do that and you will have a copy here, Madam Prosecutor.  Thank you both.

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