Director of Public Prosecutions v Thewlis
[2022] VCC 782
•4 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-02271
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER THEWLIS |
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JUDGE: | JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2022 | |
DATE OF SENTENCE: | 4 May 2022 | |
CASE MAY BE CITED AS: | DPP v Thewlis | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 782 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Campbell | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr A. Lewis | Stary Norton Halphen |
HIS HONOUR:
1Mr Thewlis, would you please stand.
2Christopher Thewlis, you have pleaded guilty to one charge of using a carriage service to transmit child abuse material and one charge of using a carriage service to access child abuse material.
3The maximum penalty for transmission, which is Charge 1, is 15 years' imprisonment. The maximum penalty for accessing, which is Charge 2, is also 15 years' imprisonment.
4The circumstances in which the offending occurred are set out in the summary of prosecution opening for plea dated 11 February 2022, Exhibit 1.
5Shortly stated, between 1 December 2019 and 5 May 2020 by means of applications or apps entitled WhatsApp and Telegram, you conducted conversations in text form with three other users of those apps, and in the course of them you transmitted child abuse material on multiple occasions. In relation to each of the three other users, extracts of the conversations are set out in the opening, that is Exhibit 1, from paragraph 6 to paragraph 20.[1]
[1]See Annexure 1
6The subject matter of the communications made by you that comprise
Charge 1 is, in my view, fairly characterised as:· describing to others child abuse activity shown in material that you stated you were watching at the time of the communications
· applauding that material and the depraved activities depicted in it
· declaring your own enjoyment of watching such material
· describing your own paedophilic preferences
· making approving and encouraging responses to the other persons' declarations, in relation, to children, of sadistic, depraved, and criminal intent
7On the plea, after extensive discussion, counsel for the Director confirmed that you are not to be sentenced for receiving the child abuse material contained in the responses to your texts, nor for soliciting the many abhorrent and depraved responses shown, nor are you to be sentenced for the criminal depravity of the authors of the texts that you received; rather, they give context and sense to the texts that you transmitted and, it was submitted, that the harm done by your transmissions is to be assessed by reference to the rationalisation, approval, and encouragement of the use and enjoyment of child abuse material and paedophilic activities in general. In support of that submission the prosecution referred to Hancock.[2]
[2][2011] NTCCA 14, where the Court of Criminal Appeal referred to the sentencing Judge’s observation concerning written child abuse material, at [35]: “His Honour noted that ‘this writing rationalises paedophilia as a normal sexual preference and in that way it could well create or reinforce cognitive distortions in the minds of those who read it, possibly enabling those persons to justify and rationalise their own abusive behaviour’. Nevertheless his Honour said that ‘I appreciate that what you have written may well be no more than sexual fantasy writing and not based on personal experience’.”
8These transmissions made by you between 1 December 2019 and
5 May 2020 are the substance of Charge 1, transmitting child abuse material using a carriage service.9Charge 2 is framed differently. It charges that between 8 September 2020 and 28 January 2021 you accessed child abuse material using a carriage service. For the purposes of this charge, the offending comprises the material, that is the child abuse material, that was received or accessed by you. The material accessed is set out in paragraphs 22 to 28 of Exhibit 1 and included the text responses from the app users that you communicated with, that is child abuse material, and the accessing of still and video images of child abuse material.
10The text material the access charge relates to concern:
· communications from the account entitled ‘Deleted Account 1’ set out in paragraph 22 of Exhibit 1
· included the intentional accessing of three images sent to you by an account styled ‘Paolo’ showing sexual activity between an adult male and a prepubescent male, successively penis touching, performing oral sex on the child, and inserting the adult's penis into the mouth of the child
· it concerned accessing child abuse material sent to you by an account styled ‘Aus Dad Clouds’ consisting of 18 still and video files showing prepubescent and infant male children performing oral sex acts on the penises of adult men, as well as being anally penetrated by the penises of adult men and the penises of male children
· the access charge also concerns communications with an account styled ‘Chris’ which led to you accessing two video files, one showing a prepubescent boy holding his anus open, the other showing a prepubescent boy being anally penetrated by a penis
11On April 22 2021, the police attended your residence and seized a number of devices. You participated in a record of interview in which you admitted ownership of the iPhone, the use of the telephone number relating to it, and knowledge of the iPhone's passcode. You were arrested and bailed later that day. You indicated your intention to plead guilty to these charges at a committal mention and it is accepted that this was an early plea. You are now
67 years of age and have no prior convictions.12Mr Thewlis, I state to you that I have taken into account all the matters raised on your behalf in the course of the plea, during which your counsel spoke to detailed written submissions which became Exhibit 2.
13The matters relied upon in mitigation included your plea of guilty, entered at the earliest opportunity, it has saved the community the cost and the witnesses the stress of a trial. I take your plea also to be an indication of your remorse (and I was told of your shame at this offending), as well as an acceptance of responsibility for it.
14In these times of pandemic additional weight in mitigation is to be given to such a plea.[3] You are entitled to have these matters taken into account in mitigation of penalty and I have done so.
15I have taken into account the fact that you have, apart from this depraved offending, led an otherwise blameless life and that at the age of 67 have no criminal history whatever.
16I have taken into account your background and personal circumstances. These are set out in both counsels’ submissions and in the report of Patrick Newton, clinical and forensic psychologist, prepared in February of this year.[4]
17Shortly stated, you grew up in a loving and caring environment. You were successful at the high schools you attended in both sport and academic pursuits and began an engineering degree at Monash University on leaving school. Difficulties at home led to you deferring your studies and beginning work in the library at which your mother was then a librarian. Six months or so later you returned to Monash where you completed a Bachelor of Science degree. You then returned to work as a librarian and later completed post graduate qualifications in librarianship and in business administration.
18In 1981 you became librarian in charge of the Toorak South Yarra Library and in 1988 you began working in the IT industry, providing IT services and products to the library industry more generally. You remained in this field for the next 30 years working for a number of employers in various senior roles.
19In your personal life you married Lindy at the age of 24. The marriage foundered within four years as you came to the realisation that you were homosexual. You have been with your current partner, Mark, for 20 years and the two of you married in 2019.
20I have taken into account your previous good character as disclosed by your work record and lack of prior convictions, though no character evidence was offered on the plea, which I understand to be due to your shame at being charged with these offences and your non-disclosure of it.
21Since you were charged you have engaged with a psychologist,
Mr Peter Hanley. Mr Hanley's report is Exhibit 3. You have attended20 sessions with him and have gained what I was told was some insight and understanding of your offending behaviour and its causes over those sessions. Mr Hanley's report and Mr Newton's report make it clear that more treatment is required as your insight into your offending is far from complete.[3]Worboyes v R [2021] VSCA 169 at [35], [39]: “We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence… For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.” See also Chenhall v R [2021] VSCA 175.
[4]Exhibit 4
22Mr Hanley wrote, “He tends to minimise the specific paedophilic interests and arousal patterns that seem core to his offending behaviour”.[5] This, despite the number of sessions you have attended. Mr Hanley wrote further:
“I expect that Mr Thewlis will require a lengthy period of participation in specialised sex offender treatment to address the deeply entrenched pattern of sexual interest and behaviours that underpin his offending.”
[5]Exhibit 3, para 8
23I have taken into account your prospects of rehabilitation. In circumstances where your working life is most probably over, your rehabilitation prospects focus on the risks of recidivism. This was assessed by Mr Newton as moderate. As Mr Newton put it, “you experienced a strong state of sexual arousal to diverse child abuse material (and other fetishist content)” and “have shared this material with others, solicited it from them”, and “actively engaged with them in the creation of deviant narratives associated with paedophilia and other things”. He wrote further that your engagement with these activities was active and obsessive, going well beyond mere role playing or escapist fantasies.[6]
[6]Exhibit 3, para 12
24In explaining his assessment that you represented a ‘moderate’ risk of reoffending Mr Newton wrote:
“Whilst this type of offending is typically correlated with only a low risk of recidivism, a comprehensive review of risk factors suggests that in
Mr Thewlis' case the risk is higher, in particular the intensity of the deviant material he had pursued and his active engagement with it, combined with factors from his personality, personal adjustment, and substance abuse elevate the risk beyond the low risk range.”
He wrote further:
“His risk of reoffending is about average for a typical sex offender undergoing sentence, but significantly higher than that of a typical offender charged only with online offending.”
He recommended further treatment.
25Neither of the psychologists assess you as suffering from any mental disorder that might enliven any Verdins[7] principles but they did diagnose substance abuse disorder of moderate severity though currently in remission, and wrote that you met the criteria for “other specified paraphilia with paedophilic features”.[8] The substance abuse disorder diagnosis was based upon the history that you gave of using MDMA since the year 2000, methamphetamine for the last five years or so until your arrest, and GHB at compulsive and dangerous levels since about 2019, all this leading to disinhibition, and some of it to facilitate exploration of your sexuality.
[7][2007] VSCA 102
[8]Exhibit 4, para 13
26On the basis of all the material it was submitted on your behalf that your prospects of rehabilitation should be assessed as reasonably good. In my view the psychological reports tendered do not support such an assessment and after reviewing all of the material I have concluded that your prospects of rehabilitation are little better than guarded because of the entrenched nature of your belief system in relation to this offending, and your incomplete insight.
27I have taken into account in mitigation of penalty the fact that even as late in the pandemic as we now are, conditions in prison are more onerous than they would otherwise be because of frequent lockdowns, restrictions upon treatment, and restrictions upon recreation, programs, and visitation.
28Turning then to offence gravity in relation to Charge 1, it was submitted that the criminality involved was contained only in the transmissions that you sent. It persisted over a period of only five months, and so in the range of offence gravity it should be regarded as towards the lower end.
29As to Charge 2, as to the content of the image and video files accessed, it was properly conceded that the depiction of penile penetration of infants was towards ‘the top end’ and particularly serious, but that compared with most other cases of this sort, the number of images and video files was relatively small and that fact, combined with the fact that no files were transmitted by you, nor were they downloaded and stored, supported the submission that this offence also was towards the lower end of the gravity scale.
Sentencing submissions
30Reference to other cases and the Court of Appeal's decision in Zarb,[9] and to s 17A of the Crimes Act it was submitted supported a conclusion that a community corrections order would meet all relevant sentencing principles and that if I was not persuaded of this, and concluded that imprisonment is the only available sentence, it should involve an immediate release on recognisance with rehabilitative conditions.
[9][2014] VSCA 347. See also Smith [2010] VSCA 215 [23], Ison [2010] VSCA 286 [28]-[29], both referred to in Garside [2016] VSCA 74, [56]-[59]
31A discrete legal issue arose as to the operation of cumulation provisions as the legislation changed between the period over which Charge 1 occurred and the period over which Charge 2 occurred. In the end, the presumption of cumulation submission made by the Crown was abandoned in a later note of submissions that was filed and I will say no more about it.
32It was, however, conceded that the exceptional circumstances provisions operated in respect of Charge 2 and it was (again), in the end, conceded that because the offending here concerns different activities and distinct periods of time that do not overlap, that a degree of cumulation between the two charges would be warranted if a sentence of imprisonment was to be imposed.
33As to whether exceptional circumstances were made out in relation to
Charge 2, I was referred to Lucas Robbins (a pseudonym),[10] a decision of Judge Holding of this court in December last year, a case in which it was held on the facts there that exceptional circumstances were made out on the basis of a combination of circumstances. It was submitted that the circumstances operating here would also meet the exceptional circumstances test.[10][2021] VCC 2172
34The Director's detailed written submissions as to sentence dated 2 March 2022 became Exhibit 5. It was submitted that the text material transmitted was extreme, focusing, as it did, upon the penetration of small children with, at times, sadistic and racist themes. These features, it was submitted, supported Mr Newton's characterisation of the material as both extreme and centred upon sexual violence towards children. I was referred to Hancock and the observations there made about the gravity of the transmission of text based child abuse material because of its capacity to rationalise, create, and reinforce the recipient's own abusive behaviour.
35As to Charge 2, it was conceded that this involved a lower number of images than is common though the content, it was submitted, was at the higher end of the range. By reference to Vantoosten,[11] it was submitted that the quality of the material was more determinative of offence gravity than quantity, in the end the submission was that the offending that comprises Charge 2 should be assessed as ‘medium’ range.
[11][2009] QCA 54
36The Director submitted that in all the circumstances of this case the exceptional circumstances test as it applies to Charge 2 was not made out, and submitted further that offence gravity was not a matter to be taken into account in the assessment of the exceptional circumstances test because to reason in that way would be circular, and that the features relied upon here in support of the submission that exceptional circumstances exist were in fact common in cases of this sort.
37The submission set out in some detail a list of sentencing factors and principles that are applicable in cases such as this, and they were, in the main, not in dispute on the plea. They are set out in paragraphs 4 to 10 of the Crown's submissions.
38Further, it was submitted that the amendments introduced in June 2020 requiring exceptional circumstances to be made out, merely reflected the established common law position which was that an immediate term of imprisonment would ordinarily be expected.
39In my view these two offences are serious; of them, I regard Charge 2 as the more grave as although the number of videos and images is relatively small, the depravity depicted and the presumed harm to the children and infants abused is very great. The harm done by the transmissions to others, presumably adults, of text based material is that it encourages and reinforces the very harm that the legislation seeks to prevent.
40Against the matters relied upon in mitigation of sentence must be balanced the fact that the authorities make clear that general deterrence is to be given great weight in a sentencing consideration such as this. In my view specific deterrence is also a significant factor, having regard to the period of time over which the offending continued and the fact that the psychologists, even now, regard your insight into the harm caused as incomplete.
41After reviewing all of the material put on the plea I have concluded that no other sentence than a term of imprisonment is appropriate here. I should also state that I am not persuaded in relation to Charge 2 that the circumstances relied upon on your behalf satisfy the requirement that the circumstances be exceptional.
42Mr Thewlis, I state to you that I have taken into account all the matters raised on your behalf in the course of the plea in mitigation of penalty and all other matters and relevant sentencing principles in arriving at the sentence I am about to impose.
43On Charge 1 you are convicted and sentenced to a term of imprisonment of
six months. On Charge 2 you are convicted and sentenced to a term of imprisonment of 12 months. I will hear counsel as to the way in which these cumulation provisions are to operate, but I direct that two months of the sentence imposed upon Charge 1 be served cumulatively upon the sentence imposed upon Charge 2, making a total effective sentence of
14 months' imprisonment.44I direct that after serving four months' imprisonment you be released upon entering into a recognisance in the sum of $100 for a period of 18 months, subject to the conditions which I will shortly explain. I am to make a
sex offenders registration order. The period of reporting is 15 years.45Does s 6AAA have application here?
46MR CAMPBELL: It does, Your Honour.
47HIS HONOUR: Yes. Pursuant to s 6AAA I state that had you been found guilty of these offences after a trial I would have sentenced you to a term of imprisonment of two years and six months with a non-parole period of
18 months.48Now, upon your release after serving four months' imprisonment you are to be subject to a recognisance release order which requires you, after giving security by recognisance of $100, to be of good behaviour for 18 months; to be subject to the supervision of a probation officer for a period of 18 months; to obey all reasonable directions of the probation officer; not to travel interstate or overseas without written permission; to undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
49What is the relevant community corrections centre he would have to report to?
50MR CAMPBELL: It would be whichever one is closest to his place of residence, Your Honour.
51HIS HONOUR: Yes. Can you assist me with that? You did send us a draft order but no one thought about the address.
52MR CAMPBELL:
Yes, Your Honour. I understand it's somewhere in
Queen Street is his place of residence.
53HIS HONOUR: He lives in the city.
54MR CAMPBELL: It would be in the city, yes.
55HIS HONOUR: Yes, so where is the nearest community corrections order for the purposes of this form?
56MR CAMPBELL: I can just check that, Your Honour.
57
HIS HONOUR: Thank you. Once the address is sorted out you have to report within two clear working days of the date of your release. You have to report to and receive visits from a community corrections officer. You have to notify Corrections of any change of address or employment within two clear working days after the change. You have to attend for assessment, and if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by the deputy commissioner, and attend and undertake and complete the sex offenders program within a period of
18 months. You can be seated for the moment, Mr Thewlis.
58MR CAMPBELL: Your Honour, I think it will be the Melbourne Justice Centre for the closest location.
59HIS HONOUR: So the draft order that you sent us says report to the community corrections centre located at?
60MR CAMPBELL: At Melbourne.
61HIS HONOUR: And the address?
62MR CAMPBELL: The address, Your Honour, is 50 Franklin Street.
63HIS HONOUR: Is there any problem with the way I have constructed the sentence?
64MR CAMPBELL: No, Your Honour.
65HIS HONOUR: They're technical provisions and I commonly get them wrong.
66MR CAMPBELL:
No, Your Honour. I was just discussing with my friend, given that Charge 1 is the shorter sentence I think - my understanding was that it was a 14 month total effective sentence, it would be that the
Charge 1 sentence would start today and then two months into that sentence the Charge 2 sentence would start.
67HIS HONOUR: When I make an order for cumulation I achieve the cumulation by setting start dates.
68MR CAMPBELL: Yes, Your Honour.
69HIS HONOUR: And I have to do that, do I?
70MR CAMPBELL: Yes.
71HIS HONOUR: Do you agree with that?
72MS ZAYDAN: Yes, Your Honour.
73MR CAMPBELL: I should also add, Your Honour, that that will achieve what I understood was Your Honour's intention of having the two months' cumulation.
74HIS HONOUR: Yes. After hearing from counsel in order to give effect to my intention concerning cumulation, I will restate the sentence which is as follows. On Charge 1 you are convicted and sentenced to a term of imprisonment of six months. On Charge 2 you are convicted and sentenced to a term of imprisonment of 12 months. I direct that the sentence imposed upon Charge 2 commence two months after the commencement of the sentence upon Charge 1, which commences today.
75
That makes a total effective sentence of 14 months' imprisonment and as I said earlier I direct that after serving four months' imprisonment that you be released upon entering into a recognisance in the sum of $100 for a period of
18 months, subject to the conditions set out in the order which I will now have handed to you and explained to you by your counsel.
76Ms Zaydan, would you approach the dock. You had better take a pen with you because you can get him to sign it.
77Mr Thewlis, you have been convicted in respect of registrable offences under the provision of the Sex Offenders Registration Act and by virtue of the provisions of that Act you have become a registrable offender under the Act. Accordingly you have reporting obligations under the legislation and I direct that you be served with a form setting out the obligations and that you acknowledge in writing the fact that you have been so served, so I will hand down the forms. The period of registration is a period of 15 years. The acknowledgment is at the back page.
78
Again, Ms Zaydan, would you approach the dock please. I'll direct my associate to notify the Chief Commissioner of Police pursuant to s51 of the Act. I have corrected the date on which Mr Thewlis signed this form to
May rather than April.
79MR CAMPBELL: Thank you, Your Honour.
80HIS HONOUR: Are there any other matters?
81MR CAMPBELL:
Your Honour, there is just one matter. There were three devices seized, being two Apple iPhones and a My Passport external hard drive. I've spoken with my friend. The consent for retention and destruction is going to be dealt with by consent so I'd just ask if - my friend might be able
to ‑ ‑ ‑
82HIS HONOUR: So that is an ancillary order. Have you prepared such an order?
83MR CAMPBELL: I have, but in circumstances where it's by consent there's no need for Your Honour to make an order to that effect.
84HIS HONOUR: You're not asking me to make an order?
85MR CAMPBELL: No. I was just asking for my friend to be able to approach
Mr Thewlis to have him sign that.86HIS HONOUR: All right. Would you do that please.
87MS ZAYDAN: Thank you.
88HIS HONOUR: Would you remove the prisoner please, Officer. Ms Zaydan, if you need to speak to your client in the cells that can be arranged.
89MS ZAYDAN: Thank you, Your Honour.
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