Director of Public Prosecutions v Tony Andrew Weis
[2016] VCC 1163
•12 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00325
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Tony Andrew WEIS |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2016 | |
DATE OF SENTENCE: | 12 August 2016 | |
CASE MAY BE CITED AS: | DPP v Tony Andrew Weis | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1163 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – accessing child pornography using a carriage service (1 charge); knowingly poses child pornography (1 charge)
Legislation Cited: Commonwealth Criminal Code s474.19(1); Crimes Act (Vic) 1958 s70(1); Sex Offenders Registration Act s34.
Sentence: Total effective sentence of 42 months’ imprisonment with a non-parole period of 20 months.
Recognisance Order for a term on 22 months after serving 14 months of the term of imprisonment with a $2000.00 security.
Section 6AAA declaration: 4.5 years’ imprisonment with a non-parole period of 3years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Stevens | CDPP |
| For the Accused | Mr J Lavery | Stuthridge Legal |
HIS HONOUR:
1 Tony Andrew Weiss, you have pleaded guilty to:
2 One count of accessing child pornography using a carriage service contrary to s474.19(1) of the Commonwealth Criminal Code; and
3 One count of knowingly possessing child pornography contrary to s70(1) of the Crimes Act 1958 Victoria.
4 The Commonwealth charge to which you have pleaded guilty, carries with it a maximum period of imprisonment of 15 years. The State charge carries with it a maximum period of imprisonment of five years.
5 The circumstances relevant to your offending are set out in the prosecution opening, which is Exhibit 2 in this instance. There is no dispute with respect to those circumstances and for that reason I will summarise them briefly, but append the prosecution summary to my sentencing reasons.
6 Between 28 February 2015 and 28 April 2015, the Australian Federal Police established that an IP address maintained by you had been making child pornography available to other users via uTorrent software. The images and videos you accessed via that process comprised 634 files which were categorised according to the table set out in paragraph 2 of the prosecution opening, while 319 of those files depicted children with no sexual activity and were merely sexually suggestive in nature. The balance of the files involved children engaging in sexual activity of escalating depravity, having regard to the description of the acts involved in each of the four Categories 2 to 5.
7 At 7.00am on 2 July 2015, the search warrant was executed at your home address. The warrant established that you had employed uTorrent to search for and download child pornography material. A total of 21,148 unique pornography files were identified on your laptop, which consisted of 20,313 picture files and 835 video files which were categorised as follows:
·Category 1 — picture files, 5,996; video files, 97
·Category 2 — picture files, 480; video files, 113
·Category 3 — picture files, 2,967; video files, 101
·Category 4 — picture files, 2,386; video files, 497
·Category 5 — picture files, 182; video files, 24
·Category 6 — picture files, 8,332; video files, 3.
At the time your laptop computer was seized and at the time of the forensic examination of your computer, child pornography files were in the process of being downloaded, which numbered thirty-eight, the details of which are set out on page 4 of the prosecution opening. A total of fifty-three unique child pornography files were identified on a Western Digital hard drive in your possession, analysis of that drive revealing that between 28 November 2012 and 29 September 2013, you had employed uTorrent to search child pornography. Further files were located on four USB drives in your possession. The nature of those files are detailed on pages 5 and 6 of the prosecution opening. In total, the files seized from you may be summarised as follows:
| Cat 1 | Cat 2 | Cat 3 | Cat 4 | Cat 5 | Cat 6 | Total | |
| Images | 6,692 | 576 | 3,061 | 2,515 | 190 | 10,308 | 23,.324 |
| Videos | 118 | 137 | 121 | 673 | 33 | 3 | 1,085 |
| Totals | 6,810 | 713 | 3,182 | 3,188 | 223 | 10,311 | 24,427 |
8 The material making up the various categories is set out on pages 7 and 8 of the prosecution opening. The categories, so described, are well established, and are familiar to me both with respect to description and the type of the content of material. It was for this reason, in the context of the position put to me by Mr Lavery on your behalf, that he was not in a position to make a concession that the sample of the material prepared by the prosecution in this instance was representative, that I elected not to view the sample.
9 When interviewed by the police you admitted your offending and implicated your drug use as factor relevant to that offending. Whilst I accept that position and give it due weight, I also take account of the position put by the prosecution that the period during which your offending persisted commenced well before any significant use by you of methamphetamines.
10 As to the circumstances of your offending it is appropriate, given the inability of the victims of that offending to have a voice in this court, that I make the following comments:
· Your accessing of the material the subject of these charges involved you providing support to the industry which abuses children physically and emotionally for the purpose of satisfying a depraved commercial market.
· In the absence of a demand in the community for access to this disgusting material the industry which produces the material would wither and countless young children, who are exploited and permanently damaged both physically and mentally by their forced participation in the industry would be saved. That corrupt industry survives and flourishes because members of the community such as yourself access it with no thought of the harm done to the children who suffer horrific abuse in the course of the generation of that material.
· Notwithstanding the absence of a voice in this Court from the children who are exploited in the generation of this material, your crimes are not victimless. This Court sees all too often the dramatic long-term developmental damage suffered by children who have been the subject of sexual abuse.
· It is not be lost in this instance that the damage to the victims, by reason of their involvement in the activities the subject of these videos, occurs not only because the victims have to endure the abuse associated with the activities to which they are exposed, but because they must live with the consequences of their images being swapped, traded and accessed perhaps perpetually in the child pornography trade.
· The convenience of persons such as yourself in dissociating themselves from the effect upon the children who are the true victims of the crimes to which you have pleaded, of the behaviour visited upon them in the generation of this type of material, perpetuates a global industry. The right of children to protection from the predators who produce this disgusting material should not be dependent on the location of the child, the economic consequences of the child or the social structure which governs the community in which the child lives. It should stem from the fact that all members of all communities should stand up for the rights of children and decry their sexual exploitation.
11 Your relevant history may be summarised as follows.
12 You are twenty-nine, you were born in Kerang, you have a twin brother, your parents separated when you were thirteen. You were educated to Year 10. On leaving school you undertook and completed an apprenticeship as a butcher. At aged twenty-two you suffered a motorbike accident in which you severely damaged your shoulders. Those injuries impacted adversely upon the stability of your life and your employment. Following your motorbike accident you undertook largely unskilled work. In mid-2014 you commenced using methamphetamine. Your use of methamphetamine continued over a period of approximately twelve months. Some of your offending occurred during this period.
13 Following the attendance of the police in this instance, you have commenced living with your parents. You obtained work as a kitchen hand and you ceased your use of ice. It was put on your behalf that you are now drug free.
14 You have, since being charged with these offences, made two attempts on your life. You were diagnosed as being depressed and you were placed on medication.
15 It is put on your behalf that you are not currently using medication that you are now mentally more stable, but that you continue to suffer from depression, which has been present for many years.
16 You have a history of previous convictions for possession of a weapon and assaults. I am satisfied that that history should not impact significantly upon the sentence which I should impose in this instance.
17 It is not in issue that you have admitted your offending at an early time and that you have made full admissions with respect to that offending.
18 The records of your general practitioner satisfy me that you have suffered from depression of varying degrees since at least January 2015.
19 A report prepared by Mr Warren Simmons, a consulting psychologist, who assessed you on 28 July 2016, describes you as presenting with clear evidence of depressive symptoms, as well as a long history of an Anxiety Disorder, appropriately described as a Panic Disorder. As to your risk of re-offending, Mr Simmons comments:
“… while there was no strong evidence of any pre-existing paedophilic interest, Mr Weis’s description of his behaviour during this period suggests that he may have developed a conditioned pattern of arousal to such material, although Mr Weis is quite clearly ashamed and disgusted by his behaviour. Nevertheless, such arousal patterns may exist irrespective of the person’s cognitive structure. There were certainly no suggestions that Mr Weis acted outside of his fantasy world, nor that he has ongoing cognitive disorders, nor a belief that justifies such behaviour. However, it was felt that this would be an appropriate target of intervention for Mr Weis at the present time.
With respect to the risk of re-offending, Mr Weis was felt to be at the lower to moderate, rather than higher level, for further offences.’
20 The Victorian Court of Appeal has recognised the unanimous support across various legal jurisdictions for the following sentencing propositions which arise in circumstances such as these, namely:
(i) That the problem of child pornography is a national problem;
(ii) That the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration in sentencing;
(iii) That persons inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for their production;
(iv) That those who made up the market for the product could not escape responsibility for the exploitation of children in the production of such material;
(v) That limited weight should be given to an offender’s prior good character;
(vi) That general deterrence is the primary sentencing consideration given the fact that offending involving child pornography is becoming increasingly prevalent with the advent of the internet;
(vii) That child pornography is not a victimless crime: that there is a paramount public interest in protecting children;
(viii) That a range of factors bear upon the objective seriousness of the offences, including:
§ the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
§ the number of images or items possessed;
§ whether the material is for the purpose of sale or for distribution;
§ whether the offender would profit from the offence;
§ The length of time for which the pornographic material was possessed.
21 In sentencing you I accept the positions put on your behalf that:
(i)You made no attempt to conceal your involvement in these offences when you were approached in the course of this investigation.
(ii)You had no intention to distribute any of the material the subject of this offending which were gathered by you for your own use;
(iii)There was no commercial aspect involved in the distribution of the subject material.
22 Whilst is not in issue that no aspect of your accessing this material involved you seeking to profit from that activity you did, however, by reckless indifference allow access to some of the disgusting material which you had collected to others. In doing so you became an active player in the market responsible for the distribution of child pornography and you assisted on a minor scale the perpetuation and growth of that industry.
23 I am satisfied in sentencing you that your culpability in respect of this offending, when considered in the context of the totality of the range of offending which arises in charges of this nature, could certainly not be characterised as being a lower level offending. Rather it falls at least at the moderate end and towards the higher end of the range of the offending seen by courts dealing with offences of this type given:
· The material involved given both its content and its extremely large volume;
· The period during which you committed that offending;
· The access provided by you to other criminals who sought material of this type notwithstanding that this access was provided through reckless indifference on your behalf as distinct from conscious intent.
24 It is clear, given the statements which have been made by superior courts which bind me that in matters of this type that general deterrence is a paramount sentencing consideration by reason of the fact that in matters of this type strong statements must be made that the behaviour involved in this offending will not be tolerated and will be the subject of harsh punishment.
25 It was accepted on behalf of the prosecution that you entered a plea of guilty at the earliest opportunity and that you have made appropriate admissions. The fact and timing of your plea has saved the community the costly process of a trial. The entry of your plea entitles you to a discount to the sentence which I would have imposed but for that plea.
26 I am satisfied on the basis of your early admissions and the statements made to Mr Simmons that you feel remorse for your offending.
27 I am satisfied that your presentation with depression may impact, to some extent, upon the emotional burden associated with a sentence of imprisonment. I have difficulty in fixing, with any degree of precision, the severity of that burden, given:
· my interpretation of the report of Mr Simmons in which he describes the presence of depressive conditions, but does not make a diagnosis of the existence of a Depressive Disorder:
· the comment contained in your medical records that as at October 2015, your general practitioner did not consider obtaining a mental health assessment was warranted, as you no longer felt suicidal; and
· that there is no more up to date evidence from your general practitioner as to your current emotional health than that to which I have described above.
28 In fixing a sentence with respect to the federal offence which you face, which is of a severity appropriate in all the circumstances of your offending, I have regard to all the sentencing principles as set out under s16A of the Commonwealth Crimes Act including:
(i) The weight to be given to general deterrence;
(ii) the nature and the circumstances of your offending, including your moral culpability;
(iii) the maximum applicable penalty;
(iv) the course of conduct involved in your offending;
(v) the fact that you have pleaded guilty;
(vi) the degree to which you have co-operated with law-enforcement agencies in the investigation of the offence;
(vii) the deterrence aspect that any sentence which I pass will have upon you;
(viii) the need to ensure that you are adequately punished with respect to the offence;
(ix) your character, antecedence, age, means and physical or mental condition;
(x) the probable effect of any sentence or order under consideration would have upon any member of your family;
(xi) your prospects of rehabilitation;
and that I must bear in mind that a prison sentence is a sentence of last resort.
Largely these factors also apply in my task of sentencing you in respect to the Victorian offence with which you are charged.
29 I am satisfied that my primary obligation in fixing the sentence in this instance is to fix a sentence which:
· is fair, taking into account my findings as to the criminality of your offending and your personal circumstances,
· which deters you from future offending and
· which complies with my obligation to make a statement which deters others from engaging in similar behaviour.
30 I am satisfied that the nature of your offending is such that it demands that a period of imprisonment be imposed upon you.
31 For the reasons which I have expressed I am satisfied that it is appropriate to impose the following sentences with respect to these crimes:
32 In respect of Charge 1, you are convicted and sentenced to a period of imprisonment of 3 years.
33 In respect of Charge 2, you are convicted and sentenced to a period of imprisonment of 12 months.
34 Given the circumstances of your offending, whilst keeping in mind the principle that the sentence which I impose in total must be just and appropriate to the totality of your offending I am satisfied that a period of cumulation should be attached to the sentences which I have imposed.
35 I declare that Charge 1 is the base sentence in this instance and that 6 months of the sentence with respect to Charge 2 are to be served cumulatively with the sentence imposed as to Charge 1.
36 It is my intention to put into effect an order which involves a total effective sentence of imprisonment of 42 months and that that you will be required to serve a period of imprisonment of 20 months before being released upon your entering a recognisance release order in the sum of $2,000.00. This undertaking will continue for the duration of your sentence, namely the term of your recognisance release order of 22 months.
37 In fixing your minimum sentence, I have borne in mind all the matters to which I have referred in the course of my sentence, and in particular:
(i) Your age, and the fact that you face a term of imprisonment for the first time in your life;
(ii) The serious nature of your offending and the duration of it;
(iii) Your co‑operation with the authorities and factors which are personal to you to which I have referred;
(iv) The issues of general deterrence which arise in this instance;
(v) The benefit to both yourself in your effort to rehabilitate yourself and to the community of your being supervised for a significant period of time after your release from custody given the risk that you may re-offend.
38 I will be guided by Counsel as to the appropriate orders to be made as to the commencement dates of the sentences in order to achieve my sentencing intention.
39 Subject to the above I direct that:
· The sentence which I have imposed as to Charge 2, which is the State sentence, should commence today.
· That the sentence which I have imposed with respect to Charge 1 which is the Commonwealth sentence should commence six months from the start of the commencement of the State sentence.
40 I declare the period of 9 days as time served to be deducted administratively.
41 But for your plea of guilty I would have imposed a period of imprisonment of 4.5 years respect of which I would have fixed a minimum period 3 years.
42 I am satisfied that by reason of these convictions, it is appropriate that I make an order that you are to be recorded as a Registrable Offender pursuant to the provisions of the Sex Offenders Registration Act for 15 years.
43 You must report your personal details to the Chief Commissioner of Police annually during that period. You must do so after your release from custody. Details in writing of your reporting conditions will be served upon you shortly. I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.
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