Director of Public Prosecutions v Torrens

[2016] VCC 2074

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01191

DIRECTOR OF PUBLIC PROSECUTIONS

v

MALCOLM TORRENS

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JUDGE:	HIS HONOUR JUDGE BOURKE M.P.
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 October 2016
CASE MAY BE CITED AS:	DPP v Torrens
MEDIUM NEUTRAL CITATION:	[2016] VCC 2074

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T Crouch
For the Accused	Ms N Kaddeche

HIS HONOUR: 

1Malcolm Torrens, you are to be sentenced for one charge of using a carriage service to access child pornography under the Commonwealth Criminal Code, and one charge of possessing such child pornography under the Victorian Sentencing Act.  The maximum sentences are 15 years imprisonment for the Commonwealth offence and five years imprisonment for the state offence.  You pleaded guilty before me on 29 September. 

2When interviewed by police on 6 February 2015 you made admissions; but also gave the explanation for your acquisition of this material that it was part of longstanding efforts by you to stop such being disseminated.  For example, you claimed that you had tried to report such material and users to relevant authority and electronic site providers.  I do not accept the explanation.   There was delay after interview until January 2016 when you were charged by summons.  Committal went by hand-up brief in July and you pleaded guilty.  The matter was then listed for plea hearing in this court. 

3You receive the benefit of your plea of guilty and that level of cooperation, both from an early stage.  You have facilitated the interests of justice and your plea saves the cost and difficulty of trial. 

4At your plea hearing, which ran on 29 September, Mr Crouch for the Crown tendered a written Crown opening.  He provided to me hardcopy samples of the pornographic material.  They have been returned to the informant.  Ms Kaddeche for you tendered the forensic psychological report of Dr Dion Gee,  dated 31 August 2016, and a short notation of your medication by your general practitioner, Dr Hamid Derakhshani. 

5The circumstances of your offending are stated in the tendered Crown opening, which is Exhibit A.  My own summary may be short.  In January 2014, Australian Federal Police identified that your internet address was accessing child pornography.  Victoria Police began an operation and on 6 February 2015 raided your home in Mooroolbark,  where you live with your mother and another person.  A search of your computer system led to removal of this material. 

6Paragraph 6 of the Crown opening states:

"A search of the premises was conducted which resulted in the removal of a number of exhibits, including two Seagate external hard drives, one Maxtor hard drive, one Samsung tablet, one Lexar USB drive, one Compaq laptop, and an HP All-in-One computer."

7Analysis revealed a large number of pornographic images (21,876) and a lesser number of videos (294).  Most recognised categories of child pornography were represented.  This is set out in numerically in the Crown opening at paragraph 11.  Images ranged from poses without sexual activity to penetrative activity, sadism, bestiality  or child abuse.  The majority were at the lower end.  Ages range from very young, toddlers, to teenage.  The samples I viewed were confronting images of children being graphically and badly exploited.

8As to Charge 1, you have pleaded guilty to accessing this material over a ten-month period.  As to Charge 2, when raided by police in February 2015, you had kept and possessed a large quantity of it, stored in seven separate devices.  I accept the proposition that it was not stored in an ordered or sophisticated way.  There is no evidence that you further disseminated it or intended to do so.

9You are a 47-year-old man who had one very old court appearance in Queensland for burglary.  It is not relevant to this sentence.  You moved to Melbourne in about 2001.  Your parents had separated when you were about 11.  Your father died three or four years ago.  You have almost always lived with your mother.  Dr Gee's report states the suggestion of some child protection involvement in Queensland at mid-teenage,  poorly remembered by you.  You have four siblings, two in Melbourne and two in Queensland.  There is little contact.  Your mother is your only real support.  Her health is affected by having suffered a stroke. 

10Schooling was hampered by hearing difficulties.  You left during year 11.  You seem to have been inconsistently employed and drink was a problem, but you have recovered from that.  For the last eight years, you have worked as a warehouseman.  You have never been in a relationship and present as having a solitary and perhaps lonely life. 

11To my mind, Dr Gee's psychometric testing has not led to many consistently clear findings.  In a long report, there are suggestions or stated indicators of personality disorder, some traits of psychopathy  "well below the established cut-off"; at one point, presentation of  "schizoid personality disorder."  I am not complete.  He finds no major mental health disorder and finds against paedophilic or paraphilic disorder.  You present as of below average intellect. 

12As to future risk, it is, he finds, low to moderate for sexual violence and, although somewhat tentatively, low risk for what he terms "internet-only offending".  Given the level of your offending, your life situation  and what you put to police about why you collected such a large quantity of this material, I find this surprising.  However, I claim no scientific expertise in the matter.  There is a need for psychological assistance, including that seeking to rehabilitate you from this kind of offending. 

13This is serious offending.  Although perhaps seen as a passive activity by perpetrators, a view of the material brings home the high level of cruel exploitation, its disregard for the innocence of children,   and our duty to nurture and protect them.  This offending supports a sinister market and the images are permanent representation of what has been done to them. 

14Such circumstances in your case make relevant the sentencing purposes and considerations of deterrence, both general and specific, your moral culpability, denunciation of the offending, and the need for proportionate punishment.  General deterrence is a particularly important sentencing purpose.  Your sentence must include a component of immediately-served imprisonment. 

15I take into account moderating factors.  They include the following.

16(1)  Your plea of guilty and cooperation.  Your explanation to police, which you do not seem to abandon, speaks against truly insightful remorse.

17(2)  Your personal history and circumstances.

18(3)  Your lack of relevant criminal history.  This is relevant to prospects for rehabilitation.  That will depend heavily on engagement in programs and assistance related to this offending.  Intuitively, I do see you as a person more likely than others to be deterred by this proceeding and punishment from future internet offending. 

19(4)  The matter of delay has been raised, particularly as to that between interview and charge.  That was a period of almost one year.  The total period since is almost 21 months.  I accept that this period has been one of stress and anxiety.  As I raised earlier, you have waited for about one month for this sentence since plea hearing.

20The two offences are closely related, although, they have some difference in nature.  There should only be modest cumulation.  You should be released from prison on an order equivalent to a Community Corrections order, aimed at supporting your mental health and rehabilitation.  You are found suitable for a Community Corrections order.

21After considering what I see to be the relevant matters, I sentence you as follows.  Stand up, please.  On Charge 1, you are sentenced to ten months imprisonment to commence two months from today.  On Charge 2, you are sentenced to four months imprisonment to commence today.  There is no section 18 or equivalent section declaration.  Is that right?

22MS KADDECHE:  That is correct.  As Your Honour pleases.  Sorry.

23HIS HONOUR:  Is the right way to express in this way - that Mr Torrens is to be released at the end of that time on a recognisance to be of good behaviour, or do I do it in some other way?  It is difficult, because that's the end of his sentence.

24MR CROUCH:  Yes.  Your Honour, I think the clearest way to do it would just be - if you look at the wording of the order, it says, "To be released after serving a certain period of time."  I think the clearest way would be after serving whatever the amount of time is - the total period of imprisonment is the clearest way.

25HIS HONOUR:  All right.  After serving a period of 12 months from today, you are to be released on a recognisance under section 20(1)(b) of the Commonwealth Crimes Act, upon giving security of - no, you do not give security - by recognisance of $2,000 to comply with the following conditions.  It should be a two-year bond. 

26The conditions are, therefore, that you be of good behaviour for a period of two years; that you are to be under the supervision of Victorian Community Correctional Services and the Sex Offender Management part or his or the deputy - I will state it in its formal way - that you are to be under the supervision of the Deputy Commissioner of Community Correctional Services - Victoria, I take it - and the Sex Offender Management or his or her nominee for two years; that you are 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 of Community Correctional Services and Sex Offender Management or a nominee - (d) needs to be in some way modified - that you report to the relevant - and we will work that out - a relevant Community Corrections office or centre by 4 pm within two working days of release from prison.

27MS KADDECHE:  Your Honour can use the Community Corrections orders - the Lilydale office.

28HIS HONOUR:  Yes.  Thank you.  It will be the Lilydale office - that you are to report to and receive visits from Community Corrections.  You are to notify a specified Community Corrections centre of any change of address or employment within two clear working days.  You are not to leave Victoria, except with the permission of Community Corrections, and you are to obey all lawful instructions and directions of Community Corrections officers.

29That document can be prepared. Take a seat please. I need to add some other things. Under section 6AAA of the Sentencing Act, I indicate this - that had you not pleaded guilty, I would have imposed a sentence of three years with a minimum period of two years. Is there an application for anything else? I think I was told that there is mandatory registration with the Sex Offenders Registration Act or system reporting period to be 15 years. Those documents need to be prepared. Is there an application for a forensic sample?

30MR CROUCH:  There is not, Your Honour.  There is an application for forfeiture; it is of all of those devices.

31HIS HONOUR:  Yes, all right.  There is often a difficulty here - sometimes a difficulty.  What is your client's position?  He does not want the offending material back, but does he want the ‑ ‑ ‑

32MS KADDECHE:  What I have discussed with the prosecution is that all those items that have been sought had the offending material on them.

33HIS HONOUR:  I will make the forfeiture order.  Why is there not a forensic sample application?

34MR CROUCH:  Not my instructions, Your Honour.

35HIS HONOUR:  I would presume it is a - no, it may not be an offence that is scheduled for it.

36MS KADDECHE:  Not only that, Your Honour, it is perhaps the lack of priors and seriousness of the offending.  It is just one matter that Your Honour would have to take into consideration.

37HIS HONOUR:  You might not do it.  If no application is made, I am not going to make it.

38MS KADDECHE:  There is no application.

39HIS HONOUR:  All right.  Mr Torrens is to be registered under the Sex Offenders Registration.  It needs to be stated in the records of the court, and that will happen.  We need to prepare the following documents: the recognisance order.  Is my recollection on that - that the recognisance order is often, if not usually, used as an equivalent to parole release?  The way I have structured the order does not offend that?

40MR CROUCH:  Yes, Your Honour.  It is essentially, in substance, a suspended sentence ‑ ‑ ‑

41MS KADDECHE:  Partially.

42MR CROUCH:  ‑ ‑ ‑ a partially suspended sentence, similar to old (indistinct) regime, which we say (indistinct).

43HIS HONOUR:  Yes.  You are satisfied I have stated it in the correct way.

44MR CROUCH:  Yes, Your Honour.

45HIS HONOUR:  Yes, all right.  Thank you. 

46MR CROUCH:  I apologise, Your Honour.  I missed the 6AAA indication that Your Honour gave.

47HIS HONOUR:  Three years with a minimum period of two years.

48MR CROUCH:  Thank you, Your Honour.

49HIS HONOUR:  As a total effective sentence.  I should fill out this order, I suppose.  That is the best thing, is it?

50MR CROUCH:  Your Honour, I have got a copy I have prepared, just with everything that Your Honour has said.

51HIS HONOUR:  All right.  That is good.

52MR CROUCH:  If that is of assistance.

53HIS HONOUR:  Thank you.  You can hand that to my associate.  Should anybody fill out the second box on the second page?  "The order has been issued because the defendant, Malcolm Torrens, was charged with the following federal offence.  The court has sentenced the defendant to a term of-", ten months imprisonment, I take it, or do we ignore that?  See the second box?  I will hand it down to you.  I will just mark it; I will put a cross in pencil next to it, Mr Crouch.

54MR CROUCH:  Thank you, Your Honour.  I apologise for that.

55HIS HONOUR:  I do not know whether you fill it out or not.

56MR CROUCH:  You are quite right, Your Honour.

57HIS HONOUR:  I think it would make most sense if you put 12 months as the imprisonment sentence, even though it is ten months for the Commonwealth sentence.  Otherwise, it does not make sense.

58MR CROUCH:  Yes.  I will put it in in that way.

59HIS HONOUR:  Yes.

60MR CROUCH:  I thought about that and it is not clear to me, but I think that is best.  Now I need to ask your client whether he agrees to the recognisance.

61MS KADDECHE:  Yes, Your Honour.  Does Your Honour wish me to go back to ‑ ‑ ‑

62HIS HONOUR:  Yes, if you think that would be helpful.  We will give the document to you.

63MS KADDECHE:  Thank you, Your Honour.

64HIS HONOUR:  Then I will have to ask him formally.

65MS KADDECHE:  Thank you, Your Honour, for that time.

66HIS HONOUR:  Thank you.  Just stand for the moment please, sir.  You have had explained to you the conditions of your release on that bond (indistinct) and you understand and agree to them.

67OFFENDER:  Yes.

68HIS HONOUR:  You would have heard me read them out when I formally sentenced you.  That means I sign it, and then we'll get you to sign it as well.  As well, I must cause you to be placed on something called a Sex Offenders Registration.  There is no choice in it.  It means that you have to report for 15 years and supply certain information.  We are about to give you a document which explains that to you, and there is provision for you to sign another document simply recognising that you have received the first or longer document.  You can sign it or not as you chose. 

69First of all, my associate is going to get you to sign the order, the bond order we have just spoken about.  If you could sign that where she indicates.  That having been done, if you wish, you can sign the other document saying you have received the Sex Offenders Registration.  If you could hand in the Sex Offenders Registration material.  That is for you. If you wish, you can sign that.  You do not have to sign it.  Contact will be made by the relevant people in prison, telling you what you must do.  Is there anything else I need to do?

70MR CROUCH:  No, Your Honour.

71HIS HONOUR:  Thank you for your assistance today, both of you.

72MS KADDECHE:  As Your Honour pleases.

73MR CROUCH:  Thank you.

74HIS HONOUR:  Before Mr Torrens gets taken into custody, I notice that his mother is here today to support him.  If you wish to speak to him, you may do so, but for a short time please.

75MS KADDECHE:  If Your Honour pleases.

76HIS HONOUR:  Would you supervise that?  I will wait on the Bench.

77MS KADDECHE:  I can do that now?

78HIS HONOUR:  Yes.

79MS KADDECHE:  As Your Honour pleases.

80HIS HONOUR:  Then Mr Torrens must be taken into custody.  Mr Torrens, thank you, sir.  Mr Torrens can be taken into custody now.  Thank you for your assistance, the both of you.

81MS KADDECHE:  As Your Honour pleases.

82MR CROUCH:  As Your Honour pleases.

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