Director of Public Prosecutions v Townsend

[2017] VCC 1559

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00878

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARY TOWNSEND

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2017
DATE OF SENTENCE:	27 October 2017
CASE MAY BE CITED AS:	DPP v Townsend
MEDIUM NEUTRAL CITATION:	[2017] VCC 1559

REASONS FOR SENTENCE
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Subject:Accessing child pornography using a carriage service; knowingly possess child pornography

Catchwords:
Legislation Cited:  Crimes Act (Cth) 1914; Sentencing Act 1991

Cases Cited:Boulton v The Queen [2014] VSCA 342; DPP v Garside [2016] VSCA 74

Sentence:CCO 2 years 180 hours community work sex offender treatment program

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Keks
For the Accused	Mr A. Pyne

Pages 1 - 9

 

 

HER HONOUR:

Charges

1Gary Townsend, you have pleaded guilty to one charge of accessing child pornography material using a carriage service, contrary to s.474.19(1A)(i) of the Criminal Code of the Commonwealth, for which the maximum period of imprisonment is 15 years. 

2You have also pleaded guilty to one count of knowingly possess child pornography, contrary to s.70(1) of the Crimes Act of Victoria, for which the maximum period of imprisonment is ten years.  The circumstances of your offending are set out in the prosecution opening, which will form part of this sentence. 

Circumstances of offending

3In summary, on 9 February 2010, police officers executed a search warrant at your residence.  Forensic analysis of a computer and mobile phone seized from you determined that you had accessed child pornography material and that you had possessed child pornography on that day.

4With respect to Charge 1 of access child pornography, analysis of your mobile phone revealed, at the time of examination, a web page in the Google Chrome web browser displaying text in the form of a story, material constituted child pornography, classified at category 6; the story related to a 15-year-old boy grooming his five-year-old sister. 

5With respect to Charge 2, analysis of your computer revealed that it contained a total of five files that constituted child pornography.  Four of the images are classified as category 1 child pornography, in that there is no sexual activity.  These images showed young prepubescent girls in poses exposing their genital area. 

6The fifth image is classified as category 2 child pornography, involving sex acts between children.  The image shows a prepubescent female child and a male child, each approximately eight years old, standing on a bed, facing each other and embracing, their genitals pressing together and the female child's buttock is exposed. 

7You have a relevant prior conviction for such offending. On 28 February 2011 at Dandenong Magistrates' Court, you were sentenced to two months' imprisonment together with a community corrections order for two years on a charge of knowingly possess child pornography.  You also have two convictions for failing to comply with reporting conditions.

Personal circumstances

8Turning to your personal circumstances, you were born in Leeds in 1958, so you are 58 years old.  You came to Australia in 1971 with your family and initially lived in Maribyrnong before moving to Northcote.  You left school early to pursue and apprenticeship in cabinet making but failed to complete that trade because they could not afford to keep you on.  You went on to work for a number of other industries, including sign making, spray painting, air conditioning and the funeral industry. 

9You have no issues with drugs or alcohol and you have not been diagnosed with a mental illness.  You have had two significant relationships with women in your life, one when you were very young and another one with a woman whom you met online, which lasted for approximately 12 months.  You currently live with your brother in Pakenham and you receive an allowance from Centrelink. 

Defence submissions

10While acknowledging the serious nature of your offending, your counsel submitted that it was possible to meet the purpose of punishment by imposing a community corrections order. 

11In this respect, he relied on a case called Boulton v The Queen[1] and on the following matters: 

·your plea of guilty, which you had entered at the earliest possible opportunity;

·that the number of pornographic files you possessed was at the lowest end for this type of offending;

·the images possessed were in the lowest category for this type of offending; that there was no evidence the material was for sale or further distribution or that you profited from the offence;

·that the number of children depicted in the images was six which, once again, was at the lower end for this type of offending;

·that the possession of the material was for a single day.

[1] [2014] VSCA 342

12Your counsel submitted that your prospects for rehabilitation was still fair.  While you had a prior conviction for possessing child pornography that had been six years ago and for a far greater number of images.  He relied on the fact that you had lived an otherwise productive life working in difficult industries. 

Prosecution submissions

13The prosecution, however, submitted that your prior offending reduced your prospects of rehabilitation and that a custodial sentence was the appropriate sentencing disposition. 

Sentencing remarks

14In sentencing you, in relation to the Commonwealth matter, I have taken into account the matters set out in s.16A(2) of the Commonwealth Crimes Act. With the State offences, I have taken into account the factors set out in s.5(2) of the Sentencing Act.

15Your plea of guilty was entered at the earliest opportunity; you are entitled to a discount as it saves the community the cost and inconvenience of a trial. 

16In assessing the objective seriousness of your offending, I have taken into account the factors that have been usefully set out in a case of DPP v Garside[2]. 

[2] [2016] VSCA 74

17With respect to Charge 2, the prosecution accepted that the number of files possessed by you was at the lowest end for this type of offending.  The nature and content of the images on the file are in the two lowest categories for child pornography and, as I have mentioned before, the number of children is at the lower end.  However, I note that the subject matter of Charge 1 was in the highest category. 

18In sentencing you, I have also taken into account that there is no suggestion that the possession of the material was for sale or further distribution, that the period of the possession was for one day and that there is no evidence that you stood to profit. 

19The authorities make it very clear that access to child pornography is regarded as serious and morally depraved conduct that is harmful for children, so that a term of immediate gaol is ordinarily to be expected.  In submitting that a gaol sentence was appropriate in this case, the prosecution relied on a table of sentences in child pornography cases where the Court of Appeal had found that a community corrections order did not sufficiently meet the need for just punishment and general deterrence.

20However, the principle that imprisonment is a last resort is reflected in both the Commonwealth sentencing and State sentencing regimes.  Each case has to be decided on its own circumstances.  In the cases relied on by the prosecution, there was a significantly greater amount of pornographic material downloaded and the category of the images were higher. The images were also downloaded for a longer period. 

21It seems to me that the main thrust of the prosecution case is that specific deterrence is important in your case because of your prior offending.  However, you have already been punished and sentenced for your prior offending and it is not my job to sentence you again for what happened in the past.  I have to look at the facts and circumstances of this particular offending before me. 

22After assessing the objective seriousness of your offending, I am satisfied that it is at the lower end of the scale for child pornography offences and that it is possible to meet the purpose of just punishment and general and specific deterrence by imposing a community corrections order. 

23I had you assessed for such an order and you were found to be suitable.  As well as a work component, another feature of the order will be that you complete the sex offender's program.  At your plea hearing, your counsel informed the court that you had not completed such a program on your previous community corrections order.  This was confirmed by the community corrections assessment, which reported that you were found unsuitable for the sex offender group based treatment, as you were assessed as being at a low risk of reoffending.  Due to your reoffending, you are now categorised as having a high risk of reoffending.  The sex offender program is an important rehabilitation tool. 

24By viewing child pornography images, you are encouraging a despicable trade where young children are exploited by adults for the gratification of adults and I denounce your conduct.

25The community corrections order will not be an easy option for you.  The length of the order and the number of hours you will be performing of work will reflect the seriousness with which the courts regard offending such as yours. 

26The offences on the indictment are class 2 offences and under the Sex Offender's Registration Act, they are registerable offences.  Upon sentencing, you will be a registerable offender as defined in the act, which means that you will be required to comply with reporting obligations for the remainder of your life. 

27On Charge 1 of access child pornography material and Charge 2 of knowingly possess child pornography, you are sentenced to community corrections order for two years.  The conditions of the order will include that you be supervised that you perform 180 hours of community work and that you attend appropriate sex offender treatment programs.

28On Charge 2 of knowingly possess child pornography you are sentenced to a community corrections order in the same terms as that imposed on Charge 1, to be served concurrent with that order.

29But for you plea of guilty, you would have been sentenced to 18 months, to serve 12 months. 

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