Director of Public Prosecutions v Walden

[2024] VCC 1490

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00025

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUSTIN WALDEN

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JUDGE:	HER HONOUR JUDGE HAWKINS
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2024
DATE OF SENTENCE:	24 September 2024
CASE MAY BE CITED AS:	DPP v Walden
MEDIUM NEUTRAL CITATION:	[2024] VCC 1490

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE

Legislation Cited:  Criminal Code (Cth) Criminal Code (Cth) s 473.1.,

s474.22A(1),

Cases Cited:DPP v Garside [2016] VSC 74; R v Verdins & Ors [2007] VSCA 102; R v Van Boxtel (2005) 11 VR 258; Bugmy v The Queen [2013] HCA 37; DPP (Cth) v Watson [2016] VSCA 73

Sentence:  9 months imprisonment with release forthwith upon giving security by recognisance without sureties in the sum of $1,000 and to abide by conditions for 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Z. Hough	Office of Public Prosecutions
For the Offender	Mr D. Care	James Dowsley & Associates

HER HONOUR:

1Justin Walden, you have pleaded guilty to one charge of possessing or controlling child abuse material, which carries a maximum penalty of 15 years.[1]

[1]Criminal Code (Cth) s 474.22A(1).

2Whilst you have a prior criminal history, it is not one which includes prior sexual offences.

3The circumstances of your offending are set out in the Summary of Facts for Sentence Indication Hearing dated 14 August 2024, the accuracy of which you accepted through your counsel.[2]  

[2] Summary of Facts for Sentence Indication Hearing dated 13 August 2024.

Nature and Gravity of your offending

4On 19 September 2019 police attended your premises in Fairfield and located a mobile phone in your possession. You provided the passcode to enable police to access the phone.

5A preliminary review of the phone by police identified an active Google drive account containing 533 child abuse images.[3]

[3] Criminal Code (Cth) s 473.1.

6331 of those images were categorised as Category 1, being images depicting erotic posing of children with no sexual activity. One such image is of a naked prepubescent female aged about six lying naked on the floor with her legs lifted and spread, focusing on her vagina and anus.

7Five images were Category 2, being images of solo masturbation by a child. One such image shows a naked pubescent female aged about 14, holding the penis of a naked pubescent male aged about 16.

867 were Category 3, being images of non-penetrative sexual activity between children and adults. One such image shows a pubescent female aged about 12 wearing a pink blindfold and licking the penis of a naked adult male.

977 images were Category 4, being images of penetrative sexual activity between children only or adults and children. One such image is of an adult male anally penetrating with his penis, a semi-naked prepubescent female aged about three while she was on her hands and knees.

10Seven were Category 5 images of bestiality, sadism, humiliation and torture. One such image is of a naked prepubescent female aged about 10, performing oral sex on a dog.

1167 were Category 6 images of Anime, cartoons or comics depicting children engaged in sexual activity. One such image is a cartoon of a naked adult female masturbating a naked prepubescent male aged about six while the male ejaculates.

12In summary, the majority of the child abuse images depicted children in sexualised poses but did not depict sexual activity. However, those that did were vile, degrading and extremely harmful to the children involved.

13Any type of child pornography offending is recognised to be serious.[4]. Child abuse material has the capacity to normalise and facilitate sexual exploitation of children. However, you possessed a relatively low number of images and there is no evidence of further distribution.  This offence type covers a very broad range of types and quantities of images. Your conduct is far from the worst example of offending that is commonly charged under this provision. I find that your conduct sits at the low mid-range of seriousness for offences of this nature.

[4] DPP v Garside [2016] VSC 74 at [62].

Personal Circumstances

14Mr Walden, you are now 49 years old. You identify as an Indigenous man, however, have had limited contact with your father or your mob who come from Halls Creek in Western Australia. You were born in Melbourne to parents who were not in a relationship. Your childhood was unstable and you frequently ran away from home.

15Growing up without a father figure was difficult for you.  You were subjected to physical abuse by your mother. Your twin sister tragically passed away when she was 22 months old. You felt responsible and the memory of her death has continuously plagued you, contributing to bouts of depression from a very young age.

16You relocated to Western Australia at age 14 where you lived with a friend and then subsequently in a youth shelter. You returned to your mother’s home at the age of 15 and moved in and out of her home until you were 20 years old. In 2013, when you were 39 years old, you returned home to look after your mother who required extensive nursing care. You cared for her until her condition worsened and she moved into a nursing home.

17You attended Heidelberg Technical School until Year 8. You struggled at school, principally due to dyslexia, irregular attendance and behavioural issues.

18You have worked in various positions but you sustained a serious workplace injury at your job unloading containers when a tonne of steel capping fell on you.

19In that incident you sustained an injury to your left knee and leg. You still experience considerable pain and find it difficult to walk. This injury was exacerbated when you fell down a flight of stairs during a period of incarceration in 2020. Further X-rays after this incident revealed pre-existing fractures in your spine. Your physical health issues have required you to take prescription medication daily.

20You commenced drinking alcohol as a teenager. You were introduced to illicit substances by family and friends when you began consuming cannabis from the age of 11 followed shortly thereafter by amphetamines at age 12. You commenced intravenous use of heroin at age 16 and used until a few years ago.

21In 2019 you sustained a near fatal overdose from methadone and an antidepressant, highlighting the severity of your illicit substance addiction. The only drug rehabilitation program you have undertaken is the drug assessment and treatment that was required pursuant to a community corrections order imposed in 2012.

Psychological/Psychiatric Reports

22The forensic psychological report of Gina Cidoni dated 9 August 2024, outlines your documented history of complex mental health issues. Her clinical evaluation concludes that you have post-traumatic stress disorder (PTSD) and borderline personality disorder (BPD).[5]

[5] Psychological Assessment Report of Gina Cidoni dated 9 August 2024.

23Ms Cidoni documents your history of self-harm and suicidal ideation.  Your conditions are complex, chronic, and likely affect your emotional stability, interpersonal relationships and overall functioning. Your drug use has intensified the symptoms of your mental health issues. Ms Cidoni opines that:

'…It is common for individuals with BPD and PTSD to turn to substance use as a coping mechanism, potentially worsening both disorders. In Mr Walden’s case, it is likely that the drug use has compounded the challenges of managing these mental health conditions, making recovery and day-to-day functioning even more difficult'.

24Ms Cidoni considers that you have a low risk of committing further child pornography offences, and of sexual recidivism more generally, and that your prospects for rehabilitation are 'cautiously optimistic' but depend on your willingness to accept responsibility for your offending and actively engage in comprehensive therapeutic interventions.

Plea of Guilty and remorse

25You pleaded guilty following the sentence indication I gave you in this matter.  However, you show little remorse for your offending, telling Corrections recently that you had no idea of how the material came to be located on your phone.

26I will, however, take into account that your plea of guilty has avoided the need for a trial and the use of public resources that would have otherwise been spent conducting that trial.

Criminal History

27I have already noted that whilst you have a criminal history, it does not contain any other child abuse material offences or other sexual offending.

Burden of Imprisonment

28Ms Cidoni opines that your borderline personality disorder and post-traumatic stress disorder would present you with multiple difficulties in the custodial setting.  Your physical injuries were exacerbated during a previous period of incarceration and continue to cause you pain and difficulty with movement.

29I accept that your mental and physical impairments would cause a term of imprisonment to weigh more heavily upon you than it would for a person without your physical and mental health challenges. The principles in Verdins’[6] and Van Boxtel’s[7] cases have application to reduce your moral culpability accordingly.

[6] R v Verdins & Ors [2007] VSCA 102.

[7]R v Van Boxtel (2005) 11 VR 258.

Bugmy Principles

30Your background of childhood abuse and deprivation and early introduction to illicit drugs also give rise to the application of the principles in Bugmy’s case to further reduce your moral culpability for this offending.[8]

[8] Bugmy v The Queen [2013] HCA 37.

Other sentencing issues

31I have regard to the relevant provisions of Part 1B of the Crimes Act 1914 (Cth) and in particular the 'instinctive synthesis' of matters which I must have regard to pursuant to s16A. Having considered all other available sentences I consider that no sentence other than one of imprisonment is appropriate in all the circumstances.

32There is a paramount importance in protecting vulnerable children from sexual abuse. Such offending is easy to commit and hard to detect. In Watson’s[9] case the Court of Appeal emphasised the gravity of offences relating to the online exploitation of children because such victims are highly vulnerable and easily preyed upon. The prevalence of such offending is such that significant weight must be attached to general deterrence in such cases.

[9]DPP (Cth) v Watson [2016] VSCA 73 at [33]

33However, given your low risk of sexual reoffending, community protection is of less importance than might have otherwise been the case. Your rehabilitation, despite your age, remains an important sentencing consideration.

34At the sentence indication hearing I indicated that if you were to enter a plea of guilty I would impose a term of imprisonment with immediate release on a recognisance release order (RRO), that is, if you sign that order you will be released from custody forthwith. Your ongoing abuse of alcohol and drugs (both prescription and otherwise), has contributed to your offending.  Accordingly, I had you assessed by Community Corrections for your suitability to undertake therapeutic programs as part of any recognisance release order I will impose upon you in this case.

35You engaged in that assessment but did not consent to the imposition of the recognisance release order, citing your health, refusal to stop using drugs, refusal to engage with treatment and refusal to complete community work due to your mobility issues, as barriers to compliance with such an order.

36Given your lack of insight into your alleged offending and unwillingness to engage in rehabilitation, specific deterrence remains a significant sentencing consideration, but given the extensive report of Ms Cidoni and your lack of prior sexual offending, I do not consider that this includes the need for you to participate in a sex offenders program, nor do I intend to require you to perform unpaid community work due to your physical limitations.

37However, your overall risk of reoffending will be reduced and the community protected if you engage in drug and alcohol treatment and mental health treatment. I intend to include your participation in such treatment as conditions of the recognisance release order I will impose in your case. I am not setting you up to fail, I have regard to your personal circumstances and medical history, Mr Walden, I will only include conditions which I believe you can realistically complete.

38There is no legislative requirement that you consent to the making of this recognisance release order, but should you choose to not sign it then you will be required to serve the entirety of the sentence I will shortly impose. It is the signing of the recognisance release order which provides the mechanism that immediately releases you.  Ultimately, though, whether you choose to sign the recognisance release order or not is a matter for you.

Sentence

39Justin Walden, I sentence you as follows:

40On Charge 1, possessing child abuse material obtained or accessed using a carriage service, that is a mobile phone, you are, with effect this day, convicted and sentenced to nine months' imprisonment, but order that you be released forthwith without being required to serve that term upon giving security by recognisance without sureties in the sum of $1,000 on conditions that you will during the period of 12 months from today:

(a)   be subject to the supervision of a probation officer for a period of 12 months;

(b)   obey all reasonable directions of the probation officer;

(c)   not travel interstate or overseas without the written permission of a probation officer;

(d)   undertake such treatment or rehabilitation programs for drugs, alcohol and mental health that the probation officer or Corrections officer reasonably directs;

(e)   be of good behaviour;

(f)    you will be required to report to the Reservoir Community Corrections centre located on the Ground Floor at 909 High Street, Reservoir, within two clear working days from today;

(g)   you will also be required to report to, and receive visits from, a Community Corrections officer or officers; and

(h)   to notify the officer of any change of your address or employment within two clear working days after the change.

Section 6AAA

41I indicate, Mr Walden, that had you pleaded not guilty and been found guilty after trial in respect of this matter I would have sentenced you to a term of 18 months' imprisonment with a non-parole period of 12 months.

42Charge 1 is a Class 2 offence under the Sex Offenders Registration Act in Victoria and therefore is a registrable offence.

43You will be required to comply with reporting conditions under that Act for a period of eight years.

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