Director of Public Prosecutions v Warren
[2019] VCC 72
•24 January 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01112
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| MICHAEL JOHN WARREN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August 2018 | |
DATE OF SENTENCE: | 24 January 2019 | |
CASE MAY BE CITED AS: | DPP v Warren | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 72 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing
Catchwords: Access child pornography – possession of child pornography – no prior criminal convictions – early plea of guilty – excellent rehabilitation prospects – non-custodial sentence imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Grant | Commonwealth Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr P. J. Smallwood | Doogue & George |
HER HONOUR:
1 Michael John Warren, you have pleaded guilty to one charge of using a carriage service to access child pornography (Charge 1), contrary to s.474.19(1)(a)(i) of the Criminal Code (Cth), and one charge of knowingly possess child abuse material (Charge 2), contrary to s.51G(1) of the Crimes Act 1958 (Vic).
2 The maximum penalties for the offending in respect to the first charge - using a carriage service to access child pornography - is 15 years’ imprisonment, and in respect to the second charge of knowingly possess child abuse material it is 10 years’ imprisonment.
3 Those maximums reflect the seriousness with which Parliament considers this offending and those maximum penalties are used as a yardstick for sentence.[1]
[1]Markarian v R (2005) 228 CLR 357; [2005] HCA 25
4 In respect to Charge 1 you are to be sentenced under the Commonwealth sentencing regime and I shall proceed to apply the terms of Part 1B of the Crimes Act 1914 (Cth). The governing principle under s.16A(1) of the Crimes Act (Cth) is the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence. In formulating the appropriate sentence I must consider matters identified in s.16A(2) of the Crimes Act to the extent that they are relevant and known to the Court.
5 In respect to Charge 2 I shall proceed to sentence you and apply the principles set out in the Sentencing Act 1991 (Vic). I have had regard to the governing principles set out in s.5 of that Act and ultimately I must impose just punishment.
6 I will now proceed with the sentence. I will sentence you on the basis of the prosecution opening that was read at the plea hearing, and is exhibited. There was no issue taken in respect to the contents.
7 You accessed child abuse material on 29 November 2017. On that date your internet browser history on your Apple iPhone 6 showed that you had used a Russian-based photo sharing website known as 'Image Source' to access nine (9) Category 1 child pornography images, each of which image depicted the same girl, aged approximately 10 to 12 years of age, sitting on a chair wearing a short skirt, fishnet stockings, posing with her hands behind her head, and her skirt has been pulled up to show her underwear-covered crotch (Charge 1; accessing child pornography material using a carriage service).
8 On 29 December 2017 a search warrant was executed at your home and a number of electronic devices were seized. Analysis of those electronic devices were found to contain child abuse material (Charge 2; knowingly possess child abuse material).
9 Following analysis of the nine devices that were seized from your home, including an external hard drive, a USB stick, an Apple iPhone 6s, two Acer laptops, one Dell laptop, one Apple iPhone 4, one Apple iPhone 5 and an Acer Aspire, child abuse material was found, and that was later classified in accordance with the Categorisation Model of the Australian National Victim Image Library (ANVIL).
10 The following two tables summarise the number of images and videos in each category found on the seized devices.
Table 1: Images Device Category a B c d e f g h i 1: No Sexual Activity 30 10 14 84 1 40 23 107 76 2: Solo/Sex Acts b/n Child 6 2 - 24 - 24 1 - - 3: Adult Non-penetrative - - - 10 - 3 - - 9 4: Child/Adult penetrative - 1 - 30 - 8 - - 3 5: Sadism/Bestiality/Child Abuse - - - 5 - - - - - 6: Animated or Virtual 4 2 - 1 - 6 - - - Sub Totals 40 15 14 154 1 81 24 107 88 Total 524
Table 2: Videos Device Category a B c d e f g h i 1: No Sexual Activity - - - - - - - - - 2: Solo/Sex Acts b/n Child - 1 - - - - - - - 3: Adult Non-penetrative - - - - - - - - 1 4: Child/Adult penetrative - - - - - - - - - 5: Sadism/Bestiality/Child Abuse - - - - - 1 - - - 6: Animated or Virtual - - - - - - - - - Sub Totals 1 1 1 Total 3
11 In total there were 524 images and three videos.
12 Paragraphs 7 to 10 of the Crown opening particularises in detail selected descriptions of the types of images and their classification, and paragraph 11 of the Crown opening particularises what was included in the videos, and I have had regard to the content.
13 You were arrested and participated in a record of interview, during which you made certain admissions. You told police that you admitted to using Image Source generally. You told them your email account was [email protected], child pornography might include children under 10, but you had not really thought about it, and it would probably be people under 18 years of age. You denied having viewed child pornography and stated that you find all females attractive and declined to specify a lower age limit when asked.
14 A filing hearing in this matter was conducted on 5 January 2018 and a plea of guilty to the charges on the indictment was entered on 25 May 2018 at committal mention. The prosecution accept that it is a plea of guilty entered at the earliest stage.
15 Mr Smallwood, on your behalf, agreed that the offences on any view are very grave and concerning, and he submitted your conduct was serious, morally depraved and requires denunciation.
16 General deterrence is a paramount sentencing consideration for cases of this nature.
17 You are now 56 and you were 55 at the time of arrest. You are a man who comes before the Court with no prior convictions, no subsequent convictions, and no other charges pending.
18 I accept there is real utility in your plea. You entered a plea at the earliest stage in the proceedings. You avoided, therefore, the unnecessary expense and inconvenience of a trial being conducted. You have facilitated justice and your sentence will be discounted accordingly.
19 I am satisfied that you are very remorseful and have expressed appropriate disgust, embarrassment, and a real sense of guilt in respect to your conduct.
20 You have demonstrated that you are in the early stages of gaining insight into your offending behaviour. You sought treatment from Dr Hanife Guducu, clinical psychologist, who has been treating you since 5 July 2018.
21 In addition you were assessed for the purposes of the provision of a report by Dr Mathew Barth, a consultant psychologist, and I have had regard to his report dated 13 August 2018. You consulted him on two occasions; on 25 June 2018 and 24 July 2018.
22 Dr Barth considers that you are in the very formative changes of gaining insight into your offending. To your credit you expressed appropriate remorse for your behaviour to him and expressed a desire to avoid reoffending. He stressed the single most important need in your case is for you to participate in relevant specialist treatment to reduce your risk of offending in a like manner, and the sentence that I have formulated reflects that recommendation.
23 His recommendation is that the treatment should focus on enhancing your insight into the offence process, increasing your empathy for those depicted in the child abuse material, restructuring the deviant sexual arousal patterns inherent in your behaviour and implementing a detailed relapse prevention plan to reduce your risk of offending. Furthermore, treatment should also pay particular attention to improving your social skills so that you can cope more effectively with instances of conflict within your marriage.
24 He recommended psychological treatment to assist you to cope more effectively with periods of personal stress to enable you to develop coping and mood management skills, and to increase your awareness into your emotions.
25 He undertook a risk assessment of recidivism - that is repeat offending - for sexual offending, which entailed the detailed analysis of the factors outlined in his report.
26 A review of the historical factors in respect to you indicated, in his opinion, a low risk of repeat offending, and that assessment considered your age, previous participation in a sustained cohabitating relationship and the absence of any criminal history. His review of the dynamic risk factors indicated a slightly higher risk of repeat offending without treatment, and when considering dynamic features he assessed you as falling in the low-moderate risk range for sexual recidivism.
27 He noted your relatively stable behavioural adjustment in the community, including the absence of any history of antisocial behaviour or substance abuse, as being positive. On the other hand, he noted that your insight into your behaviour was very limited, you experienced ongoing intimacy relationship issues within your marriage and your offending behaviour indicated the presence of deviant sexual arousal patterns.
28 He did, however, highlight the protective factors that would contain your risk of repeat offending. He further indicated that your risk would be primarily reduced if you were to participate in a specialist offender treatment program. Participation in such treatment would be the single most important factor to contain your risk of reoffending, and that has been the recommendation made following assessment by you by the Specialised Offender Assessment and Treatment Services (SOATS).
29 Through your counsel, Mr Smallwood, you have indicated your willingness to participate in such a treatment program, and that is a positive factor that I have taken into account.
30 You have the ongoing support of your family and your wife, together with your daughter and your stepfather; each of whom have remained supportive of you and were present at the plea hearings.
31 I have had regard to the large bundle of reference material provided. There is consensus expressed that you are considered to be a loving, caring and generous person, always happy to help out others in need of support, and you have shown a great deal of remorse for what you have done.
32 One consequence of your offending behaviour is that you are no longer able to see your grandchildren, and that has caused you great anxiety.
33 Your conduct behaviour is said to be out of character. You are described as a very private person who prefers to be at home and to socialise with family members. In no way does your family condone what you have done, and they are willing to continue to support you, and to work with you, to enable you to continue in a more positive direction with your life.
34 As far as your personal history is concerned, you are the eldest of three children. You were predominantly raised around the Brunswick and Coburg areas. You have two younger half-brothers who were born from a relationship between your mother and your stepfather. You have never known your biological father. Your mother and your biological father separated shortly before you were born and you have always considered that your stepfather is your father.
35 You enjoy a very close relationship with your mother and she remains very supportive of you; notwithstanding that she is aware of this offending. Your relationship with your stepfather was described as being conflicted at times, but nonetheless he remains supportive.
36 You left school early in the context of being bullied both verbally and physically, and it is unclear whether you completed Year 10. Nonetheless, you have a good work history. You obtained casual employment as a factory hand and worked as a cleaner for some years. You joined the Army, but left because of your inability to cope with the demands. You have done gardening and maintenance work with the Broadmeadows Council. You undertook a course in horticulture and gained employment at a nursery, where you were involved with landscaping and selling and delivering plants. The employment with that business ceased when you were in your mid-30s due to mental health issues. You had active treatment from psychiatrists and counsellors and ultimately, in 2000, you were placed on a disability support pension because of your underlying mental health conditions and you have not participated in the workforce since.
37 You married at age 22 and with your wife you have three children. The marriage has had its difficulties and you have separated and reconciled on several occasions. You are not currently living with your wife. You are now living with your stepfather.
38 You disclosed to Dr Barth that you have, over the years, viewed pornography and used it as a sexual outlet; using various peer-to-peer sites. You now know that it is inappropriate to access this type of material. You told Dr Barth that you have since challenged the misguided thinking that culminated in your offending behaviour and you acknowledge that such material is illegal, and the viewing of such material is a crime.
39 There is no issue in terms of problematic alcohol or drug use.
40 In formulating the appropriate sentence I have had regard to all the matters that have been highlighted on your behalf by Mr Smallwood, and in mitigation I accept those matters that he put on your behalf.
41 I consider that your prospects of rehabilitation are reasonable, having regard to the way in which you have conducted yourself since being charged, and also the protective factors - namely your strong family support - with each of whom you have relationships that are supportive and ongoing. Your family members and friends are aware of your charges and the necessity for you to have treatment to address the underlying offending behaviour. You have expressed a willingness to engage in such treatment, and that, in part, has already started by reason of your participation in extensive psychological counselling, and also you have been open and frank with disclosures made in the past to Dr Barth, and other people who have interviewed you in relation to this offending.
42 You are developing insight so it is important that, for the future, you consolidate that progress.
43 I accept that you are a man who is of previous good character, however in cases of this nature good character is of lesser significance than otherwise. Nonetheless, it is still a relevant factor. You are a person who has reached the age of 55 years without any criminal offences being recorded, and that is a factor in your favour.
44 You have suffered a degree of extra-curial punishment arising from the fact that you have not been able to have contact or interact with your grandchildren since being arrested and charged. I accept that is significant for you, particularly having regard to the strong bonds that you developed over the years with your grandchildren.
45 The offending is serious, however it relates to one day only in respect to both charges.
46 In respect to Charge1 it relates to accessing nine images; Category 1 child pornography. I consider that the offending is at the lower end of the scale of seriousness for this type of offence.
47 In respect to Charge 2; having regard to the total number of images (524) and the total number of videos (3), and a categorisation of such, notwithstanding I consider such material is puerile and that the nature of the offending is serious. I still consider that the offending is also at the lower end of the scale of seriousness for this type of offending. I make that finding having regard to my extensive exposure to this sort of material over many years sitting as a judge.
48 You have been assessed as a low to moderate risk of future offending, and further, Dr Barth’s unchallenged evidence is, that by participating in the sex offenders treatment program that risk will be further reduced.
49
The pre-sentence clinical assessment report of Kiri Tsalparos dated
10 December 2018 confirms in her assessment you are low to moderate risk of reoffending, and she recommends case management through the Specialised Offender Assessment and Treatment Service, known as SOATS.
50 You have been assessed as being suitable for a Community Correction Order, and given the nature of your offending a condition for assessment and participation in the SOATS program is recommended.
51 In sentencing you there is a need to emphasise general deterrence. I have had regard to the nature and gravity of your offending and the criteria set out in R v Gent[2], by His Honour Judge Johnson. I note that it is accepted that none of the material in your possession was for the purposes of sale or further distribution and there is no evidence that you profited in any way from the possession of the child pornography material. I accept that it was in your possession for personal use.
[2][2005] NSWCCA 370 [99] (Johnson, McClellan CJ at Common Law and Adams J agreeing)
52 There is a real public interest in condemning such behaviour and stifling the provision and use of child abuse material. It is accepted that a sentence of imprisonment ordinarily is warranted for this sort of offending[3], however a sentence must be formulated having regard to the particular facts and circumstances of each case.
[3]DPP v Smith [2010] VSCA 215; R v Jongsma (2004) 150 A Crim R 386, 395; Hill v State of Western Australia (Unreported), WACA, 1 December 2008, [28] and the cases there cited; R v Booth [2009] NSWCCA 89, [48] (Simpson J); R v Sykes [2009] QCA 267; DPP v Groube [2010] VSCA 150, [24]; and DPP (Cth) and DPP v Garside [2016] VSCA 74
53 I have had regard to the fact that each of the charges are separate and distinctive forms of criminal behaviour.
54 I have also had regard to the cases that were referred to me by the prosecutor and defence respectively in terms of comparative cases, and I have had regard to them as guidelines and have used them as a yardstick, but ultimately I have formulated the sentence that I think is appropriate for the particular circumstances of your case and a sentence that reflects the actual criminality involved in the offending.
55 On your behalf Mr Smallwood sought a disposition that did not involve the imposition of a term of imprisonment to be immediately served.
56 On behalf of the prosecution Mr Grant sought a sentence of imprisonment to be immediately served for both charges, with a degree of cumulation being warranted. I had regard to all the matters set out in the prosecutor's written submissions.
57 Notwithstanding that I consider the offending here is at the lower end of the spectrum of seriousness that can be reflected in the behaviour that is often the subject of these charges, it is still serious; in particular in relation to the possession charges. The 524 images and three videos depicted very young victims. Some victims were aged as young as six or seven, shown exposing their genitals in a sexualised manner and involving acts of sexual intercourse with adults. There were multiple victims involved, aged from six or seven up to 17. The images are degrading and exploitative. Each victim, you must realise, has been sexually abused to produce such images, and it is important that steps be taken to ensure that there is no repeat of this offending in the future.
58 Ultimately, given the objective circumstances of your case and all the matters put in mitigation, I consider that dispositions that do not involve custodial sentences are warranted.
59 In relation to Charge 1, I consider that a monetary penalty is appropriate, having regard to my objective assessment of the offending, and in respect to Charge 2 all of the relevant objectives of sentencing – general and specific deterrence, denunciation, just punishment, protection of the community and rehabilitation - in your case can be served, in my view, by the imposition of a Community Corrections Order (CCO).
60 The guideline judgement of the Court of Appeal in the case known as Boulton[4] does applies with respect to Charge 2, and as was made clear in that case, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the cause of offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation,[5] and although as the order of seriousness of conduct increases the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open even in cases of very serious offending.[6]
[4]Boulton v The Queen (2014) 46 VR 308
[5] Ibid, 311[2]
[6] Ibid, 338[131]
61 I must impost just punishment in respect to Charge 2.
62 I will now make the formal orders, so I just ask that you stand.
63 In respect to Charge 1; access child abuse material, you will be convicted and fined $2,000. I grant a stay of two months in respect to the fine.
64 In respect to Charge 2 you will be convicted and sentenced to a Community Correction Order of two years duration with the special conditions that there will be supervision, assessment and treatment for mental health and offence specific program; namely Specialised Offender Assessment and Treatment Services program.
65 Upon conviction in respect to Charges 1 and 2 on the indictment, both those charges are Class 2 offences under the Sex Offenders Registration Act 2004 (Victoria), known as SORA, and are registrable offences.
66 Upon sentence you become a registrable offender as defined in the SORA legislation and you are required to comply with reporting conditions as set out in the Act, and in respect of two Class 2 offences you are required to report for 15 years.
67 Finally, in accordance with s.6AAA of the Sentencing Act 1991 (Victoria) I state that but for your plea of guilty in respect to Charge1 I would have imposed a fine of $3,000, and in respect to Charge 2 you would have been convicted and sentenced to two years’ imprisonment.
68 All right. I have signed the Community Correction Order. I note that you have had explained to you the core conditions and the special conditions that are to be imposed, and you have indicated through Mr Smallwood you are willing to consent to such an order being made and that you understand the effects and the conditions of the order, and also the consequences of any breach. That would lead to a contravention proceeding, which would subject you to further penalty for contravention. You would be liable to up to three months' imprisonment, and also you would have to come back before me and be dealt with in respect to the original offending, and any further offending if that is relevant.
69 I will ask that you sign the Community Correction Order and also acknowledge receipt of the notice of reporting obligations under the SORA legislation, and I just ask that your barrister, Mr Smallwood, help you with that.
70 MR SMALLWOOD: As the court pleases.
71 HER HONOUR: Thank you. All right. A copy of the Community Correction Order can be provided to Mr Warren once I depart.
72 MR SMALLWOOD: As the court pleases.
73 HER HONOUR: Thank you, gentlemen.
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