Director of Public Prosecutions v Waters

[2014] VCC 875

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00129
CR 14-00525

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

GLEN ALAN WATERS

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2014
DATE OF SENTENCE:	5 June 2014
CASE MAY BE CITED AS:	DPP v WATERS
MEDIUM NEUTRAL CITATION:	[2014] VCC 875

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW - SENTENCING
Catchwords:  Possession of child pornography -failure to comply with
  order - breach of registration requirements - serious   medical issues - exceptional case
Sentence:  12 months' imprisonment - release on recognisance -
  community corrections order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Brown	Solicitor for Office Public Prosecutions (Cth)
For the Accused	Mr A. Halphen	Robert Stary & Associates

HIS HONOUR:

1Glen Alan Waters you have pleaded guilty to one count of using a carriage service to access child pornography material, one count of using a carriage service to send communications which included indecent communications to a person under the age of 16, one count of failing to comply with s.3LA(2) of the Crimes Act (Cth), one count of knowingly possessing child pornography, and one count of failing to comply with your reporting obligations under the Sex Offenders Registration Act.

2The maximum penalty for each of the offences is set out in the Crown opening, Exhibit A, which I incorporate by reference.

3

The circumstances of the offences were also set out in the Crown opening, which I incorporate by reference and will briefly summarise.  As a result of information received by the Australian Federal Police ("AFP") on 27 June 2013, it was ascertained that you were the registered user of a "dropbox" account when a child pornography video file depicting penetrative sexual activity between an adult male and female child had been uploaded to that account and there had also been created a public sharing link.  On

26 September 2013, the AFP executed a search warrant at your home and located one laptop computer and an iPad.

4A preliminary search of the laptop showed child pornography files.  In the course of the search you were issued with an order compelling you to provide investigators with details of the relevant internet accounts and passwords.  In the course of responding to that notice you withheld from the investigators Skype accounts, a Twitter account, an encrypted email account, a Tinychat account and a net log account.  The failure to advise the officers of those accounts constitutes Charge 3.

5Examination of the laptop and the iPad revealed the existence of child pornography images and video files.  That analysis indicated that the image files had been accessed between 27 January 2013 and 24 September 2013, and the video files between 9 May 2013 and 25 July 2013.  Also found on the iPad were two picture files classified as child pornography that were behind a calculator interface.  Also found were what was known as TOR software which is used to conceal a user's location on the internet.

6The files found on the two devices were classified according to the six level classification system used by the AFP in these prosecutions.  Some of the files had been deleted, but the total file numbers, including videos, were Level one, 188, Level two, 31, Level three, 38, Level four, 60, Level five, four, and Level six, 56, with a total overall of 377.  And of these, 56 were level six, being animations and cartoons which the learned prosecutor accepted were seen to be less serious than those in level one.  The balance of 188 were level one, and the remainder were of the other four levels.  Leaving aside Level one and Level six, this left a total of 133 images and videos of more serious child pornography in categories four and five.

7I inspected a representative sample of each of the files in the categories, and each contained examples of the usual disgusting and degrading images varying in accordance with the seriousness of the categorisation.

8The images and videos on the sample were consistent with the forensic analysis, which indicated that you had conducted internet searches using terms such as 'young pre-teen jailbait video', 'lingerie for kids', 'pre-teen webcam', '3D young incest', 'nude fantasy child girls' and 'before and after naughty school girls'.  The analysis indicated that the searches using these terms were primarily between 16 April 2013 and 15 July 2013.  Significantly, in relation to the images and videos that constitute Counts 1 and 4, a total of 259 out of the overall total of 377, were found to have been deleted from your computer at the time of the search.

9Charge 2 involves an analysis of your Skype account, wherein you had been engaging in a real time chat session with another user by the name 'Malou'.  The conversations were exquisitely sexual in nature, and on 13 July, Malou informed you that she was 14.  At that time you proceeded to continue to exchange indecent material with her as set out in paragraph 14 of the Crown opening, and the annexure.  It appears that Malou was located in Belgium. 

10Charge 5 arises out of the fact that you were on the Sex Offenders Register, and although you had provided to the Victorian police some details of your mobile phone numbers and internet accounts, you had failed to provide email addresses, Twitter account, Skype user names and mobile phone numbers, thus being in breach of your continuous reporting obligations under the Act.

Assessing the seriousness of the offences

11As the Crown correctly submitted, objectively, Counts 1 and 4 are serious offences by reason of their respective maximum sentences alone.  They can, of course, be committed in a wide variety of circumstances.  The period of accessing the material in Count 1 is about nine months, which is a significant period.  In accordance with the case of R v Gent [2005] 162 A Crim R 29, the nature and content of the material and the age of the children, depravity must be considered.

12Here I regard the appropriate way to categorise the seriousness of the offending is to consider that the number of images and videos in the highest level of seriousness, namely level four and five, as being a relatively low proportion of the total number.  Further, around half of those more serious items had been deleted at the time you were arrested.

13In terms of the overall number of images and videos accessed, while this number is not at the lowest level, it is at a lower level than many of the matters that come before the Court.

14Significantly, you are not alleged to have distributed the material.

15In relation to Count 2, this involved a communication to a single person, and sexualised communication had been commenced before the girl notified you of her age.  In view of this I put this matter at a lower level of seriousness.

16In relation to Counts 3 and 5, your explanation in the record of interview was your faulty memory.

17This cannot provide an excuse.

18The learned prosecutor accepted that the number of images and videos was relatively low, objectively however, there were a number that were seriously depraved, although about half of the subject material was in category one, but the items possessed did vary across all relevant categories, including the most serious; categories four and five.

Other matters of culpability

19An important matter on the plea is that you have admitted a prior conviction.  You were before the Melbourne Magistrates' Court on 1 December 2008, on charges of knowingly possessing child pornography and using a carriage service to access child pornography.  You were convicted and fined $1,500 and placed on an 18 month Community Based Order.  This is clearly a relevant prior conviction for these offences.

20Further, on 7 November 2012 before the Werribee Magistrates' Court on two charges of failing to comply with relevant reporting obligations under the Sex Offenders Registration Act, you were sentenced to one months' imprisonment, wholly suspended for a period of 12 months.

21Each of these matters go to increase your culpability for these offences, and in particular the first appearance.  You are not being dealt with for the breach of the suspended sentence.  I will return to your prior convictions in a moment.

Personal circumstances

22Your counsel elaborated your personal circumstances on the plea.  He focussed primarily on your physical and psychological condition both at the time of the offending and at the present time.  You are aged 52, and your upbringing is set out in detail in the report of Ms Lechner, clinical and forensic psychologist, which was tendered on the plea.

23You are one of two children and are currently estranged from your 49 year old sister.  Each of your parents, who previously resided in Queensland, died in 2012.

24You were brought up in the western suburbs of Melbourne and attended Avondale Heights primary school to Grade 6.  Your parents moved around Australia and you attended a number of secondary schools, until part way through Year 11 in Perth.

25You commenced work in a retail environment before you joined the Army Reserve, and in 1980, you worked as a medic in the Army for a period of about six years.  You left the Army and lived in Perth.  You then worked as a security guard before taking up work as a courier.

26You were a devotee of motor cycles.  Unfortunately in 1988 you had a serious accident which resulted in the amputation of your right leg above the knee.  After a lengthy period of rehabilitation you returned to Melbourne, and in 1990 undertook computer training and worked in that industry sporadically, as well as telemarketing and in the Blood Bank.  You met your wife, Theresa, at that stage, and married in 2000.  The two of you have no children.

27In 1997 you were diagnosed with PTSD and depression and commenced on anti-depressant medication.  Since 2005 and 2006 you have been in receipt of a Disability Support Pension.

28In 2007 you worked part-time at a charity bookstore.  It was at this time that you were arrested in relation to your first court appearance.  You were placed on a community-based order, and were able to commence a sex offender program.  However, in 2009 you were admitted to hospital for surgery for obesity.  The surgery could not go ahead due to multiple co-morbidities.  You were unable to complete the sex offenders program.

29At that stage, your problems included cirrhosis of the liver, portal hypertension and Lymphoma.  You were required to undertake quite aggressive cancer therapy and were also diagnosed with diabetes.  Not surprisingly, your depression deepened.  On the plea, your counsel put that during 2012 you lost both of your parents, became estranged from your younger sister and were cut out of your father's will.  This exacerbated your depression.

30It was in these circumstances that you commenced to access pornography and then drifted into accessing child pornography.  You told Ms Lechner that you were effectively addicted to, and spent many hours each day watching it.

31On the plea, your counsel presented a number of reports that sought to engage Verdins principles in relation to your moral culpability at the time of the offending, and at the present time.

32First I note that you appeared in court in a wheel chair and appear pale and significantly depressed.  This is consistent with the fact that you are on medication for anxiety and depression.  On the authority of Verdins you are required to show a realistic connection between any physical or psychological condition and your offending.

33In her report Ms Lechner said:

"Mr Waters has the capacity to reflect on the impact that his behaviour has on himself and others, although at times his depressed mood state undermines his judgement and decision-making.  He is able to identify triggers to his negative feelings but lacks a range of adaptive coping skills and strategies.  He has used pornography as a means of distracting himself from his unhappiness.  I suspect that the sexual outlet it provides him with makes him feel manly in the wake of diminished sexual contact with his wife and fertility problems.  Over time he has become habituated to the content of the pornography, making a mental disconnect between his fantasy world and reality.  He is currently evidencing symptoms of Major depression (DSM-5), with a score in the "extreme" range on the Beck Depression Inventory, and has ongoing residual post trauma symptoms in relation to his accident.".

34Dr Barth in his report says:

"He has made some progress in gaining insight into his obsessional use of pornography (legal and illegal) which he has used to compensate for his depressive symptoms, intimacy issues in his marriage and feelings of social alienation, all of which have intensified as a result of his severe physical ailments.".

35Ms Lechner has also said:

"Although not formally assessed in this regard, Mr Waters presents as being of "average" intelligence, and capable of reflecting on the impact that his behaviour has on both himself and others.  He is generally able to identify triggers to his negative feelings, but is less well able to deal with them in an adaptive manner.  He views pornography as a way of distracting himself from his unhappiness, (much as a gambler often uses gambling or a drug addict uses drugs as a means of coping with internal distress).  He stated that he feels depressed 'about life in general … life's a bitch and then you die'.".

Consideration

36In May 2009 you were found to have malignant Lymphoma.  You undertook chemotherapy.  Despite the intensive chemotherapy, you had to undergo salvage chemotherapy, and the Lymphoma became resistant to that therapy.  The Lymphoma went into what was described as "miraculous" remission since February 2013.  Despite this, according to Dr Ding, you have required recurrent admissions for infections, blood transfusions and self-harm.

37A psychiatrist, Dr Okedara, who treated you between March 2012 and March 2014, says that you have "a history of chronic variable depressive and anxiety symptoms".  He says your situation has been complicated by multiple medical issues, including your amputation.

38

As you indicated in your history to Ms Lechner, you feel life has dealt you a particularly difficult hand.  Dr Bradley, your general practitioner, opines that your Lymphoma is not curable and likely to be terminal in the next six to

18 months.

39Given your undisputed physical infirmity and your longstanding chronic depression and anxiety, which depression had not been treated until 2014 by way of cognitive behaviour therapy, applying a 'but for' analysis , I am prepared to find that your physical and psychological condition over the period of this offending does have a realistic link to the offending such as to call for some reduction in your moral culpability under limb one of Verdins.  The other limbs, and in particular limbs three, five and six, are also relevant. 

40The medical reports make it clear that, given your physical and mental condition, a sentence of imprisonment will both weigh more heavily on you, and there is a serious risk of imprisonment having an adverse effect on your mental and physical health.

41The basis on which this conclusion can be reached is as follows:  Dr Rando, an endocrinologist, said:

"Whilst the impact of a custodial sentence would no doubt increase his stress levels, which could worsen his diabetes control as any stress would, I don't believe that the diabetes should be a factor to his legal issues.".

42His report is effectively neutral on this point.

43Dr Quach, consultant physician says:

"Glen has significant medical co-morbidities, and I would imagine any custodial sentence would have significant impact on his health, including deterioration of his medical condition and his well-being.".

44Dr Ding, psychiatrist says:

"Glen has a history of cirrhosis with portal hypertension, splenomegaly, and because of weight gain, was due in May 2009, for laparoscopic gastric banding when lymph nodes were uncovered.".

45He goes on to detail the history and then concludes:

"My opinion is that, with his multiple co-morbidities requiring regular admissions to hospital for supportive transfusion, recurrent infections requiring antibiotics, intravenous gamma globulin to protect him from infections, hepatic encephalopathy, and with his labile mental state, that a custodial sentence would severely compromise the delivery of measures to maintain his physical health and could be devastating for his mental health.  I add my personal plea for a special and compassionate consideration of his very difficult and unfortunate circumstances.".

46Dr Bradley, your general practitioner, lists your prior history and says:

"He has longstanding and persistent anxiety and depression, Mr Waters requires regular transfusions, blood tests, specialist review and psychological support".

47He details your medication and goes on:

"A custodial sentence would also adversely affect his anxiety and depression and may result in suicide.  Mr Waters has poor coping skills and would be vulnerable to attack in custody.".

48Dr Okedara says in his report:

"In view of his medical problems and current legal predicament, his depressive symptoms are likely to continue.  In my view his depressive and anxiety symptoms are likely to be exacerbated if he is subject to a custodial sentence.  He has limited coping skills which are likely to deteriorate further if he is incarcerated.".

49Dr Barth, psychologist says:

"Finally, Mr Waters' mental health remains in a precarious state.  The severity of his depressive symptoms and suicidal ideation are concerning.  In the event of him serving a custodial sentence, he would be at significant risk of further deterioration in his moods.  Due to his current level of emotional distress and poor coping skills, he would require close monitoring by prison mental health staff and appropriate precautions should be instituted at the earliest opportunity to ensure he is protected from acts of self-harm.  At present his prognosis is likely to be poor in the confines of the prison system, and he continues to require intensive psychological and psycho-pharmacological treatment.".

50And Ms Lechner says:

"From a purely psychological perspective, Mr Waters would benefit most from ongoing involvement with his current treatment regime.  He is clearly a physically unwell man who needs ongoing specialist treatment for his various conditions.  An immediate period of incarceration would jeopardise his health care and lead to a significant deterioration in his mood state, such that I would have concerns about the risk of suicide.  Alternatively, if Mr Waters is closely monitored in the community he will be able to access the mental and psychological support that he requires.".

51These are opinions, which are effectively all the one way, are powerful considerations in applying the principles that imprisonment should be a sanction of last resort, and the principles of parsimony. 

52          Considerations of specific deterrence are relevant here, given your prior      appearance in 2010.

53An important matter is that due to your physical condition you were unable to complete the sex offenders program.  It may be that had you attended that program in full you may not have recidivated.

54While I accept that this fact of your conviction ought to have alerted you to the unacceptability of your conduct, your path to rehabilitation was not prosecuted to its conclusion on that occasion due to no fault of your own.  And that is a relevant factor in considering the need for specific deterrence, and in the light of your physical and psychological disabilities, crafting an appropriate sentence.

55The fact that you have not previously completed a sex offenders program is relevant to your prospects of rehabilitation which I must consider.  Given your precarious condition I regard them as reasonable.  Obviously you required significant psychological therapy to assist your anxiety and depression.  And, as Ms Lechner notes, you require medical and psychological support.

56Dr Barth, in his report, indicates that participation in a program is required to reduce your risk of re-offending, and he notes your willingness to undertake such a program and that you have been involved in such therapy.

57The progress that you have made so far with Dr Barth is relevant to sentence, in that a sentence of imprisonment to be immediately served would significantly retard the progress made so far, and thus would not be in the community's interest.

58The learned prosecutor referred to the recent case of DPP v Guest [2014], VSCA, 29, where the Court of Appeal has reiterated that for these types of offending a custodial sentence is called for, save in exceptional circumstances.

59Here, having considered all the matters put before me on the plea, and all the matters in s.16(A) of the Crimes Act, and the competing submissions before me by the Crown prosecutor and your counsel, I regard as the most salient matters, the fact that the volume of material is at the lower end of the scale of cases that come before the Court.

60Further, the contribution to your offending of your physical and psychological condition is such that, along with the incomplete earlier Sex Offenders Program, and the impact of any sentence of imprisonment on your mental and physical condition, are all matters that call for parsimony.  Further, I am satisfied that a sentence of imprisonment followed by a release upon recognisance, will serve the interest of general deterrence and denunciation.

61In sentencing you, I have also taken into account that the prosecutor accepted that you have pleaded guilty at the earliest opportunity in relation to the charges and you are entitled to credit for that.  The prosecution did not accept the submission that there was evidence of remorse in relation to these charges.  Remorse in the case of charges like this is a difficult and somewhat elusive concept, given the nature of the victims in the pornography trade.  It is more realistic, I consider, to ask whether you have any insight into your behaviour, and I am satisfied that the report of Dr Barth indicates that there is incipient insight into your behaviour, such that you are:

"Developing genuine empathy for the victims of child pornography.".

Purposes of sentencing

62The basic purposes for which the Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances, and those of the victim, if any.

63I am required to balance the interest of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are reintegrated and rehabilitated into the community. I am also required to have regard to the factors set out in s.16(A) of the Crimes Act, and also to the principles in s.17, that imprisonment is to be a sanction of last resort.

64Since the matter was first listed for plea, I have had you assessed for a community corrections order, and that assessment is favourable.  It does recommend that you be the subject of a number of conditions in order to enhance your prospects of rehabilitation, including a treatment in rehabilitation condition, if necessary a mental health assessment and offender behaviour programs, which could, of course, encompass a sex offenders program.  It also recommends a supervision condition.  You have indicated in the report that you are willing to consent to such an order.

65Having regard to all the matters that have been put before me, it is appropriate to craft a sentence having regard to your physical and mental conditions, and also a sentence that will address the sentencing considerations in these types of cases, which is denunciation of the use and accessing of child pornography, which of course, is an insidious offence that has victims sight unseen all around the world, but the only way to stop the trade is to punish those who access the material. So the sentence will be as follows.

66

On Count 1 you are sentenced to 12 months imprisonment.  On Count 2 you are sentenced to 1 months imprisonment.  On Count 3 you are sentenced to

6 months imprisonment.  Those sentences are concurrent and you are directed to be released forthwith, on you entering a recognisance of $500 and that you be of good behaviour for a period of 18 months.

67On Count 4 I am sentencing you as a serious sex offender, and I have considered the protection of the community as the primary sentencing factor.  On Counts 4 and 5 you are sentenced to a concurrent community based order for 18 months.

68The recognisance release order on Counts 1, 2 and 3 is also for 18 months, and it contains a condition that you undertake a sex offenders program.

69I will have the orders prepared and ask counsel to check them and to ascertain whether there are any technical problems with them and then I will reconvene the court.  Is there any matter that has arisen so far Madam Prosecutor?

70MS BROWN:  It is a somewhat academic point.  Your Honour has to direct that the sentences imposed on Charges 1, 2 and 3 are to commence today.

71HIS HONOUR:  Yes, I will do that.  Had you not pleaded guilty I would have imposed a total effective sentence of 18 months imprisonment with a non-parole period of 12 months.  I will just stand down while the paper work is prepared and then show it to you, and then if you could explain it to Mr Waters, and then have him sign it.

72(Short adjournment.)

73HIS HONOUR:  Mr Waters I am required to explain the sentence to you.  On the first three charges I have sentenced you to, the total effective sentence is 12 months, but I have decided to release you forthwith on you entering an undertaking of recognisance in the amount of $500.  It is the term of that recognisance that you be of good behaviour for the next 18 months.  If you commit an offence carrying a term of imprisonment in the next 18 months you will breach the recognisance and, absent exceptional circumstances, you may be required to serve the 12 months imprisonment that I have imposed.  The recognisance has a requirement that you undertake a sex offenders program.

74

In relation to Counts 4 and 5 I have placed you on a concurrent Community Based Order.  Again, that carries a requirement that you be of good behaviour and also that you undertake to be supervised by the people at the Office of Corrections and you undertake any treatment or assessments that they require, or any other programs they send you to, to reduce your re-offending.  So, again, if you breach that, or you breach the community corrections order, or do not turn up for the sex offenders program, then that breaches the Community Corrections Order.  That breach carries a term of imprisonment and you will be brought back to this Court and you may have to be

re-sentenced.

75Also, as a consequence of the convictions, you are to be placed on the Sex Offenders Register for life.  You are currently on the Sex Offenders Register, and indeed, Count 5 is a count involving a breach of your obligations under the Sex Offenders Register.

76So I can't emphasise too much, that under the Sex Offenders Register, you are required to notify the Register of changes of address, changes of phone numbers, mobile phone numbers, internet addresses, etc.  You know that full well.  So again, a failure to do that will be a criminal offence, and will breach the recognisance and breach the community-based order.

77I know you have a lot of psychological and other pressures, but I am giving you this opportunity to remain in the community, but it is on those conditions.  So I hope I do not see you again in this Court Mr Waters.

I thank counsel for their assistance in the plea.

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