Director of Public Prosecutions v Watson

[2016] VCC 1585

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01373

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL ANTHONY WATSON

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2016
DATE OF SENTENCE:	26 October 2016
CASE MAY BE CITED AS:	DPP v Watson
MEDIUM NEUTRAL CITATION:	[2016] VCC 1585

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Padmanabhan	C.D.P.P.
For the Accused	Ms K. Blair	Victoria Legal Aid

HIS HONOUR:  

1Michael Anthony Watson, you have pleaded guilty to: 

2One charge of accessing child pornography, contrary to sub-s.474(1) paragraph 19 of the Criminal Code (Cth).  The maximum penalty for that offence is 15 years' imprisonment, and;

3One charge of possession of child pornography, contrary to s.70(1) of the Crimes Act 1958. The maximum penalty for that offence is ten years' imprisonment.

4You pleaded guilty at the committal mention, and I have taken your early plea into account in your favour in mitigation of sentence.

5You have admitted a criminal history from two court appearances in 2002 and 2005, involving acts of damaging property whilst you were intoxicated.  You have no subsequent convictions or outstanding charges. 

6A prosecution opening was read to the court and tendered into evidence, and your offending may be summarised as follows:

7Between April and December 2015, Victoria Police and the Australian Federal Police identified that your internet IP address was being used to download child pornography from various sites containing such material, and peer-to-peer networks engaged in the sharing of the material.

8On 2 March 2016, investigating police attended at your premises to execute a search warrant and to interview you.  You avoided the police and did not provide entry to your premises to them.  You also disposed of your computer in a nearby creek.  Following discussions between your brother and the investigators, you spoke to them and assisted in the retrieval of the computer.  You were arrested, and following some discussion with police, you essentially answered "no comment" to questions put to you during the course of a tape-recorded record of interview.

9Your computer and mobile telephone were examined, and a total of 2,889 files containing child pornography, made up of 2,853 images and 36 videos, was located.  The nature of the material is set out in the prosecution opening, and I have viewed samples of it.

10The material depicts and records children between less than one year of age and approximately nine years of age in a range of sexualised poses and sexual activity with other children, adults, and in one instance, an animal.  The material is depraved, and in my opinion, disturbing in its humiliation and exploitation of children.

11Your offending continued over a period of 23 months.  The children in the material are the victims of offending of the utmost seriousness, and it is well-established that offending of this type supports the exploitation of children in this grave manner.  The sentence that I impose must be calculated to deter you and others from accessing and possessing this depraved material, and you must also be punished for your offending.

12I now turn to your personal circumstances.  You were born on
28 September 1981 in Mordialloc, and you are now age 35.  You were born with significant congenital disabilities in both feet and lower legs, necessitating surgery and the wearing of callipers as a child.  Consequently, you were bullied and taunted at school, and your parents decided that your education would be best achieved in a special school, which, as it transpired, was completely inappropriate for you.  You had no intellectual disability, but were placed with other children who did suffer from such disabilities.  This significantly impaired your personal development and self-esteem.  Your circumstances were further disrupted when your parents separated when you were eight years old. 

13It is plain from this history that you suffered greatly as a child, and you developed into an isolated and highly vulnerable adult.

14Your work history is limited.  You live alone, and you have few friends.  You do however have the support of your family, who attended the proceedings before me.  Furthermore, I accept that you have abused alcohol to a significant degree to cope with the isolation and loneliness that you have experienced in your adult life.

15I have received in evidence a psychological report of Mr Jeffrey Cummins, a consulting forensic psychologist, detailing your psychological profile and developmental history.  I accept that you suffer from a range of psychological disorders that require ongoing intensive treatment.  It is in the context of your complex personal and psychological circumstances, that your offending occurred.

16In my opinion, your prospects for rehabilitation are dependent upon the matters that I have referred to being the subject of specialist intervention and treatment.  This should have occurred many years ago in your case. 

17Your counsel submitted that the principles enunciated by the Court of Appeal in R v Verdins (2007) 16 VR 269 are engaged in your case, and I accept that this is so.  In my opinion, the principle of general deterrence is to be moderated to some degree in your case, and it is also plain that imprisonment will involve a greater degree of hardship for you than would otherwise be the case.

18In my opinion, your case is a good example of where a term of imprisonment, combined with a Community Correction Order on the completion of that term would neatly meet the purposes for which this sentence is to be imposed. 

19I had initially proposed to impose a term of imprisonment in respect of one of the charges on the Indictment, namely the Commonwealth charge, and a Community Correction Order in respect of the State charge.  However, by reason of the decision of the Court of Appeal in Atanackovic v The Queen [2015] VSCA 136, I accept that there are a number of jurisdictional difficulties with such a course.

20However, counsel have accepted that it is open to me to impose a combined sentence in respect of the State charge before the court, and a term of imprisonment in respect of the Federal charge, particularly in circumstances where the term of imprisonment on the Federal charge will be such as to not require me to impose a recognizance release order or non-parole period.

21Plainly, I am not precluded, in the circumstances of this case, from imposing a combined sentence in respect of the State charge before me, and in those circumstances I had you assessed for suitability in respect of a Community Correction Order.  I have received a report from Corrections Victoria as to your suitability in that regard, and following your assessment, Corrections Victoria have accepted that you are indeed suitable to be placed on such an order.

22As I have already observed, in my opinion your prospects for rehabilitation are dependent upon you receiving appropriate treatment and intervention in respect of your psychological problems and alcohol addiction.  Furthermore, I propose that you undertake offending behaviour programs, particularly in relation to sex offending, as Mr Cummins observed it was not possible to exclude that you may have sexual orientation in relation to children, and plainly that must be addressed in your case.

23Furthermore, in my opinion, given the isolated nature of the life that you have been living, undertaking some unpaid community work during the period of the order will also provide for your further rehabilitation.

24Nevertheless, I accept that your offending is serious, and the sentence I impose, as I have already observed, must deter others from offending in this way.  In such circumstances, in my opinion, it is appropriate that you do serve a term of imprisonment before being released on a Community Correction Order, and as the Court of Appeal has observed, a Community Correction Order itself may be regarded as a punitive disposition.

25In the result, the sentence of the court is as follows:

26In respect of the charge of accessing child pornography contrary to sub-s.474(1)(19) paragraph 1 of the Criminal Code, you are convicted and sentenced to be imprisoned for a period of six months.  I direct that sentence commence this day, that is, 26 October 2016.

27In relation to the charge of knowingly possessing child pornography contrary to s.70(1) of the Crimes Act 1958, you are convicted and sentenced to be imprisoned for a period of nine months.

28I further order, in respect of that charge, that you complete a Community Correction Order for a period of 18 months on the core conditions provided for in the Sentencing Act.

29I further order that during the period of the order you undertake 150 hours of community work, that you receive treatment and rehabilitation in respect of alcohol abuse, that you receive treatment and rehabilitation in respect of your mental health, that you undertake a program or programs intended to reduce reoffending, in particular the sex offenders program, and that you be under the supervision of a community correction officer during the period of the order.

30Do you agree to entering such an order in those terms?

31OFFENDER:  Yes, Your Honour.

32I declare that you have served one day by way of presentence detention, not including today. 

33But for your plea of guilty, in respect of accessing child pornography, I would have imposed a total effective term of imprisonment of 12 month.

34But for your plea of guilty in respect of knowingly possessing child pornography, I would have imposed a total effective sentence of 15 months.

35I order that you be placed on the Sex Offenders Register for a period of 15 years.  My associate will provide you with written advice in relation to your obligations in respect of that matter. 

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