Director of Public Prosecutions v Whittle
[2018] VCC 2083
•26 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02357
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN WHITTLE |
---
JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 July 2018 | |
DATE OF SENTENCE: | 26 November 2018 | |
CASE MAY BE CITED AS: | DPP v Whittle | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2083 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law – Sexual Offences
Catchwords: Transmitting and soliciting child pornography using a carriage service – possessing child pornography – making a threat to inflict serious injury.
Legislation Cited:
Cases Cited: HMcL v R (2000) 174 ALR 1 – Gordon v The Queen [2013] VSCA 343
Sentence: Global Effective Sentence: 19 months imprisonment – State TES: 5 months imprisonment – Commonwealth TES: 16 months imprisonment – Community Corrections Order for 2 years on the State charges and Recognisance Release Order for 14 months on the Commonwealth charges.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Grant for the plea Ms E. Dane for sentence | CDPP |
| For the Accused | Mr G. Casement for the plea Mr J. McLeod for sentence | James Dowsley & Associates |
HER HONOUR:
1 Nathan Whittle, you have pleaded guilty to transmitting and soliciting child pornography using a carriage service (Commonwealth charges 1, 2 and 3). Each of these offences has a maximum sentence of 15 years’ imprisonment.
2 You have also pleaded guilty to possessing child pornography, a State offence with a maximum sentence of 10 years’ imprisonment (charge 4), and to making a threat to inflict serious injury, a State offence with a maximum sentence of 5 years’ imprisonment (charge 5).
3 I sentence you on the basis of the opening[1] read out in court at the hearing in July, which is an agreed summary of your offending. I will briefly set out your crimes.
[1] Exhibit A
4 In April 2017, using the online chat forum “Skout” in your own name, you transmitted to other users child pornography, including highly offensive discussions about sexual acts with children (charge 1 - transmit), and you also solicited, and received, child pornography from other users, including as part of negotiations for the exchange of images for information about accessing the ‘dark web’ (charge 2 - solicit).
5 In May 2017, you were found by police hiding in a wardrobe at your former partner’s house, and a number of electronic devices were seized. Analysis of two phones in your possession showed you sent eight emails with attachments of child pornography in late April 2017, consisting of both images and videos. While the majority of the items found on the phones (four) were in category 1[2], the two videos were of children being penetrated (category 4), which is most serious. That all constitutes charge 3 – transmit.
[2] Australian National Victim Image Library
6 Analysis of all your devices showed you were in possession of 60 images of child pornography (charge 4 – possess). The vast majority (34) were category 1, but ten were in category 3, involving an adult with a child in the image and six were in category 4, involving, as I said before, penetration of the child depicted. The category 3 and 4 images and videos as described in the prosecution summary and written submissions[3] are revolting.
[3] Exhibit 3
7 During the search of your ex-partner’s home and while police were speaking to you and recording your conversation with them, you shouted at your ex-partner, blamed her for the police involvement, and then threatened to ‘smash [her] head in’, saying also that you had done it once before and would do it again (charge 5 – threat to inflict serious injury). The first thing to say about that is that violence against an intimate partner, whether current or previous, is never acceptable. She is the mother of your children, and was in her own home where you no longer lived, and she was entitled to feel safe in her own home. Despite the presence of police you threatened in her in a most violent way. The second thing to say is that you had indeed threatened her before, in contravention of a Family Violence Intervention Order, which makes this offence even more serious. The third thing to say is that police were speaking to you because your depraved online activity had been picked up by law enforcement agencies whose job it is to track down those who sexually exploit children. The involvement of police had nothing to do with your ex-partner, as you falsely claimed. Even if it did, that would of course have provided no excuse for the appalling way you acted towards her.
8 During the recorded conversation with police, you also told the police a number of lies about the telephones, which I am satisfied you did in an attempt to avoid taking responsibility for your crimes.
9 I am also satisfied that the child pornography offences are serious examples of this type of offending. Although the number of images was very small, and there was no direct contact with any child, I have reached this conclusion because of the nature and content of the material, the fact that you were both a consumer and supplier of the images, and you engaged directly and actively in this dreadful market over a period of time as a course of conduct, leading to the ongoing exploitation of every child depicted in the images you possessed, solicited, and transmitted. Those images cannot be removed from circulation, and you have added to the exploitation of those children, where at any moment in time, forever, some perverted individual, like you, will be looking at them. Further, although you did not profit in a monetary sense, you did trade the material for information about the dark web, in order to continue your participation in this depraved activity of child exploitation.
10 I will deal with the charge of threatening your ex-partner later in the sentence. As I understand, she is on her way here. I will come back to that.
11 Those who commit child pornography offences should expect to face immediate imprisonment. You have now spent over 18 months in custody on remand, and the question for me is whether I should agree with the submissions of your counsel, and impose a term of imprisonment, but then release you on a Community Correction Order, or whether there should be a further period of time to serve in prison. To decide what the appropriate sentence is for offences of the serious nature I have described, I must also look at the matters relied on in your favour.
12 The first of these is the fact that you pleaded guilty. You are entitled to have that taken into account in your favour and I do so. The prosecution conceded that your plea of guilty at an early stage is a demonstration of your remorse, acceptance of responsibility and willingness to facilitate the course of justice. I accept that your plea of guilty shows all of these things, despite the lies you told police in the first conversation. I also accept that you changed your position and showed your co-operation with police a few months later by consenting to your chat history being released to police as part of their investigation of you. The prosecution conceded that giving your consent saved many months of investigation time.
13 Next, I take into account that there has been considerable delay in this case being finalised, including the four months from the date of the plea hearing to the date of sentence. While you have made good use of this time in custody, as I will detail later, and which is very much in your favour, you are still entitled to have all of the delay taken into account in your favour as well, and I do so.
14 Next, I need to take into account that you were what is called a young offender, being aged only 20 at the time, and even now, you are aged just 22 years. Being a young offender usually means that the need to rehabilitate that young person is the most important consideration in the sentence. However, that can be outweighed by the seriousness of the offending and other matters.
15 In deciding what your prospects for rehabilitation are, I take into account a number of factors[4], including your age; that you have a disadvantaged background, including being the victim of sexual abuse, both factors which have contributed to your drug use and associated mental health problems; that you have a criminal record, including for threats against your ex-partner, but not for sexual offending; that you have already spent a considerable amount of time in adult prison where you could be adversely influenced by older offenders; and that you have used your time in prison up to now constructively.
[4] Exhibit 1
16 You are either the youngest or second youngest[5] of eight children born to the same mother but different fathers, and all of your brothers have spent time in prison. Your mother and father separated when you were about three, and you had regular contact with your father up until you were about 14, but contact decreased and you have not seen him for more than two years. You are of Maori ethnicity, born in Australia. You report that your mother was diagnosed with Bipolar disorder. You and your siblings were the subject of almost 30 notifications to the child protection unit of the Department of Health and Human Services regarding your neglect and exposure to drug use. While your mother went to gambling venues, you and your sister were apparently left in the care of a person who groomed and later sexually abused both of you over a period of a year, when you were aged 7-8 years. You later told of this abuse and the perpetrator apparently received a prison sentence of 2 years 9 months.
[5] Exhibit 1 - Defence submissions state second youngest. Exhibit 2 – Psychological report states youngest.
17 I recognise that your mother, a sister and a friend were in court on the day of the plea to support you, and are present again in court today, and this support is provided despite whatever occurred in your family background in the past. That is important.
18 You report[6] that it was a partner of your mother who introduced you to cannabis when you were 13 and within a year, you were apparently using up to 7 grams a day. By the age of 15, you report that you were using methamphetamine, between half to one gram a day.
[6] Exhibit 2
19 You and your ex-partner both used drugs when you began your relationship and were both aged only 16 when you had your first child and were living together away from home. Your ex-partner apparently stopped drug use through her pregnancies, but you continued, and you report that you were using methamphetamine during the offending for which I am sentencing you.[7]
[7] Ibid
20 Not surprisingly, given this background of your childhood, you did not do well at school and report that you did not go past term one of year 7. You class yourself as being a bully at school[8], and in my view, this has continued into your adulthood with you being unable to control your emotions and impulses, including on the day you threatened your ex-partner in the presence of police (charge 5). You have found it hard to have long term stable employment, probably because of a combination of your behaviour and drug use.
[8] Ibid
21 You report having a number of mental health diagnoses, but only one is documented in the medical material available to the psychologist who provided a report to the court[9] – that of post-traumatic stress. It is documented that you have had a number of medications[10] to assist with mental ill health, but you report that you have found it hard to comply with the medication regime due to your illicit substance abuse, and a ‘lack of support’. Your counsel told me on the plea that in prison you have been prescribed Epilim, as well as Seroquel and an anti-depressant.
[9] Ibid
[10] Valdoxan, Quetia and Epilim
22 I accept that you have ongoing trauma symptoms from your own sexual abuse as a child, and take that into account. It does not excuse your offending, and I have no evidence of a link between your own abuse and the online abuse you engaged in for other children. It is relevant to my assessment of your prospects for rehabilitation, and I agree with the psychologist, that you need professional assistance to sort out issues arising from your background, and by doing that, reduce your risk of re-offending.
23 The psychologist was unable to provide a conclusive opinion of the factors leading to you committing the child pornography offences. He considered that you had no insight into the nature of these offences, given that you said you did not seek or use the child exploitation material for your sexual gratification. The question must be, why then did you engage in this activity, not once, but over a period of weeks? I accept the psychologist’s assessment that you are unaware of the triggers that led you to commit these offences, and also accept his assessment of your risk of committing further offences of this type in future, without treatment, as moderate-high.
24 MS DANE: Your Honour, I apologise for interrupting. Ex-partner has arrived.
25 HER HONOUR: Yes. Thank you very much.
26 MS DANE: Thank you, Your Honour.
27 HER HONOUR: I will just continue with this part of my sentencing remarks and I will come back to the part that deals with your ex-partner.
28 The psychologist recommends you need a high level of support when back in the community, as well as treatment specific to the child pornography offences, psychological and psychiatric evaluation and intervention, and drug counselling services. I agree with those recommendations, and this must be noted by those who will be dealing with you after your release from prison.
29 You were unsuccessful in an application to be released on bail in September 2017 and have been in custody since your arrest in May that year. Your counsel submitted that in your time in prison, you have made some important steps forward in your rehabilitation, despite any problems associated with your mental health, and the difficulty of being separated from your children.
30 These steps are as follows. First, you have completed a large number of programs and courses in an effort to begin your rehabilitation[11]. I just pause to indicate that I received after the plea copies of those certificates and Mr McLeod, I will accept those certificates as an exhibit so that they are on the record. Those certificates will be Exhibit 3.
[11] Exhibit 3
31 #EXHIBIT 3 - Certificates.
32 MR McLEOD: As Your Honour pleases.
33 HER HONOUR: The topics covered include drug and alcohol use, better relationships, mental health, food safety, and also apparently obtaining a forklift licence. Next, you have been working making custom number plates, and as the head printer for roadwork signs. Next, you have been a Peer Educator. Next, you have apparently remained drug free while in custody, putting on weight compared to when you were first arrested, and feeling healthy for a change. Next, you have also read books for the first time in your life, which is a notable achievement given your Grade 6 education. Lastly, I am told that you have given evidence for the prosecution, via video link from prison, which may be seen as a demonstration of your commitment to your rehabilitation and turning away from a criminal lifestyle.
34 Overall, your counsel submitted that your time in custody has been spent in improving your physical and mental health, as well as improving your prospects for rehabilitation through courses, education and employment. He submitted that you now feel disgusted by your child pornography offences, as well as sorry for committing the offences, and do not want your own children to look at you as a paedophile. You recognise that even on your release from prison, it will be difficult for you to spend any time with them, given that you will be a registered sex offender for life, and that you have committed repeat offences against their mother.
35 If your feeling of disgust is real, then I accept that this may be the beginning of some insight, but I have no doubt that you need targeted treatment to fully realise why you committed these disgusting offences, and to prevent you from committing them again.
36 On balance, I have decided that, with such treatment as the psychologist recommended, and building on the work you have already started while in prison, your prospects of rehabilitation are fair, and as you are a young man, you are to be encouraged in this, in order to protect the community from you in future by encouraging you to become a law abiding member of society.
37 However, I must take into account that offences involving the sexual exploitation of children, and offences against a former intimate partner, call for a sentence that will deter others from committing such offences in future, and that will deter you from re-offending. As I said earlier, a prison sentence is to be expected for child pornography offences, and the question is what the appropriate length of imprisonment is for your offending and your circumstances.
38 I will now return to the charge that involves your former partner.
39 The charge of threatening your ex-partner is also a serious example of this type of offence. Not only is it vital that the law recognises that women must be able to feel safe in their own homes, and protected from threats by those with whom they are in, or have been in, an intimate relationship, but in your case, this is repeat offending. Your ex-partner is the mother of your children and she is entitled to your respect, whether or not your personal relationship continued. I have not referred to her by name, to protect her privacy, and prevent her from being associated in any way with the other shocking offences that I have described.
40 I received a statement from her[12] about the impact on her of your offending against her. Even though you have been in custody since your arrest in May 2017, she has been in fear that you, or someone on your behalf, could harm her or the older of the two children you have together. She has re-located a number of times and spent money increasing her security at home. She is dealing with the fallout of the relationship she had with you, which includes trying to re-connect with her own family, as well as dealing with the oldest child, who does not understand why he can no longer see you. As both children are within the age range of those shown in the disgusting images you sought out, I expect that the child protection authorities will not allow you to see your children even when your time in prison is finished. I take the impact on your ex-partner very much into account in deciding the appropriate sentence for you. I hope that she is able to find some peace and stability, and recommend that if she has not already, that she accept any support or assistance offered through the police or the Office of Public Prosecutions. I wish her, and her children, well for the future.
[12] Exhibit 2
41 I have taken into account the matters in section 16A of the Commonwealth Crimes Act, some of which I have specifically addressed.
42 You were assessed for a community correction order, and found suitable, despite being found by the assessing officer to be a high risk of re-offending, and despite having contravened previous community correction orders. A number of conditions were recommended to be attached to such an order if I decided to make that part of my sentence.
43 Your counsel conceded that these are serious offences, but submitted that with the time you have already been in custody, one option is to sentence you to a term of imprisonment equalling that time served, with some modest accumulation of charges, and order you be released on a community correction order with conditions.
44 The prosecution reminded me that a combination of imprisonment and community correction order is not available on the first three charges which are Commonwealth offences, and is only available on the State charges, 4 and 5. It was submitted by the prosecution that there should be some degree of accumulation between the charges, because of the separate and distinct aspects of your participation in the child pornography market. Overall, the options were outlined as being for Commonwealth charges 1 – 3, release on conditions if the sentence on those charges is between 6 months and 3 years’ imprisonment; and on State charges 4 and 5, the combination of imprisonment and community correction order is available if the prison sentence on those charges is less than 12 months.
45 Before I finally turn to the sentence there are two other matters that I need to deal with. The first is that as a result of my sentence today, you automatically become a registrable sex offender. Charges 1 – 4 are class 2 offences. You will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life.
46 The second matter is that you are to be sentenced as a serious sexual offender on charge 4 after sentences of imprisonment are imposed on at least two of charges 1, 2 and 3, which will happen. Although you are to be sentenced as a first time sex offender, the factors that make your offending serious apply for the first charge, and there is no alternative to a term of imprisonment for charges 1 - 4. I add that there is also in my view no alternative to a sentence of imprisonment for charge 5, as this offence involved a repeat of your violent behaviour against your former partner, behaviour for which a court had sentenced you in the past.
47 Also as a result of your status as a serious sexual offender for sentencing on charge 4, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed on that charge. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offence. However, the prosecution do not seek that, and I do not intend to do that.
48 It is also necessary for the sentence I impose on charge 4 to be wholly cumulative on the other charges unless I order otherwise, because of your status as a serious sex offender. I have also had regard to the limits the serious sex offender sentencing regime places on the application of the principle of totality[13] for charge 4. In all the circumstances, I have decided to order less than total cumulation for charge 4.
[13]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
49 I will announce the formal orders in a moment, but the outcome is that you will be sentenced on the Commonwealth charges (1 – 3) to a total of 16 months’ imprisonment to be released after serving 14 months on what is called a recognisance release order in the amount $800 to be of good behaviour for 2 years, and to complete a Sex Offender program in that time.
50 On the State charges (4 and 5), you will be sentenced to a total of 5 months’ imprisonment, and if you agree, I will convict and release you on a community correction order for 2 years following the term of imprisonment, with the conditions I will outline in a moment.
51 The period you have already spent in custody will be taken into account so that the total effective sentence for all charges will be 19 months’ imprisonment, with you to be released, if not immediately, then very soon, to be on a bond on the Commonwealth charges, by which you promise not to commit any more offences of any kind for two years after your release, and by which you also promise to complete a Sex Offender program, and at the same time, promise to undertake a community correction order on the State charges with the conditions attached to that.
52 To be clear, I am sentencing you to the time you have spent in custody, which is about 19 months, with you to be released to be of good behaviour, that means commit no offence, and complete two orders with conditions, to run at the same time.
53 Because you must agree before I can release you on a community correction order, I need to tell you what the conditions are, even though you have been on such an order before. The core conditions attached to every community correction order are that you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; must not leave Victoria without permission of Corrections Victoria; and must comply with any direction given by Corrections Victoria to ensure compliance with the order.
54 So just pausing there, that means you basically have to do what they tell you to do.
55 I will also order that you comply with other conditions during that two years: that you be under supervision by Corrections Victoria; that you attend, undertake and complete an Anger Management Program, or other programs as directed by the community correction officer to reduce your risk of re-offending; that you be assessed and if required, receive treatment for mental health issues and drug abuse and dependency. I will also set a date for next year for you to come back and tell me how you are doing on the order. That is called judicial monitoring.
56 So Mr Whittle, stand up for a moment please.
57 Do you agree to being released on a community correction order with those conditions attached, for charges 4 and 5?
58 OFFENDER: Yes, Your Honour.
59 HER HONOUR: If you do not complete any condition of the community correction order, you will be brought back before me to be re-sentenced on charges 4 and 5 and also be dealt with for not doing what you are ordered to do under the community correction order. So do you understand what will happen if you do not complete any condition of this order?
60 OFFENDER: Yes, I do.
61 HER HONOUR: I should also tell you that both the Commonwealth recognisance release order on charges 1 - 3, and the State community correction order on charges 4 and 5 can be changed or removed by the court if your circumstances change. To do that, you should get legal advice.
62 OFFENDER: Yes.
63 HER HONOUR: So you are convicted and sentenced as follows:
64 On Commonwealth charge 1 (transmit child pornography) – 12 months’ imprisonment. That sentence starts on 26 November 2018.
65 On Commonwealth charge 2 (solicit child pornography) – 12 months’ imprisonment. That sentence starts 9 months before the expiration of the sentence on charge 1.
66 On Commonwealth charge 3 (transmit child pornography) – 12 months’ imprisonment. That sentence starts 11 months before the expiration of the sentence on charge 2.
67 The effective Commonwealth sentence is 16 months’ imprisonment. I direct that you be released under section 20 Commonwealth Crimes Act after serving 14 months, on a recognisance release order on conditions that you give security by recognisance of $800 to be of good behaviour for 2 years, and that you complete a Sex Offender Program.
68 On State charge 4 (possess child pornography) – 4 months’ imprisonment. I direct that it be entered into the records of the court that you have been sentenced on this charge as a serious sex offender. That sentence starts two months before the expiration of the sentence on charge 3 immediately upon the expiry of the pre-release period imposed under the Recognisance Release Order for the Commonwealth sentence.
69 On State charge 5 (threat to inflict serious injury) – 3 months’ imprisonment. That sentence starts 2 months before the expiration of the sentence on charge 4.
70 HER HONOUR: Just pardon me a moment. That will be worded differently in the formal order but it has the same effect.
71 The effective State sentence is 5 months’ imprisonment. I direct that after serving the term of imprisonment on charges 4 and 5, you be released on a community correction order for 2 years with the core and special conditions I have already outlined. I direct that you return to court on Friday 5 April 2019 at 9.30am for judicial monitoring, that is, for me to see what progress you have made on the orders.
72 The effect of the orders for commencement of sentences on all charges is a global effective sentence on State and Commonwealth offences of 19 months’ imprisonment.
73 I declare that you have served 571 days in pre-sentence detention not including today and direct - - -
74 MR McLEOD: Sorry, Your Honour. Our calculation was 572 days.
75 HER HONOUR: Has that included today?
76 MR McLEOD: Not including today.
77 HER HONOUR: Thank you. 572 days in pre-sentence detention not including today and direct that these be deducted administratively from the sentence I have imposed.
78 So, to make it clear, it is my intention that you be released on the Commonwealth sentence after serving 14 months and as soon as the total effective State sentence has been completed. Then you will be under the conditions of a recognisance release order and a community correction order for the next two years. If you do not re-offend in that period, you will not serve any more time in prison. If you do offend, you will forfeit $800, so you do not pay that upfront, but if you reoffend, you will forfeit $800, you will return to prison to serve the remaining two months of the Commonwealth sentence, and you will be re-sentenced by me on the State charges, as well as sentencing you for not complying with the court orders. That will of course mean more gaol time, and that is even if you have nearly finished the two years before you reoffend. So do you understand what you have at stake?
79 OFFENDER: Yes, I do, Your Honour.
80 HER HONOUR: You will now be asked by my Associate to sign three documents. The first is your agreement to abide by the conditions which allow for your release on the Commonwealth charges 1 - 3, that is, to be of good behaviour for 2 years and complete the Sex Offender program. The second is to show that you agree to abide by the conditions of the community correction order. The third is a form notifying you of your reporting obligations under the Sex Offenders Registration Act, which I told you about earlier and your counsel will assist you with these forms.
81 MR McLEOD: May I approach the - - -
82 HER HONOUR: Yes, of course. All right. So I have signed those orders as well, Mr Whittle, and copies will be provided to you before you leave the court.
83 I will not indicate what my sentence would have been for the Commonwealth charges but for the plea of guilty, until legislation specifically requires it for federal offences, or an authority binding on me, states that it is required. However, you would have got more obviously.
84 Lastly, if you had not pleaded guilty to the State charges, but had been found guilty after a trial, the sentence I would have imposed on charges 4 and 5 alone is a total of 12 months’ imprisonment.
85 Yes. There are no further orders required?
86 MS DANE: No, Your Honour.
87 HER HONOUR: All right. Thank you. So those documents can be provided to Mr Whittle and he can be removed from the court.
88 MR McLEOD: As the court pleases.
89 MS DANE: As the court pleases.
90 OFFENDER: Thank you, Your Honour.
91 HER HONOUR: Yes. Thank you. Yes, it is necessary for him to go out through custody. Yes. Thank you. I will stand down until 10.30.
- - -
0
1
0