Director of Public Prosecutions v Williams
[2020] VCC 1489
•18 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00415
| DIRECTOR OF PUBLIC PROSECUTIONS (Cth) |
| v |
| JEREMY VINCENT WILLIAMS |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 August 2020 | |
DATE OF SENTENCE: | 18 September 2020 | |
CASE MAY BE CITED AS: | DPP v WILLIAMS | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1489 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP(Cth) | Mr M. Keks | Office of Public Prosecutions |
| For the Accused | Mr H. Moodie | James Dowsley & Associates |
HIS HONOUR:
1 Jeremy Williams on 19 August 2020 you pleaded guilty to four charges of transmitting child pornography material contrary to s. 474.19(1) of the Criminal Code (Cth), being (Charges 1-4) and one charge of possessing child abusive material contrary to sub-s. 22A(1) of s.474 of the Criminal Code (Cth), which is Charge 5. Each of these offences carries a maximum penalty of 15 years' imprisonment.
Circumstances of Offending
2 You were aged between 42 and 47 when this offending occurred. With respect to Charges 1 and 4 you utilised the Kik, WhatsApp and MMS messaging platforms to send the child pornography to unknown individuals.
3 On 20 April 2014, you used your Samsung S2 mobile phone to send two MMS messages to the phone number XXXXX XXXXX .
4 The first message was sent at 4.59pm. The message contained an image, depicting a naked adult male lying on his back with an erect penis. A naked prepubescent female child is lying on her back on top of the male, and the male’s erect penis is touching the child’s vagina.
5 The second message was sent at 5.06pm, containing an image which depicted a naked prepubescent female child lying on her back. A naked adult man is kneeling over the top of the child, and his erect penis has penetrated her vagina. This conduct constituting Charge 1. (Both files were also found saved in the gallery of images on your device.)
6 On 9 December 2016, you used the application Kik on your phone to communicate with the user ‘Tristin Doe’. Your Kik account had the username ‘hcnifty’. You and ‘Tristin Doe’ engaged in the following conversation:
Tristin Doe: ‘u got black or infant’
You: ‘yeah’
Tristin Doe: ‘send I’ll match’
Tristin Doe: ‘???’
Tristin Doe: ‘u got folders’
You: Image was sent
7 The image sent by you depicted a prepubescent female child, wearing a T-shirt, naked from the waist down. The child’s genitals are exposed and her legs are apart. An adult male’s hand holding his erect penis is also depicted. The penis has entered the child’s labia majora. This conduct constitutes Charge 2.
8 On 25 February 2016, you used the application Kik on your phone to communicate with three different users, being: ‘Vapeman 17’, ‘Adge82’ and ‘Harry D’. You sent child pornography material to each of the users.
9 On that date, you engaged in the following conversation with the user ‘Vapeman’:
You: ‘u into yng girl?’
Vapeman 17: ‘how young baby’
Vapeman 17: ‘yes’
Offender: First image sent
Vapeman 17: ‘So tight, what’s ur age 18’
Vapeman 17: ‘U got more pics? U look tiny, how tall baby’
Vapeman 17: ‘??’
You: Sent an image sent
10 The first image sent by you depicted a naked adult male lying on his back with an erect penis. A naked prepubescent female child is being held on the buttocks above the adult male. The male’s penis is penetrating the female child’s vagina.
11 The second image you sent depicted a female child laying on her back, naked from the waist down, with her legs spread apart and her genitals exposed.
12 On the same day, you had the following conversation with user ‘Adge82’:
You: ‘Hey’
Adge82: ‘Hey’
You: An image was sent
You: ‘Pic 4 pic’
You: ‘Send cock pic 4 more’
13 The image sent by you depicted a female child lying on her back, naked from the waist down, with her legs spread apart and her genitals exposed.
14 The same day, you and user “Harry D” engaged in the following conversation:
You: ‘Hey’
Harry D: ‘Hi’
Harry D: ’What’s up’
You: First image sent
Harry D: ‘Nice’
Harry D: ‘Hot’
You: Sent the second image
You: Sent the third image
Harry D: ‘Hot’
You: ‘Send dic pic for more’
Harry D: Image sent – erect adult penis
You: A fourth image was sent
15 The images you sent comprised of the following:
a. A female child lying on her back, naked from the waist down, with her legs apart and genitals exposed;
b. A naked adult male laying on his back with an erect penis. There is a naked prepubescent female child, held on the buttocks, above the adult male. The male’s penis is penetrating the female child’s vagina.
c. A naked prepubescent female child with her genitals exposed and her labia being separated by adult fingers.
d. An infant female child naked from the waist down, with an adult penis between the buttocks of the child.
This conduct constitutes the rolled up charge on the Indictment, Charge 3.
16 On 3 July 2019, you used the application WhatsApp on your phone to send six videos to another, unidentified user of the application.
17 While you had deleted the application from your phone, the files were located by investigators.
18 The videos depicted prepubescent female children being abused by adult males, including vaginal and oral penetration of the child by an adult. This conduct constitutes Charge 4.
19 Police executed a search warrant at your home on the morning of 13 November 2019. During their search, investigators located a Samsung S4 mobile phone; a small black bag containing two USB storage devices and three SD cards; and a Samsung S2 mobile phone in your bedroom. An ASUS brand laptop was located in the lounge room of the house.
20 The devices were analysed by the Informant with images and videos constituting child abuse material located on the following devices:
a. 24 files on the Samsung S4 mobile phone,
b. 119 files on the Cruzer Switch USB storage device;
c. 1201 files on the Lexar USB storage device; and
d. 1741 files on the Samsung S2 mobile phone.
21 In relation to the ASUS brand laptop, the examination showed that recent files had been accessed on the device that were identified as child abuse material. 110 of the files accessed had the file names which were found to match those on the Lexar USB storage device.
22 Across the four storage and electronic devices, you had in your possession 2,060 image files that constituted child abuse material, and 1,025 video files.
23 The child abuse material on the devices was categorised according to the ANVIL scale, and included material across all categories. The material variously included: Category 1, images and videos of male and female children posing naked, or partially clothed, in a sexually explicit manner. The children depicted are aged between newborn babies and 15 years of age. Category 2, images and videos of male and female children engaging in self-masturbation and inserting objects into their anus and or genitals. The children depicted are aged between two and 15 years. Category 3, images and videos of male and female children holding, touching, or preparing to perform oral sex on the penis of adult males. Adult males ejaculating on the genitals, anus, body or face of male and female children. The children depicted are aged between newborn babies and 15 years of age. Category 4, images and videos of male and female children being anally or vaginally penetrated by the penis of adult males. The children depicted are aged between newborn babies and 15 years of age. Some of the children depicted appear to be under the influence of drugs or alcohol, while others are crying and appear distressed. Category 5, images and videos of male and female children with their hands and feet bound, and/or their mouths gagged, with some of the children being anally or vaginally penetrated by adult males, infant children bound and gagged, being urinated and defecated upon by adult males, male and female children engaged in penetrative sex with animals, or performing oral sex on animals. The children depicted are aged between newborn babies and 15 years of age. Some of the children depicted appear to be under the influence of drugs or alcohol, while others are crying and appear distressed.
24 At the time your residence was searched you were arrested and participated in a record of interview that day. In the course of the interview you made the following admissions:
a. There would be child abuse material on the USBs located in the black velvet bag;
b. You put the child abuse material on the USBs;
c. You would have last looked at the images when you were recently taking drugs, ‘maybe three months ago’;
d. Over the last ten or so years, you would only view the child abuse material when under the influence of drugs;
e. You recalled your activities when you had sobered up;
f. When on drugs, viewing the material gave you some sexual satisfaction;
g. You shared child pornography material on Kik;
h. You did not think that anybody was sending you videos that they had filmed themselves;
i. You sent some child pornography material that you had in exchange for other material; and
j. You had accessed child abuse material in the past, and it is something you were very ashamed of.
Assessment of Gravity of Offending
25 Your counsel rightfully conceded that this offending by its nature is grave, but submitted that the following mitigating factors are relevant in assessing the objective seriousness of your offending:
· You possessed the CAM for your own use, not to sell or disseminate widely;
· Transmitted to only a small number of people and only a very limited number of images;
· You did not receive any financial benefit for doing so and sought to exchange images for you own use;
· Acted alone and were not part of a sophisticated or collaborative network of like-minded individuals;
· There was little organisation or sophistication in acquiring or storing the material;
· There was no risk that the material would be seen or acquired by vulnerable people or children, as you kept it stored on devices in your room; and
· You were not proximate to those producing the CAM or perpetrating the physical acts of abuse depicted in it.
26 The prosecution in response submitted that each offence is a serious example of the offence charged and together constitutes a course of conduct in which you dealt with a significant quantity of child pornography or abuse material over a protracted period. In determining the objective seriousness of offending of this kind, the court should have reference to the following factors:
· The nature and content of the material, in particular the age of the children and gravity of sexual activity depicted;
· The number of items or images possessed;
· Whether the material is for the purpose of sale or future distribution;
· Whether the offender will profit from the offence;
· In the case of possess or accessing of child pornography for personal use, the number of children depicted and thereby victimised; and
· The length of time the material was possessed.
27 As to the transmission offences, the four charges were commissioned between 20 April 2014 and 3 July 2019. Taken as a whole, it was submitted that you transmitted 10 images and six videos, to six unknown persons. The material was highly depraved and comprised depictions of explicit sexual activity, including penetration between prepubescent female children and adult males. While you appear to have transmitted for the purposes of exchanging explicit material, you frequently initiated these exchanges. The Crown submitted that a significant aggravating feature of this offending was that it involved the transmission to other unknown persons and hence you contributed to the market of child pornography and further victimised the children depicted.
28 The Crown submitted that each of Charges 1 to 4 were serious examples and that Charge 3, being particularly grave, as it is a rolled up charge relating to three transmissions on the one day. It was accepted that the charges involved a low quantity of material.
29 As to the charge of possession of CAM, the offence consists of material located on five electronic devices seized on 13 November 2019. In total, you possessed 3,085 files constituting CAM, being 2,060 images and 1,025 videos, and it was submitted to be a significant quantity, noting they were obtained over a number of years. Further, that given the transmission offending, the court could not be satisfied that you possessed it for personal use alone. The real gravamen of this offence being the nature and content of the material. Following its categorisation, as referred to above, the totals are; Category 1 – 240 files; Category 2 – 145 files; Category 3 – 1,053 files; Category 4 – 1,557 files; Category 5 – 88 files; and Category 6 – 2 files.
30 On the plea, both counsel agreed that the material depicted 'children of all ages, including newborn babies and infants. The children sometimes appeared to be distressed or under the influence of drugs and alcohol while engaged in sexual activity. The material described in the Summary of Prosecution Opening for the plea as falling within Category 5, included depictions of children, including infants, who were penetrated while restrained, urinated and defecated upon, and compelled to perform penetrative and other sexual activity with animals'. There was no challenge by defence as to the nature or content of the material. The prosecution submitted that the extreme nature of this material elevated the objective seriousness of your offending substantially.
31 The Crown submitted that in the course of the plea, there had been a suggestion that your own personal history of abuse might provide some explanation for this offending. That even if that were the case, that did not reduce your moral culpability and pointed to your evidence under cross examination that you knew that it was wrong and that no aspect of your personal history and experience could have blinded you to the gravity of some of the more extreme iterations of the material. On a targeted point of your disinhibition, due intoxication being causative of this offending, the prosecutor again pointed to your earlier evidence that you were aware of the link and continued to use substances and this too, was not in mitigation of your conduct.
Matters in Mitigation and Personal to You
32 You are now 48 years of age and are the youngest of two sons from your parent’s marriage. You also have two older half siblings, but you have very limited contact with them. You were raised around the Deniliquin area and had a childhood you described as characterised by significant instability. Your family was very poor, living in a housing commission community and your parents often struggled to provide the basic necessities for you and your brother, and you were ashamed of others knowing these circumstances.
33 Your parents separated when you were very young and you lived mainly with your father. This became permanent with your mother’s passing from a brain tumour when you were eight years old. The loss of your mother significantly exacerbated the sense of disconnection and dysfunction in your family, with your father providing minimal supervision or guidance. You attended the local schools around the Deniliquin and Mathoura areas and were an average student. At age 18, you left your father’s home and moved to Melbourne to attend university, but have remained in regular contact with both your father and brother. Once you obtained your Bachelor of Business, you proceeded to gain employment in the hospitality industry, working as a supervisor at a large hotel for five years, then obtaining a reception position at Crown Towers Resorts, before ultimately securing a senior managerial position. You were employed by Crown until 2014 and then gained employment at the ‘Catholic Leadership Centre’ as a duty manager for five years. Upon being charged with these offences, you left this position and have been unemployed since.
Character References
34 A reference was supplied by your partner Keith Mathews, Exhibit 3. In it, he writes that these charges have affected your lives significantly, he was truly shocked by these events. It has been financially devastating for the two of you, with you losing your employment. You have also lost all your social connections and have stayed in contact with only two long term friends.
35 Your childhood was messy with your father having mental health issues and problems with alcohol, being not an affectionate father and leaving you and your brother to fend for yourselves. Despite this, you have a strong bond with your father, now aged 89, who relies on you for everything.
36 As to your offending, you feel shame and have withdrawn, he believes this is due to your fear of people finding about your situation. With respect to your drug abuse, he believed that was the worst of what you did and noted that following your binges and sexual encounters with other men, you would be disgusted and extremely emotional about what you were doing to yourself.
37 You have apologised to him and he believes that you are truly sorry for what you have done, making a huge effort to address your issues and making a complete about face. Having regular counselling to face your past issues, remaining drug free for more than a year and having stopped drinking. He believes you when you say you did not mean to commit this offending, but that it was something you could not stop or control. To him, you have proven that you have turned a corner and will do all in your power to continue along this path.
38 Exhibit 4 on the plea was a reference from your older brother Joshua. He details the difficult circumstances of your childhood, the loss of your mother when you were eight and your father’s issues. He writes of one example, when you were 12, when your father attempted suicide and you both holding him back from jumping off a bridge. A passer-by intervened and your father was hospitalised for a period and you both were cared for by a local family. Your brother notes this was just one of many such traumas you experienced.
39 Again, despite these issues in your childhood, he too writes of the support you have given your father particularly over the last 15 years. Taking on the primary share of his care following several serious health conditions, including bladder cancer. You attend him daily assisting with medical needs, transporting him to and from medical appointments and attending to his shopping needs. He still continues to experience bouts of depression and relies upon you for assistance. Your brother notes you have been amazing and he is not sure how your father would have coped without you.
40 Having been candid about these charges and the period of your offending, he writes that you expressed deep dismay at your actions and are genuinely extremely distressed about having committed these offences. He believed that but for your drug addiction, you would not have committed these offences. Similarly to your partner, he notes your commitment to counselling, overcoming your addiction, dealing with your issues and that he and his family will continue supporting you in this.
41 He writes that this offending is totally out of character and not reflective of who you are and that if that were not the case and you were not committed to counselling, he would not have provided this reference to the court. He describes you as always having been a caring, honest and loving friend, son, brother and uncle. You support your friends and family whenever they have needed you to and you have always been well liked and highly regarded by everyone you met. He believes that you are genuinely deeply remorseful and fully committed to ensuring that you do not offend again.
Psychological Reports
Dr Barth’s Report
42
A psychological report of Dr Mathew Barth, Forensic psychologist, dated
5 August 2020, was tendered on the plea and marked Exhibit 1. In it, Dr Barth provides the same history as above in greater detail and provides further salient matters in the consideration of your personal circumstances.
43 As noted above your childhood, in the care of your father was not ideal in a number of features. It was significantly impacted by his emotional and behavioural problems, as he suffered from severe mental-health issues and abused alcohol heavily. He was often verbally and physically abusive to you. You described your childhood has been 'very lonely and isolating'. Despite this behaviour during your childhood, you have report having an improved relationship in recent years and a strong sense of obligation to care for your father.
44 Throughout your schooling, you saw yourself as a 'social outcast' and 'could never fit in' experiencing pervasive social problems. You had difficulty establishing social connections with your peers and were often teased.
45 Your childhood was marred with a number of very abusive sexual experiences. Aged five, you were forced into sexual behaviour by a teenage boy who lived in your neighbourhood for 12 months, this involved mutual masturbation and oral sex. Additionally, you described that from age 11, being fondled by your swimming coach and an experience at age 13, where an older man took you to his residence and you both performed oral sex. He kept you there for several hours and you were scared as you were not sure he would let you leave.
46 Dr Barth opined that these experiences of sexual abuse appear to have served as a template for your subsequent sexual experience and that you recall becoming aware of your sexuality and sexual orientation at age 11 and experienced considerable guilt about it. From age 13, you engaged in a wide range of casual sexual encounter with men, considerably older than you, typically seeking out domineering/physically imposing men to act out various sexual fantasies. This is behaviour you have continued with increasing frequency throughout the years. Dr Barth reported that your emotional response is complex, on one hand seeking to recapture your perceptions of affection and security from your sexual abuse by submitting to these men and at the same time feeling disgust and being upset by your sexual activity.
47 Your only committed relationship is with your current partner, who is 16 years your senior, meeting at 21, before beginning living together not long after this. The relationship is not without issues, but your partner has been caring and supportive despite being understandably upset when he learned of your offending. At that time, you believed he might end the relationship, but that has not come to pass and he has remained supportive of you. Your brother has been informed of this offending and remains supportive, you have to this time chosen not to tell your father.
48 With respect to your history of employment, you told Dr Barth that your changes in employment often were caused by lacking enjoyment in your work, in combination with an escalation in drug use and your behaviour becoming correspondingly more erratic. Whilst you have been unemployed, you have focused heavily on your rehabilitation and treatment with Mr Hanley and have expressed a desire to re-enter the workforce in the near future.
49 In the course of your assessments with Dr Barth, you outlined an extensive substance abuse history. You started consuming alcohol at age 18 and while you were a relatively moderate social drinker, your consumption increased in your thirties due to work related stress, and you were drinking up to two bottles of wine a night. This continued until April of this year, where through the course of treatment with Mr Hanley, you have only consumed alcohol once since then.
50 As a means of escape from feelings of shame regarding your sexuality and to assist with social connections, you started using cannabis when you were 20. This escalated to daily use, an intense dependency on the drug which remained problematic throughout your thirties. In your late thirties, you reduced your use of cannabis in favour of MDMA, amphetamine and methamphetamines, with your use of methamphetamines becoming compulsive. You used ice as a way to manage your stress at work, while also boosting your energy levels to work long hours and would ‘binge it’ once every few months. It took a toll on your relationships, employment and disinhibited you considerably, increasing the frequency you would engage in anonymous sexual encounters and impairing your ability to reflect on the ramifications of your behaviour. It was often when you were intoxicated from ice, at times in combination with alcohol, that you viewed Child Abuse Material (CAM).
51 In terms of your mental health, you reported significant issues relating to self-esteem from a young age, utilising drugs and alcohol and compulsive sexual behaviour to alleviate distress in your adult years and experiencing an intense emotional reaction following your arrest, leading to deep distress and transient suicidal ideation which was not acted upon. You presented with depressive and anxiety-related symptoms of moderate intensity and reported experiencing a degree of sleep disturbance and rumination relating to these proceedings. Your moods have stabilised to some degree over the past six months, you have not been prescribed with any psychotropic medication and do not currently suffer with any mood, anxiety or adjustment disorders. However, your history of substance abuse has warranted diagnoses of Stimulant Use Disorder and Alcohol Use Disorder at moderate to severe levels now in early remission.
52 As to the background of your offending, Dr Barth opines that your sexual 'fantasies developed from the idealisation of his own experience of abuse and the anonymous sexual encounter he had engaged in with older men for much of his life to focus on these of submission and dominance within adult relationship'. This led to more 'deviant themes including sadomasochistic themes and ultimately interactions between adults and children'. Concluding that 'It was through the process of exploring these fantasies online that the offending took place. His abuse of ice and alcohol then provided a further disinhibiting factor'.
Mr Handley’s Report
53 Mr Handley being your psychologist and treating clinician, also provided a report dated 10 August, that was tendered as Exhibit 2. In it he writes that you commenced your treatment with him in February 2020, presenting with a moderately depressed mode, reporting the aforementioned history of sexual abuse and heavy drug and alcohol use.
54 You were accepted into a Sex Offender Treatment Program involving counselling, specifically adapted to address your individual needs. Six therapeutic goals were set and can be succinctly summarised as follows;
· Developing insight to your offending;
· Improving your understanding of normal sexual development of children and addressing deviant sexual cognition about children;
· Enhancing empathy for the victims of this offending;
· Reducing alcohol use and abstinence of illicit substances;
· Improving interpersonal skills and ability to develop and sustain healthy intimacy; and
· Relapse prevention aimed at reducing the risk of future offending.
55 In the course of the program, you have been able to provide more realistic descriptions of the normal sexual development, interests and behaviour of children. Expressing concern for victims of sexual abuse though Mr Handley writes that further treatment is required to convert these insights into deeper empathy for victims of sexual abuse. A relapse prevention approach to reduce your risk of reoffending, identifying triggers of your offending and strategies to address each of these have been developed.
56 In response to three questions posed by your counsel, Mr Handley provided responses as follows:
· As to what specialist treatment you required to address all your issues comprehensively, Mr Handley opined that you required treatment administered by an appropriately skilled practitioner, focused on factors that contributed to your sexual offending. Noting that individual or group programs offered by Forensicare or Corrections Victoria may be suitable, as would the current program you engage in.
· What are the potential benefits of you receiving specialist treatment immediately as opposed to after a delay caused by a period of imprisonment? To this, Mr Handley suggested there could be a benefit of building on the foundations of your recent progress, noting that your quality of engagement in treatment may be enhanced by the motivation of an upcoming court appearance.
· With respect to the opinion of Dr Barth, that specialist treatment delivered in a timely manner is likely to reduce your risk of recidivism, Mr Handley opined that he would expect, given your commitment and good progress to date, that there would likely be a reduction in your risk of recidivism if you engaged in such treatment.
57 In conclusion, Mr Handley opines that you have made very good progress in the program presenting with 'good insight into his offending behaviour, and a more realistic understanding of the harmful nature of child abuse, including his own abuse and the abuse depicted in Child Abuse Material'. Further, that you have 'expressed a greater level of concern for victims of CAM and a commitment to prevent further offending'. Nevertheless, your outstanding treatment needs include the most pressing needs of developing your ability to establish and maintain healthy intimacy with adults and a deeper level of empathy for the victims of sexual abuse.
Viva Voce Evidence on the Plea
58 In the course of your evidence you stated that your treatment had given you understanding as to why you would commit this offending, that your behaviour had been sexualised from a very young age, engaged in deviant behaviour and having no support network to discuss sexuality or positive role models. The interest in looking at and relieving child sexuality activity being underpinned by a ‘shameful sexual desire’, that you had not been addressing, stemming from a pattern of secret shameful sexuality, which was hidden and exasperated later in your life, especially when you were addicted to ice.
59 You find it very hard to comprehend that you were committing such offending at the time, feeling shame, shock and disbelief. As to empathy for these children in the images and videos, you believe that you have gained empathy for these victims. You acknowledge that you were objectifying them, taking away their humanity and looking back at your own sexual abuse, you know that they are human beings out in the world and your conduct was a further infliction on their abuse and you are remorseful for the part you played.
60 As to your drug abuse which was linked to this offending in part, you feel that you are doing very well and are committed to remaining abstinent. Stating that your use of ice was on and off for 10 years, including a period of three to four years where you were spirally with continuous use, culminating in you leaving Crown. In furtherance of this has been the development of relapse prevention plans for both illicit substances and CAM. The aid of your treating clinician, identifying triggers, risk factors and behaviours and clear strategies, combined with the ability to discuss these issues, has given you confidence in your ability not to relapse.
61 Whilst acknowledging these issues, you were adamant that you were committed to your treatment, that it was not about these proceedings, but the rest of your life, not wishing to see that side of you again or offend your friends and family who are supporting you and being the type of person you want to be. In pursuit of this you, were genuinely engaging in treatment and were remorseful for your conduct. This was not a matter of you giving this evidence in the hopes for a reduction of sentence or fear of what you might receive, but that your main fear was ever committing such acts again.
62 Under cross examination, you stated that you had viewed CAM for up to 15 years, and that you knew it was wrong, that the degrading and exploitative nature was apparent to you, but that you viewed the material in an intoxicated state of mind, not in a fit state, and were looking at it in part from desire and a deviant sexual belief about these desires. In the periods of sobriety that would follow these binges and the viewing of CAM, you felt disgust, shame and remorse and acknowledged that you knew one of the consequences of using ice or another substance, would lead to you viewing the CAM. However, qualifying that your desire to use ice was because you needed to move away from whatever stressors or anxiety that were impacting on you and escape your reality, not from a desire to view the material per se. Finally, you accepted that you still needed to develop a deeper level of empathy for your victims as part of your treatment.
Sentencing Principles
63 In sentencing you, I must have regard to a range of different factors. I must give effect to the principles of deterrence, both general and specific. I must deter other people from behaving like you. I must deter you from repeating such behaviour and impose a just punishment in all the circumstances. I must express the community's denunciation of your conduct and promote your rehabilitation. I must also have regard to current sentencing practices for offences of this kind that you have committed and I must balance your personal circumstances.
Plea of Guilty and Remorse
64 Both counsel submitted that you made admissions to police, that your plea was made at the committal stage at the first committal mention and at the earliest possible opportunity. Your counsel submitted that your plea should be regarded as having significant utilitarian value, more so even due to the current health crisis of Covid-19 and its impacts on the criminal justice system and the cessation of jury trials it has caused. On that point, the court has considered the decision of Jane Dixon J in DPP v Bourke [2020] VSC 130 at paragraph 32.
65 I take the timing of your plea into account and you will, of course, also receive credit for its objective utilitarian benefit, although through the saving of time and resources associated with the running of a trial, and I do recognise a level of remorse and insight with respect to this offending and your subjective willingness to facilitate the course of justice.
66 Your counsel submitted that you were immediately cooperative when your residence was searched by police, providing the locations and passwords of devices to them, and this submission was accepted by the prosecution. You took part in a record of interview less than four hours later, before the opportunity for a full forensic analysis of the devices could occur. Despite this, your counsel submitted you were not interested in gaining any advantage or waiting for a brief of evidence, you did not consult a lawyer and made full admissions in the course of the interview. It was submitted that from your admissions, you can be seen to be immediately remorseful for your offending in combination with the expressions of remorse given in your evidence and contained within Exhibits 1 to 4.
Prospects of Rehabilitation
67 In assessing your prospects of rehabilitation, it was submitted taking in to consideration, your remorse, significant progress in addressing offending behaviour, achieving abstinence from illicit substance and developing relapse prevention plans, the support of your friends, partner and family, having no prior convictions and a good work history that the court should find you as having good prospects of rehabilitation.
68 It was accepted that your prospects for rehabilitation are enhanced by your participation in the Sex Offender Treatment Program thus far and that you have developed some insight. However, the prosecution accepted the conclusion of Dr Barth, that you remain a moderate risk of re-offending at present. On that basis, it was submitted that the court should view your prospects as guarded and contingent on your successful completion of the treatment program.
General Deterrence and Denunciation
69 This is serious abhorrent offending to which general deterrence is the primary sentencing consideration in the court’s instinctive synthesis. Given the increase in the maximum penalty of the transmission offences from 10 to 15 years imprisonment in 2010, and the introduction of the possession offence by Parliament in 2019, it is clear that the public and their representatives regard offending which involves the online sexual exploitation of children with the utmost seriousness. Its prevalence and availability has only increased in recent years, these legislative measures inherently recognise the vulnerability of children and the need to protect them from sexual abuse and the perpetuation of their exploitation online.
70 It was submitted by the prosecution that the mitigatory factors that have been extensively outlined above, must be given less weight than might otherwise be given in line with the authorities for offending of this kind. In addition, that the changed legislative landscape reflects an assessment of the seriousness of the offences and is important in assessing the objective seriousness of this offending.
71 The public is rightly disgusted and outraged by the exploitation of children and offending of this kind. Sadly, the material is more readily available to those who choose to access and obtain it. It occurs on both domestic and international levels, with those who engage with this dark corner of the internet, further victimising those children who have been the subject of this deplorable and denigrating offending. It is offending that is difficult to detect, given the anonymity which the internet affords. But, in the cases that are detected and come before the courts, it must be denounced in strong terms and result in sentences which will deter those who would engage in such conduct.
72 Mr Williams, whilst your own struggles with sexual abuse, difficult background and addiction to illicit substances may go some way to providing an explanation for your offending, there can never be an excuse for it. It is difficult to properly express the content of the material transmitted and seized, it is simply beyond the pale.
Specific Deterrence and Community Protection
73 Your offending in relation to the transmission offences occurred over the course of a number of years and the material consisting of the possession charge, was also acquired over a period of years. In your evidence, you had been viewing CAM for up to 15 years and knew it was wrong. As such, I do consider that there is a need specific deterrence to factor in the sentence imposed. There are few matters of public interest and importance to a society more than the protection of children. Especially their sexual abuse and exploitation online, by those who would commit such acts. Your counsel submitted that it was in the interest of you and the community, that you continue to receive treatment and to aid with rehabilitation.
Disposition
74 It was the submission of your counsel that whilst offending of this kind would ordinarily receive a term of immediate imprisonment, that there need not be exceptional circumstances to be established before a non-custodial disposition would be appropriate, each case turning on its own facts. In this instance, relying on the mitigatory circumstances and factors detailed above and the restrictions and additional hardships presented to those in custody by Covid-19, especially the limited programs available for rehabilitation at this time, in combination with the opinion of Dr Barth that your treatment should continue in a timely manner. Upon these factors and considerations, it was submitted that you be sentenced to a term of imprisonment, but that it be suspended and you be released forthwith on a Recognisance Release Order, with the condition that you continue to receive specialist treatment. It was accepted by your counsel that such a sentence would be at the very lowest end of the range, but still open to the court. In the alternative, it was submitted the court order a short and sharp period of imprisonment before being released on a Recognisance Release Order.
75 The Crown in response submitted that taking into account the inherent seriousness of the offences, the objective serious of this offending and the prominence of general deterrence in the court’s instinctive syntheses, that a term of immediate imprisonment is required. Further, that it is appropriate that there be some measure of cumulation between charges, particularly between the transmission and possession charges as they are directed at 'different vices'. The sentence the court imposed should reflect the totality of the criminality, but also take into consideration the objective of rehabilitation and with consideration to imposing a condition as previously described in the imposition of any Recognisance Release Order.
Current Sentencing Practices
76 In the course of submissions, your counsel directed the court to the following comparable County Court cases, of DPP (Cth)v Winter [2016] VCC 863; DPP v Soebadio [2017] VCC 129; and DPP v Canavan [2017] VCC 1109. It was submitted that these decisions contain analogous sentencing exercises, which involved no immediate imprisonment or short terms of imprisonment, followed by non-custodial orders being imposed.
77 The Crown relied on the Court of Appeal cases of DPP (Cth) v Guest [2014] VSCA 29; Heathcote v R [2014] VSCA 37; DPP (Cth) v Zarb [2014] VSCA 1517;and Lyons v R [2019] VSCA 242. These cases submitted to provide guidance as to the identification and application of relevant sentencing principles and yielding discernible sentencing practices. Each of these offenders having committed child pornography offences and having no relevant prior convictions, illustrating a sentencing pattern for this type of offending, whilst acknowledging that each case has its own unique factual circumstances and configuration of charges.
78 These cases do serve as some reference to the objective gravity and seriousness of your offending and whilst the court has taken the cases provided into account in determining the appropriate sentence as being informed by them, I am not bound by them in exercising my sentencing discretion and view current sentencing practice as only one of the factors I must consider, along the lines of the principles of DPP v Dalgliesh [2017] HCA 41.
Sex Offenders Registration
79 Charges 1, 2, 3 and 4 are all Class 2 registerable offences under the Sex OffendersRegistration Act 2004 (Vic), as you have now pleaded guilty to them and will be convicted of these offences you will placed on the register and required to comply with the reporting obligations for the remainder of your life. Shortly you will be given documentation which sets out your obligations under the Act and be asked to sign the acknowledgment that you have received this material.
Sentence
80 Mr Williams can you please stand.
81 Mr Williams, on Charge 5 of possessing child abuse material, contrary to sub-section 474.22A(1) of the Criminal Code (Cth), you are convicted and sentenced to 15 months imprisonment.
82 On Charge 1 of transmit child pornography material, contrary to sub-section 474.19(1) of the Criminal Code (Cth), you are convicted and sentenced to six months imprisonment.
83 On Charge 2 of transmitting child pornography material, contrary to sub-section 474.19(1) of the Criminal Code (Cth), you are convicted and sentenced to four months imprisonment.
84 On Charge 3 of transmitting child pornography material, contrary to sub-section 474.19(1) of the Criminal Code (Cth), you are convicted and sentenced to 10 months imprisonment.
85 On Charge 4 of transmitting child pornography material, contrary to sub-section 474.19(1) of the Criminal Code (Cth), you are convicted and sentenced to eight months imprisonment.
86 I direct that the sentence imposed on Charge 5 commences today. The sentence on Charge 3 is to commence 10 months from now, being 18 July 2021. The sentence on Charge 4 is to commence 18 months from now, being 18 March 2022. The sentence on Charge 1 is to commence 24 months from now, being 18 September 2022. The sentence on Charge 2 is to commence 28 months from now, being 18 January 2023.
87 This makes a total effective sentence of 32 months imprisonment. I direct you serve six months before being released on a Recognisance Release Order with the following conditions: You are to be released after serving six months of the term of imprisonment upon entering security for $500 by recognisance to comply with the following conditions:
(a) That you are to be of good behaviour for two years.
(b) That you are to be under the supervision of the Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee for two years;
(c) That you are to attend for assessment, and if assessed as suitable, treatment for Sex Offender Programs or programs to reduce reoffending as directed by the Deputy Commissioner Community Correctional Services and Sex Offender Management, or his or her nominee.
(d) That you are to report to the Collingwood Community Corrections Centre, 241 Wellington Street, Collingwood at 4 pm within two clear working days of your release from custody.
(e) You are to report to and receive visits from the Community Corrections officer or officers.
(f) That you are to notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change.
(g) You are not to leave Victoria, except with the permission of an officer at the specified Community Corrections Centre.
(h) That you are to obey all lawful instructions and directions of Community Corrections officers.
88 Assuming that you agree to these terms Mr Williams, I need to explain to you that with a recognisance, that you will be released after six months, but for a period of two years, you have to be of good behaviour. If you are not, you will be brought back and you will be re-sentenced on the recognisance. You would lose the $500, but if you are found with any of this sort of material again in the next two years after you are released, you will be resentenced and you ought not to assume that it would just be for the balance of the 32 months.
89 You will also be placed on the Sex Offenders Register for the rest of your life and you are required to comply with the reporting obligations. My Associate will now provide you with that documentation and have you sign the acknowledgment document.
90 Pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty, I would have imposed a total effective sentence of three years imprisonment, with a non-parole period of 15 months . Counsel, do you want to just check my arithmetic?
91 MR MOODIE: Yes and may I have leave just to approach Mr Williams and explain?
92 HIS HONOUR: Certainly.
93 MR KEKS: Your Honour, if the court can hear me (indistinct words).
94 HIS HONOUR: Yes.
95 MR KEKS: Can I just please confirm - perhaps I should wait till my learned friend returns from the dock.
96 HIS HONOUR: Yes. Are you going to address me on the arithmetic?
97 MR KEKS: Perhaps if I can just confirm Charge 1. Does that commence in 24 months?
98 HIS HONOUR: Yes, 24 months from now being 18 September 2022.
99 MR KEKS: Yes, Your Honour.
100 HIS HONOUR: Do you want me to read that sentence again to you, that paragraph?
101 MR KEKS: If you could do, that would be very helpful. Thank you.
102 HIS HONOUR: Yes, very well, if you just take a note of this. 'I direct that the sentence on Charge 5 is to commence immediately. On Charge 3, commences ten months from now being 18 July 2021. The sentence on Charge 4 is to commence 18 months from now, being 18 March 2022. The sentence on Charge 1 is to commence 24 months from now, being 18 September 2022. The sentence on Charge 2 is to commence 28 months from now, being 18 January 2023.
103 MR KEKS: Yes, Your Honour.
104 MR KEKS: I have - having now had the benefit of rehearing those figures, I believe that the arithmetic is correct and my instructor will no doubt tell me if she disagrees.
105 HIS HONOUR: All right.
106 MR KEKS: As well, my learned friend.
107 HIS HONOUR: I will reserve liberty to apply, with respect to the calculations in case I have made an error. Is there anything further from counsel?
108 MR KEKS: No, Your Honour.
109 HIS HONOUR: Yes, thank you. You may remove the prisoner. Thank you. Can you adjourn the court please?
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