Director of Public Prosecutions v Williams

[2014] VCC 1991

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01581

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY WILLIAMS

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 November 2014
CASE MAY BE CITED AS:	DPP v Williams
MEDIUM NEUTRAL CITATION:	[2014] VCC 1991

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr H. Tilemann
For the Accused	Mr S. Dickenson

HER HONOUR: 

1Rodney Harry Williams, you have pleaded guilty to two charges; Charge 1, accessing child pornography using a carriage serve between 21 June 2012 and 26 December 2013, a Commonwealth offence, and Charge 2, possession of child pornography on 12 May 2014, a State offence.  The maximum penalty for charge 1 is 15 years and for Charge 2 is five years.

2The circumstances of this offending is set out in Exhibit A, summary of Prosecution Opening for plea.  I have also had available the child pornography material, the subject of these offences and, with the agreement of the parties, have viewed it in my chambers.

3In February 2013, the Australian Federal Police conducted an investigation into the BitTorrent network and discovered a number of computers, including yours, were sharing child pornography.  BitTorrent is a readily available application and is used commonly for the downloading of and sharing of music, movies and other information on the Internet.  This network facilitates the sharing of files between users.  Each user downloads a file or part of it from another computer on the network.  Once the file is downloaded, other users on the network can download the files from their own computer; a process known as "uploading" or "sharing". 

4The BitTorrent file sharing protocol can be used by peer client computers via many different BitTorrent client software programs.  These programs are typically free software programs that can be downloaded from the Internet.  In this instance, the Internet address you were using was BitTorrent7, the licence agreement of which includes a section entitled "Automatic Uploading", which explains that the files the user is downloading will be made available to others. 

5On 16 February 2014, your computer was identified as sharing child pornography using an Internet provider address to which you subscribe.  Police were able to make a direct connection with your computer and downloaded a number of files that were being shared by your computer via the BitTorrent network. 

6Police attended at your home on 12 May 2014 with a warrant and seized a computer and hard drive.  You were in hospital at the time police executed the warrant, but your wife was at home.  You spoke to police on the phone and admitted that you had accessed child pornography and indicated that you did not save it. 

7Analysis of the computer revealed that you had accessed child pornography using applications and software relying on the Internet in the period between 12 July 2012 and 26 December 2013.  I was informed you accessed material on at least 13 different days over this period.  Each of the sessions lasted various periods of time and you viewed different numbers or amounts of images including, on at least one occasion, 50 images.  During the charge period in respect of Charge 1, you accessed a total number well in excess of 100 files.  Examples of the names of some of the files accessed were descriptions of the material within the file and they are included in Paragraph 11 of Exhibit A.

8Analysis of the computer and hard drive seized by police located 33 image and one video child pornography files, as that term is defined under the Commonwealth Criminal Code.  These files were classified in accordance with the Australian National Victim Image Library (ANVIL), categories of which there are seven classifications.  The relevant criteria for classification is set out in Table 3 of Exhibit A.

9Twenty seven of the 34 files, or almost 80 per cent of the files, were categorised as Level 1.  The remainder of the files were Level 2, with one file Level 4.  At the time that the computer and hard drive were seized, the files would not have been able to be viewed by you without special forensic or data recovery software, as they had been deleted. 

10You are currently aged 54 and grew up in Chelsea with your parents and two older sisters.  You are not particularly close to your siblings or parents though you became very attached to and cared for a paternal aunt.  You provided care for her in your home from 2007 and, as she aged and her health deteriorated, you ultimately had to place her in a home to be cared for as she was suffering from Alzheimer's.  You frequently visited her until her death in 2011.  These events had a significant impact on your emotional well-being, resulting in you seeking to retreat from your family life in your home office where you were able to escape and seek solitude. 

11You are married and have two teenage daughters.  You live at the family home with them in Upwey and have done so for the last 23 years.  After school, you completed a degree in electrical engineering at CIT.  You worked full-time for about 14 years in this area but, after the birth of your first child, reduced your work to part-time.  You have assisted in the hands-on care of both your children throughout their lives, always being there for them and being involved in activities with them. 

12At the time the police attended your home you were in hospital, having been diagnosed with bowel cancer.  Whilst in hospital for partial removal of the bowel, you contracted Stevens-Johnson syndrome.  You became extremely ill and were placed in isolation for a period of two weeks.  You are currently undergoing cycles of chemotherapy.

13In cases involving child pornography, the relevant sentencing principles are set out in The Commonwealth DPP v D'Alessandro, (2010) 26 VR 477, recently approved in the Commonwealth DPP and DPP v Guest, (2014) VSCA 29. First, the nature and gravity of the offence, second, the significance or otherwise of general and specific deterrence and, third, in cases involving this kind of offending, a term of imprisonment will ordinarily be warranted, but it is recognised that there will be cases where there is no requirement to actually serve any period of imprisonment.

14Approaching the sentencing task in the manner there set out, one, the nature of gravity of the offence:  In considering this factor, the following is relevant: (a), the nature and content of the material, and particularly the age and gravity of the sexual activity depicted; (b), the number of items or images possessed; (c), whether the material was for the purpose of sale or further distribution and (d), whether you profited from the offence.  In the case of child pornography for personal use, the number of children depicted and thereby number of victims is also regarded as a relevant consideration.

15Nature and content of material, age of children and gravity:  You had a relatively small amount of files that were available through the BitTorrent network.  The majority of the files were classified Level 1, relating to depictions of children engaging in sexually suggestive behaviour.  The material does not involve participation in actual sexual activity and though it is still serious, it is at the lowest level of classification. 

16It is apparent on viewing the files that those depicted were not extremely young ages.  This is not to denigrate from the seriousness of this kind of offending, as such exploitation and abuse of children can cause irreparable and psychological harm to them.  As Justice Harper remarked in D'Alessandro at Paragraph 23,

"What they see is not merely a titillating picture, but the degradation of human beings too young to avoid the exploitation to which they are being subjected."

17Number of images:  I was provided with a table of comparative cases.  On assessment in terms of pure numbers of files, your case falls at the lower end of offending of this type.  Both counsel approached the matter on this basis. 

18Purpose of for sale or further distribution motivated by profit:  As a result of the BitTorrent automatic settings, the files the subject of Charge 2 were automatically shared after downloading and available to other BitTorrent network users.  It was submitted you deleted files after a session of viewing the file.  Once the file had been deleted, it was no longer available for sharing on the network.  It is not suggested that you sold or profited from this material.  Further, it was emphasised that, once you had deleted the material, you would not have been able retrieve it as the authorities themselves required specific software to access those files.

19General deterrence:  The prevalence and ready availability of child pornography on the Internet makes general deterrence a paramount consideration.  With a readily accessible market and demand for this prohibited product, those minded to exploit children in this manner must be aware that they will be severely punished. 

20Specific deterrence and rehabilitation:  You are of previous good character with no prior convictions.  I note, however, that in cases such as this, more limited weight is to be given to specific deterrence. 

21Plea and remorse:  You pleaded guilty to these matters at the first opportunity.  I accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  Your plea and your attitude to this offending, as expressed to the various professionals and to me, are indicative of remorse.  The material regarding your prospects for rehabilitation was strong. 

22In written submissions filed on behalf of the prosecution, it was argued the psychological material tendered on your behalf did not indicate that you had appropriate insight into this offending.  I did, however, hear evidence from you regarding your understanding of the effect of this kind of offending on children.  You presented as insightful and generally remorseful for your conduct.  There are some features that augur well for your rehabilitation. 

23Family support; you revealed the details of your offending to your wife when police attended your home.  She continues to support you and steps have been taken in the family home to ensure that you are no longer in an environment where you can escape and spend time alone. 

24When you first became aware that police had attended your home, you contact Vikki Prior, psychologist, whilst in hospital and prior to being be charged, in order to seek treatment.  She remarks in her report dated 18 November 2014, Exhibit 3, that you express significant distress, fear, shame and remorse related to your current situation.  You asserted absolute dedication to the counselling process and a desire to learn all you could from the sessions.  You have good insight into your current situation.  You presented as extremely fearful, saddened and somewhat desperate.

25In Exhibit 2, Simon Kennedy, clinical and forensic psychologist, in his report dated 10 November 2014, sets out the results of testing from tests conducted in the Risk of Sexual Violence Protocol, or RSVP.  He notes:

"Mr Williams is a low risk of re-offending with respect to child pornography, largely due to his unusually appropriate response to the criminal charges and psychological treatment."

26I accept that you have good prospects for rehabilitation.

27Pursuant to s.16A of the Crimes Act (Cth), I must impose a sentence that is of a severity appropriate in all of the circumstances of the offence.  Sections 16A(2) obliges me in sentencing you to take into account the matters referred to within that section as are known to me and I have done so.  As previously noted, whilst general deterrence is not specifically listed there, it is a matter to be accorded weight given the nature of your offending. 

28As indicated at the outset, you are to be sentenced to both the Commonwealth and State offence relating to child pornography.  I have received a pre-sentence report from Corrections Victoria regarding your suitability for a Community Corrections Order in respect of both offences.  You have been deemed suitable with conditions, including you participate in offending behaviour programs as directed.  The program that is anticipated as being suitable for you takes 18 months to complete.  It is also recommended that you continue with counselling and that this should be monitored.  Because of your state of health, it is not recommended that there be a work component of the order.  The report indicates that you consent to the making of such an order. 

29I just want to check with counsel, because this a Commonwealth offence and a State offence, do I have to thereby impose two separate Community Corrections Orders? 

30MR TILEMANN:  Yes, that's correct, Your Honour. 

31HER HONOUR:  In the same terms and they just run concurrently?

32MR TILEMANN:  They can be in the same terms, that's right.  Yes.

33HIS HONOUR:  Very well.  Mr Williams, could you stand up, please.

34In respect of Charge 1, which is the Commonwealth offence, you are convicted and placed on a Community Corrections Order for a period of two years.  The conditions on such an order will be: (1) that you participate in an offending program as directed by the Specialised Offender Assessment and Treatment Service, that is SOATS; that you continue counselling with psychological Vikki Prior, or as otherwise arranged and that that counselling is able to be monitored and there is a requirement of supervision; you will be supervised by the Ringwood Community Correctional Services. 

35In respect of Charge 2, the State offence, you are convicted and sentenced to a Community Corrections Order for the same duration and in the same terms as that imposed in respect of Charge 1. 

36By virtue of your convictions for these offences, Mr Williams, you will be placed on the Sex Offenders Register.  These offences are both Class 2 offences under the Sex Offender Registration Act of Victoria, and you will have a reporting period of 15 years pursuant to s.34(1)(b) of the Act.

37Are there any other orders that need to be made?  No?

38MR TILEMANN:  No, Your Honour.

39HIS HONOUR:  Thank you, Mr Williams.  My associate will prepare the order or she may have already done that and it will be necessary for you to sign it. 

40MR DICKENSON:  Might Mr Williams leave the dock in order to sign those documents, Your Honour?

41HER HONOUR:  Yes, that's fine. 

42Sorry, Mr Williams, I am just trying to tailor the order to be in accordance with the conditions that I made, because the pro forma order has other conditions that do not necessarily apply to you, so I am sorry, there is just a little bit of a delay.  I might just stand down and try and sort this out.  I will come back in just a moment. 

43(Short adjournment.)

44HER HONOUR:  My associate is just going to print out orders again.  There were just some conditions that unfortunately the pro forma of the computer does not recognise, but I think it is pretty clear from the report provided by Office of Corrections what is anticipated by the two conditions as they are formally included in the orders. 

45MR DICKENSON:  Yes, Your Honour. 

46HER HONOUR:  Thank you.  What my associate is bringing down for you, Mr Williams, is the two Community Corrections Orders, but they just run at the same time, and also the notification regarding the obligations under the Sex Offenders Registration Act form.  Thank you, if you could sign both of those.  Your counsel can explain them to you.  Thank you. 

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