Director of Public Prosecutions v Wilson
[2020] VCC 1530
•25 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 20-00667
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEE DAVID WILSON |
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| JUDGE: | HIS HONOUR JUDGE D. SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 September 2020 |
| DATE OF SENTENCE: | 25 September 2020 |
| CASE MAY BE CITED AS: | DPP v Wilson |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1530 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1958 (Vic); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic); Sex Offender Registration Act 2004 (Vic)
Cases Cited:DPP (Cth) v Garside [2016] 50 VR 800; DPP v Weybury (2018) 84 MVR 153; R v Verdins (2007) 16 VR 269; DPP v Bourke [2020] VSC 130; DPP v Dessent [2019] VCC 730
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Van Arkadie | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Lee David Wilson, you have pleaded guilty to two charges of access child pornography material using a carriage service[1], which carries a maximum penalty of 15 years' imprisonment and one charge of knowingly possess child abuse material[2], which carries a maximum penalty of 10 years' imprisonment.
[1]Contrary to sub-s474.19(1)(a)(i), Criminal Code 1995 (Cth)
[2]Contrary to s51G(1) Crimes Act 1958 (Vic)
2You also pleaded guilty to three summary charges - one charge of failure to answer bail and two charges of contravene conduct conditions of bail. The maximum penalties for these offences are two years' imprisonment and three months' imprisonment respectively.
Circumstances of Your Offending
3The circumstances of your offending were set out in a document entitled Amended Summary of Crown opening for Plea dated 7 September 2020, which was tendered at your plea hearing on that day (Exhibit A). That document essentially sets out the factual basis of your offending, upon which you will be sentenced.
4Your offending can be relatively briefly summarised.
5On 11 September 2018, members of the Joint Anti-Child Exploitation Task Force (JACET) attended at your home to execute a search warrant. A number of your electronic devices were seized. Subsequent analysis of one of those devices, a Lenovo ThinkPad, revealed that between 19 February 2016 and 10 September 2018 you used the site, Imgsrc, apparently an image upload site of Russian origin, to access child pornography material on 60 separate occasions. In total, you accessed 450 files classified as child pornography material over this time. Annexure 1 to the Amended Summary of Crown Opening for Plea particularised the relevant dates of access by you in relation to this material, the number of files accessed on the relevant date and the relevant categorisation of the child pornography material accessed on these dates. The material was categorised in accordance with the Child Exploitation Tracking System, or CETS. That classification system, described at p.3 of Exhibit A, contains seven categories based upon the types of activities portrayed in the material. The vast majority of child pornography material accessed by you during this period fell within Category 1, which is described as, 'Depictions of children with no sexual activity but involving nudity, surreptitious images showing underwear, sexually suggestive posing and explicit emphasis on genital areas.'
6Your conduct in this regard forms the basis of Charge 1 on the Indictment; use a carriage service to access child pornography material.
7On 11 September 2018, the date upon which the search warrant was executed at the home and the devices were seized, you participated in a field interview with investigators. During that interview, you referred to there being, “fuckin’ illegal shit on my computer. … all sorts of shit … just fuckin’ underage … underage girls and – yeah, naked and shit.”[3] You told investigators that you did not really search out the material, you had just randomly come across it. You had been getting the material for probably a year or two. You would be sent links which would contain a link and when the link was clicked on, it would usually just be a random video and that you would not know what it was until you downloaded it. You referred to receiving both images and movies. You said that you never sent anything to other people.
[3]Transcription of Field Interview dated 11 September 2018, pg2, 13, 14
8You explained your involvement with the website Imgsrc was to look at pictures on there, that you had accounts on this website and you would have last accessed it some time that week. Whilst you had previously interacted with people who uploaded the photos on this website, the last time this occurred was a year ago.
9Whilst you were interviewed on this day and items were seized, you were not charged on this date.
10Investigators seized from you on that day a Samsung mobile phone, an Apple MacBook and the Lenovo ThinkPad laptop. Those devices were forensically extracted and analysed between September 2018 and April 2019. Child abuse material was located on your Apple MacBook laptop and the Lenovo ThinkPad laptop. These files were also categorised in accordance with the Child Exploitation Tracking System (CETS) scale. In total, there were 10,315 image and video unique binary files containing child abuse material contained on the two laptop computers. The files were classified as follows:
(a) 9,827 Category 1 files;
(b)428 Category 2 files (non-penetrative sexual activity between children or solo masturbation by a child);
(c)16 Category 3 files (non-penetrative sexual activity between children and adults, mutual masturbation and other non-penetrative sexual activity);
(d)38 Category 4 files (penetrative sexual activity between children and adults);
(e) 6 Category 5 files (sadism, bestiality or humiliation).
11Descriptions of the child abuse material located on these devices were detailed within Annexure B to Exhibit A.
12In addition, 3238 Category 7 files were also located on your devices. While not classified as child abuse material, included in these files was a large quantity of images depicting fully naked children, predominantly female in naturist settings, including beaches and public spaces.
13Your conduct in this regard forms the basis of Charge 2 on the Indictment, possession of child abuse material.
14Following the discovery by investigators of the child abuse material to which I have described, you were arrested on 9 May 2019 and conveyed to the Moonee Ponds Police Station where you participated in a record of interview[4]. You made admissions in relation to your offending. You referred to looking at pictures of naked girls, both over 18 and under 18. You said that you had never acted on anything, that you just liked photos of young girls. You had searched for the term, 'preteen' and your preference was material of girls aged from preteens to adults. You had searched for material within the age bracket of between five and 10 and you would download files with, 'heaps of files in there and a lot of the shit would be really young.'[5] You acknowledged having been sexually aroused by the files you downloaded. In relation to the number of files located on your laptop computers, you expressed surprise, saying, 'I don't think I have that much shit on there. As I said, I download, like, files with, like, thousands of pictures in there and stuff so that's probably what it is.'[6]
[4]Transcription of Record of Interview, dated 9 May 2019
[5]Ibid, answer 90
[6]Ibid, answer 164
15Following your police interview, you agreed to the police informant examining your Apple iPhone mobile phone. The informant observed a number of Internet browser tabs open on your phone and observed that some of the sites open appeared to be Imgsrc sites, which depicted child pornography material. You did not provide a reason to the informant as to why those tabs were open on your phone. This mobile phone was seized and forensically examined and this examination found that you had used the phone to access child pornography material on 4 and 5 April 2019, accessing a total of seven files classified as child pornography material at the Category 1 level. Your conduct in this regard forms the basis of Charge 3 on the Indictment, use carriage service to access child pornography material.
16Following your arrest on 9 May 2019, you were bailed to a filing hearing at the Magistrates' Court on 10 May and subsequently, you were bailed to a committal mention at the Magistrates' Court on 16 August 2019. On that date, you failed to attend court and a warrant was issued for your arrest. Your conduct in this regard forms the basis of the summary offence of failing to answer bail. You were located by police at your home later that afternoon, informing police that you had thought the committal mention was the following week. Subsequent to your arrest, you told police that you had been living on and off with your parents and that you had been living out of your vehicle as well as couch surfing with friends. This was notwithstanding a bail condition which had required you to reside at a fixed address in Tullamarine. Your conduct in this regard forms the basis of the summary offence of failing to comply with a conduct condition of bail.
17Whilst at the police station, your mobile phone was reviewed. Police observed that you had used an internet service on your phone to access and create accounts on pornographic websites. By way of example, an account for the pornography site candid.tube was observed as having been created on 20 May 2019. Your use of the internet in this manner forms the basis of the summary offence of failing to comply with a conduct condition of bail, as you were then subject to a bail condition prohibiting such activity.
18You were remanded in custody on this date, 16 August 2019 and remained in custody until being granted bail on 31 March 2020, 228 days after your remand.
Nature and Gravity of Your Offending
19Clearly, offending which involves child pornography or abuse material is extremely serious offending, and previous sentencing decisions throughout Australia have emphasised that a sentence involving a term of imprisonment is ordinarily required. Child pornography offences are considered especially grave by both the courts and the legislature, as they involve very serious morally-depraved conduct that is harmful to children[7]. These are not victimless crimes. The individuals depicted are children and your involvement in the possession and access of child pornography material creates a market for their continued corruption and exploitation. The internet is creating ever greater demands for new material of ever-greater levels of depravity and corruption. The objective seriousness of offending by employment of the internet as a tool through which to exploit children, even if the offender is not themselves procuring such exploitation, is grave. General deterrence is to be a paramount consideration in sentencing child pornography offenders. Child pornography offences generally require that a person's prior good character is to be given less weight.[8]
[7]DPP (Cth) v Garside [2016] 50 VR 800 at paragraphs [19] and [62].
[8]Ibid at paragraphs [19] – [23]
20It is also clear that when sentencing for child pornography offences such as your offending, the objective seriousness of the offending is ordinarily determined by reference to a number of factors; the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted, the number of items or images possessed, whether the material is for the purpose of sale or further distribution, whether an offender will profit from the offence, the number of children depicted and thereby victimised and the length of time for which the material was possessed.
21In terms of the nature and content of the material, the overwhelming majority of the material referrable to all three charges on the Indictment fell within Category 1 of the CETS classification scale. Of the 10,315 images which form the basis of Charge 2, the possession charge, 9,827 files fell into this category. It is true that there were relatively few files in the higher categories. However, the absence of significant material in those higher categories of classification does not minimise the objective gravity of possession or access of lower categories of material.[9] It should not be assumed that Category 1 material is mild in content - such material is itself capable of possessing significant gravity. The prosecution submitted that the material classified as Category 1 in this case was highly sexualised and therefore represented serious examples of Category 1 material. An examination of the descriptions of this Category 1 material in Annexure B to the prosecution opening reveals the gravity of this material, which includes an image file which depicts a female child aged approximately eight to 10 years, spreading her legs wide open with her genitalia visible to the viewer, and another image file which depicts a pre-teenaged female child lying on a bed, holding open her labia and exposing her vagina to the camera. Having considered those descriptions in relation to the Category 1 material, I agree with the prosecution submission that it represents serious examples of Category 1 material.
[9]DPP (Cth) v Garside [2016] 50 VR 800 at paragraph [71]
22Further, the fact that most of the files fell within Category 1 should not distract from the highly disturbing files which fell within the higher categories albeit in relatively small numbers. In relation to the material categorised as Categories 2, 3, 4, 5 and 6, the descriptions of the sample representation of such material contained at Annexure B to Exhibit A graphically reveal the depraved nature of that material. The material depicted children of all ages, including infants. The material included both images and video files. The material included anal penetration of a prepubescent female by an adult male's penis. It included penetration of a young female child's anus and vagina with a sex toy. The material which fell within Category 5 included a video file that was some 34 minutes in length, which depicted scenes of group sex involving children and adults, infant children being anally and vaginally penetrated, acts of bestiality involving children and acts of degradation involving adult males ejaculating on the bodies and faces of children. The extreme nature of the material contained within the Category 5 classification elevates the objective seriousness of your offending.
23In terms of the number of items or images possessed or accessed, whilst the numbers of child pornography files accessed by you in relation to Charges 1 and 3 totalling 457 files, was not as significant as many cases coming before the Court. Your possession of 10,315 images and video files containing child abuse material in relation to Charge 2 represents a significant quantity of child pornography material.
24I accept in this matter that there is no evidence that the child pornography material was accessed or possessed for the purposes of sale or further distribution or that you were to profit from the offending. This was essentially offending for your own personal use.
25As conceded by your counsel in written submissions, whilst the exact number of children depicted and thereby victimised cannot be established, the number of files possessed broadly reflects the possible number of those victimised. Some files depicted offending against multiple victims. I am satisfied, therefore, that the number of children depicted and thereby victimised was significant in your case.
26Finally, in relation to the length of time for which the pornographic material was possessed or accessed, the possession by you of the 10,315 image and video files referrable to Charge 2 is limited to one day, 11 September 2018. However, in relation to Charge 1 on the Indictment, access child pornography material, you accessed such material between 19 February 2016 and 10 September 2018, a period of over two and a half years. Within that period, you accessed child pornography material on 60 separate occasions. The dates of access set out in Annexure 1 to Exhibit A reflect that your offending in relation to Charge 1 was effectively spread out within that two and a half year period, rather than being referrable to discrete, intense periods of offending. Accordingly, your access offending in relation to Charge 1 was sustained, in my view, over a long period of time and involved multiple instances of access.
27Your access offending in relation to Charge 3 on the Indictment took place over a two day period between 4 and 5 April 2019. However, the objective gravity of this particular offending is increased by virtue of it occurring after you had come to the attention of the police in September of the previous year. In circumstances where investigators had attended upon you in September 2018, seized various electronic devices and engaged in a field interview with you where you acknowledged the existence of material in relation to under-age girls on your computers, the fact that you subsequently accessed seven child pornography files on your mobile phone in early April accentuates the seriousness of this offending.
28In written submissions your counsel submitted that, in all the circumstances your offending tended towards the lower end of seriousness.[10] I do not agree. When regard is had to all of the circumstances, including the lengthy duration of the access offending and the volume and gravity of the child pornography material, your offending sits above lower level offending. As the authorities have made clear[11], it is best to avoid placing offences within a particular category or range. It is preferable to instead focus upon the objective factors to inform any analysis as to the seriousness of the offending.
[10]Exhibit 2, Paragraph 57
[11]DPP v Weybury (2018) 84 MVR 153 at [34]
29In my view, having considered all of the relevant factors in assessing the objective seriousness of your offending, your conduct in relation to the charges on the Indictment represents a serious example of this type of offending. Indeed, at your plea hearing before me on 7 September 2020, your counsel then described your offending as ‘grave’. Through your involvement in accessing and possessing this vile and wicked material, you have essentially significantly involved yourself in the pernicious child pornography industry.
30In relation to the summary offences, whilst any breach of a court order is a serious matter, I am satisfied here that all three charges are low-level examples of such offending. I accept that as a person with no prior convictions and therefore no experience with the criminal justice system, you inadvertently mixed up your court date. You were apprehended that same day by police. Your inability to comply with the conduct bail conditions in relation to your address, and not accessing the internet, however, is of concern.
Matters Personal to You
Background
31You are currently 39 years of age. At the time of your offending, you were aged between 34 and 38 years of age. You are a single man without dependents and you live with your parents in Tullamarine. Your parents, both 64, are retired. You have two brothers, one approximately four years older and the other approximately four years younger than you. You have reported having no complaints in relation to your childhood and upbringing and enjoy positive relationships with both of your parents and your siblings.
32After completing your secondary education at Year 10 level at Niddrie High School, you commenced working full time in both your father's wholesale butchery business and you have also worked in one of your brother's businesses, along with other organisations. You apparently have a strong employment history, having been continually employed save for your period in custody in relation to these matters. Over the years, you have worked in a wholesale butchery, as a roof plumber, as a labourer and a floor installer, the occupation given by you at your arraignment for this matter. Through your many years in working across various types of employment, you have obtained various trade-related qualifications - fork-lift operation certification, elevated platform certification, traffic control certification and construction induction training certification, otherwise known as a ‘white card’.
33I accept that, at the age of 39, your sustained and productive employment history is a positive protective factor, in relation to your prospects of rehabilitation. Your also fall to be sentenced as a man with no prior criminal history.
34In terms of your social and intimate relationships, you have reported having had three intimate relationships of some length. You have no children. You have also reported having two close friends that you speak to regularly.
35In terms of your substance use history, you have reported starting to smoke cannabis in Year 7, progressing from occasional use to daily consumption. You then started to use stimulants, including amphetamine and methamphetamine in Year 10, initially using only occasionally. Your use of methamphetamine apparently increased some years ago following the death of your cousin from a heart attack. You were apparently close to your cousin and you suffered from chronic tearfulness and feelings of depression following his death. Your methamphetamine increased in this context as a form of self-medication. You have reported that over the last five years, you have smoked methamphetamine on a daily basis, in the morning, at lunchtime, as well as after returning home.
36You have reported that you would sometimes remain awake for three to four days and sometimes longer, before eventually passing out and sleeping for some time before resuming use.
37You have also reported use of a number of sedatives including Oxycontin, Xanax and Valium, and that this was for ‘sensation-seeking’ purposes. You have reported abstinence from any illicit drug use since the period of your remand in custody and your subsequent period in the community on bail.
38In terms of your mental health history, you have denied any history of anxiety or symptoms associated with psychosis or mania. You have, however, described to psychologist, Simon Candlish (Exhibit 1)[12], prior periods of lowered mood. You apparently took anti-depressant medication for two months after the death of your cousin.
[12]Simon Candlish, Psychological Court Report (7 July 2020)
39You provided details to Mr Candlish in relation to your psychosexual history. You indicated that you started accessing pornography in your mid-teens and started to access pornography on the internet in the early 2000s, on average on a monthly basis, viewing videos of men and women engaged in sexual activity. You initially had no interest in child abuse material although you were aware that such material existed. Concerningly, you informed Mr Candlish that you had started to view child abuse material in 2010. In the context of accessing nude images of females modelling, you also saw videos of adults engaged in sex with children and over time, you started to masturbate to this material. You reported feeling guilty in relation to these activities, but that you regarded the material as ‘not real’[13], suggesting some detachment from the reality of the abuse depicted in this material.
[13]Simon Candlish, Psychological Court Report (7 July 2020), Paragraph 52
40Also concerningly, you reported to Mr Candlish that you ceased use of child exploitation and abuse material when first interviewed by police in September 2018, even when challenged by Mr Candlish in relation to the subsequent discovery of child abuse material when police returned to your home in May 2019. You told Mr Candlish that you did not believe that you had newly accessed any material and questioned the evidence of the police.
Circumstances at Time of Offending
41According to the chronology provided to me, you were working with your brother's flooring business throughout the period of offending. You were also engaged in problematic drug use, particularly methamphetamine. Clearly, as evidenced through your admissions to police in your interview on 9 May 2019, you were searching for pornography in relation to young girls and, you were sexually aroused by the files that you had accessed and downloaded.
42In both his report dated 7 July 2020 and, in evidence before me, Mr Candlish referred to psychological matters of relevance to your offending. In his report, Mr Candlish indicated that you met the criteria for persistent depressive disorder, an affliction which appears to be longstanding and appears to have contributed in part to your drug use issues and your offending.[14] According to Mr Candlish, a degree of lack of emotional nurturing in your childhood, together with some emotional detachment as an adult, may have created some vulnerability on your part towards intimacy issues and depressive symptoms. Your prior use of child abuse material appears to have reinforced a sense on your part of defectiveness and shame.[15]
[14]Simon Candlish, Psychological Court Report (7 July 2020), Paragraph 69
[15]Ibid Paragraph 123
43According to Mr Candlish, it is possible that you used pornography and sexual arousal to escape and avoid negative mood states and, that your depressive symptoms might have created a vulnerability towards using sex to cope.[16] You appear to have searched for child exploitation and abuse material from 2010, likely in the context of lowered mood and some detachment. You were also using stimulants. According to Mr Candlish:
'It therefore appears that there was a relationship between his depressive symptoms and his offending behaviour. His detachment appears to have also contributed to his low empathy and he appeared to lack insight and awareness into the seriousness of his actions and the harm of the actions depicted in the material he viewed.'[17]
[16]Ibid Paragraph 125
[17]Ibid Paragraph 126
44As I have indicated, Mr Candlish also gave evidence before me in relation to these issues. Mr Candlish clarified that there was an absence of any clear documentation in relation to a history of depression prior to September 2016, and that your accessing of child abuse material from 2010 predates any depressive symptoms.
45Mr Candlish explained that your depressive symptoms contributed to your social isolation, alienation and withdrawal, and contributed to your negative bias and thinking. Your depressive symptoms led to overwork on your part and an exacerbation of your use of stimulants, all of which form the basis of the background circumstances underlying your offending. Mr Candlish also confirmed that your sexual deviance in the context of your prolonged involvement in viewing child abuse material, which was indicated during the risk assessment conducted by Mr Candlish, was also relevant to your offending. Ultimately, Mr Candlish attributed your depression as a background factor only in relation to the offending, coupled with significant drug use and sexual deviancy. Based no doubt upon the evidence of Mr Candlish, your counsel conceded therefore that there was no reduction in your moral culpability for your offending due to any causal connection with any impaired mental functioning, pursuant to the well-known mental impairment decision of Verdins[18]. Your counsel also disavowed any reliance on any moderation of the sentencing principles of general or specific deterrence based upon the other relevant Verdins[19] principles.
[18]R v Verdins (2007) 16 VR 269
[19]Ibid
Period on Remand
46As I earlier indicated, you spent 228 days in custody before being granted bail on 31 March 2020. As a person with a complete absence of any criminal history, I have little doubt that this would have been a difficult period of time for you and that the gravity of your predicament would have been reinforced due to your extended period in custody.
47I was informed that due to your shame and embarrassment in relation to your offending, you have been unable to discuss the offending with your family and friends, indicating to them that you were in custody in relation to drug related offending, rather than the true nature of your child pornography related offending. You spent most of your time at Ravenhall Correctional Centre. You soon obtained work in the prison bakery and worked five days a week in that capacity.
48Included in the bundle of certificates and documents in relation to your time in custody (Exhibit 3), I have considered a reference from Ravenhall Correctional Centre in relation to your work at the bakery, dated 20 March 2020. The reference is extremely positive, referring to your great work ethic and your respectful manner. You have apparently enjoyed training co-workers and took great pride in your work. This reference is, in my view, consistent with your productive employment history, again which is relevant to your prospects of rehabilitation.
49In addition to your work in the prison bakery, you also attended various other courses and completed training modules, certificates in relation to which were tendered at your plea hearing (Exhibit 3). The training modules completed by you included ‘Workplace Safety’, ‘Food Hygiene’, ‘First Aid’, ‘Healthy Living’ and a program entitled, 'Taking Control.'
Period on Bail
50As indicated, you were bailed on 31 March 2020, with stringent bail conditions, all of which have been complied with for some months now. Upon your release, you recommenced work with Wilson's Flooring, your brother's business and you have continued in this employment to date. Concerningly, however, you have continued to be unable to discuss the details of your offending with either your family or friends. Whilst you described current symptoms to Mr Candlish associated with depression, you are not currently taking any anti-depressant medication and you have not seen a psychologist or other individual for any counselling. These are matters of some concern, given Mr Candlish's opinion that your risk of re-offending might be perpetuated by matters such as unmanaged deviant arousal, social withdrawal and a sense of alienation and ongoing mood and problems with coping.[20]
[20]Simon Candlish, Psychological Court Report (7 July 2020), Paragraph 130
51In written submissions, your counsel argued that whilst you accepted the need for treatment and monitoring in relation to drug use, you have been unable to participate in in-person counselling due to the COVID-19 restrictions. That may be so. However, as I indicated in oral submissions on 7 September 2020, the absence of any efforts on your part to address these underlying issues in any way in the lead-up to your plea hearing is of concern, notwithstanding the obvious COVID-19 complications. As Mr Candlish indicated in evidence before me on 7 September 2020, you clearly have some work to do in relation to your rehabilitative progress.
Sentencing Factors and Principles
52In this matter, you fall to be sentenced in relation to both Commonwealth and State offences. In formulating an appropriate sentence in your case, I am required to impose a sentence which is of a severity appropriate in all the circumstances to your offending.[21]
[21]s16A(1) Crimes Act 1914 (Cth)
53You must be adequately punished for your offending. I am not permitted to impose a sentence of imprisonment unless I have considered all other alternatives and come to the view that no other sentence is appropriate in this case. Both Commonwealth and State legislation requires me to take into account various matters when formulating an appropriate sentence in your case.[22] I have carefully considered each of those factors.
[22]s5(2) Sentencing Act 1991 (Vic); s16A(2) Crimes Act 1914 (Cth)
54I have taken into consideration the maximum penalties applicable to the offences, the details of which I have previously described. I have also taken into consideration the objective gravity of your offending again, as I have previously described. I have also taken into consideration your level of responsibility and culpability for your offending. Whilst I readily appreciate that your depressive symptoms likely form a background factor to the offending, coupled with your more general psychological functioning and personality structure, your long-standing deviant interest in child abuse material and your significant substance abuse issues, I do not regard these matters as lowering your moral culpability for your offending.
55Indeed, it seems from Mr Candlish's report that, at the relevant time, you knew that your behaviour was wrong. Accordingly, I have not made a mitigatory allowance due to any lowering of your moral culpability in accordance with the well-known mental impairment principles.[23]
[23]R vVerdins’ (2007) 16 VR 269, principle 1
56As your counsel conceded in oral submissions before me, your depression at the time of the offending does not warrant a reduction in the applicability of the sentencing principles of general or specific deterrence in accordance with those same principles.[24]
[24]R vVerdins’ (2007) 16 VR 269, principles 3 & 4
57In sentencing you, I am required to take into account your plea of guilty and the degree to which you have shown contrition for your offending, as well as the degree to which you have cooperated with law enforcement agencies in the investigation of the offence.[25]
[25]s16A(2)(f), (g) and (h) Crimes Act 1914 (Cth), together with s5(2) Sentencing Act 1991 (Vic)
58In that regard, I accept that, as early as 11 September 2018, when investigators attended at your home and seized your electronic devices, you made admissions in relation to the illegality of your actions. During your subsequent arrest and interview with police on 9 May 2019, you made extensive admissions in relation to your conduct and you cooperated with authorities; by way of example, giving consent to the police informant to examine your Apple iPhone which ultimately resulted in Charge 3 on the Indictment.
59Whilst this matter was originally listed for a committal hearing, the charge that was to be ventilated at the committal was ultimately withdrawn by the prosecution, resulting in your guilty plea. In those circumstances I regard you to have entered your plea of guilty early in the proceedings, given the circumstances. A mitigation in sentence is therefore warranted, as there is a utilitarian value to the plea. Prosecution witnesses have been spared the inconvenience of attending Court on multiple occasions and giving evidence. The Court, prosecution, police authorities, potential jurors and witnesses have all avoided the time, cost and inconvenience of their involvement in what would have been a reasonably lengthy trial. As has been recently acknowledged, the current COVID-19 pandemic and the impact on the justice system means that the value of these savings is increased.[26]
[26]DPP v Bourke [2020] VSC 130 at [32]
60On the issue of your remorse, I accept that when interviewed by Mr Candlish, you revealed a sense of remorse and strong feelings of shame in relation to your offending behaviour, telling Mr Candlish that you felt ashamed and embarrassed.[27] Further, your insight in relation to the seriousness and harm of sexual abuse of children, including children posing naked, was acknowledged by Mr Candlish following his assessment of you.[28]
[27]Simon Candlish, Psychological Court Report (7 July 2020), Paragraphs 5 and 55
[28]Ibid, Paragraphs 54 and 114
61However, your degree of insight and therefore contrition is diluted somewhat, in my view, by virtue of your denial to Mr Candlish in relation to the subsequent discovery of child abuse material on your phone, the subject matter of Charge 3 on the Indictment. Whilst I accept that there may well have been reasons for such a futile denial given the objective evidence and indeed your plea of guilty to that charge, in my view this does dilute to a degree, your level of contrition. However, overall and on balance, I am prepared to accept that your expressions of remorse are worthy of a sentencing discount in the circumstances.
62Although you admitted to Mr Candlish that you have been viewing child abuse material since 2010, I accept that you fall to be sentenced as a man with an absence of prior criminal history. Whilst your good character is clearly a mitigatory factor in sentencing, your good character must be seen in the context that offending such as yours is frequently committed by people of good character.
63I turn now to a consideration of your prospects of rehabilitation. Again, your prior good character, in terms of an absence of prior convictions, is a positive factor in this regard. Again, however, your self-admitted involvement in child abuse material since 2010 tempers somewhat, such a positive finding.
64Mr Candlish conducted a risk assessment in relation to sexual recidivism using well-established tools for this purpose. Mr Candlish ultimately concluded that you fall into the moderate to low risk category for sexual offending and, should that risk eventuate, you might engage in the possession again of child abuse material.[29]
[29]Simon Candlish, Psychological Court Report (7 July 2020), Paragraphs 111 and 120
65According to Mr Candlish, you require moderate case prioritisation to manage this risk. Your future risk factors include sexual deviance, problems with intimate relationships, problems with non-intimate relationships and mental health related issues.[30] Your risk might be perpetuated, according to Mr Candlish, by any ongoing and unmanaged deviant arousal, social withdrawal, lowered mood that creates a sense of alienation and problems with coping.
[30]Ibid, Paragraph 113
66Mr Candlish concludes that you appear to have, 'good prospects of rehabilitation',[31] based on your apparent capacity to recognise the consequences of your actions as well as your history of achieving pro-social activities and behaviour, despite your offending behaviour. In this regard, I acknowledge your lengthy and productive employment history.
[31]Ibid, Paragraph 135
67Mr Candlish concludes by making a number of sensible intervention recommendations, including consideration of anti-depressant medication and psychological interventions to address your issues of depression, emotional awareness and regulation, and your cognitive distortions.
68Whilst I accept, in your case, that your prospects of rehabilitation overall must be considered as reasonably good, there are some aspects of concern. To this day, you have been unable to disclose the details of your offending to either family or friends, essentially thereby precluding them from providing any informed support to you. Furthermore, notwithstanding your acknowledgement of your wrongdoing, and it would seem your awareness of the underlying issues, you have not undertaken any proactive steps towards your rehabilitation, such as through the seeking of treatment in relation to drug use, consideration of pharmaco-therapy, or psychological counselling. Your interest in child exploitation material appears to be long-standing. Any meaningful rehabilitation in your case will, in my view, require specialist intervention in relation to the psychological underpinnings of your offending. Sadly, you have not yet taken steps yourself, along this path.
69I accept that any term of imprisonment which requires you to return to prison will expose you to arduous circumstances. As conceded by the prosecution, the COVID-19 pandemic is an important and unprecedented factor in sentencing. Like all prisoners, if imprisoned, you would be placed into protective quarantine for 14 days. Personal visits have been suspended and access and availability to employment and courses has been significantly hampered. Significantly, COVID-19 has made its way now into the prison setting. Given the overall demographic within the prison setting, I accept that there would be a significant degree of anxiety experienced by all prisoners now and for the foreseeable future. The hardship of a custodial sanction in this environment is a significant mitigatory factor, in my view, applicable in your case.
70Furthermore, based on the evidence of Mr Candlish, I am satisfied that your depression would mean that a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health, a mitigatory allowance pursuant to Verdins[32] principle 5 is therefore warranted.
[32]R v Verdins (2007) 16 VR 269
Applicable Sentencing Principles
71General deterrence is a paramount sentencing consideration for offences of this type. That is, other like-minded individuals must know that engaging in such serious criminality will result in significant punishment. There is a need to deter others from committing such offending, given the prevalence and ready availability of pornography involving children on the internet, and the need to protect children from sexual abuse.
72As general deterrence is the primary sentencing principle, an
doffender's personal mitigatory factors such as good character, age and prospects of rehabilitation must therefore be given less weight. Specific deterrence, denunciation, punishment and protection of the community are also very important sentencing considerations.73In your case, specific deterrence is a very relevant sentencing factor, given that you persisted in the offending conduct which forms the basis of Charge 3 on the Indictment, after becoming aware that your conduct had come to the attention of police. Clearly, coming to the attention of authorities in September 2018 did not deter you from involvement with child pornography material. Any penalty now imposed must do so.
74Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as an accessible means of allowing people to access and obtain child pornography. There is a paramount public interest objective in promoting the protection of children, as the possession of child pornography is not a victimless crime - the possession of child pornography material creates a market for the continued corruption and exploitation of children, and children are sexually abused in order to supply the market. Offending involving child pornography is difficult to detect, given the anonymity provided by the internet. The maximum penalties for the offences provide an unequivocal indication that they are viewed by Parliament as being of the utmost seriousness.
75I have already referred to your prospects of rehabilitation, and the recommendations of Mr Candlish in relation to recommended interventions to facilitate your rehabilitation. In formulating an appropriate sentence in your case, I have had regard to s.16A(2AAA) of the Crimes Act 1914 (Cth), which requires me to have specific regard to the objective of rehabilitating you. In that regard, I have considered whether appropriate rehabilitation and treatment options are available and I have considered the need to structure any sentence to enable sufficient time for that rehabilitation to be achieved.
76In formulating an appropriate sentence in your case, I have considered the need to impose punishment for each of your offences which appropriately reflects the gravity of your offending. In relation to the charges on the Indictment, you face three charges, involving two different and discrete forms of offending directed at different vices - the accessing and the possession of child pornography material. Whilst these overlap, they are not identical and the distinct offences require sentences that reflect this.
77Furthermore, your offending in relation to Charge 3 requires a degree of cumulation upon the sentence I will impose in relation to Charge 1, subject as always, to the overriding principle of totality.
78In relation to the three related summary offences, each of those charges relates to your non-compliance with a Court order in relation to bail and it is your non-compliance, notwithstanding your undertaking to comply, that forms the basis of your criminality in relation to these charges. Separate penalties are, in my view, warranted for those charges.
Sentencing Submissions
79In written submissions, the prosecution submitted that in light of the inherent gravity of the offending, the significance of general deterrence for offending of this kind and your personal circumstances, a term of immediate imprisonment was the only appropriate sentence. In oral submissions before me on 7 September 2020, the prosecution elaborated, indicating that whilst a Recognisance Release Order was open as an appropriate sentencing disposition regarding the Commonwealth offences, the time served to date, 228 days, was insufficient in terms of any imprisonment component. The prosecution provided a table of cases in relation to assisting the Court regarding comparative sentencing, conceding that these cases are not directly comparable to the facts of your case.
80Your counsel submitted that in all the circumstances, a sentence allowing you to remain in the community was appropriate, essentially through a combination of a Community Correction Order for the State charge, and a Recognisance Release Order for the Commonwealth charges, taking into consideration the time already served by you in custody. In that regard, whilst clearly stating that it was not to be taken as an indication of my ultimate sentence, I ordered that you be assessed for suitability for a Community Correction Order. That assessment was subsequently undertaken by Corrections and you have been found suitable for a Community Correction Order.
81It was submitted on your behalf that the prosecution comparative cases were not factually comparable, and instead I was referred to another prior sentencing decision of this Court to support your counsel's sentencing submission.[33] That decision involved effectively a term of imprisonment of six months, followed by release pursuant to a Recognisance Release Order.
[33]DPP v Dessent [2019] VCC 730
82Ultimately, whilst I have had regard to the previous sentences imposed and the issue of comparative sentencing and current sentencing practices more broadly, each case must of course be decided upon its unique facts. None of the authorities relied upon are factually comparable to yours. I have of course relied upon earlier decisions as examples of applications of the relevant sentencing principles applicable in this area. Ultimately, however, it is my assessment of the unique facts in your case and the application of the sentencing factors and principles which I have spent some time outlining in your case, which have contributed to the sentence to be imposed in your case.
Sentence to be Imposed
83Mr Wilson, would you please stand.
84I have reached the conclusion that, having regard to all of the circumstances of the offending and to your personal circumstances, a sentence of imprisonment exceeding the period that you have previously spent in custody is required.
85In coming to this conclusion, I have taken into consideration all relevant sentencing factors and principles, in particular the need to adequately punish you for the offending, the need to impose a penalty which reflects the sentencing purpose of general deterrence, the need particularly given your offending after coming to the attention of police, for any penalty to reflect the sentencing purpose of specific deterrence and the absence on your part of any efforts to address the underlying causes of your offending since being granted bail which would otherwise have allowed a more favourable conclusion in relation to your rehabilitative prospects. In my view, the sentence I am about to impose will best meet the applicable sentencing purposes and through an appropriately structured supervisory framework upon your release from prison, the community can be appropriately protected and your rehabilitation can be best facilitated.
86Given all of the mitigatory matters I have referred to, particularly the onerous circumstances in custody at present, due to the unprecedented challenges of the COVID pandemic, the period of imprisonment still to be served by you will be less than it otherwise would have been.
Commonwealth Offences
87On Charge 1, use a carriage service to access child pornography between 19 February 2016 and 10 September 2018, you are convicted and sentenced to 18 months imprisonment. That sentence commences today. In relation to Charge 3, use a carriage service to access child pornography between 4 April and 5 April 2019, you are convicted and sentenced to 4 months' imprisonment. It is my intention that 2 months of this sentence effectively be cumulative upon the sentence imposed on Charge 1. Accordingly, I direct that the sentence on Charge 3 commence 16 months after the commencement of the sentence imposed on Charge 1, making a total effective sentence in relation to the Commonwealth charges of 20 months' imprisonment. Pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth), I order that you be released after serving 10 months and 18 days imprisonment upon you entering into a recognisance in the sum of $2000, to be of good behaviour for a period of 3 years.
88There will be various conditions attached to this Recognisance Release Order, which I will shortly outline. Pursuant to s.18(4) of the Sentencing Act 1991 (Vic) I declare a period of 228 days has been served pursuant to this sentence. For the sake of clarity, it is my intention that you be released from prison in 10 months and 18 days, less 228 days, so in 3 months' time. Upon your release, you will be subject to a Recognisance Release Order pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth) for a period of 3 years. That release will be subject to you giving security by recognisance of $2000, to comply with the following conditions; That you be of good behaviour for a period of 3 years; That you be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 18 months; That you attend for assessment and if assessed as suitable, treatment for sex offender programs or programs to reduce offending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee; That you report to Broadmeadows Community Correctional Centre within two working days of your release from custody; That you report to and receive visits from a Community Corrections officer; That you notify an officer at that Community Corrections Centre of any change of address or change of employment within two clear working days after that change; That you not leave Victoria except with the permission of an officer of the specified Community Corrections Centre and; That you obey all lawful instructions and directions of Community Corrections officers.
89The purpose, Mr Wilson, and effect of this Recognisance Release Order is to grant you conditional freedom in 3 months' time. Upon your release, if you commit a further offence in breach of the recognisance to be of good behaviour in that three year period, or if you fail to comply with any of the conditions, then unless you can show a reasonable excuse for the further offending or the breaching, you will be dealt with for that breach and re-sentenced. You may have to pay the $2000 I have indicated, and you may have to serve immediately the remaining term of imprisonment, 9 months and 12 days. I should also inform you that you or an authorised person may apply to the court to vary or discharge the recognisance in accordance with s.20AA of the Crimes Act 1914 (Cth).
State Offence
90On Charge 2 on the Indictment, possession of child abuse material, you are convicted and I order you to complete a Community Correction Order. This order will commence upon your release from prison in relation to the sentence imposed on Charges 1 and 3 in 3 months' time, in compliance with s.38(2) of the Sentencing Act 1991. For the duration of the Community Correction Order, and the duration will be 18 months, you will be subject to the mandatory conditions that apply to all Community Correction Orders. That is, you must not commit another offence for which you could be imprisoned. You must comply with any obligation or requirement prescribed by the relevant regulations; you must report to and receive visits from the Secretary to the Department of Justice or his or her delegate; You must report to Broadmeadows Community Correctional Service office before 4 pm within two clear working days of your release from jail; You must notify a Community Corrections officer within two clear working days of changing your address or employment; You must not leave Victoria without first obtaining permission to do so from Corrections and you must obey all lawful instructions and directions from Community Corrections. In addition to these mandatory conditions you will be subject to four further conditions; That you undergo and complete 100 hours of community work; That you undergo treatment and rehabilitation in relation to drug issues; That you undergo treatment and rehabilitation in relation to programs that reduce reoffending including any relevant Sex Offender program and; That you be under the supervision of a community corrections officer. Should you not comply with all of the requirements of the Community Correction Order, you are likely to be brought back to the Court and re-sentenced in relation to the breaching charge in relation to which you may be sentenced to a term of imprisonment and you may also be re-sentenced in relation to the original offending.
91I wish to make it clear that in deciding to impose a Community Correction Order in relation to Charge 2, I have taken into consideration the overarching principle of totality, bearing in mind your 228 days in custody which have been declared in relation to Charges 1 and 3; the overall gravity of your offending on all matters and the sentence imposed on Charges 1 and 3 requiring you to be returned to custody. In my view, a carefully structured Community Correction Order with both punitive and rehabilitative aspects, to commence upon your release from prison and to operate at the same time as the supervisory requirements of your Recognisance Release Order, is appropriate.
92In relation to the related summary offences of failing to appear on bail and two charges of contravene a conduct condition of bail, you are convicted and fined an aggregate sum of $500.
93I turn now to matters relevant to the Sex Offender Registration Act 2004.
94Charges 1, 2 and 3 are registrable offences, being Class 2 offences. Due to your pleas of guilty and the sentences imposed, you are a registrable offender as defined in the Act and you are required to comply with the reporting obligations as set out in that Act for a period of life. You will be given a document shortly which sets out your reporting obligations under the legislation.
95Finally, pursuant to s.6AAA of the Sentencing Act 1991, I declare that had you not pleaded guilty I would have imposed a sentence of 3 years imprisonment with a Recognisance Release Order after 2 years in relation to the Commonwealth offences and 18 months' imprisonment in relation to the State offence, Charge 2 on the Indictment.
96Mr Wilson, you can take a seat for a moment. We seem to have lost the vision for Ms Holmes. Can we get that back?
97MS HOLMES: I can see you, Your Honour.
98HIS HONOUR: Yes, all right, you are back now. As long as you can hear. Yes, all right, starting with you, Ms Holmes, any ambiguity in relation to the sentence?
99MS HOLMES: No. I don't believe so because the only - I am just working through it - the only custodial portion is a Federal sentence that commences today, and the reckoning of the pre-sentence detention is deducted from that and then the CCO commences within the requisite period.
100HIS HONOUR: For three years.
101MS HOLMES: So in - yes - in my view, Your Honour, there is no ambiguity there.
102HIS HONOUR: Yes. There seems to be some logistical or procedural issues in relation to stipulating the period of imprisonment on the Recognisance Release Order. It is perhaps not for me to say, but it is potentially a little unusual to be imposing a sentence which includes days so that has caused some issues from the Court's end but in any event, my intention hopefully is very clear to comply with the complexities of both Commonwealth and State legislation and in light of all the relevant matters which I will not now repeat.
103A Recognisance Release Order to be released after 10 months and 18 days less 228 days, 3 months to go, or no more than 3 months to go. I appreciate that these days are emergency allowances which are not a matter for me to consider, but within 3 months the CCO will commence.
104MS HOLMES: Yes.
105HIS HONOUR: Mr Van Arkadie, any issues from your perspective?
106MR VAN ARKADIE: No, Your Honour, it all seems to accord.
107HIS HONOUR: Yes, thank you. Ms Holmes, the last Commonwealth matter I did, and indeed, all matters in a previous capacity, the Commonwealth has prepared the Recognisance Release Order. Is that your understanding as to what happens?
108MS HOLMES: That is my understanding, but I will just check my text from my instructor.
109HIS HONOUR: Yes, I'm minded to stand down to allow that to occur.
110MS HOLMES: Yes. I think that is right. I am not sure if it is, given that the release isn't - the release - sorry the order has to be signed today by Mr Wilson. Also Your Honour ‑ ‑ ‑
111HIS HONOUR: If it's prepared, it could be emailed through and printed and signed if there is no issue there, as far as I can tell.
112MS HOLMES: I agree with you, with respect, Your Honour, and the last issue before I forget is the forfeiture order, which should have been for Your Honour also.
113HIS HONOUR: Yes. Bear with me for a moment. I have omitted to - yes, I've just received a document which seems to be the Recognisance Release Order which has been populated by your instructor. Is that said to be the final order?
114MS HOLMES: Could we just ask that Ms Jones is unmuted and her video is activated so that just to make the communication a little bit more straightforward.
115HIS HONOUR: Yes, of course.
116MS HOLMES: Thank Your Honour.
117MS JONES: The (indistinct) has been emailed to Your Honour and it has been populated with the conditions that you outlined in the sentence.
118HIS HONOUR: Yes.
119MS JONES: There's no issue with the time to serve being particularised as months and days, so I've included the 10 months and 18 days.
120HIS HONOUR: Yes, and I notice that the ‑ ‑ ‑
121MS JONES: And I've inserted the details for (indistinct) matters.
122HIS HONOUR: I notice that there is no notation in relation to time served, but I take it that is effected through the warrant, so the formal order of the Court which goes to the relevant authorities.
123MS JONES: Yes, so the order is just made on the record of orders in the normal way it would be with a State offence, so days to be reckoned as already served Your Honour.
124HIS HONOUR: Yes, thank you very much for that.
125MS JONES: Thank you.
126HIS HONOUR: I am trying to find the forfeiture order. Is that opposed?
127MR VAN ARKADIE: No, Your Honour.
128MS JONES: I can email the forfeiture order through if that would be of assistance.
129HIS HONOUR: We have got it. Yes, I have made the forfeiture order that has been sought. Just bear with me a moment please. What I am going to do is stand down, Mr Van Arkadie. I will give you a chance to look at that document which has been prepared. It seems to be an accurate reflection of the sentence that I have imposed, but I will give you a chance to look at it and perhaps I will allow Mr Wilson to remain in the Court room in my absence so that you can speak with him and satisfy yourself that he understands what is involved in the Recognisance Release Order. I have already explained it to him, but I would be grateful if you could do that as well as the Community Correction Order, a copy of which will go down to you, and both documents need to be signed by your client.
130MR VAN ARKADIE: As Your Honour pleases.
131HIS HONOUR: Yes, procedurally Ms Holmes, that is the correct course for both the Recognisance Release Order and the Community Correction Order, to be signed by Mr Wilson prior to me signing it and then we will confirm everything is in place and the receipt of the Sex Offender Registration documents as well.
132MS HOLMES: Thank you, and perhaps if it is more suitable to Your Honour, that could then just be emailed through to my instructor rather than come back, depending on what suits Your Honour. I am available, but it seems to me that it would be more appropriate once they are signed, for them to be emailed to the prosecution.
133HIS HONOUR: Yes, well I think Mr Van Arkadie should be given a few minutes with his client before the documentation is signed. It will only be, hopefully a couple of minutes Mr Van Arkadie.
134MR VAN ARKADIE: Yes, Your Honour.
135HIS HONOUR: I will just be out the back. Let me know when you are ready, I will come back and we will finish off the matter.
136MR VAN ARKADIE: Thank you Your Honour.
137(Short adjournment.)
138(Upon resuming.)
139HIS HONOUR: Yes. All good Mr Van Arkadie?
140MR VAN ARKADIE: Yes, Your Honour, thank you for the opportunity of being able to explain the orders to my client.
141HIS HONOUR: Yes, there is a complexity to them which is unfortunate. Yes, all right, thank you. Mr Wilson you have signed the Community Correction Order, you understand what is involved in the Community Correction Order?
142OFFENDER: Yep.
143HIS HONOUR: Yes, all right, so you understand Mr Wilson, you are essentially going into prison immediately and in 3 months' time you will be released subject to both the Commonwealth order and the State order, that is the Recognisance Release Order and the Community Correction Order, they run at the same time. Do you understand that?
144OFFENDER: Yep.
145HIS HONOUR: Yes, all right. Yes, and Mr Wilson has received the registration paperwork.
146MR VAN ARKADIE: Your Honour could I just clarify this. He instructed me to retain it, so it doesn't enter prison with him.
147HIS HONOUR: All right, thank you. All right, any other orders that need to be made.
148MR VAN ARKADIE: No, Your Honour.
149HIS HONOUR: Ms Holmes, have I covered everything?
150MS HOLMES: Yes, thank you, Your Honour.
151HIS HONOUR: Thanks very much. Yes, thanks Mr Wilson, can be removed, thanks.
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