Director of Public Prosecutions v Woods
[2024] VCC 1042
•5 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01547
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRIAN WOODS |
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JUDGE: | HIS HONOUR JUDGE ROZEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April; 8 May 2024 | |
DATE OF SENTENCE: | 5 July 2024 | |
CASE MAY BE CITED AS: | DPP v Woods | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1042 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Child abuse material – Contravene bail conditions – Guilty plea – Verdins principles
Legislation Cited: Crimes Act 1958 (Vic); Bail Act 1977 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; DPP vHermann [2021] VSCA 160; R v Verdins [2007] VSCA 102; R v De Leeuw [2015] NSWCCA 183; DPP v D’Allessandro (2010) 26 VR 477; DPP (Vic) v Hum (a pseudonym) [2022] VSCA 57; Allison (a pseudonym)v The Queen [2021 VSCA 308; Pearce v The Queen (1998) 194 CLR 610 [40].
Sentence: 2 years and 5 months’ imprisonment – Non-parole period of 16 months’ imprisonment – s 6AAA declaration – 3 years and 3 months’ imprisonment with a non-parole period of 2 years and 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Dr D. Wang | Office of Public Prosecutions |
| For the Accused | Ms O. Thompson | Victoria Legal Aid |
HIS HONOUR:
Introduction
1Brian Woods, you have pleaded guilty to the following offences:
(a) One charge of knowingly possessing Child Abuse Material (‘CAM’), contrary to s 51G(1) of the Crimes Act 1958 (Vic) (‘Crimes Act’);[1]
(b) One charge of accessing Child Abuse Material, contrary to s 51H(1) of the Crimes Act;[2]
(c) One charge of distributing Child Abuse Material, contrary to s 51D of the Crimes Act, which I note is a rolled up charge.[3]
[1] This offence carries a maximum penalty of 10 years’ imprisonment or a fine of 1200 penalty units.
[2] This offence also carries a maximum penalty of 10 years’ imprisonment or a fine of 1200 penalty units.
[3] This offence also carries a maximum penalty of 10 years’ imprisonment or a fine of 1200 penalty units.
2You have also pleaded guilty to the following related summary offences:
(a) Two charges of contravening bail conditions, contrary to s 30A(1) of the Bail Act 1977 (Vic).[4]
[4] This offence carries a maximum penalty of 3 months’ imprisonment of a fine of 30 penalty units.
3The conduct giving rise to these charges occurred between 20 March 2020 and 13 November 2022.
4You are to be sentenced on the factual basis set out in the Prosecution Opening for Plea dated 28 March 2024, which is an agreed document.[5]
[5] Exhibit P1.
Summary of the Offending
5On 21 December 2021, Victoria Police received information regarding a ‘Kik’ account accessing and transmitting digital files constituting CAM. The Kik account in question, ‘necrospawn’, is associated with an Internet Provider address registered with an Internet Service Provider whose sole subscriber was your then partner.
6Further investigation conducted on the Kik account revealed that the account was accessed consistently by the IP Addresses associated with you and your address at the time.
7Based on the information obtained during these investigations, a search warrant was executed by police at your home on 18 May 2022. You were not home during the execution. The following items were seized in your partner’s presence:
(a) 1 x PC;
(b) 14 x Hard Drives;
(c) 2 x SD Cards;
(d) 1 x Wifi Camera;
(e) 2 x iPads;
(f) 4 x USBs; and
(g) 1 x Hard Drive Reader
8Police officers attended at your workplace and informed you of the search warrant, at which point you forfeited your mobile phone.
Charge 1 – Possession of Child Abuse Material & Charge 2 – Accessing Child Abuse Material
9Forensic copies of each device were made and reviewed. A total of 6,913 files constituting CAM were located. These included files categorised as Category 1[6] and 2[7] of the Interpol Baseline Classification System.
[6] An image depicting a real prepubescent child (under the age of 13 years) and the child is involved in a sex act, witnessing a sex act or the material is focused/concentrated on the anal or genital region of the child.
[7] Material that is not included in category 1 and such material includes a person who depicts or describes a person who is, or who appears or is implied to be a child:
10Across six of your devices, a total of 3,399 Category 1 and 3,511 Category 2 files were located. The balance of the devices contained no CAM.
11The majority of the Category 1 files involve:
(a) Genuine prepubescent children below the age of 5 years old, being penetrated anally, vaginally and orally by adults;
(b) Newborns being anally, vaginally, and orally penetrated by adults; and
(c) Prepubescent children screaming and being restrained by adult men and women.
12The majority of the Category 2 files involve:
(a) Children above the age of 13 being vaginally, anally and orally penetrated by adults;
(b) Animated pre-pubescent children being sexually abused; and
(c) Children above the age of 13 engaging in bestiality.
13Further analysis of your mobile phone revealed that you had been searching for (accessing) CAM. There were numerous records of you utilising a file sharing website named ‘Mega’. Mega provides links to download a large number of files. A lot of the files located on your phone were associated with Mega download links.
14Further, your phone internet browser contained bookmarks to websites containing common paedophilic words, such as ‘Lolita’. Lolita refers to a book written by Russian author Vladímir Nabokov about an adult man who has a sexual attraction towards children. In common modern usage it refers to fictional, sexualised representations of underage girls.
15On 9 November 2022, you were arrested and your new mobile phone seized. Analysis of this phone found three further Category 2 CAM files.
Charge 3 – Distribute Child Abuse Material
16In the course of the investigation, it was discovered that you had been distributing CAM utilising the secure message application, ‘Wickr’. The Wickr instant messaging application allows users to exchange end-to-end encrypted and content expiring messages, including photos, videos and file attachments.
17Your then partner found Facebook Messenger messages from your account to a ‘Steven Bevan’ in which you admit still using Wickr as of a week from the time of the messages, December 2021, and that your username was ‘Dwellerson’.
18Using this account, you distributed illicit files on four occasions to three users, including three Category 1 files and one Category 2 file.
Summary Charges 6 & 7 – Breach Condition of Bail
19After your arrest on 9 November 2022, you were bailed. It was a condition of your bail that you were ‘not to contact any witness for the prosecution, except for the informant’. Your then partner was one such witness.
20Late on 10 November 2022, you sent four text messages to your then partner. The text messages were as follows:
(a) "I have never nor will ever stop loving you, I know I may not be allowed to send you this but I don't care, you are and will always be the one person I will truly [sic] love, and if it means I lose you then that is something I have to carry until I draw my last breath";
(b) Followed by a YouTube link to the song "Someday the Rains Will Fall";
(c) "I'm sorry but I heard this and well if you don't ever want to talk to me again just tell me to go away"; and
(d) Followed by another YouTube link to a music video.
21On 13 November 2022, you left two voicemails on your then partner’s mobile phone using the same mobile phone number. The voicemails were 24 and 26 seconds long, respectively.
Interview
22You were interviewed following your arrest during which you made the following relevant admissions:
(a) Your ‘reason for accessing and possessing the Child Abuse Materials was that it was about [your] “self-destruction” and that [you] “didn’t care what happened to [you]” and wanted to “crawl in a hole and die”’;
(b) When asked if you were aware of why you were in police custody, you stated it was in relation to Child Abuse Material. “I probably would’ve accessed some illegal images going down the dark rabbit hole of Kik”. You also said the material would “automatically download”;
(c) Throughout the interview you couldn’t provide any explanation for why you had the material in your possession - you claimed to have no memory of your actions and said that you didn’t know what you were doing while using methylamphetamine: “I don’t recollect much of what I was doing while I was on ice” and “me, as a normal person, would never do something like that—but me, on a drug like meth, would do anything’;
(d) You stated that you would report illegal files to the Kik moderators and as a result, be banned from the application. Regarding Wickr, you stated that you ‘barely used’ the application;
(e) You admitted to viewing/accessing Child Abuse Material, and explained that the last time you viewed it was in early 2021. You claimed that you would’ve saved files whilst using drugs, “at the depths of my drugs I may have moved it to the hidden folder”;
(f) When asked if you had ever distributed any files, you stated, “to the best of my knowledge, no”; and
(g) When asked why you never deleted the files, you stated, “I carried it round as a ticking time bomb, to warn me, to know that if anything ever did happen... I’ve done it, I’m not going to run away or hide it’.
Objective Gravity
23In determining the appropriate sentences to impose on you, I must start by assessing the objective gravity of your offending.
Charges 1 and 2
24CAM offences are, obviously enough, extremely serious offences. So much so is clear from the maximum penalty of 10 years’ imprisonment. Charges 1 and 2 are concerned with possessing and accessing respectively.
25The New South Wales Court of Criminal Appeal, in the oft-cited case of R v De Leeuw,[8] summarised the factors that intermediate appellate courts throughout Australia have consistently applied in determining the objective gravity of such offences:
(a) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(b) the number of items or images possessed;
(c) whether the material is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence;
(e) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and
(f) the length of time for which the pornographic material was possessed.
[8] [2015] NSWCCA 183, [72] (‘De Leeuw’).
26As described earlier in these reasons, the material in your files can only be described as abhorrent, depicting children as young as toddlers in vile and degrading circumstances. I do accept that some of the images portrayed animated depictions of CAM, and accordingly, to that extent there were no real children harmed. However, such images may have the normative effect of desensitising those involved so as to make it more likely that they will view CAM.
27The number of files located on your devices, although considerable, is below the scale of offending often coming before this Court.
28The offending was not isolated. Your sharing of the files was identified on 29 October 2021 and you were most recently found with CAM files at the time of your arrest on 9 November 2022, more than a year later.
29I consider that, taking into account the relevant considerations, charges 1 and 2 are mid-range examples of these offences.
Charge 3
30You transmitted four distinct CAM files to three different Wickr users. There is no suggestion that you stood to profit from this distribution.
31This is a lower range example of the offence of distribution.
Bail offences
32You disregarded your then partner’s clear message that she did not wish to have anything to do with you. However, there is no suggestion that your contact with her was aimed at influencing her evidence in any way. This was low level offending.
Personal circumstances
33You were born in Ireland as one of a sibship of four. When you were young you witnessed the murder of two police officers which caused you nightmares.
34Your family migrated to Australia when you were nine.
35Although your parents separated when you were about 15, your upbringing was unremarkable. You were raised by your father after the separation and experienced what psychologist Mr Candlish describes as ‘inconsistent emotional attachment and rejection from your mother’.
36You completed year 12 at school and have held a number of jobs including working for your father.
37Your marriage lasted 10 years and ended in 2019. There is one child of the marriage, who is 11. You have had two other long term romantic relationships.
38You have a history of substance abuse dating back to using cannabis when you were 14. You experimented with ecstasy before starting to use methamphetamine during the lockdowns caused by the pandemic. You accessed your superannuation to pay for this extensive habit. This coincided with your offending – a matter to which I will return.
39More recently, you have attended Narcotics Anonymous, report that you are drug-free, and have secured stable employment.
40The Court received two letters of support – one from your father Noel Woods and one from your sister Fiona Woods.[9]
[9] Exhibits D1 and D2, respectively.
41Your father is proud of what you have achieved in life and ascribes your offending to the lack of support during the pandemic. He says that you have returned to normal life and have ‘unashamedly and honestly explained the seriousness of the charges’ you face. He describes you as ‘very remorseful’.
42Your sister Fiona explains that despite what she knows of your offending, she is happy for you to look after her children. She describes your desire to return to normal life.
43For the purposes of the hearing, you were examined on three occasions by a psychologist, Mr Simon Candlish, who prepared a detailed report dated 27 June 2023.[10] Mr Candlish reports at some length about your claim to have very limited recall of the period of your offending which you ascribe to your drug use.
[10] Exhibit D4.
44Mr Candlish notes the account you give of your offending and concludes that while some poor recall is ‘plausible given the extent of [your] depression, isolation and methamphetamine abuse’, it would appear that your account of having limited memories of this time period ‘is largely related to shame and a desire to mentally avoid such behaviours’. Mr Candlish opines that you were ‘likely aware that [your] behaviour was wrong at the time’.[11]
[11] Ibid, [134].
45Mr Candlish diagnoses you as having suffered from Complex Post-Traumatic Stress Disorder (CPTSD), Persistent Depressive Disorder (mild severity) and Stimulant Use Disorder (severe, in sustained remission) at the time of your offending.[12]
[12] Ibid, [136].
46Mr Candlish opines that your CPTSD has led to ‘reduced social connections and a socially withdrawn state’ which have in turn ‘led to impoverished moral and social views and impaired empathy’.[13]
[13] Ibid, [138].
47Mr Candlish considers that you will be a vulnerable prisoner due to the nature of your offences and your ‘mental health issues’. He considers that there is a ‘real prospect of further traumatisation’ and a ‘strong risk of suicidal ideation and suicide attempts in the event that imprisonment is imposed’.[14] Your depressive disorder ‘could worsen’.[15]
[14] Ibid, [140].
[15] Ibid, [141].
48Turning to his assessment of the risk of future offending by you, Mr Candlish administered a number of well-known tests and concluded that you are a low risk of sexual offending because you do not ‘reveal entrenched problematic attitudes that support offending’ and you have no prior sexual offending history.[16]
[16] Ibid, [124]-[125].
49Mr Candlish concludes that, based on your presentation, history and assessed risk level, you ‘show good prospects for rehabilitation of [your] sexual offending behaviour’.[17] I accept this assessment.
[17] Ibid, [148].
Submissions
50Your counsel relied on the case of Bugmy.[18] Ms Thompson submitted that your ‘traumatic background and maladaptive coping strategies led to [your] drug addiction, and, indirectly, the offences before the court’.[19]
[18] Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).
[19] Defence Outline of Submissions dated 11 April 2024 [15].
51In oral submissions, Ms Thompson clarified that she relied on what is referred to as the ‘general’ manner in which childhood deprivation may be relevant to the assessment of moral culpability.
52In the case of Hermann,[20] the Court of Appeal explained that ‘the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way’.[21]
[20] DPP vHermann [2021] VSCA 160.
[21] Ibid, [36].
53While I accept that it may not be necessary for an offender to have suffered severe childhood deprivation to enliven the Bugmy principles, your upbringing was, as I have noted, quite unremarkable. This is not to understate your traumatic experience in Ireland or the difficulties caused by your relationship with your mother, and your parents divorcing. Notwithstanding my conclusion about Bugmy, I have given full weight to your background circumstances in the sentencing synthesis.
54Your counsel also relies on Verdins[22] limbs 5 and 6. Based on the contents of the report from Mr Candlish summarised earlier, I accept that there is clear support for the application of limb 5 and have moderated your sentence accordingly.
[22] R v Verdins [2007] VSCA 102 (‘Verdins’).
55However there is less support for limb 6. To moderate a sentence based on limb 6, a court must be satisfied that there is a ‘serious risk of imprisonment having a significant adverse effect on the offender’s mental health’.[23] The evidence of Mr Candlish is only that your condition ‘could’ worsen. I have therefore only moderated the sentence I impose to a small extent based on limb 6.
[23] Verdins, [32].
56Your counsel also relies on your lack of any criminal history, your pleas of guilty, which I accept were entered at an early stage;[24] the support from your father and sister (who attended court to support you); and your good prospects of rehabilitation. Based on these matters it was argued on your behalf that all sentencing considerations could be met by the imposition of a Community Correction Order either on its own or in combination with a term of imprisonment.
[24] The guilty plea was made at the committal stage in September 2023. This entitled you to a modest ‘Worboyes’ discount.
57The prosecution submitted that, despite the available matters of mitigation, the objective gravity of your offending and the need to give primacy to general deterrence, mean that ‘nothing less than an immediate term of imprisonment, with a non-parole period’ is warranted.[25]
[25] Plea Submissions on Behalf of the Prosecution dated 16 April 2024, [2].
58Before addressing those submissions, it is appropriate to consider the relevant sentencing principles in relation to the offences with which you are charged.
Sentencing principles
59Many of the appellate decisions concerning sentencing for CAM offences concern Commonwealth law.
60In the case of De Leeuw,[26] the NSW Court of Criminal Appeal explained the relevant sentencing principles to be applied by a sentencing court in relation to offending of this nature:
[26] (n 8) [72].
(a)
Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted.
…
(c) General deterrence is the primary sentencing consideration for offending involving child pornography.
...
(e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography.
(f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet.
(g) The possession of child pornography material creates a market for the continued corruption and exploitation of children.
(h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime — children are sexually abused in order to supply the market.
(i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.[27]
[27] Ibid [72], references omitted.
61Although De Leeuw was concerned with Commonwealth offending, the principles apply equally to the State offences to which you have pleaded guilty.
62The primacy of general deterrence as a sentencing purpose in such cases explains why immediate imprisonment will be imposed in cases other than those which are ‘exceptional’. Such a case may be one where the offender is very young themself, or suffers from an intellectual disability, or both. It may also involve an offender who has made great progress in their rehabilitation. Or it may be one where the objective gravity of the offending itself is assessed as at the low end. Your case has none of these features. You are a middle-aged man with your own child. As noted, I have assessed the objective gravity of your principal offending as mid-range.
63A number of years ago, in the case of DPP v D’Allessandro, Harper JA observed that ‘there is indeed something deeply inhuman in treating another human as the mere object by which one’s crudest and most selfish cravings are satisfied’.[28] Yet that is precisely what the market for CAM caters to. It is for that reason general deterrence plays such a prominent role in sentencing in such cases. Correspondingly, personal matters such as prior good character are given less weight as a mitigating factor.[29]
[28] (2010) 26 VR 477, [23].
[29] Ibid [29].
64Protection of the community and specific deterrence are also relevant sentencing considerations in your case. This is principally because, based on the report of Mr Candlish, I remain somewhat concerned about the extent to which you have insight into the true causes of your offending.
65The sentence on charge 3 must reflect that it is a rolled up charge. Although the maximum penalty remains 10 years’ imprisonment, the sentence must reflect the overall criminality.
66Because you have pleaded guilty to three sexual offences within the meaning of Part 2A of the Sentencing Act 1991 (Vic) (‘Sentencing Act’), I am required to sentence you as a ‘serious sexual offender’ in relation to the 3rd charge if I impose terms of imprisonment in respect of charges 1 and 2.
67Pursuant to s 6D of that Act, in determining the length of that sentence, I must regard protection of the community from you as the principal sentencing purpose. The prosecution did not seek a disproportionate sentence as can be imposed under s 6D(b) and I will not impose one.
68Further, the sentence I impose on charge 3 must be served cumulatively on the sentences imposed on charges 1 and 2 ‘unless otherwise directed by the court’.[30] I note that this requirement must be implemented bearing in mind the principle of totality which requires the court to impose a total effective sentence that is proportionate to the overall criminality.[31]
[30] Sentencing Act, s 6E.
[31] DPP (Vic) v Hum (a pseudonym) [2022] VSCA 57, [113], [134].
69Although they are discrete offences, I accept that there is some overlap between charges 1 and 2.[32] Possession of CAM means controlling access to it; accessing CAM includes viewing it.[33] It is possible to access CAM without possessing it.
[32] Allison (a pseudonym)v The Queen [2021] VSCA 308 [42] (‘Allison’).
[33] See Crimes Act, s 51G(3) and 51H(3) respectively.
70In sentencing you, I have taken into account that charge 1 (possession) and charge 2 (access) relate to the same CAM files. While it is appropriate to impose sentences that reflect the different conduct involved in the separate offending, you are not to be punished twice for the same conduct.[34]
[34] Allison (n 32) [48], citing Pearce v The Queen (1998) 194 CLR 610, [40].
Orders
71Taking account of all relevant sentencing considerations, I make the following orders:
(a) On charge 1, knowingly possess child abuse material, you are convicted and sentenced to 1 year and 10 months’ imprisonment;
(b) On charge 2, knowingly access child abuse material, you are convicted and sentenced to 12 months’ imprisonment;
(c) On charge 3, distributing child abuse material, you are convicted and sentenced to 12 months’ imprisonment; and
(d) On the related summary offences of contravening conditions of bail, you are convicted and fined an aggregate of $500.
72The sentence on charge 1 is the base sentence. I order that 3 months of the sentence imposed on charge 2 and 4 months of the sentence imposed on charge 3 are to be served cumulatively on the charge 1 sentence and on each other.
73The total effective sentence is imprisonment for 2 years and 5 months and a $500 fine.
74You will be eligible for parole when you have served 16 months in prison.
75Pursuant to s 6F of the Sentencing Act I cause to be entered in the court’s records that you were sentenced as a serious offender.
76Pursuant to s 6AAA of the Sentencing Act, had you pleaded not guilty, the total effective sentence would have been 3 years and 3 months with a non-parole period of 2 years and 2 months.
77You are a registerable offender under Part 6 of the Sex Offenders Registration Act 2004 (Vic) and will be subject to the reporting obligations under Part 3 for life.
78I make the Forfeiture Order sought noting it is unopposed.
i. as a victim of torture, cruelty or physical abuse; or
ii. as a victim of sexual abuse; or
iii. engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others); or
iv. in the presence of another person who is apparently engaged in a sexual pose or sexual activity; or
v. is exposing the genital area or anal region of a person who is, or who appears or is implied to be, a child; or
vi. the breasts of a person who is, or who appears or is implied to be, a female child; and
vii. a reasonable person would regard as being, in the circumstances, offensive.
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