DPP (Cth) v Waller
[2021] VCC 79
•5 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00948
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONATHAN EDGAR WALLER |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 26 June 2020 and 19 January 2021 | |
DATE OF SENTENCE: | 5 February 2021 | |
CASE MAY BE CITED AS: | DPP (Cth) v Waller | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 79 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Produce child pornography – Publish child abuse material – Access child pornography material – Publish child pornography material – Knowingly posses child abuse material – Contravene order made under s3LA(2) of the Crimes Act 1914 (Cth) - Asperger’s syndrome – Depression – Criminal History – Serious Sexual Offender – Reporting for life.
Legislation Cited: Crimes Act 1958 (Vic); Criminal Code Act 1995 (Cth); 16A(1) Crimes Act 1914 (Cth); 5(1)(a), 6D & 6F Sentencing Act 1991 (Vic)
Cases Cited:R v Deleeuw [2015] NSWCCA 183; Adamson v The Queen [2015] 47 VR 268; DPP v Garside [2016] VSCA 74; R v Edwards [2019] QCA 15; Pooniah v R [2011] WASCA 105; Hili v R (2010) 242 CLR 520
Sentence: Total effective sentence (State) 1 month imprisonment
Total effective sentence (Cth) 24 months imprisonment to be released after 9 months upon recognisance of $1,000 with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr J Gullaci (for plea) Ms C. Caretti (for sentence) | Solicitor for the Commonwealth Office of Public Prosecutions |
| For the Offender | Mr G Casement (for plea) Mr P. Murphy (for sentence) | Warren, Graham & Murphy |
HIS HONOUR:
1 Jonathan Edgar Waller, you have pleaded guilty to the following offences:
2 Charge 1, that on 29 August 2004 at Bairnsdale, you produced child pornography by creating digital images depicting minors under the age of 18 years contrary to s68(1) of the Crimes Act 1958 (Vic).
3 Charge 2, that between 1 January 2006 and 31 July 2016 at Bairnsdale, you published material using a carriage service, the material being child abuse material, contrary to s474.22(1) of the Criminal Code Act 1995 (Cth).
4 Charge 3, that between 1 November 2013 and 31 March 2015 at Bairnsdale, you published material, using a carriage service, the material being child pornography material, contrary to s474.19(1) of the Criminal Code Act (Cth).
5 Charge 4, that between 22 November 2013 and 23 October 2018 at Bairnsdale, you accessed material, using a carriage service, the material being child pornography material contrary, to s474.19(1) of the Criminal Code (Cth).
6 Charge 5, that on 26 December 2013 at Bairnsdale, you published material, using a carriage service, the material being child pornography material, contrary to s474.19(1) of the Criminal Code (Cth).
7 Charge 6, that between 1 January 2014 and 25 July 2015 at Bairnsdale, you published material, using a carriage service, the material being child abuse material, contrary to s474.22(1) Criminal Code (Cth).
8 Charge 7, that on 13 February 2014 at Bairnsdale, you published material, using a carriage service, the material being child pornography material, contrary to s474.19(1) of the Criminal Code (Cth).
9 Charge 8, that between 31 March 2014 and 18 April 2015 at Bairnsdale, you published material using a carriage service, the material being child pornography material, contrary to s474.19(1) of the Criminal Code (Cth).
10 Charge 9, that on 29 October 2018 at Bairnsdale you knowingly possessed child abuse material contrary to s51G(1) of the Crimes Act 1958 (Vic).
11 Charge 10, that on 29 October 2018 at Bairnsdale you, being subject to an order made under s3LA(2) of the Crimes Act 1914 (Cth) and being capable of complying with the requirement in the order, omitted to do an act, and the act contravened the requirement contrary to s3LA(5) of the Crimes Act 1914 (Cth).
Circumstances of offending
12 The circumstances of your offending are set out in the Prosecution Opening on Plea, exhibit P1. They are as follows:
13 On 15 November 2013, you became a member of a USA website “Shotachan.net” (“Shotachan”). This is a public website for users aged 18 and above. Its features include anime, cartoon, text and audio-form media depicting fantasy stories of rape, bondage and domination involving children and/or a combination of adults and children.
14 Shotachan contains a chat facility for members, forum discussions amongst members and a gallery. Members are required to create a login username to access the gallery and post in the forums. A password is required to gain access.
15 You used the username “jasonmasters” on Shotachan and described yourself as an “asexual childlover”. Your profile stated you had posted 2,326 messages in the forums.
16 Between 22 November 2013 and 23 October 2018, you accessed and commented on a number of forum discussions on “Shotachan” that featured cartoon, anime and text-based publications which investigators classified as Category 6 child exploitation material according to the Australian Child Exploitation Categorising Scheme (“ACECS”).
17 I will deal with the charges in the order they appear in the prosecution summary.
18 The following matters are relevant to Charge 4 on the indictment. On 22 November 2013, you accessed a forum discussion on Shotachan, which featured cartoon and anime images of adult males having anal penetrative sexual activity with children. You published the following comment on this thread:
“‘The "Sodom Factory" pie is a favourite of mine. Boys being mechanically abused is one of my favourite fantasies. It's something about their helplessness and the ruthlessness of machines which don't know and are unable to care about what they're doing to the boys. They’ll just keep on raping their helpless victims tirelessly until someone switches them off The crux of the matter is, from the POV of the boys (using a description from a story I read) "there's fuck-all (they) can do about it". It's imagining the total helplessness of the victims which turns me on.’”
19 On 23 October 2018, you accessed a forum discussion which featured a story entitled “The Pale Prince” and which detailed the rape of a child by way of introduction of an adult male penis into the mouth of a child and digital penetration of the child’s anus. The story ended with the adult male saying “You will not leave this boat alive. I told you once I would fuck your corpse and I will. But first I will fuck you until you beg me to slit your throat”. You published the following comment:
“Its an excellent beginning. I'm going to guess that the rich old man does not get a chance to say anything more due to not being in a condition which allows for speaking although who does the deed is a mystery to me. But that's part of the fun of such a story.”
20 The following matters are relevant to Charge 8 on the indictment. Between 31 March 2014 and 18 April 2015, you posted 21 publications which were categorised as ACECS Category 6 child exploitation material, on Shotachan. Those publications and the dates on which they were published may briefly be described as follows:
(a)on 31 March 2014 you posted a text-based fictional publication “Benjamin the Puppy Boy” depicting bondage and dominance between a pre-teen male and an adult male;
(b)on 1 April 2014 you posted a text-based fictional publication “Caleb the Piper”, depicting bondage of a child “slave” and rape by way of digital and penile penetration of the child’s anus by an adult male, graphically describing the pain experienced by the child;
(c)on 10 April 2014 you posted a text-based fictional publication “Sebastian the Sailor”, depicting bondage of a male child by an adult male;
(d)on 11 April 2014 you posted a text-based fictional publication “The Day I was Abducted and Raped”, depicting bondage and multiple anal rapes of a 7-year-old male by two young teen males, graphically describing the pain experienced by the child;
(e)on 17 April 2014 you posted a text-based fictional publication “A Poor Decision” depicting bondage, physical abuse and penis-to-anus and penis-to-mouth penetration of two 7-year-old males by adult males;
(f)on 18 April 2014 you posted a text-based fictional publication “The Thirteenth Slave Boy”, depicting the physical abuse and penetration of a 7-year-old male by a 13-year-old male, as well as the bondage and sexual slavery of the 13-year-old being “milked” for semen and being force-fed the semen via a feeding tube;
(g)on 21 April 2014 you posted a text-based fictional publication “Johnny’s First Happy Time”, depicting the bondage and masturbation of a 7-year-old male by his babysitter;
(h)on 28 April 2014 you posted a text-based fictional publication “Ryan in the Machine”. In that publication you stated, “The events in this story were not inspired by any real events, but could be if only the western world operated on common sense instead of hysteria”. The publication depicts a male child being strapped into a “humiliation machine”;
(i)on 1 May 2014 you posted a text-based fictional publication “The Janitor Series of Stories”. The publication contained a series of four stories depicting the bondage of young male secondary school students and the masturbation of them by the school janitor. The school janitor was named ‘Jason’ and the first story finished as “Just one of the trials and joys of being a secondary school janitor”;
(j)on 3 May 2014 you posted a text-based fictional publication, “The Apple Scrumpers”, depicting physical abuse and dominance by an adult male of two preteen boys and oral penetration between the boys. This publication generated a comment from another Shotachan user stating - “You have given me a great idea to play and enjoy this story in SL.” I was told during the plea hearing that “SL” is a reference to a computer game called “Second Life”;
(k)on 11 May 2014 you posted a text-based fictional publication “The Wearing of the Squeeks” depicting bondage between two 12-year-old males and their father;
(l)on 14 May 2014 you posted a text-based fictional publication “Onion the Orphan”, depicting oral sexual activity between an orphan schoolboy and an adult male;
(m)on 15 May 2014 you posted a text-based fictional publication “Boarding School - Zachary’s Initiation”, depicting bondage and masturbation between males aged 12 to 17 years;
(n)on 18 May 2014 you posted a text-based fictional publication “Todd’s Bad Deal”, depicting self-bondage and masturbation by a 9-year-old male, followed by physical abuse of the boy by an adult male;
(o)on 19 May 2014 you posted a text-based fictional publication “Darren and Darrin”, depicting a 17-year-old male performing oral sexual penetration of an 11-year-old male;
(p)on 21 May 2014 you posted a text-based fictional publication “The Apple Scrumpers: My Pony Boys”, depicting slavery and whipping of two 12-year-old males by an adult male;
(q)on 29 July 2014 you posted a text-based fictional publication “This Could Be Heaven or This Could Be Hell”, depicting bondage, spanking and masturbation of a 12-year-old male by a 17-year-old female;
(r)on 22 August 2014 you posted a text-based fictional publication “The Slaves’ Excuse”, depicting slavery of two males aged 8 and 10, and the implied whipping, anal and oral penetration of both by an adult male;
(s)on 13 November 2014 you posted a text-based fictional publication “Locked Into Love”, depicting bondage and masturbation between two 13-year-old males;
(t)on 21 March 2015 you posted a text-based fictional publication “The Apple Scrumpers: The Pearly Gates of Heaven”, depicting sexual slavery, whipping and anal penetration of two 13-year-old males by an adult male;
(u)on 18 April 2015 you posted a text-based fictional publication “The Apple Scrumpers: A Taste of the Distaff Side”, depicting bondage, dominance and anal penetration of two 13-year-old males by an adult male.
21 Copyright was claimed over each of the publications in the name of Jason Masters.
22 You were arrested and interviewed by police on 29 October 2018. You admitted writing the 21 stories that form the basis of Charge 8, but otherwise answered “no comment” to much of the questioning.
23 A search warrant was executed at your address in Bairnsdale on 29 October 2018. You were provided with a copy of a s 3LA Order to provide information or assistance pursuant to s 3LA of the Crimes Act 1914. The search resulted in the seizure of a number of electronic and storage devices, as well as laminated images which depict a computer-generated image of a young male, aged approximately 12 to 14 years, with his hands bound behind his back. This is a Category 6 image. Copyright was claimed in the name Jason Masters. A second laminated image depicting an animation of a young male aged approximately 7 to 10 years, with his hands bound to the branch of a tree and trousers down around his ankles exposing his penis, was also found. This is also a Category 6 image. Possession of these two images forms the basis of Charge 9.
24 Located within your bedroom was a white shirt containing Salvation Army insignia. You confirmed that you had been a member of the Salvation Army.
25 A Category 1 image was found on your Samsung Galaxy S7 hard drive. The image was taken on 29 August 2004. It shows a young female child with her legs open. The focus of the photograph is on her underwear. The image appears to have been taken at the Salvation Army premises in Bairnsdale. Mr Gullaci, who appeared to prosecute the charges, stated that it could not be proven that you took the photograph, but that your conduct in saving a copy of that image from the photographic device to the computer constituted the basis of Charge 1.
26 You were requested by police to provide passcodes to your electronic devices seized but you declined to do so. You told police that you understood failing to provide the information requested by investigators constituted an offence. Your refusal is the basis for Charge 10 on the indictment.
27 Examination of a mobile phone seized from you showed a history of access to a website “jasonmasters.deviantart.com/gallery.” It was last accessed by you on 19 May 2016. DeviantArt (“DA”) describes itself as “the largest online social community for artists and art enthusiasts, allowing people to connect through the creation and sharing of art”. The profile of Jason Masters indicated that it belonged to a male in Australia with a membership of 12 years. The profile introduction stated “Most of my stories have features which make them unsuitable for DA, so you can find them on y!Gallery or PZA instead”. The profile contained a number of “deviations”, some of which were open for anyone to view and others were marked “mature content” for persons aged 18 or above. You operated that profile. Contained within the mature content of your profile page was a replica image of the image found at your premises, depicting the young male with his hands bound behind his back. This image constitutes the basis of Charge 6, using a carriage service to publish child abuse material.
28 A further category 6 image was found within the mature content of your profile page, showing a young teenage male sitting on a floor with his arms bound behind his back, legs shackled wide and a gag around his mouth. Investigators were not able to establish the date the image was posted by you. However, they determined that the date of posting occurred between 2006 and 31 July 2016. Publication of this image forms the basis of Charge 2 on the indictment.
29 Also located within the mature content of your profile page on DA was the publication referred to earlier: “The Wearing of the Squeeks”. This was posted onto the forum on 12 February 2014 and forms the basis of Charge 7.
30 The publication “Sebastian the Sailor” was located within the mature content of your profile page on DA and was posted on 25 December 2013. You responded to a comment posted on 11 January 2015 by “BondageMike”. “Really? I thought it was rather tame. That's why I dared to post it on DA. All of my truly nasty works are on a different forum (linked in my profile - you'll need an account over there to access them)”. The posting of “Sebastian the Sailor” on the forum on 25 December 2013 forms the basis of Charge 5.
31 The PZA website to which I earlier referred is an adults only site containing stories depicting nudity, humiliation, castration, non-consensual and other physical abuse of young boys. Jason Masters is listed as an author on the site. Your introduction on that website states that in your stories –
· bondage is nearly always a feature,
· humiliation is about as common in your stories as bondage,
· masturbation occurs often,
· light discipline is used less often,
· mind control might occasionally feature so long as its purpose is humiliation,
· forced cross dressing and sissy play can also feature but again, generally only for humiliation purposes,
· oral, anal, rape, beatings and similar themes are rarer but you do use them where you think they are appropriate, and
· you can tolerate bleeding and injuries if they’re necessary for the story.
32 Your posted 17 of the stories referred to in charge 8 on the PZA website between 1 November 2013 and 31 March 2015. This forms the basis of charge 3.
33 You entered pleas of guilty to the charges at a committal mention on 15 May 2019.
34 You admitted your criminal record, which includes offences for indecently assaulting a female under the age of 16 years and indecently assaulting a male under the age of 16, for which you were placed on three years’ probation to undergo treatment from Dr Crewdson. The sentence was imposed in the County Court at Bairnsdale on 1 November 1979. You were also convicted of indecent assault in the County Court on 3 September 1984 and were sentenced to a term of imprisonment of two years and six months, with a minimum term of 12 months. That offence was committed against a five year old girl. Although the offences are dated, they are, in my opinion, of some relevance.
Personal Circumstances
35 I turn to your personal circumstances. You are now 61 years of age. You were born in Bairnsdale. I was told that you have led a lonely and isolated life in which contact with the outside world was limited.
36 Your parents were members of the Salvation Army. Your mother was in her thirties, and your father in his fifties, when they married. Your father was aged 60 when you were born. He died of bowel cancer when you were 12.
37 You were the youngest of three siblings. One of your sisters has since passed away, and your remaining sister lives in Melbourne. You have only occasional visits with her and her husband.
38 You completed year 9 at Bairnsdale Technical School. You reported that you were the victim of bullying and you left school before completing Year 10.
39 On leaving school you obtained work at Woolworths, where you worked for some 18 months. You thereafter spent long periods of time unemployed until you obtained work with ASIC in Traralgon. You worked for ASIC for approximately 18 years until late 2010 or early 2011. Your main role was that of a data entry operator. The official reason for your termination was poor work performance, but your counsel, Mr Casement, submitted that there were deeper issues and you had difficulty interacting with others in your place of employment.
40 At around that time, you were diagnosed with Asperger’s Syndrome and clinical depression. You have not worked since leaving ASIC.
41 You lived with your mother until her death a few years later.
42 You have a history of bowel cancer and were treated with surgery and chemotherapy. The cancer has been in remission for some five years. You continue to have bowel-related problems. You are required to wear a colostomy bag because of your bowel problems. You also suffer from a hernia.
43 You are on a part-disability support pension because of your clinical depression and bowel problems. You also rely upon a work pension.
44 Apart from monthly meetings at a local computer club of which you are a member, you report that you seldom leave your home other than for shopping or a medical appointment.
45 Exhibit D2, is a psychological report of Dr Deborah Smith dated 11 November 2019, tendered on your behalf.
46 You told Dr Smith that you left school as you could no longer cope with the teasing and the anxiety that it caused. That teasing, you said, had been a constant throughout your schooling.
47 You reported that you have always had difficulty in social situations, that you have no close friends, that you feel unable to manage socially and that you become highly anxious when engaged in face to face contact with people.
48 You also said that you are not able to deal with conflict and you either burst into tears or become aggressive to stop interaction and to protect yourself. You described a continual low mood, feeling there is little or no purpose in life. There have been occasions when you wished that you could commit suicide.
49 You also described never having been able to get along with other children and an inability to understand how other people think.
50 In about 2010/2011, and in the process of leaving work with ASIC, you were sent to a psychologist who, as I previously stated, diagnosed Asperger’s Syndrome and chronic clinical depression.
51 You told Dr Smith that you are asexual and that you find the act of sexual relations repulsive. You said you have never had a sexual relationship with another person. You further stated that you are not interested in child pornography and that you would not want to see or use actual children for your gratification.
52 You stated that you find pleasure in sexual bondage of yourself and you feel sexually gratified by writing your stories. You said you started to share your stories as you found other people who seemed to share your pleasure, and you wanted to leave something behind if you died. Accordingly, you commenced to put your stories onto the internet.
53 You told Dr Smith that you use three dimensional rendered pictures to meet your sexual needs. You said you like ideas but not the reality of hurting a child. You said that there is never a real child in your stories and you are not imagining a real child, other than yourself. You said you always see yourself as the young child in your stories.
54 You stated that it is never justified to hurt someone and it is only your business if you are hurting yourself.
55 You told Dr Smith that you now understand that it is illegal to write the stories you did and stated you will never post stories on the internet again.
56 Dr Smith was of the opinion that you have Asperger’s Syndrome or Autism Spectrum Disorder, as well as chronic depression, which is largely untreated. She said that given your lack of social engagement and your inability to cope with the outside world, no treatment for your depression is likely to be successful.
57 Dr Smith stated that you have struggled with Asperger’s Syndrome and major depression all of your life, which has been an extremely lonely and isolated one. She stated that you have never come to terms with your own sexual needs, having never gratified them in real life. You have also experienced significant trauma as a child through the constant bullying and teasing.
58 Although you worked for 18 years, Dr Smith noted that your work environment was highly structured and involved computers, and limited contact with others. She considered that you do not present a threat to the community, and that a custodial sentence would be devastating, as you would once again be the victim of bullying and harassment due to your Asperger’s traits and ‘weird’ presentation to the world.
59 Your risk of re-offending was not formally tested or, if it was, Dr Smith does not refer to any results. Dr Smith was aware of your prior offending when you were aged 17 and 23 but did not elaborate on the relevance or otherwise of that prior offending on the risk of you re-offending.
Defence submissions
60 Mr Casement relied on a number of matters in mitigation which I summarise as follows:
(i) your plea of guilty entered at an early stage;
(ii) your remorse for your offending;
(iii) your difficult childhood and upbringing;
(iv) your diagnosis of Asperger’s Syndrome or Autism Spectrum Disorder and depression, each of which makes you particularly vulnerable in a custodial environment;
(v) the fact that your offending largely did not involve an actual child victim, and that the material you produced, with one exception, was Category 6 material;
(vi) your professed lack of knowledge that what you did was illegal;
(vii) that imprisonment will be particularly burdensome on you given your bowel problems including wearing a colostomy bag;
(viii) your Asperger’s Syndrome and your depression;
(ix) the application of Verdin’s propositions 5 and 6;
(x) the impact that COVID-19 restrictions are having on prisoners, making the burden of imprisonment even greater than what it would otherwise be;
(xi) the risk of you re-offending is low;
(xii) you have fair prospects of rehabilitation; and
(xiii) the delay between your last offence and sentencing.
61 Mr Casement submitted that I should sentence you to a Community Correction Order and that this would not be inconsistent with current sentencing practice.
62 At a further plea hearing on 21 January 2021, Mr Casement submitted that in respect of your conduct, you behaved recklessly as to whether you were committing an offence rather than intentionally. He also relied on the positive report from the Community Correction assessment officer and the fact that there has been no further offending. With regard to the risk of you re-offending Mr Casement noted the assessment in the Correction’s report that you were of “medium risk” of re-offending,” adding that you have adopted a lifestyle of seclusion including no contact with children. You say you are motivated to seek treatment.
Prosecution submissions
63 Mr Gullaci submitted that your offending represents serious examples of the offences on the indictment. He submitted that when regard is had to the objective seriousness of your offending, the significance in particular of general deterrence, and your personal circumstances, which include relevant prior convictions, a term of imprisonment is the only appropriate sentence.
64 As some of your offending is contrary to Commonwealth legislation, Mr Gullaci submitted that in respect of those Federal Offences I must sentence you in accordance with Part 1B, Division 2 of the Crimes Act 1914 (Cth). Section 16A(1) requires that the sentence be of a “severity appropriate in all the circumstances of the offence”.
65 Mr Gullaci relied on the principles set out in R v Deleeuw[1] at paragraph [72]. The New South Wales Court of Criminal Appeal there set out the following principles:
[1][2015] NSWCCA 183 at [72]
(a) unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted;
(b) the objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i) the nature and content of the material, in particular, the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access to child pornography for personal use, the number of children depicted and thereby victimised;
(vi) the length of time for which the pornographic material was possessed;
(c) general deterrence is the primary sentencing consideration for offending involving child pornography;
(d) less or limited weight is given to an offender’s prior good character;
(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.
66 Mr Gullaci, having regard to those general principles, made the following submissions:
(i) you have relevant prior convictions for sexual offending involving young children;
(ii) your conduct will ordinarily call for the imposition of an immediate term of imprisonment. Consistent with Victorian appellate authority, Mr Gullaci did not submit that unless exceptional circumstances exist a term of imprisonment is ordinarily imposed;
(iii) the vast bulk of your criminal conduct is made up of creating and publishing highly sexualised and sadistic stories or comments involving the sexual abuse of children. The repeated creation of such stories and continual publication, he submitted, is relevant to an assessment of the risk of you re-offending;
(iv) your offending occurred over a long period of time;
(v) your offending was sexually motivated;
(vi) your comments and stories place some emphasis on the pain experienced by young children subjected to abuse and rape;
(vii) the comments and stories have been shared by you for consumption by others who have an interest in child abuse material.
(viii) there is no evidence this was done for profit;
(ix) you produced child pornography which was the subject of Charge 1;
(x) you were also found in possession of other child abuse photos;
67 Mr Gullaci referred to Adamson v The Queen[2] where the Court of Appeal explained that “there is no reason why the implicit statutory presumption of harm should not apply equally to cybersex offences as well as ‘in person offences’”.
[2](2015) 47 VR 268 at [25]
68 Mr Gullaci submitted that because of your relevant history of offending your prospects for rehabilitation are limited. He also pointed to Dr Smith’s remarks that you do not believe you have committed a crime as there are no victims which, Mr Gullaci submitted, demonstrated limited insight and ignored the image found in your possession by police.
69 Mr Gullaci submitted that your denial in having a sexual interest in children is contradicted by the stories you wrote and comments you made. There is a need, he submitted, for specific deterrence, having regard to your prior convictions, the period of time over which the offences were committed, the gravity and seriousness of the offending and your lack of insight and understanding of your behaviour.
Sentencing Considerations
70 There can be no doubting the gravity of the offences you committed. As was stated by the plurality in DPP v Garside – “Child pornography offences are considered especially grave by both the Courts and the legislature.”[3]
[3][2016] VSCA 74 [19]
71 At paragraph [20] of Garside, Redlich and Beach JJA stated:
General deterrence is to be a paramount consideration in sentencing child pornography offenders. In Fitzgerald v The Queen,[24] Hoeben CJ at CL said:
“ … general deterrence is of paramount importance when sentencing for these kinds of offences. This kind of offending primarily requires the imposition of sentences that will both deter others in the community from committing similar offences and which will punish and denounce the conduct of the offender. The ease and relative anonymity of the internet, the use by like-minded people of peer to peer file sharing technology to form networks exchanging such material and the difficulties of detection demonstrate the importance of general deterrence.
72 At paragraph [62] their Honours stated:
What is clear from all of the authorities is that access to child pornography is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending. That accords with the language of Nettle JA, as he then was, in Smith, and in the dissenting reasons of Priest JA and the joint reasons in Zarb. Despite proposition (a) in De Leeuw … , no broader principle need be laid down as each case must be decided according to its own circumstances.
73 In assessing the nature and circumstances of your offending I have regard to a number of matters including the maximum penalty for the offence under consideration; the classification of the material under the ACECS; the nature and content of the material under consideration including the age of the children portrayed in each offence so far as it is known and the gravity of the sexual conduct portrayed; the volume of material produced, accessed or published; the time period over which you offended, the dissemination of the material; that you did not do so for reward; and that, with one exception, no real children were involved.
74 As to this latter consideration, the fact that real children were not involved does not mean that children generally and the community have not been harmed by your conduct. There are a number of decisions of superior courts that consider the seriousness of text-based, computer generated, anime and drawings of child pornography and abuse material.
75 In R v Edwards[4] Morrison JA held that whilst in the case under consideration no real children were involved, it would be wrong to categorise it as a victimless crime.
[4][2019] QCA 15
76 At paragraph [61] his Honour stated:
The capacity of child exploitation material, even that which does not depict real children, to affect the community goes beyond the tendency to normalise exploitive sexual activity involving children or even to stimulate potential participants in it. In my view, it serves to fuel the demand for such material, whether or not it involves real children. Further, such material has the capacity to groom not only the recipients of it, but those who may be affected by recipients of it. That is to say, its impact may well be that reflected in Godfrey, namely to normalise it with the recipients or to encourage the recipients to take a step further, moving from the cartoon world or anime world to that of the real world in the sense of involving real children.
77 And at paragraph [78]:
All of the considerations above serve to demonstrate that it is an error to consider that cartoons, animations, or stories constitute a victimless offence. To do so is to place an unwarranted gloss on the task the court has to address, namely an assessment of the objective seriousness of the offending conduct. Category 6 material is not harmless just because it is anime, cartoons or stories. It is not harmless just because it does not involve real children.
78 In Pooniah v R[5] Mazza JA stated at paragraph [38]:
The criminality involved in the material that does not depict real children is of a different nature to that involving real children … This is not to say that material of this type is harmless; it has the tendency to 'normalise' exploitative sexual activity involving children and may stimulate a susceptible recipient to engage in sexual activity involving real children.
[5][2011] WASCA 105
79 Charge 1 carries a maximum penalty of 10 years imprisonment. You committed this offence by saving a single image of a young female child onto your Samsung Galaxy S7 hard drive. You did this on 29 August 2004. The photographic image depicts the child with her legs open with a focus on her underwear. The image is considered to be a category one image under the ACECS.
80 I should note here that at the resumed plea hearing, I was informed that category 1 is child exploitation material that does not involve sexual activity but shows images of children who may be naked, or wearing underwear, or engaging in suggestive poses with an emphasis on genital areas. It is less serious than categories 2, 3, 4 and 5 which involve greater sexual activity between children and with adults. Category 6 is child exploitation material which refers to anime, cartoons, comics and drawings depicting children in sexual poses or activity.
81 Clearly, the offence occurred many years ago and relates only to a single image. The young child is clothed. It is not suggested that the image was disseminated to others.
82 Charge 2 carries a maximum penalty of 15 years imprisonment. Your offending relates to a single image published on the Deviant Art website sometime between 1 January 2006 and 31 July 2016. The image is not of a real child. The image portrays the bondage and domination of a young male teenager sitting on the floor with his hands and legs restrained. His mouth is gagged. The image is degrading and humiliating of the young child. You disseminated this image by publishing it and thus made it available to other viewers of the website.
83 The image was viewed and commented on by forum members. As with all instances of you publishing child abuse and child pornographic material, you did not know who would access the material or what their motivation was with such access.
84 Charge 3 is a rolled-up charge. The maximum penalty for this offence is 15 years imprisonment.
85 Over the period between November 2013 and 31 March 2015 you published 17 of your stories on the adults only website PZA. They are category 6 text-based child pornography.
86 You disseminated them over the internet. Whilst this was not done for profit, they were clearly disseminated by you for others to read.
87 The stories published include a number of those which form part of charge 8. However, it is not the fact of you having authored the stories that is the subject of this charge and charges 5, 7 and 8, it is the fact of their publication on the respective websites that is the gravamen of the offences.
88 Whilst these are text-based stories they are, in my opinion, serious instances of category 6 child exploitation material. The stories are sexually explicit and involve the abuse of young children. In some instances, children as young as 7 years of age. Your stories commodify children as instruments for abuse by adults. Your stories are morally depraved. The general nature and content of the stories includes bondage and domination of teen and pre-teen males by adult males; rape by way of penile and digital penetration of a male children’s anuses by adult and teenage males; masturbation of children; oral sex being performed on children; physical abuse of children including by whipping; the infliction of pain on children; sexual penetration of pre-teen boys by teenage boys; and humiliation. Thus, for example, the text “A Poor Decision” depicts the bondage, physical abuse, and penis to anus and penis to mouth penetration of two 7 year old boys by adult males. The children in your stories are treated as mere objects used for the sexual gratification of morally depraved adults.
89 The danger inherent in publishing these stories on the internet is well reflected in the decisions of Edwards and Pooniah to which I have already referred.
90 Charge 4 carries a maximum penalty of 15 years imprisonment. It is a rolled-up charge. The charged period is based between the 22 November 2013 and 23 October 2018, although only two instances of access make up the charge.
91 On 22 November 2013 you accessed a forum discussion on Shotachan which featured a number of cartoon or anime images involving adult males having penetrative sexual activity with children. The nature of the child pornography you accessed is well described in your comments on the “Sodom Factory” to which I earlier referred.
92 On 23 October 2018 you accessed Shotachan and commented on the story “The Pale Prince.” As already mentioned, this story depicts the oral rape of a child by an adult introducing his penis into the mouth of a child and the digital penetration of the child’s anus. The adult tells the child “You will not leave this boat alive. I told you once I would fuck your corpse and I will. But first I will fuck you until you beg me to slit your throat”. Apart from the violence inherent in the rapes, this story speaks of the threat of extreme violence to the child.
93 No real children were involved in the material you accessed on these occasions but the stories, cartoon and anime images involved the sexual, humiliating, violent and depraved abuse of vulnerable young boys.
94 Whilst the nature and content of the child pornography you accessed is deplorable, I have regard to the fact that there are only two instances over a period of some 5 years and the fact that they did not involve real children.
95 Charge 5 has a maximum penalty of 15 years. On 25 December 2013 you posted on the Deviant Art website your text based story “Sebastian the Sailor”. It received a comment describing it as “hot”. As already mentioned, the theme involved bondage of a male child by an adult. I also have regard to the fact that this offence was committed some seven years ago.
96 Charge 6 carries a maximum penalty of 15 years imprisonment. On an occasion between the dates charged you published on the DA website a computer generated image of a male child who, according to the prosecution, is aged approximately between 12 and 14 years. The image is degrading and humiliating of the young child. Comments generated from other users of the website suggest as much.
97 Charge 7 has a maximum penalty of 15 years imprisonment. You published, for others to read, your story “The Wearing of the Squeeks” on the DA Website on 12 February 2014. The theme of the story involves a father introducing and engaging in bondage with his twelve year old twins. The story is a sexually humiliating fantasy between father and his sons.
98 Charge 8 involves the publication of 21 stories on the Shotachan forum between 31 March 2014 and 18 April 2015. This is a rolled-up charge and carries a maximum penalty of 15 years’ imprisonment. I have already referred to nature and content of these publications when discussing charge three, although in this case there are additional stories of similar content.
99 The volume of material published was high, there being 21 publications over an approximate 12 month period. You intended that the stories would be read by others with similar interests on the Shotachan website.
100 The maximum penalty on charge 9 is 10 years’ imprisonment. This is a rolled-up charge. There are two category six images that were found in your possession. Both images involve the bondage of a cartoon or computer generated image of a child. Their effect is to humiliate him.
101 Charge 10 arises from your refusal to provide information that would have allowed police to access data held in or accessible from a computer or other data storage device seized under warrant. The maximum penalty for this offence at the time of its commission was 2 years’ imprisonment.
102 When interviewed, police informed you of the s.3 LA Order and sought from you information that would enable them to access the data from all the devices seized. Police told you that the maximum penalty for the offence was two years’ imprisonment.
103 You received legal advice with regard to the operation of s.3LA before you refused to provide the information sought. You told police that it was your belief that the s. 3LA Order violated your right to the privilege against self-incrimination.
104 I do not know what legal advice you received but no submission was made that your refusal to provide the requested information was based on advice.
105 I do not accept Mr Gullaci’s submission that all of your offending represents serious examples of serious offences. Whilst your conduct as a whole was deplorable, the most serious of your offending is that involving charges 8 and 3. Although the stories in charge 3 are the same as those in charge 8, they were published on two different websites. Charges 1, 2, 6 and 9 in my opinion fall towards the lower end of the spectrum of seriousness.
106 You have pleaded guilty to each of the charges at an early time. Your pleas have utilitarian benefits in saving witnesses from having to give evidence and the expense and time of a trial. This is even more so in times where Court listings have been affected by the Covid 19 pandemic. You are entitled to a real measure of leniency by reason of your pleas of guilty.
107 I am not persuaded that your pleas of guilty reflect genuine remorse on your part. I have not received any evidence of your remorse. You told Dr Smith that your arrest was an attack upon you as you were not involving others. The fact is that you did involve others, particularly in publishing your stories and comments.
108 Under the heading “Attitude to Offences” Dr Smith noted that “Mr Waller is pleading guilty to the offences as he did write and post his stories. However, he does not believe he has committed a crime as there are no victims, other than, in his imagination, himself.”
109 You should understand, Mr Waller, that offences of the kind you committed in possessing, accessing and publishing child pornography and abuse materials are not victimless crimes.
110 I do not accept, that you are not interested in child pornography. In view of your conduct that makes up the child pornography offences, it is fanciful to suggest, as you told Dr Smith, that you have no interest in child pornography.
111 In my opinion, you are lacking in insight as to the wider ramifications of your publishing child pornography and abuse material on the internet and of your accessing and possessing such material. As the reported cases have recognised, such conduct tends to normalise exploitive sexual activity involving children and may fuel demand for such material whether or not it involves real children.
112 You told Dr Smith that you will never post stories on the internet again. Dr Smith, without elaboration, stated that she did not believe you present a threat to the community. She does not appear to have conducted any formal risk assessment. I note that Ms Dankoff, who prepared the Community Corrections’ report, using the Level of Service Risk assessment tool, considered that you present a medium risk of re-offending. I was not, however, informed of the reliability of such an assessment tool or the detail of the assessment. Given the period over which these offences were committed, their nature and their content, I am not prepared to find, on balance, that you do not present a threat to the community.
113 There is also a need for the sentence to deter you from similar conduct in the future. I have regard to your prior convictions which, although dated, are nevertheless relevant in this respect. I have also had regard to the fact that your offending occurred over a significant period of time and that a number of the charges to which you pleaded guilty are ‘rolled-up’ counts. Your lack of insight is also a matter of concern in this regard.
114 I do not accept the submission that you have fair prospects of rehabilitation. Unless and until you receive appropriate treatment to address your specific offending, I can only assess your prospects as guarded. Whilst it has been asserted that you do not have any contact with children, your offending, with one exception, does not involve real children but computer-based child pornography and abuse material.
115 I have taken into account the delay between your offending, your arrest and in having your case finalised. This delay mitigates somewhat the penalty to be imposed.
116 Whilst some of the offending dates back a number of years, the most recent offending is that set out in charges 4, 9 and 10 which occurred in October 2018. I accept your counsel’s submission that the sentencing outcome is something that has weighed heavily upon you. Relevant to this delay is that you have not been charged with any other offences since your arrest and have undertaken some psychological counselling for your depression.
117 Dr Smith has not specifically addressed the matters relevant to limbs five and six of Verdins,[6] however, I am prepared to draw an inference that they do apply. Dr Smith stated that the effect of a custodial sentence would be devastating as you would once again be the victim of bullying and harassment due to your Asperger’s traits and your ‘weird’ presentation to the world. I accept that by reason of your Asperger’s syndrome and depression that a gaol sentence will weigh more heavily upon you than it would on others not suffering such conditions and that there is a serious risk that imprisonment will have a significant adverse effect on your mental health. I also accept that your suffering from Asperger’s will make you more vulnerable to bullying and harassment within the gaol system. I make some allowance for these considerations in the sentence to be imposed.
[6] R v Verdins (2007) 16 VR 269
118 I also have regard to the fact that you need to wear a colostomy bag and that any sentence imposed will be of a greater burden because of that.
119 In my opinion, the authorities make it clear that the dominant sentencing considerations for offences of the type you committed are general deterrence and denunciation. That is, the sentence I impose must deter others from committing similar offences and must manifest the court’s denunciation of your conduct. In respect of the Commonwealth offences, section 16A(1) of the Crimes Act requires me to impose a sentence that is of a severity appropriate in all the circumstances. In respect of the State offences, section 5(1)(a) of the Sentencing Act requires me to punish you to an extent and in a manner which is just in all the circumstances.
120 I have carefully considered your counsel’s sentencing submissions but in all of the circumstances I do not consider that a Community Correction Order, or even a combination sentence involving a term of imprisonment and a Community Correction Order, is sufficient to meet all of the sentencing factors I am required to take into account by both Commonwealth and State legislation. Despite the fact that a term of actual imprisonment is a sentence of last resort, and notwithstanding the matters put in mitigation by Mr Casement, I am satisfied that no other sentence than one of imprisonment is appropriate in all the circumstances of your case. Your offending is too serious for any other sentence.
121 In arriving at this conclusion I have also had regard to a number of sentencing cases to which I was referred by both counsel. None could be said to be ‘on all fours’ with your offending. As was noted in Hili v R,[7] at paragraph [48]:
“Consistency is not demonstrated by, and does not require, numerical equivalence.”
And at paragraph [49]:
“The consistency that is sought is consistency in the application of the relevant legal principles.”
Past sentences may provide guidance to sentencing judges and stand as a yardstick against which to examine a proposed sentence.
[7](2010) 242 CLR 520
122 I am also required to have regard to the fact that you are to be sentenced as a serious sexual offender if I impose a term of imprisonment on any of charges one to nine. This is because you have previously received a sentence for a sexual offence. Once you fall to be sentenced as a serious sexual offender then, in determining the length of any subsequent term of imprisonment I impose for any relevant offence, s. 6D Sentencing Act requires me to regard the protection of the community as the principal purpose for which the sentence is imposed. Mr Gullaci sensibly submitted that I should not impose a disproportionate sentence and nor is full cumulation required.
123 Section 6F of the Sentencing Act provides that:
Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
124 The section does not operate to exclude the totality principle, which I will apply in your case.
125 Ms Caretti and Mr Murphy, before reading out my sentence I will ask that my associate email to you the sentence that is proposed. I would like you both to check the sentence as it involves both state offences and Federal offences and can be confusing. That will be sent to you now.
126 MR MURPHY: Your Honour, if I could just indicate. In my case, I might have a different email to what your associate. I don't have access to my work emails but I do have access to an email here.
127 HIS HONOUR: All right. Mr Murphy, when I adjourn could you please provide that email to Ms Richwol, my associate.
128 MR MURPHY: Yes, Your Honour.
129 HIS HONOUR: And she will email it through. All right, so I will adjourn now. I do not know how long you will need but if you could let my associate know when you are both ready, I would be grateful. And if there are any issues let me know what you suggest in relation to, in particular, the Federal offences and cumulation.
130 MS CARETTI: Certainly, Your Honour.
131 HIS HONOUR: All right, I will stand down now until we are ready.
(Short adjournment)
132 MR MURPHY: Your Honour, I spoke to Mr Casement and I perused the draft judgment myself and neither of us have any issues, Your Honour. We understand with the calculations.
133 HIS HONOUR: Thank you. Ms Caretti?
134 MS CARETTI: Your Honour, I too have looked at the calculations and everything's in order. I am just sending through the draft recognisance release order now, Your Honour.
135 HIS HONOUR: I will proceed to sentence then and that can be done while I am sentencing, can it not?
136 MS CARETTI: Yes, it can, Your Honour, thank you.
Sentence
State offences
137 Mr Waller, on charge 1 you are convicted and sentenced to 1 months’ imprisonment.
138 On charge 9 you are convicted and sentenced to 1 months’ imprisonment.
139 Both sentences are to be served concurrently. This is a total effective sentence of 1 months' imprisonment on the state offences.
Federal offences
140 I turn now to the Federal offences.
141 On charge 2 you are convicted and sentenced to one months’ imprisonment.
142 On charge 3 you are convicted and sentenced to 12 months’ imprisonment.
143 On charge 4 you are convicted and sentenced to 4 months’ imprisonment.
144 On charge 5 you are convicted and sentenced to 4 months’ imprisonment.
145 On charge 6 you are convicted and sentenced to 1 months’ imprisonment.
146 On charge 7 you are convicted and sentenced to 6 months’ imprisonment.
147 On charge 8 you are convicted and sentenced to 12 months’ imprisonment.
148 On charge 10 you are convicted and sentenced to 4 months’ imprisonment.
149 The sentence of one month imposed on Charge 2, the sentence of 12 months imposed on Charge 3 and the sentence of one month imposed on Charge 6 are to commence at the expiration of the total effective sentence imposed on the state offences, Charges 1 and 9.
150 The sentence of four months imposed on charge four is to commence three months before the expiry of the sentence imposed on charge three.
151 The sentence of four months imposed on charge 5 is to commence three months before the expiry of the sentence imposed on charge four.
152 The sentence of six months imposed on charge seven is to commence four months before the expiry of the sentence imposed on charge five.
153 The sentence of 12 months imposed on charge eight is to commence six months before the expiry of the sentence imposed on charge seven.
154 The sentence of four months imposed on charge 10 is to commence two months before the expiry of the sentence imposed on charge eight.
155 On this basis, Mr Waller, the total effective sentence of imprisonment for the federal offences is one of 24 months.
156 Pursuant to s.20(1B) of the Crimes Act 1914, you are to be released after serving nine months of the term of imprisonment upon you giving security by recognisance of $1,000 to comply with the following conditions:
(a) that you be of good behaviour for a period of three years; and
(b) that you be under the supervision of the Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee for two years; and
(c) that you are to attend for assessment and, if assessed as suitable, treatment for sex offender programs or programs to reduce re-offending as directed by Deputy Commissioner Community Correctional Services and Sex Offender Management or his or her nominee;
(d) that you report to the Bairnsdale Community Corrections Centre by 4 pm within two clear working days of your release from prison; and
(e) that you report to and receive visits from a Community Corrections Officer or Officers; and
(f) that you are to notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change; and
(g) that you are not to leave Victoria except with the permission of an officer at the specified Community Corrections Centre; and
(h) that you are to obey all lawful instructions and directions of Community Corrections Officers.
157 Mr Waller, you must understand that if in the period during which this order lasts, that is 3 years from today, you are not of good behaviour, you may be brought back before me and dealt with, which may include a further term of imprisonment.
158 Had it not been for your pleas of guilty the total effective sentence I would have imposed in respect of both the state and federal offences is one of three years and four months imprisonment with a non-parole period of two years and two months.
159 By virtue of my sentencing of you, you will now be subject to the reporting and other obligations by the Sex Offenders Registration Act legislation for the remainder of your life. I will have a guide to your obligations under this legislation provided to your legal representative and direct that you are to sign the acknowledgement of receipt and that this be returned to my associate as soon as practicable.
160 I will also have noted in the records of the Court that you were sentenced as a serious sexual offender in respect of charges 2, 3, 4, 5, 6, 7, 8 and 9.
161 Ms Caretti, are there any other matters to which I need to attend?
162 MS CARETTI: No, Your Honour.
163 HIS HONOUR: Mr Murphy?
164 MR MURPHY: No, Your Honour.
165
HIS HONOUR: All right. Well thank you both for your assistance today and if you would please convey the Court's gratitude to Mr Casement and
Mr Gullaci for their assistance.
166 MS CARETTI: Certainly.
167
HIS HONOUR: Mr Waller, I understand we're sending the recognisance release order through? Yes. I'll just have a look at the order you sent through, Ms Caretti. That will need to be signed, will it not, by
Mr Waller?
168 MS CARETTI: Your Honour, you do have capacity to indicate on the order that Mr Waller has orally entered into the agreement. However, if Mr Waller is able to sign at the Bairnsdale and if it would be possible to receive a signed copy that would great, thank you.
169 HIS HONOUR: What I'll do is I will simply ask him whether he agrees to enter into the recognisance release order. His answers will be recorded so I don't think there'll be any issue.
170 MS CARETTI: As Your Honour pleases.
171 OFFENDER: I agree, Your Honour.
172 HIS HONOUR: Mr Waller, do you understand the recognisance release order that I have read out, which requires you to abide by the conditions in the recognisance upon your release after having served nine months of the Federal sentence?
173 OFFENDER: Yes, Your Honour.
174 HIS HONOUR: Do you agree to comply with those conditions?
175 OFFENDER: Yes, Your Honour.
176
HIS HONOUR: All right. You came across faintly. I heard, 'Yes,
Your Honour', in respect of both questions. Mr Murphy, is that correct?
177 MR MURPHY: That's correct, he did answer 'yes', Your Honour, to both those questions.
178 HIS HONOUR: All right.
179 MR MURPHY: Your Honour, just while we're on that. In relation to him signing the sex offender's form, once he goes into custody I'll lose touch with him. I'm not sure whether that could be emailed to the registry here and he can sign it before he leaves here perhaps.
180 HIS HONOUR: That can be done, Mr Murphy. Alternatively we can send it out Mr Murphy, the relevant documentation will be sent to the registrar at the court.
181 MR MURPHY: Thank you, Your Honour.
182 HIS HONOUR: All right. I have signed the recognisance release order and dated it with today's date.
183 Just so that you're clear, the net effect of both the state and Federal sentences require you, Mr Waller, to serve 10 months' imprisonment. And thereafter you are subject to the recognisance release order. Mr Murphy, that was your understanding, was it?
184
MR MURPHY: Yes. Yes, it was and fortunately that's what I told him,
Your Honour, told Mr Waller.
185 HIS HONOUR: All right.
186 MR MURPHY: So everyone seems to understand that.
187 HIS HONOUR: All right. Thank you, I don't know what arrangements are made for Mr Waller to be taken into custody but that should now happen.
188 MR MURPHY: Yes, there are custody officers here so it would happen pretty much straightaway.
189 HIS HONOUR: Do you need some time to speak to him, Mr Murphy?
190 MR MURPHY: I'll have a brief moment with him, Your Honour, but we're okay, thank you.
191 HIS HONOUR: All right, thank you. Please adjourn the court.
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