DPP v Lunson
[2021] VCC 1051
•9 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-21-00219
CR-17-00824
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COLLIN LUNSON |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2021 | |
DATE OF SENTENCE: | 9 July 2021 | |
CASE MAY BE CITED AS: | DPP v Lunson | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1051 | |
REASONS FOR SENTENCE
Subject : Use a carriage service to obtain or access child abuse material. Failing to comply with reporting obligations under the Sex Offenders Registration Act [2004] (the SOR”).
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Rofe | |
| For the Accused | Ms K. Breckweg |
HIS HONOUR:
1
Colin Lunson, you have pleaded guilty to three charges. Charge 1 is a Federal offence. It is a charge that you possessed or controlled child abuse material in the form of data held in a computer or contained in a data storage device and you used a carriage service to obtain or access the child abuse material. The maximum penalty for this offence is imprisonment for five years. In the factual circumstances here, the offence also has a mandatory minimum sentence of four years imprisonment. Charges 2 and 3 are each State offences. Charge 2 is a charge of failing to comply with reporting obligations under the Sex Offenders Registration Act [2004] (the SOR”). The maximum penalty for this offence is imprisonment for five years. Charge 3 is a charge of possession of a drug of dependence, methamphetamine. In the circumstances alleged here, the maximum penalty for this offence is imprisonment for one year. Each of your offences occurred on
21 August 2020.
2The circumstances of your offending are summarised in the prosecution opening in writing dated 12 May 2021. That document was relevantly read in open court by the learned prosecutor. Your counsel agreed that the prosecution opening was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you for these crimes. In those circumstances, it is not necessary that I here repeat in full all that is contained in the prosecution opening and I do so only in an abbreviated way. These sentencing remarks should, however, be read in conjunction with that which is contained in the written prosecution opening which I marked as Exhibit A on the plea.
3In order to properly understand your offending on 21 August 2020, I need first mention your prior convictions in Victoria.
4On 7 December 2017, you appeared in this court where you were convicted of the offences of using a carriage service to access child pornography, a Federal offence, and knowingly possessing child pornography, a State offence. As a result of those prior convictions you were a registered sex offender under the provisions of the SORA at the time you committed these offences with reporting obligations for 15 years.
5When arraigned, you admitted those prior convictions as well as a number of other sundry prior convictions in Tasmania which include two convictions for indecent exposure in 1992 and 1993 and an act of indecency in 1994. You also have prior convictions for possessing and using drugs and dishonesty offences.
6As a registered sex offender, you were obligated to report to Victoria Police the particulars and details of any usernames or identities that you used to identify yourself when using the internet and also any e-mail addresses used by you on the internet. You were also required to advise police of details of all electronic devices such as computers that you possessed. One of the clear purposes of the SORA is to require registered sex offenders to keep police informed of their whereabouts and personal details about themselves.
7In September 2019, the Department of Internal Affairs Digital Child Exploitation Team in New Zealand received information that you were using a 'Mega.nz' to store child abuse material. Mega.nz is a New Zealand based, publicly available website, which provides end to end encrypted Cloud storage. Anyone with a free account can upload material to the platform, which can then be shared and accessed via a unique URL. Acting on this information, a search warrant was executed at your place of residence in Altona Victoria on 21 August 2020.
8You were found to be in possession of child abuse material (Charge 1). Your mobile phone was seized and, when examined, found to contain internet usernames and e-mail addresses that you had failed to report to Victoria police as a registered sex offender (Charge 2). A small quantity of methamphetamine for self-use was also found in your possession (Charge 3).
9When police attended at your residence to execute the search warrant, you failed to answer the door for over two hours and you refused to answer your mobile phone when called. When told police would force entry, you opened the door and the warrant was executed. You told investigators that you did not know where your mobile phone was and that you did not own other electronic devices. Upon carrying out a search, police soon located a concealed compartment beneath a wardrobe inside your bedroom. Inside that concealed compartment, police located a black Dell laptop computer, a grey notebook, a black mobile phone and Apple silver iPad, a Telstra Sim card, and the methamphetamine. A preview of your mobile phone located a photo and video folder where a large amount of images and video files containing child abuse material or child exploitation material were saved.
10You were arrested and charged and remanded into custody on the day of the offending, being 21 August 2020. You have remained in custody since that time. You have served 322 days pre-sentence detention for this offending.
11You were later formally interviewed and you made admissions to possessing child abuse material. You also admitted accessing child abuse material via the application KIK where you sourced the Mega URL links containing files of child abuse material.
12The various devices seized from you were later forensically analysed. As a result of that analysis, it is estimated that they contained over 4000 files that could be identified and classified as child abuse material or child exploitation material. A table classifying the various images and videos is set out at paragraph 13 of the prosecution opening. A brief description of each category found is set out at paragraph 14. More than half of the files depicted images and videos classified as child exploitation material where there was no sexual activity. However, the remaining files (about 1700) contained images and videos depicting sexual activity, including child/adult penetration categorised as Categories 3 and 4, and one image and 16 videos categorised as Category 5, with that image and videos depicting sadism, bestiality and child abuse. The summary describes this in the following way, 'Videos of children being sexually penetrated by male dogs and video files of toddlers being aggressively raped by adult males while they are bound and tied with ropes or asleep or unconscious.'
13Of the 546 images and 271 videos classified as Category 4, the summary contains the following, 'Video of a female toddler between the ages of three and four years old with an adult female. The toddler is dressed in revealing lingerie and is completely naked from the waist down. The toddler's arms and legs are bound with duct tape. The adult female is completely naked and has a plastic dildo strapped to her waist. The adult female penetrates the toddler's vagina and anus with the dildo. The video has a duration of 19 minutes and 17 seconds.'
14As can be seen from the nature or content of the child abuse material in your possession or controlled by you or stored on electronic devices after you having accessed to child abuse material using a carriage service, your offending is high level offending. The images and videos of children displayed in the child abuse material found to be possessed or controlled or stored by you were depraved and sickening. The abuse, exploitation and physical violation of children, some of whom could be described as infants as depicted in the images and videos possessed by you, is both reprehensible and repugnant in a civilised society. The offending that you have engaged in creates the market or profit motive for those who make this material, thereby abusing and exploiting children. At the end of the day, it is the unidentified children who are the ultimate victims. Your criminal acts in Charge 1 is not a victimless crime. I accept that you do not appear to have transmitted any of the child abuse material to others and nor do you appear to have profited in any way from accessing or storing the child abuse material. You appear to have committed the offending in Charge 1 for your own satisfaction.
15A redeeming feature of your offending in Charge 1 is that the Category 4 and 5 images and videos account for less than one quarter of the total images and videos said to be in your possession. Further, when the Category 2 images and videos are added, Categories 2, 3, 4, 5 and 7 account for a total of 1877 images and videos of the total of 4100 images and videos of the child abuse material or child exploitation material found to be in your possession.
16Another redeeming feature is that the total number of 4100 files of videos and images found in your possession considered to be child abuse material or child exploitation material, is somewhat less than have been found in other more serious cases where the total number of images and videos depicting child abuse or child exploitation material have been found to be much larger in number. Nevertheless, your offending, in my view, is of a high level. The prosecution submitted your offending in Charge 1 was well above mid-range for this kind of offending. I think your offending in Charge 1 sits at above mid-range because of the nature or content of the child abuse material.
17You clearly knew that what you were doing was wrong. That is why you secreted your computers and other devices in a hidden compartment beneath a wardrobe. That is also why you initially told police when asked that you did not know the whereabouts of your mobile phone and that you did not own any other electronic devices. Your offending in Charge 2 is thus a serious breach of your reporting obligations under the SORA.
18In Charge 3, I sentence you on the basis that you possessed the drug methamphetamine or ice for self-use. This was low level offending. On Charge 3 you will be convicted and discharged.
19
The offending in Charge 1 is a Federal or Commonwealth offence. The other two charges are State offences. In sentencing for a Commonwealth offence, I must have regard to the matters contained in Part 1B of the Crimes Act [1914] (Cth) and particularly the non-exhaustive matters set out in s.16A(2) of that Act.
Section 16A(2)(k) requires that an offender be adequately punished for an offence. Section 16A(1) of the Act requires the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence. In passing sentence upon you, I have had full regard to these matters.
20The offending in Charge 1 is clearly the most serious offending here. That is because it involves you using a carriage service to access and store images and videos of children, including infants, being sexually abused and exploited. When sentencing for crimes of this kind, the sentence imposed by the court must properly reflect deterrence. In your case, because you have prior convictions for similar offending, both general and specific deterrence.
21In Charge 1 this sentencing principle is reflected in amendments to s.16AAB of the Crimes Act [1914] (Cth) applying to offences committed on or after 23 June 2020 where a mandatory minimum sentence of four years imprisonment applies where an offender has previously been convicted of a child sexual abuse offence. Each of your prior convictions is a child sexual abuse offence by definition. In passing sentence here, the sentence must also appropriately reflect denunciation and just punishment and protection of the community. I must also have proper regard to your prospects for rehabilitation and a number of other factors which I shall shortly refer to.
22You have pleaded guilty to the charges and you indicated that you would do so at a second committal mention on 5 February 2021. I treat you as having pleaded guilty at the earliest possible opportunity. By pleading guilty to the charges, you have saved the time and costs of a committal and trial and you have admitted responsibility for your offending and you have advanced the administration of justice. Further, by pleading guilty in the context of the current COVID-19 pandemic, you have not added to the growing backlog of criminal trials in this court. In recent authority, the Court of Appeal in this state has said that pleas of guilty to offending in this context should ordinarily lead to a very recognisable reduction in sentence. In arriving at my sentence, I have taken all of this into account. Because you have pleaded guilty to the charges you are entitled to receive a reduction in sentence and this will be reflected in the overall sentence that I will shortly pass.
23On the hearing of the plea, your counsel Mr Rofe filed a helpful written outline of his submissions on your behalf (Exhibit 1). Mr Rofe conceded that I must impose a term of imprisonment for this offending, however, in respect of Charge 1, whilst conceding that s.16AAB of the Crimes Act [1914] (Cth) was enlivened because of your prior convictions, he submitted that, because I must take into account the fact that you have pleaded guilty to the charges and your cooperation with the investigating police, then s.16AAC(2)(a) and (b) were also enlivened and that the court in those circumstances does not have to sentence you to at least four years imprisonment on Charge 1.
24
As I follow Mr Rofe's submissions (elaborated on at paragraphs 25-27 of his outline), the court should reduce the mandatory minimum sentence of four years by 25 per cent to reflect the guilty plea and then further reduce the mandatory minimum sentence by a further 15 per cent for you having cooperated with the police investigation. He submitted that the resultant 29 months minimum sentence should be treated by the court as 'the floor' for the sentence to be imposed.
Mr Rofe further submitted I should then impose a sentence of less than three years imprisonment and then direct your release on a recognisance release order.
25The prosecution submits that the sentencing approach to the mandatory minimum sentence advanced by Mr Rofe is wrong in law. It submits that the approach in Bahar v The Queen [2011] 45 WAR 100 is the correct approach. The prosecution submits the mandatory minimum sentence does not operate as a floor. Rather, the sentencing court must first determine where the offending falls in terms of its level of seriousness. The prosecution submits that any reductions that may be enlivened by the operation of s.16AAC(2)(a) and (b) only apply if the sentence imposed by the court is the mandatory minimum sentence. In my view, the mandatory minimum sentence could only be considered to be 'the floor' for offending considered to be of the least serious kind. Here, I have already said I regard your offending as falling above mid-range. I accept the prosecution submissions as to the correct approach in sentencing where the legislation providing for a mandatory minimum sentence is enlivened, as here. In my view, that approach is consistent with the approach in Bahar above and with the wording of the legislation itself in s.16AAC(2) which, if engaged, shows that any reductions applied is entirely within the discretion of the sentencing judge.
26Mr Rofe relied upon a clinical neuropsychologist report of Dr Laura Anderson dated 28 May 2021 (Exhibit 2). He conceded there are no Verdins principles to be applied in the sentencing considerations for you. Dr Anderson assessed you for the purposes of her report via video link on 28 April 2021. You told Dr Anderson that you experienced emotional and physical abuse, which you described as thrashings, whilst accommodated at a boys' home for much of your childhood. You also told Dr Anderson by way of background, that throughout your life you have often experienced periods of depressive symptoms and that this often extended to feelings of suicidal ideation, particularly in the context of various romantic relationship breakdowns. You denied ever having acted on your suicidal thoughts. You have not before been provided with any formal mental health diagnoses. You expressed to Dr Anderson a willingness to engage with the help of a psychologist in the future.
27
You were born in Tasmania on 27 April 1965. You were 55 years old at the time of offending and you are now 56 years of age. Your father was 72 years of age when you were born and he passed away around the time of your birth. You never met your father. Your mother re-partnered and your stepfather was the predominant father figure throughout your life. You grew up initially thinking that your stepfather was your biological father. At approximately six years of age, one of your sisters revealed to you that your stepfather was not in fact your father. You told Dr Anderson, from that point onwards, you hated your stepfather and perceived him to be a stranger. You had a strained relationship with him for much of your life, although, you reconnected with him shortly before he died. You told Dr Anderson that you harbour residual anger and resentment toward your mother for misleading you about the death of your biological father. You also told
Dr Anderson that you love your mother and that you maintained a strong and positive relationship with her. She died in 2007.
28You have four biological siblings and one stepsister. All of your biological siblings were apparently much older than you. They were in their 20s when you were born. This resulted in you not being particularly close to your biological siblings, but you were close to your stepsister. You apparently have some contact with your biological sisters but you are not particularly close to them. I received into evidence as Exhibit 4 a letter from your sister Suzanne. She writes about your upbringing as a child and your struggles with alcohol and drugs and trouble with relationship breakdown. She promises support for you when you are released from custody. You remain close to your stepsister with whom you have disclosed this offending and she has indicated that she will continue to support you.
29According to the report of Dr Anderson, from the time that you found out that your stepfather was not your biological father, you rebelled against him and did not want to be in the family home with him. You took to the streets and engaged in antisocial behaviour such as perpetrating burglaries. At nine years of age, you were made a ward of the state. You were placed into a religious boys' home until 18 years of age. You described to Dr Anderson that your experience in the boys' home was severely traumatic. You told Dr Anderson that the couple who ran the boys' home were emotionally and physically abusive towards you and the other children in their care. You told Dr Anderson that you were never sexually abused whilst living in the boys' home as a ward of the state, however, you also told her that, whilst in the home, at about 11 years of age you and the other boys in care would experiment sexually with each other. You told Dr Anderson that you and the other boys engaged in acts of mutual masturbation and oral sex.
30After leaving the boys' home at approximately 18 years of age, you continued to reside in Tasmania. In your early 30s you entered into a significant romantic relationship which lasted about 10 years. There were two children born of this relationship, a daughter now aged 23 and the son now aged 19. You and your family left Tasmania for the mainland around 2000 but returned to Tasmania in about 2005. You did so to care for your mother. Your relationship with your partner deteriorated after returning to Tasmania and eventually ended. For a period of time, your daughter resided with you whilst your son resided with your former partner. After some time, your daughter ceased living with you and after your mother's death, your consumption of alcohol began to increase. You left Tasmania and came back to Melbourne. At present, you have had occasional contact with your children. You told Dr Anderson that you have not told them of the nature of this offending.
31After you relocated to Victoria, you developed a friendship with another woman. This developed into a romantic relationship which deteriorated consequent upon your new partner's drinking excessive alcohol. That relationship broke down about 12 months prior to the offending, which resulted in your prior convictions in this court in 2017. You have, however, reconnected with your second partner and you told Dr Anderson that she is a significant social and emotional support for you. You told Dr Anderson that you have informed her of the nature of this current offending.
32Your education was undertaken whilst being accommodated at the boys' home. You completed year 10 and you told Dr Anderson that your reading and writing skills are satisfactory. After leaving school, you mostly worked in unskilled labouring roles, often as a forklift driver. You have never had difficulty obtaining such work. After your previous period in custody, you found work in retail at a local second-hand clothing store which you found to be an interesting experience which you enjoyed. You worked in that job for about 18 months before the work ceased due to the COVID-19 pandemic. In custody, you have been employed in the timber industry of Hopkins Correctional Centre, where you are described in records from Corrections (Exhibit 3) as being polite and helpful, an employee who demonstrates a good work ethic.
33Over many years, when under stress, you have been prone to drinking excessive alcohol. This is reflected in a significant history of drink driving related charges. So far as drugs are concerned, you commenced smoking cannabis at age 19 which you used most days up until the age of about 34 when your first child was born. Thereafter, you ceased cannabis using only occasionally. Also, from the time of your early 20s you have engaged in significant and regular intravenous use of methamphetamines, which you again used consistently up until the time when your first child was born.
34Dr Anderson reported that, when interviewed, you acknowledge the nature of your offending. You told Dr Anderson that you were 'in a bad way' after the breakdown of your most recent relationship. As such, you felt compelled to seek out and watch pornographic videos on the internet. You told Dr Anderson you became obsessed with any kind of porn. You also told her that, in accessing and viewing underage pornography, you knew that this was illegal and wrong. Dr Anderson thought that you had difficulty understanding that child pornography was harmful to the children involved. You acknowledged having had a sexual attraction to young females aged nine and over.
35Dr Anderson expressed the opinion that, although you readily discussed with her aspects of your offending behaviour, you tended to minimise the extent of your offending and provided relatively simplistic insights into the underlying motivation for it. Dr Anderson thought that your offending appeared to be precipitated and perpetuated by your underlying severe deficits in emotional coping skills, rather than being driven by sexual deviance and sexual gratification. She thought that you have a number of protective factors, such as the capacity to engage in employment, stable accommodation, some pro social community supports and a high level of motivation to engage in structured intervention and supports. She thought that if your psychological and offending behaviour needs could be addressed through structured intervention and support services, your prospects for rehabilitation are reasonable. I accept that to be the case.
36In her report, Dr Anderson at paragraph 7.2.3 opined that at present you appear to be relatively accepting of your offending behaviour and the prospect of serving a further custodial sentence. She thought that your mood, whilst low, does not appear to have significantly deteriorated since being remanded in custody. She thought that you would not be an acute risk of harm in a custodial setting, but your mood could deteriorate significantly in the context of experiencing psychosocial stressors.
37Dr Anderson was of the opinion that, because of your background as a child in a boys' home, you respond well to structure and the external emotional support provided by being remanded in custody. She said you currently lack the skills to independently manage your emotions and implement appropriate structure in the community and that these are factors that inadvertently contribute to your pattern of offending behaviour. In a custodial setting, you will have limited capacity to develop the necessary skills to cope with emotional stressors in a non-custodial setting.
38Dr Anderson thought that you present with reasonable prospects for rehabilitation if necessary risk factors and treatment targets are addressed. She recommended that you be referred for specific sexual risk offending assessment. She also thought that you need appropriate psychological intervention to address your childhood history of trauma and institutionalisation to assist you to develop pro social and adaptive emotional coping mechanisms. You also need treatment and counselling to address your excessive alcohol consumption.
39In passing sentence, I have taken the content of Dr Anderson's report fully into account. I also received into evidence as Exhibit 5, copies of various certificates of achievement of you having completed various courses available to you whilst in custody.
40Mr Rofe submitted that you have a deprived background and that this lowers your moral culpability for the offending and reduces the need for the sentence to reflect general deterrence. I accept that you have had a difficult upbringing. You were taken away from your mother and siblings at a young age and became a ward of the state. In passing sentence, I have taken all of this into account, as I must.
41I accept that I must take into account the risk associated with imposing a term of imprisonment upon you, of you becoming institutionalised, having regard to your background as a child of living for several years in an institution. In arriving at a total overall sentence and in fixing a non-parole period, I have kept in mind totality and the opinions of Dr Anderson.
42I was provided by your counsel, and counsel for the prosecution, with a number of examples of sentences imposed for similar offending. In passing sentence, I have generally had regard to all of these cases.
· On Charge 1, you are convicted and sentenced to a term of imprisonment of five years.
· On Charge 2, you are convicted and sentenced to a term of imprisonment of six months.
· On Charge 3, you are convicted and discharged.
43I direct that the sentence imposed on Charge 1 commence upon the completion of the sentence imposed on the State offence in Charge 2, making a total effective sentence of five and a half years imprisonment.
44I direct that you serve a minimum term of three and a half years imprisonment before being eligible for release on parole.
45I declare that there has been 322 days pre-sentence detention relating to the sentences passed this day and direct that 322 days be reckoned as having been already served of the sentences passed this day, be entered into the records of the court and be deducted administratively.
46
For the purposes of s.6AAA of the Sentencing Act [1991] I state that, had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of seven and a half years imprisonment and I would have fixed a
non-parole period of five and a half years before you would be eligible for release on parole.
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HIS HONOUR: Are there any questions arising out of that, Mr Rofe?
MR ROFE: No, Your Honour.
HIS HONOUR: Ms Breckweg?
MS BRECKWEG: No, thank you, Your Honour.
HIS HONOUR: Are there any other ancillary matters?
MS BRECKWEG: No, Your Honour.
HIS HONOUR: Very well. Thank you both. I'll have the link terminated.
MR ROFE: May it please the court.
MS BRECKWEG: Thank you, may it please the court.
HIS HONOUR: Adjourn the court.
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