DPP v Samuel Myers (a pseudonym)
[2023] ACTSC 142
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Myers (a pseudonym) |
Citation: | [2023] ACTSC 142 |
Hearing Date: | 5 June 2023 |
DecisionDate: | 8 June 2023 |
Before: | Mossop J |
Decision: | See [73] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – various offences of incest, produce child abuse material and maintain sexual relationship committed against offender’s children – principal victim aged between 20 and 27 months – further offences of possess child abuse material and using a carriage service to access child abuse material – offence of maintaining sexual relationship above the mid-range of objective seriousness – other offences spanning from low-range to mid-range – early plea of guilty – finding that there is an overwhelmingly strong prosecution case – no significant discount permitted – no criminal history – sentence of imprisonment imposed |
Legislation Cited: | Crimes Act 1900 (ACT), ss 56, 61(1), 62(1), 64(1), 65(1) Crimes Act 1914 (Cth), ss 16A(2)(g), 19, 19AB, 19AC, 23ZD Family Violence Act 2016 (ACT), s 8 |
Cases Cited: | Millard v The Queen [2020] ACTCA 20 R v Johnston [2020] ACTSC 46 The Queen v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 |
Parties: | Director of Public Prosecutions Samuel Myers (a pseudonym) (Offender) |
Representation: | Counsel S Jerome with S Bargwanna ( DPP) K Musgrove ( Offender) |
| Solicitors Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Number: | SCC 27 of 2023 |
MOSSOP J:
Introduction
On 6 February 2023 the offender pleaded guilty to various child-sex offences committed against his daughter and offences related to accessing and possession of child abuse material. The plea was entered in the Magistrates Court, after a plea of not guilty, the provision of a brief of evidence and following negotiations between the parties as to the appropriate charges.
Publication of the victim’s name is prohibited pursuant to s 74 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) in circumstances where publication of the offender’s name would reveal the identity of the child victim. I have made an order preventing publication of his name. As a result, the offender has been assigned a pseudonym for the purposes of these reasons. The offender’s daughter will be referred to in these reasons by the pseudonym Jane, and his son, by the pseudonym Timothy.
During the course of the offending, the offender’s daughter was between 20 months and 27 months old. She was the main victim of the offending. One of the charges relates to offending involving the offender’s son (CC2023/1229). He was three years and nine‑months old at the time of that offending.
The charges are summarised in the following table. For ease of reference later in these reasons, the charges have been given sequential numbers 1-24.
No
Charge
Date of offence
Max Penalty
1
Persistent sexual abuse of a young person contrary to s 56(1) of the Crimes Act 1900 (ACT) (CC2023/1222)
26/01/2018 to 10/08/2018
25 years
2
Committing an act of indecency on a person under 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT) (CC2023/1223)
26/01/2018
12 years
3
Using a child to produce child exploitation material contrary to s 64(1) of the Crimes Act 1900 (ACT) (CC2023/1224)
26/01/2018
15 years, $240,000 fine; or both
4
Committing an act of indecency on a person under 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT) (CC2023/1225)
03/02/2018
12 years
5
Using a child to produce child exploitation material contrary to s 64(1) of the Crimes Act 1900 (ACT) (CC2023/1226)
03/02/2018
15 years, $240,000 fine; or both
6
Committing an act of indecency on a person under 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT) (CC2023/1227)
13/05/2018
12 years
7
Engaging in sexual intercourse with another person, being a person under the age of 10 years and with the knowledge that they are a lineal descendant contrary to s 62(1) of the Crimes Act 1900 (ACT) (CC2023/1228)
13/05/2018
20 years
8
Committing an act of indecency in the presence of a person under 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT) (CC2023/1229)
13/05/2018
12 years
9
Using a child to produce child exploitation material contrary to s 64(1) of the Crimes Act 1900 (ACT) (CC2023/1230)
13/05/2018
15 years, $240,000 fine; or both
10
Committing an act of indecency on a person under 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT) (CC2023/1231)
05/06/2018
12 years
11
Using a child to produce child exploitation material contrary to s 64(1) of the Crimes Act 1900 (ACT) (CC2023/1232)
05/06/2018
15 years, $240,000 fine; or both
12
Committing an act of indecency on a person under 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT) (CC2023/1233)
11/06/2018
12 years
13
Using a child to produce child exploitation material contrary to s 64(1) of the Crimes Act 1900 (ACT) (CC2023/1234)
11/06/2018
15 years, $240,000 fine; or both
14
Committing an act of indecency on a person under 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT) (CC2023/1235)
27/07/2018
12 years
15
Engaging in sexual intercourse with another person, being a person under the age of 10 years and with the knowledge that they are a lineal descendant contrary to s 62(1) of the Crimes Act 1900 (ACT) (CC2023/1236)
27/07/2018
20 years
16
Using a child to produce child exploitation material contrary to s 64(1) of the Crimes Act 1900 (ACT) (CC2023/1237)
27/07/2018
15 years, $240,000 fine; or both
17
Committing an act of indecency on a person under 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT) (CC2023/1238)
10/08/2018
12 years
18
Engaging in sexual intercourse with another person, being a person under the age of 10 years and with the knowledge that they are a lineal descendant contrary to s 62(1) of the Crimes Act 1900 (ACT) (CC2023/1239)
10/08/2018
20 years
19
Engaging in sexual intercourse with another person, being a person under the age of 10 years and with the knowledge that they are a lineal descendant contrary to s 62(1) of the Crimes Act 1900 (ACT) (CC2023/1240)
10/08/2018
20 years
20
Using a child to produce child exploitation material contrary to s 64(1) of the Crimes Act 1900 (ACT) (CC2023/1241)
10/08/2018
15 years, $240,000 fine; or both
21
Using a carriage service to access child abuse material contrary to s 474.19(1) of the Criminal Code (Cth) (CC2023/1242)
01/06/2016 to 20/09/2019
15 years
22
Possessing child exploitation material contrary to s 65(1) of the Crimes Act 1900 (ACT) (CC2023/1243)
01/06/2016 to 24/02/2022
7 years, $112,000 fine; or both
23
Using a carriage service for child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) (CC2023/1244)
21/09/2019 to 24/02/2022
15 years
24
Possessing child exploitation material contrary to s 65(1) of the Crimes Act 1900 (ACT) (CC2023/1245)
24/02/2022
7 years, $112,000 fine; or both
An Agreed Statement of Facts has been prepared and admitted into evidence. I find the underlying facts in accordance with the terms of that document. It is not necessary to set them out in great detail. However, as will be apparent from the above table, a number of the different offences arise from matters occurring on the same day, or cover a range of dates which include the dates of other offending. In order to understand the relationship between the charges, it is necessary to describe the factual foundation for them and the periods that they cover in more detail.
Count 1 is a charge of persistent sexual abuse of a child. It covers the period 26 January 2018 to 10 August 2018. The individual sexual acts involved in the offending are all of those offences involving Jane.
Counts 2 and 3 involved acts of indecency committed upon Jane (count 2) and the use of Jane for the production of child abuse material (count 3). Seven photographs illustrate acts which involve the committing of an act of indecency upon Jane (count 2). The taking of those seven photographs and two other photographs constitute the use of Jane for the production of child abuse material. The images were taken over a two-minute period on 26 January 2018. Because there are multiple acts of indecency, count two is a rolled‑up charge. The individual photographs are described in the Agreed Statement of Facts. They involve Jane, who at that stage was approximately 20-months old, lying on her back on a blanket. The focus of the photographs is on her vagina and anus. The offender is shown to have put his hand across her pelvic area in order to spread her legs and to have used his fingers to spread Jane’s labia.
Counts 4 and 5 relate to events on 3 February 2018. Once again there is a charge of committing an act of indecency upon Jane (count 4) and using Jane to produce child abuse material (count 5). There are four photographs. They were taken over a 25‑second period. The images are close-up photographs of Jane’s head with what appears to be ejaculate in her hair and on her face. Because the Agreed Statement of Facts uses the words “appears to be”, the offender is to be sentenced on that basis and not on the basis that it is proved beyond reasonable doubt to, in fact, be ejaculate.
Counts 6, 7, 8 and 9 relate to events on 13 May 2018. There are a total of 23 photographs taken over a three-minute period. Eight of those photographs are relied upon in order to establish the commission of acts of indecency and incest.
Count 6 is a charge of committing an act of indecency. It relates to six images. Timothy can be seen in the background of three of those images. The images show Jane’s vagina and anus. The defendant can be seen spreading Jane’s labia and spreading her buttocks to expose her anus.
Count 7 is a charge of incest. It relates to a photograph showing the offender’s index finger penetrating beyond Jane’s labia and into her vagina.
Count 8 is a charge of committing an act of indecency in the presence of Timothy. It relates to an image of Jane naked, with her legs spread apart and her arms over her head so as to expose her chest, vagina and anus. The offending involves the offender arranging Jane in this way in the presence of Timothy.
Count 9 is the charge of producing child abuse material and it relates to 23 photographs which capture the conduct the subject of counts 6, 7 and 8.
Counts 10 and 11 occurred on 5 June 2018. At this stage Jane was two-years old. These counts involve an act of indecency (count 10) and the production of child abuse material (count 11). Count 10 relates to photographs taken over a three-minute period. Images show the offender lifting Jane’s nappy to expose her vagina and spreading her labia. Count 11 involves the taking of the nine photographs.
Counts 12 and 13 involve an act of indecency (count 12) and the production of child abuse material (count 13). They arise from photographs taken over an 11-second period. Count 12 arises from a photograph in which the offender’s penis is protruding out over the top of his pants and Jane’s hand can be seen holding it. Count 13 involves the three photographs of this incident.
Counts 14, 15 and 16 occurred on 27 July 2018. They involve an act of indecency (count 14), incest (count 15) and production of child abuse material (count 16). These offences took place over an eight-minute period. Count 14 arises from images showing Jane wearing no pants with her vagina exposed and her legs spread apart, the offender spreading her labia, spreading her buttocks in order to expose her anus, resting his erect penis on her inner thigh next to her exposed vagina and inserting his erect penis between her buttocks (but not so as to penetrate her anus).
Count 15 is a charge of incest arising from the offender inserting his erect penis past Jane’s labia and into her vagina. This is shown in the photograph. There is also a video file (one minute and 22 seconds in length) showing the offender rubbing his penis against her vagina while masturbating, digitally penetrating her vagina, masturbating her vagina with his hand and then continuing to masturbate his erect penis while rubbing it against her vagina. The video concludes when the offender ejaculates on her vagina, hips and inner thighs.
Count 16 relates to 28 photographs and one video showing the conduct the subject of counts 14 and 15.
Counts 17, 18, 19 and 20 involve charges of committing an act of indecency (count 17), two counts of incest (counts 18 and 19) and production of child abuse material (count 20). This offending occurred over a two-hour period.
Count 17 arises from photographs and videos showing Jane with no pants and her vagina and anus exposed, Jane sitting naked on the offender’s lap with his penis between her legs and a vibrator on her vagina and his penis Jane sitting on the defendant’s lap with his erect penis next to and then appearing to be penetrating her vagina, the offender using his hand to spread Jane’s labia and Jane holding the offender’s penis. There are also videos of the offender placing a vibrator on Jane’s vagina, of the offender pressing his erect penis against Jane’s vagina while masturbating and the offender rubbing his penis against her vagina before masturbating.
Count 18 is a charge of incest. It relates to a video of the offender rubbing his penis against Jane’s vagina and penetrating her vagina past her labia. The offender is shown to smile at Jane while masturbating his penis. He stops masturbating briefly and inserts his right thumb into her vagina.
Count 19 is another charge of incest. It arises from a photograph and video showing the offender repeatedly inserting his left middle finger into Janes vagina past her labia. The video also shows him rubbing her vagina with the same finger and his erect penis being held by Jane’s right-hand.
Count 20 is the charge of producing child abuse material which relates to the five videos and 16 photographs recording the matters the subject of counts 17, 18 and 19.
Counts 21, 22, 23 and 24 relate to child abuse material found on the offender’s computer or storage devices. The nature of the child abuse material the subject of counts 21, 22 and 23 is described in the Agreed Statement of Facts as follows:
The Child Abuse Material depicted female and male child victims ranging in ages from two months old to 14 years of age with no less than 800 unique child victims. The files clearly depicted the children’s breasts, nipples, genitals and anuses and showed the vaginal, oral and anal penetrative rape of the children by adult male offenders and adult female offenders. The files depicted child victims involved in penetrative acts of bestiality … Further, the files depicted the child victims being subjected to humiliation and controlled by adult offenders which involved the offenders urinating or ejaculating on the children, binding the children with rope in acts of bondage or forcing the children to defecate. Additionally, some of the files depicted acts of child abuse and torture.
Attachment 2 of the Agreed Statement of Facts contains detailed descriptions of the content of some of the videos found on the offender’s devices. The content of those videos is consistent with the overall summary set out above.
Count 21 relates to the period 1 June 2016 to 20 September 2019 (Criminal Code (Cth), s 474.19) and is a charge of using a carriage service to access child pornography material. It is a rolled-up count relating to 648 images or videos. The end date for the charge corresponds to the date upon which the legislation was amended.
Count 22 is the related count of possessing child exploitation material. It covers the period 1 June 2016 to 24 February 2022 and is a rolled-up count relating to all the offender’s devices. It involves a total of 15,804 files consisting of 10,153 images and 5651 videos.
Count 23 is a charge of using a carriage service to access child abuse material (Criminal Code (Cth), s 474.22). It relates to the period 21 September 2019 to 24 February 2022, and hence covers the period after that covered by count 21. Once again is a rolled-up charge and covers images found on all devices for the post‑21 September 2019 period. There are a total of 7046 images or videos.
Count 24 is a count of possessing child exploitation material. This encompasses all of the child abuse material images of Jane (98 files consisting of 92 images and six videos).
Objective seriousness
In order to assist in the assessment of the objective seriousness of the offending, the images and videos involving Jane and Timothy were tendered and a sample of the other images was also tendered. These exhibits were examined before being returned to the Director. As has been previously recognised, examining the child abuse material, or at least a sample of it, is a useful exercise in understanding the nature of the offending: R v Johnston [2020] ACTSC 46 at [19]-[24]; R v Minson [2022] ACTSC 46 at [11]. That was particularly so in the present case where there were images and videos of the actual offending by the offender against his daughter. It is easier to appreciate the nature of that offending when the images and videos are examined, even when there is available a detailed description of the offending. In this case, the images and videos served to reinforce the gross abuse of the parent-child relationship that was involved in the offending.
The objective seriousness of the different offences with which the offender has been charged are dependent upon a range of factors. Each of those offences involving Jane or Timothy:
(a)involve a repugnant abuse of the offender’s parental role; and
(b)involved children who were, due to their ages and relationship with the offender, completely at his mercy.
It must, however, be recognised that so far as the charged acts are concerned, they occurred over a relatively limited and historical period (January to August 2018) and the documented incidents, except those occurring on 10 August 2018, occurred over periods of seconds to a few minutes.
Further, the evidence did not establish that either victim will have any recollection of the incidents. Notwithstanding the submissions put on behalf of the prosecution (which included numerous references to journal articles that were not in evidence and not the subject of expert evidence) the evidence did not establish, and it is not open to take judicial notice of facts which would indicate, that the offending occurring in this case, which was of a very young child and which was not recalled by the child, will have the sort of ongoing, long-term, complex psychological consequences as would occur for an older child. That is not to say that it will not, but that has not been proved beyond reasonable doubt and is not a matter of which judicial notice can be taken.
The objective seriousness of the overarching charge of maintaining a sexual relationship with a child is influenced by the duration of the relationship, the number and type of sexual acts committed within the relationship, the circumstances in which the relationship was able to be developed and any aggravating features relating to the conduct of the offender in the period of the relationship going beyond the actual sexual acts. In the present case, the period of the relationship was five and a half months, many grave sexual acts occurred within that period and it involved a parent-child relationship. Because of the very young age of the victim, it was not a case in which there were other manipulative, coercive, violent or controlling acts which might make the offending more serious. Because of the number of sexual acts, the relationship with the victim and the extreme vulnerability of the victim, the offending in the present case is above the mid‑range of objective seriousness for this offence. I do not accept the prosecution’s submission that the offending fell into the worst category of case or, having regard to what was said in Millard v The Queen [2020] ACTCA 20 at [20], at the most serious end of the spectrum of offending. Recognising that the most serious end of the spectrum of offending is a concept which is broader and more accommodating than the worst case, the offending in the present case was well short of that level. That is because the offending was confined in duration, did not involve overt coercion, manipulation, violence or ongoing physical harm, and involved only a limited degree of penetration.
So far as the acts of indecency are concerned, it is necessary to have regard to the relationship between the persons involved, the actual acts performed, the degree of physical contact that they involved and whether they were degrading or humiliating to the victim. In the present case the offending ranged from performing a sexual act on another person in circumstances where the victim (Timothy) was not proven to be aware of what was occurring, to, at the other end of the spectrum, acts involving genital to genital contact and masturbation to the point of ejaculation. So far as count 4 is concerned, the objective seriousness must be assessed on the basis that the victim did not understand what had occurred and has not been shown to be humiliated or suffered as a consequence of the conduct in the way that would obviously occur in the case of an older child or adult.
Having regard to the acts involved, counts 2, 6 and 10 are in the mid-range of objective seriousness. Count 4 is in the low to mid-range of objective seriousness. Count 8 (the offence involving Timothy) is in the low-range but would have been more objectively serious had the charge related to Jane. Count 12 is at the upper-end of the mid-range as it involves Jane holding the offender’s penis. Counts 14 and 17 are in the high-range of objective seriousness, each involving significant acts relating to the offender’s penis and Jane’s genitals.
So far as the counts of incest are concerned, a number of them involved brief digital penetration only. Others involved penile-vaginal penetration, but not to a great extent or for an extended period. Count 7 involved the single act of penetration by the offender’s index finger and is in the low-range of objective seriousness. Count 15 is in the mid‑range because, in addition to penetration, it was associated with other touching and masturbation as well as ejaculation. Count 18 is in the mid-range, involving both penile and digital penetration. Count 19 is in the mid-range involving repeated digital penetration.
In relation to the charge of using a child under 10 for the production of child abuse material, the objective seriousness of this offence depends upon both the acts involved in the production of the child abuse material, as well as the circumstances in which that child abuse material came to be produced. In the present case, the victims did not know or understand what was occurring. The acts were relatively brief and there was no apparent coercion or violence involved with them. There is no evidence of an intention to sell or otherwise distribute the images. Obviously, each of the offences involved a gross abuse of the offender’s parental position.
Count 3 involved the taking of nine photographs over a two-minute period. The relevant acts are the subject of count 2. It is in the mid-range.
Count 5 involved four photographs taken over a 25-second. The subject matter is described in relation to count 4. It is in the mid-range of objective seriousness.
Count 9 relates to 23 photographs taken over a three-minute period. The acts are described in relation to count 6, 7 and 8. It is above the mid-range of objective seriousness.
Count 11 involves nine photographs taken over a three-minute period. The acts are described in relation to count 10. It is in the mid-range of objective seriousness.
Count 13 involves three pictures taken over an 11-second period. The acts are described in relation to count 12. It is in the mid-range of objective seriousness.
Count 16 involves one video in 28 photographs taken over an eight-minute period. The acts are described in relation to counts 14 and 15. They are more serious and involve a video. This is above the mid-range of objective seriousness.
Count 20 involved five videos and 16 photographs which are the subject of counts and 17, 18 and 19. The offending is more serious and the amount of material produced is larger. It is above the mid-range of objective seriousness.
In relation to counts 21-24, it is relevant to note that the material was not accessed or created for sale, gain or dissemination to other people.
The material the subject of counts 21, 22 and 23 has been described earlier in these reasons. The access offences, counts 21 and 23, are both in the mid-range of offending, having regard to the volume of material, although count 23 obviously involves more such material. So far as the possession offence is concerned, given the significant volume and the nature of material, this is at the upper end of the mid-range for this offence.
Count 24, which involves the images and videos of Jane, is of a lesser volume although notable in that it involves the offender’s own child. It is a mid-range example of this offence.
Subjective circumstances
The subjective circumstances of the offender are outlined in a pre-sentence report as well as a report from a treating psychologist and two other letters. Some aspects of the pre-sentence report were elaborated upon in a note sent by the offender to the author of the pre-sentence report which was also in evidence.
The offender is 36 years old. He was 31 of the time of the offending.
He is one of three children to his parents. He had a good upbringing with no significant events. His father is now deceased. He maintains contact with his mother and sisters. He completed Year 12 and then obtained a double degree at university. He moved to Canberra in 2011 and has been employed with a Commonwealth government department in various IT roles.
He has been married for 14 years. His two children, the victims of the present offending, are both still under 10.
He has no difficulties with illicit substance use. He was interested in music, singing in a choir and spending time with his friends and family. Although there is a family history of depression, he only commenced his present medication when in custody. He believes he has what was referred to in the pre-sentence report as “an addiction to pornography”. He spoke of long-standing use of pornography and described “early exposure” to child pornography. He advanced no particular reason as to why he commenced producing pornography himself.
He has received counselling since his arrest, principally whilst he was on remand. His treating psychologist suggests that his treatment outcomes are likely to improve in the care of a clinical psychologist with specialisation in sex offending.
A letter from the offender’s mother provides some more information about his background, his success at university and his apparently happy and settled marriage.
A letter from a clinician at the Supports and Interventions Unit at the Alexander Maconochie Centre indicates that he has participated in eight sessions addressing anxiety and his engagement throughout those sessions was positive.
His conduct whilst detained on remand has been positive. He has worked as a sweeper, in the bakery and as a library assistant.
He is assessed by the author of the pre-sentence report as being at a medium to low risk of general reoffending.
Plea of guilty
The offender pleaded guilty in the Magistrates Court after a number of appearances and after the preparation of a brief of evidence. Having regard to the gravity of the charges this can be seen as an early plea of guilty. The Crown submitted that no significant discount could be given for the plea of guilty because the prosecution case involving the photographs and videos of his offending with Jane was overwhelmingly strong and, as a consequence, the prohibition in s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) (CS Act) applies.
Given that the offending is all captured in photographs or videos taken by the offender, I accept the submission that the prosecution case was overwhelmingly strong. No factor was identified which would have rendered the material arguably inadmissible at a trial. I do not accept the submission that only those images or videos showing the offender’s face would be admissible. Having regard to the overall context of the photographic and video evidence, the case in my view was an overwhelmingly strong one in relation to each of those counts. As a consequence, no substantial discount may be given. As pointed out in other decisions, having regard to the significant utilitarian value of the plea, the rationale for the prohibition in s 35(4) is not clear: The Queen v Toumo’ua [2017] ACTCA 9 at [70]; The Queen v Newby [2022] ACTCA 20 at [32]; R v Snowden [2022] ACTSC 186 at [46]. I have previously found that a discount of five percent would not infringe the prohibition in s 35(4): R v Snowden at [47]-[48]. That appears to be the appropriate approach in the present case. Having regard to the utilitarian value of the plea, each of the sentences involving acts with Jane (counts 1-20) will have that discount applied to it.
The prohibition in s 35(4) does not apply to the Commonwealth offences and is not argued to be satisfied in relation to counts 22 and 24. For those offences, a discount of 25 percent will be given in consideration of the matters referred to in s 16A(2)(g) of the Crimes Act 1914 (Cth) and s 35(3) of the CS Act.
Criminal history
The offender has no criminal history.
Time in custody
The offender has spent 402 days (13 months and four days) in custody prior to today, solely attributable to these offences. This time in custody will be taken into account by the backdating of the sentence. This gives a backdate date of 2 May 2022.
Consideration
The offending was very serious. It occurred over a substantial but defined period. The offender is intelligent and appears to be reasonably motivated to address the factors underlying his offending behaviour. Each of the purposes of sentencing is relevant. Section 34A of the CS Act applies. This is not a case in which s 34A(b) operates to deny the offender the benefit of good character. That is because his offending was enabled by his position as a parent as opposed to a position which he was put in as a consequence of his good character such as a teacher or sporting coach. Section 34B is also relevant because sexual abuse of a family member fits within the concept of “family violence” in s 8 of the Family Violence Act 2016 (ACT). Plainly enough the offending occurred in the home of the victim and a child was present.
Count 1 provides a framework within which much of the offending must be fitted because where the sexual acts comprising the persistent sexual abuse are separately charged, the sentence for those offences and the persistent sexual abuse must be concurrent: Crimes Act 1900 (ACT), s 56(7). A significant degree of concurrency is required having regard to the overlapping nature of the groups of the offences.
The parties made reference to some other cases involving contraventions of s 56 of the Crimes Act 1900 (ACT). Those are not numerous enough to show any consistent pattern in sentencing. I only note the decision in The Queen v Ashton (a pseudonym) [2022] ACTCA 45 in which the starting point was a sentence of 20 years’ imprisonment for offending against the offender’s daughter. This occurred between the ages of six and 14 years old and an estimated 76 instances of penile penetration. It is clearly very significantly more serious offending than occurred in the present case.
Counts 21, 22, 23 and 24 relate to matters that go beyond the scope of count 1. There are two federal offences in relation to which the provisions of the Crimes Act 1914 (Cth) apply. I do not accept the submission made on behalf of the offender that the sentence for the Commonwealth offences should be within the period of the sentence on count 1. These offences involve acts and criminality going beyond those encompassed within count 1 and, in my view, there should be at least some degree of cumulation.
The sentences that I will impose the summarised in the following table.
Count
Maximum sentence of imprisonment
Starting point (months)
Sentence (months)
Cumulation (months)
22
7 years
24
18
18
23
15 years
24
18
4
21
15 years
20
15
4
24
7 years
18
13
4
3
15 years
24
23
12
2
12 years
20
19
4
5
15 years
18
17
10
4
12 years
8
7.5
2
7
20 years
24
23
12
9
15 years
36
34
4
8
12 years
6
5.5
2
6
12 years
20
19
4
11
15 years
24
23
12
10
12 years
20
19
4
12
12 years
24
23
12
13
15 years
24
23
4
15
20 years
54
51
24
16
15 years
36
34
4
14
12 years
30
28
4
19
20 years
48
45
19
18
20 years
36
34
6
17
12 years
30
28
2
20
15 years
42
40
2
1
25 years
162
154
So far as the Commonwealth offences are concerned, whilst the general position under s 19(5) of the Crimes Act 1914 (Cth) requires cumulation, s 19(6) permits concurrency if the court is satisfied that imposing a sentence which incorporates concurrency would still result in sentences that are of a severity appropriate in all the circumstances. In the present case, having regard to the relationship between the access and possession offences on the one hand and the offences committed within the scope of the offence in count 1, it is appropriate in order to ensure an appropriate total aggregate sentence that there be concurrency as I have indicated. That will achieve a severity of sentence appropriate in all the circumstances.
The aggregate sentence of imprisonment to be imposed is 14 years and five months. A non-parole period needs to be set for the Territory offences. The non-parole period is the minimum term that justice requires the offender to serve in custody. I consider that a non-parole period in the middle of the usual range is appropriate. The non-parole period will be eight years and eight months which corresponds to 60 percent of the head sentence.
So far as the federal offences (counts 21 and 23), are concerned, the aggregate sentence does not exceed three years and as a result a non-parole period need not be set: s 19AB(1). Pursuant to s 19AC(4), I decline to make a recognizance release order because the offender will be serving a Territory sentence on the day after the end of the federal sentence and, indeed, having regard to the extent of concurrency with territory sentences imposed before and after the federal sentences, throughout the whole of the period he is serving those federal sentences.
A forfeiture order was sought in relation to the electronic items on which the child abuse material was stored. There was no opposition to the making of such an order.
Orders
In the following statement of the Court’s orders references to the count numbers are included for convenience but do not form part of the court’s order. The orders of the Court are:
1. [Count 22] On the charge of possessing child exploitation material (CC2023/1243) contrary to s 65(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 18 months’ imprisonment commencing on 2 May 2022 and ending on 1 November 2023.
2. [Count 23] On the charge of using a carriage service for child abuse material (CC2023/1244) contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth) the offender is convicted and sentenced to 18 months’ imprisonment commencing on 2 September 2022 and ending on 1 March 2024.
3. [Count 21] On the charge of using a carriage service for child abuse material (CC2023/1242) contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth) the offender is convicted and sentenced to 15 months’ imprisonment commencing on 2 April 2023 and ending on 1 July 2024.
4. [Count 24] On the charge of possessing child exploitation material (CC2023/1245) contrary to s 65(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 13 months’ imprisonment commencing on 2 October 2023 and ending on 1 November 2024.
5. [Count 3] On the charge of using a child to produce child exploitation material (CC2023/1224) contrary to s 64(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 23 months’ imprisonment commencing on 2 December 2023 and ending on 1 November 2025.
6. [Count 2] On the charge of committing an act of indecency on a person under 10 years (CC2023/1223) contrary to s 61(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 19 months’ imprisonment commencing on 2 August 2024 and ending on 1 March 2026.
7. [Count 5] On the charge of using a child to produce child exploitation material (CC2023/1226) contrary to s 64(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 17 months’ imprisonment commencing on 2 August 2025 and ending on 1 January 2027.
8. [Count 4] On the charge of committing an act of indecency on a person under 10 years (CC2023/1225) contrary to s 61(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to seven months and 15 days’ imprisonment commencing on 15 July 2026 and ending on 1 March 2027.
9. [Count 7] On the charge of engaging in sexual intercourse with another person, being a person under the age of 10 years and with the knowledge that they are a lineal descendant (CC2023/1228) contrary to s 62(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 23 months’ imprisonment commencing on 2 April 2026 and ending on 1 March 2028.
10. [Count 9] On the charge of using a child to produce child exploitation material (CC2023/1230) contrary to s 64(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 34 months’ imprisonment commencing on 2 September 2025 and ending on 1 July 2028.
11. [Count 8] On the charge of committing an act of indecency in the presence of a person under 10 years (CC2023/1229) contrary to s 61(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to five months and 15 days’ imprisonment commencing on 18 March 2028 and ending on 1 September 2028.
12. [Count 6] On the charge of committing an act of indecency on a person under 10 years (CC2023/1227) contrary to s 61(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 19 months’ imprisonment commencing on 2 June 2027 and ending on 1 January 2029.
13. [Count 11] On the charge of using a child to produce child exploitation material (CC2023/1232) contrary to s 64(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 23 months’ imprisonment commencing on 2 February 28 and ending on 1 January 2030.
14. [Count 10] On the charge of committing an act of indecency on a person under 10 years (CC2023/1231) contrary to s 61(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 19 months’ imprisonment commencing on 2 October 2028 and ending on 1 May 2030.
15. [Count 12] On the charge of committing an act of indecency on a person under 10 years (CC2023/1233) contrary to s 61(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 23 months’ imprisonment commencing on 2 June 2029 and ending on 1 May 2031.
16. [Count 13] On the charge of using a child to produce child exploitation material (CC2023/1234) contrary to s 64(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 23 months’ imprisonment commencing on 2 October 2029 and ending on 1 September 2031.
17. [Count 15] On the charge of engaging in sexual intercourse with another person, being a person under the age of 10 years and with the knowledge that they are a lineal descendant (CC2023/1236) contrary to s 62(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 51 months’ imprisonment commencing on 2 June 2029 and ending on 1 September 2033.
18. [Count 16] On the charge of using a child to produce child exploitation material (CC2023/1237) contrary to s 64(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 34 months’ imprisonment commencing on 2 March 2031 and ending on 1 January 2034.
19. [Count 14] On the charge of committing an act of indecency on a person under 10 years (CC2023/1235) contrary to s 61(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 28 months’ imprisonment commencing on 2 January 2032 and ending on 1 May 2034.
20. [Count 19] On the charge of engaging in sexual intercourse with another person, being a person under the age of 10 years and with the knowledge that they are a lineal descendant (CC2023/1240) contrary to s 62(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 45 months’ imprisonment commencing on 2 March 2032 and ending on 1 December 2035.
21. [Count 18] On the charge of engaging in sexual intercourse with another person, being a person under the age of 10 years and with the knowledge that they are a lineal descendant (CC2023/1239) contrary to s 62(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 34 months’ imprisonment commencing on 2 August 2033 and ending on 1 June 2036.
22. [Count 17] On the charge of committing an act of indecency on a person under 10 years (CC2023/1238) contrary to s 61(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 28 months’ imprisonment commencing on 2 April 2034 and ending on 1 August 2036.
23. [Count 20] On the charge of using a child to produce child exploitation material (CC2023/1241) contrary to s 64(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 40 months’ imprisonment commencing on 2 June 2033 and ending on 1 October 2036.
24. [Count 1] On the charge of maintaining a sexual relationship with a young person (CC2023/1222) contrary to s 56(1) of the Crimes Act 1900 (ACT) the offender is convicted and sentenced to 12 years and 10 months’ imprisonment commencing on 2 December 2023 and ending on 1 October 2036.
25. The non-parole period commences on 2 May 2022 and ends on 1 January 2031.
26. Pursuant to section 23ZD of the Crimes Act 1914 (Cth) the following items are forfeited to the Commonwealth:
(a)Western Digital “My Passport” ultra hard drive WXKIA95LFAVL (Seizure number 376782/001);
(b)Dell Alienware Tower F75643 (Seizure number 376782/002)
(c)White Corsair Computer Tower (Seizure number 376782/004)
(d)Sony Experia phone (Seizure number 376788/JB/NL/002).
| I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop Associate: Date: 11 July 2023 |
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