DPP v Semmens (a pseudonym)
[2018] VCC 1716
•19 October 2018
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted Suitable for Publication
AT MELBOURNE CRIMINAL JURISDICTION
DIRECTOR OF PUBLIC PROSECUTIONS
v
MARK ODELL (a pseudonym)
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JUDGE: HIS HONOUR JUDGE CARMODY
WHERE HELD: Melbourne
DATE OF HEARING: 17 October 2018
DATE OF SENTENCE: 19 October 2018
CASE MAY BE CITED AS: DPP v Odell (a pseudonym)
MEDIUM NEUTRAL CITATION: [2018] VCC 1716
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Use Carriage Service, Access/Transmit Child Pornography Legislation Cited: Crimes Act 1914 (Cth), Sex Offenders Registration Act
2004.
Cases Cited: DPP (Cth) v Garside [2016] VSCA 74.
Sentence: That is a total effective sentence of two and a half years' imprisonment and placed on a recognisance release order in the sum of $5,000 for a period of four years.
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APPEARANCES: Counsel Solicitors
For the Commonwealth Director of Public Prosecutions
Ms K. Breckweg (Plea) Ms O. Go (Sentence)
Commonwealth Director of Public Prosecutions
For the Accused Ms H. Cooper Leanne Warren & Associates
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone 9603 9134 207587
HIS HONOUR:
1Mark Odell1, on 17 October 2018 you pleaded guilty to the following charges on the indictment number CR-18-01215:
Charge 1, using a carriage service to access child pornography. This charge has a maximum sentence of 15 years' imprisonment.
Charge 2, use a carriage service to transmit child pornography. This charge has a maximum penalty of 15 years' imprisonment.
2In respect of Charge 2, you have signed a form for the purposes of s.16BA of the Crimes Act admitting you solicited child pornography material using a carriage service on 26 January 2015. This admission by you is reflected in your sentence for Charge 2 on the indictment.
Circumstances of Your Offending
3The prosecutor tendered a summary of prosecution opening for plea dated 16 October 2018. This is Exhibit “A” and is annexed to these Reasons for Sentence. The summary is extensive and runs to 11 pages. I will refer to parts of the summary in these Reasons for Sentence, but have taken into account all of the matters set out in Exhibit “A” in assessing the objective seriousness of your offending in this case.
4In May of 2017, Western Australian police provided the Victoria Police Sexual Crimes Squad with copies of transcript of Skype chat logs relating to Victorian Skype user "Thundershock" and Western Australian Skype user "Zachary Keighley"2. Skype is an online free program that is utilised to facilitate video and voice calls, either person to person or in groups. Skype can be used to send instance messages and also for file sharing with other users of Skype.
5A search warrant was issued. Following receipt of those chat logs the police
1 a pseudonym name
2 a pseudonym name
executed a warrant at your premises on 12 September 2017. During the execution of the warrant you admitted to the investigators that you were the owner of the Skype username "Thundershock".
6Your Apple iPad containing the aforementioned chat logs was seized, along with your mobile phone and your home desktop computer.
7You provided the password of your devices to the police. The police located images and videos on your mobile phone. The child pornography material was classified using the Australian National Victim Image Library Scale known as ANVIL. This is Charge 1, accessing child pornography material.
8The number of images and videos viewed and categorised by the police as child pornography are as follows:
In relation to images, Category 1, there were 49; category 2, there were 304; category 3, there were 61; category 4, there were 148; category 5, there were
66; and category 6, there were 12. A total of 640 images.
In respect of videos, there were four videos in category 1; 13 videos in category 2; 11 videos in category 3; 109 videos in category 4; 2 videos in category 5. A total of 139 videos. All up a total file number of 779 were involved.
9An analysis of your devices shows that you accessed these child pornography images and videos between 20 September 2014 and 11 September 2017, a period of three years.
10An analysis of the quantities of images and videos in the ANVIL categories is instructive.
11Firstly, 40 per cent of the total child pornography material is in category 2. The ANVIL category 2 describes material as "solo masturbation by a child or sexual acts between children only in which penetration of any orifice does not occur. It includes the penetrative use of sex toys by the victim only."
12Secondly, 42 per cent of the total child pornography material is in categories 3 and 4. The ANVIL category 3 describes that material as "non-penetrative sexual activity between child and adult. May include mutual masturbation and other non-penetrative sexual activity". The ANVIL category 4 describes the material as "penetrative sexual activity between children only or adults and children. May include but not be limited to vaginal and anal intercourse, cunnilingus and fellatio. Penetrative use of sex toys and/or foreign objects".
13Thirdly, 78 per cent of the total video form of child pornography was in category 4.
14The prosecution opening, helpfully set out detailed sample descriptions of each of the six categories on the ANVIL scale that you had accessed by carriage service. These descriptions were more than adequate for me to make an assessment of the objective seriousness of the child pornography material accessed by you.
15The material described was as follows:
· The category 1 images depict a range of predominantly young boys aged eight to 14 years of age partially naked, some in seductive poses.
· The category 2 images depict a range of young boys aged seven to ten touching and masturbating their penises.
· The category 3 images and video depict very young boys ranging in age approximately of six months of age to ten years with adult male penises. The images range from the point of near penile penetration of the boy's anus to young boys with semen on their faces. Some of the images feature multiple adults with one child.
· The category 4 images and video depict very young boys ranging in age from approximately six months of age to ten years of age with adult males. They depict anal penetration of children by adult men using their
penis, finger and tongue.
· The category 5 images and video depict a series of graphic and violent photographs of young children and infants being bound, gagged and urinated on. There was also an image of toddlers being made to perform oral sex on a dog. There is a video of a child aged eight to ten years old who is tied to a table while an adult performs penile-anal penetration of that child as the child screams in pain.
· The category 6 images contain a number of cartoon drawings depicting multiple young children bound and gagged and penis to anus penetration of a child.
16That concludes the summary of your offending for Charge 1.
17Charge 2, is transmission of child pornography using a carriage service. Police located the Skype chat log conversation on your iPad. The Skype chat logs occurred between 16 April 2016 and 25 January 2017.
18You were identified by name of "Thundershock", which you admit is you. You engaged in highly sexualised violent textual chat centred around the sexual and physical abuse of children with a person identified as "Zachary Keighley".
19The summary prepared by the prosecution and accepted by you through your counsel sets out in detail the content of these chats on 16 April 2016, 20 April 2016 and 28 August 2016. The chats refer to anal rape of young boys, sharing child pornographic videos through Skype and acts of fellatio with young boys. I will not detail the contents of those chat conversations.
20The chat content can properly be described as depraved, violent, abhorrent and disturbing to the extent of sexual violence debasing young boys. The textual child pornography discussions ceased with Zachary Keighley on 28 August 2016. You remained in contact with him until 25 January 2017.
21You also used Skype conversations for textual child pornography between 26 January 2015 and 27 July 2016. In this period you engaged with the identities of "Smearmedaddy". You engaged in chat with "Smearmedaddy" on the topic of incest with his daughter.
22On 26 January 2015, in one of those conversations you solicited child pornography material by stating:
"Do you have any young porn? Any daddy-son? Daddy-son fucking with cum?"
The user, that is, the other end of the conversation:
"I don't share ped porn, that's against the American law". To which you have replied:
"Okay".
23This conduct is the subject of the offence scheduled and the s.16AB of the
Crimes Act.
24You engaged in chat of having sexual intercourse with a newborn daughter.
This form of sexualised textual child pornography continued through February and May of 2015.
25By 20 March 2016, you were engaged in Skype conversations with an identity known as "Krozzykid4". As an example of your textual child pornography, you stated as follows on 20 April 2016:
"You gotta do it so you can rip her open, sweet premmi cunt, get her preg, fill her with pedo seed".
26In the months of March, April, July 2016 you continued the textual child pornography with "Hungpissdaddy", "Mikais2", "Pervmikey" and "Capervin". These chats speak of rape of ten-year-old boy, tying up children and performing fellatio.
27 The police found an email on your email account which contained a chat with a username of "Kod Lohn" purportedly from Serbia. Kod Lohn sent you a link to videos which depicted the beheading of a young boy. You responded to Kod Lohn that you loved all the blood and in the reference to the deceased child you said:
"You should fuck his neck, very hot. Should eat some of him too".
28You were interviewed by police and stated as follows:
· You speak a lot to different people on Skype;
· That there are chat logs both on your mobile phone and your iPad which may contain stuff relating to underage people;
· That you had written that type of stuff as they were thoughts that came into your head;
· You used many applications on your devices, “Kik”, “Scruff”, “Grindr”, “WhatsApp” and “Telegram” in order to meet people;
· That you explained the process of having a cam conversation, detailing that it was possible to have a conversation with someone over video chat, and that the other person would also sometimes play pornography, and that the two of you would masturbate together whilst looking at each other and the pornography at the same time;
· You had multiple conversations with people online relating to child pornography;
· You stated that when using Skype your username was "Thundershock" and your associated email address was [email protected];
· You remember receiving messages and videos that were sent to you via Dropbox;
· That you viewed the underage stuff via Dropbox;
· You described a video containing a child that appeared to be five years of age. There was a guy basically just jerking off over the top of them whilst the child was just lying there. The other male had then ejaculate on the child. This video went for a minute and 14 seconds;
· You also told police that watching this video made you feel pretty horrible and that you were aroused however this may have been from the videos prior to that one;
· You were then shown chat logs with this Zachary Keighley. You stated that during the chat that you had spoken of playing with a ten-year-old, however this was just typed in the moment of the conversation and that you had not actually assaulted a child;
· That you had read stories about incest and that made you aroused. That stories would involve cousins or brothers, usually aged between ten years old and up;
· You agreed that you had spoken of "going hunting" with Zachary Keighley to abduct a child, however this was just a fantasy in your head and in the context of the conversation with Zachary Keighley and;
· At the conclusion of the interview you stated you had typed the chat logs, but a lot of it is just fantasy and was not true.
29In respect of Charge 2, you told police that your offending was only a fantasy and you did not actually do any of these things. You were aroused sexually by your textual child pornography conversations, or chats, as you call them.
Your Personal Circumstances
30You were 28 years old when you commenced offending in these matters. You are now 32 years old.
31You were arrested and interviewed for these offences on 12 September 2017.
You were charged on 6 February 2018. After some negotiation with the prosecution you pleaded guilty to these charges on 8 June 2018. I accept this is an early plea.
32You are the third child of four in your family. Your siblings are sisters. Your parents are alive and live together. Whilst you describe your family as living in straitened financial circumstances you had generally a happy home life. As at the date of the plea no members of your family knew about this offending or this court case. I note that your father is in court today.
33You changed your schools at Year 9 and finished your VCE at Ashwood High School3. You were harassed during your Year 10 level as you had identified as homosexual. You attended the Reach program in Hampton4 to help you cope with life's pressures at that time.
34You attended an advanced diploma of hospitality management and then obtained a Bachelor of Business from Swinburne. You studied part-time for four years and obtained a Master of Commerce also from Swinburne.
35You have a good work history. You started work as a 15-year-old at McDonalds. You have worked in sales in Virgin Music and Village Cinemas. Since 2010, you have been employed as a Claims Resolution Consultant in a major insurance company.
36You told Dr Patrick Newton, forensic psychologist, that you were sexually abused by a gym coach when you were approximately seven years old. There was no formal complaint or police investigation into that allegation. You identify as exclusively homosexual in orientation. Your family became aware of your sexual orientation when you were 21 years old. You remained living in the family home until you were about 26 years old.
3 a pseudonym name
4 a pseudonym name
37You have had one significant relationship. This relationship broke down shortly prior to your offending starting here, with an uptake or an increase in your alcohol intake at that time. In this setting your offending increased. You have never used illicit drugs.
38Dr Newton, the forensic psychologist, prepared a report dated 1 October 2018.
It is Exhibit 2 on the plea. You told Dr Newton that pornography had always been an important part of your sexual repertoire. You told Dr Newton that fantasy chat sites had been your main form of social connection. You stated:
“You formed connections with other regular users and that you and they would together generate fantasy material to which you would masturbate, either together whilst online or after logging off.”
39You acknowledged that you masturbated to child pornography as well as to the paedophilic fantasies that you and your chat mates had generated.
40You expressed your regret and remorse to Dr Newton for your offending.
41Dr Newton assessed you as being at the high end of the normal intelligence range. Dr Newton's opinion is that your textual child pornography communications show clearly paedophilic fantasies, together with sadistic and deeply disturbing material depicting the dismemberment and murder of children in sexual context.
42Dr Newton concluded that your engagement with paedophilic violent sadistic and fetish related material has been intense and multifaceted. Dr Newton stated in his report that there is a compelling need for you to receive comprehensive sex offender treatment. I note you have been receiving that treatment since May 2018 with Peter Hanley under the supervision of Dr Newton.
43Dr Newton notes that your progress from the treatment to date has been quite limited and that in his opinion your insight at your offending behaviour is not yet well-developed. Your diagnosis is of paedophilic disorder, non-exclusive type
sexually attracted to males but Mr Newton notes the sadistic elements but does not at this stage think a diagnosis of sexual sadism is appropriate for you.
44Dr Newton assesses you as your risk of reoffending is not less than a moderate risk taking into account the combination of factors relevant to you.
45You are relatively young with a good work history, no prior convictions and a concerning prospect for reoffending.
Sentencing Considerations
46Charges 1 and 2 are Commonwealth offences and s.16A(2) sets out the sentencing principles to be applied in your case. There are many factors I must take into account when sentencing you and they include the following:
· The principles of general deterrence;
· the nature and circumstances of the offence including your moral culpability;
· the maximum applicable penalties to the charges;
· if the offence has formed a course of conduct consistent with its use of criminal acts of the same or similar character, then the course of conduct which is applicable here in this case;
· the fact that you have pleaded guilty to the charges;
· the degree to which you have cooperated with the law enforcement agencies and investigation of the offences;
· the deterrent effect of any sentence or order under consideration that may have on you that is specific deterrence;
· the need to ensure that you are adequately punished for the offences;
· your character, antecedence, age and means and physical or mental condition;
· the probable effect of any sentence order under consideration might have on you or your family or dependents; and
· your prospects of rehabilitation.
47Finally, under Commonwealth legislation, a term of imprisonment to be served immediately is a sentence of last resort.
48I have noted a bundle of case summaries which were helpfully provided to me by the prosecutor. I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exclusively to the kind of sentences imposed in comparable cases and I have looked at the statistics of those sentences.
49I have considered the statistics and the current sentencing practices mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.
50Of course current sentencing practices is but one of the many considerations I take into account when fixing the total sentence for you for all of your offending in this case.
51You have pleaded guilty to these charges and indicated your intention to do so at an early time. You have cooperated with the police at the time of the search and at the time of your record of interview.
52Your plea of guilty has utilitarian value of allowing the orderly administration of justice. There is a certainty of outcome in the resolution of substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters.
53Your plea also vindicates that public confidence in the legal process set up to protect the community. I accept your plea of guilty indicates and demonstrates some remorse on your part. The objective seriousness of your offending is that it is serious.
54You have accessed child pornography over a period of three years. On separate occasions, you have engaged in transmitting child pornography material in a textural form. This was not done for profit but to feed your perversion and to engage in that textual child pornography chat with likeminded people.
55You have accessed a total of 640 images and 139 videos of child pornography.
The majority of the material is assessed as category 3 and 4 on the ANVIL classification scale. I have previously detailed the nature of the sample of child pornography material accessed by you and will not repeat those matters here.
56You also accessed materials in categories 1, 2, 5 and 6 of the ANVIL classification. Accessing and transmitting child pornography is very serious offending. In essence, you are an end user in this market of depravity where young children are exploited and violated.
57In general terms, child pornography is depraved upon a remorseless exploitation of young people who are the subjects of the videos and the photographs you viewed. These children are manipulated by cruel adults who subject them to degrading and distressing experiences that affect their self- esteem, their physical and psychological wellbeing and their personal development. In your offending, there is a level of sadism also displayed in your communications.
58It is all done for profit. If there were no consumers of these images and videos or market for this pornographic material, there is no profit and hence no affected children. Your criminal activity is the basis of this child pornography market.
59The Victorian Court of Appeal in the DPP (Cth) v Garside [2016] VSCA 74 clearly states that cases of access to child pornography are to be regarded as very serious morally depraved conduct that is harmful to children. The court stated,
“The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending"
60The nature and gravity of the access offence falls to be determined by reference to four criteria which are:
(1) the nature and content of the material in particular the age of the children, the gravity of the sexual activity depicted;
(2)the number of images or items possessed or viewed or accessed;
(3)whether the material is for the purpose of sale or for further distribution; and
(4)whether the offender, that is you, will profit from that offending.
61There is no allegation of profit in your case. You do exchange material in order to engage in further fantasy chats in communication with other likeminded offenders. This activity grows and supports the depraved market of child pornography.
62In the case of child pornography for personal use, the number of children depicted and thereby the victims is also regarded as a relevant consideration. General deterrence is regarded as the paramount sentencing consideration because of the public interest in stifling the provision and use of child pornography and less or limited weight is given to the offender's prior good character because it has been the experience of courts that such offences are committed frequently by persons of otherwise good character. You are such a person.
63Dr Newton has assessed you as a moderate risk of reoffending. Dr Newton also noted that you have made quite limited progress despite your
psychological treatment in a sex offender program from May of 2018. In short, you have developed little insight into your criminal behaviour.
64You have offended consistently for a period of three years. You have engaged in the transmission of textural child pornography and have sought child pornography material from others by using the carriages service on 26 January 2015, that is the subject of the form under s.16BA, notice which you have signed.
65In relation to sentencing for Charge 2 and s.16BA offending, I take into account an emphasis on the personal deterrence or specific deterrence for you and the sentencing principles of retribution. I note that Charge 2 relates to one day and that s.16BA is over the offending that attaches to is over a period of one year. The offending is based solely on your admissions and your chat log history.
66I assess your prospects of rehabilitation as guarded. Your risk of reoffending has been assessed as moderate. Until recently, you have not told any members of your family about your arrest or your current criminal justice predicament. The protected factors around reoffending are limited.
67The principles of general and specific deterrence are significant factors in assessing your total sentence to achieve a just sentence and for the protection of the community, I have sentenced you as a serious sexual offender and note that in the record pursuant to s.6F of the Sentencing Act and I will order that you be placed on the Sex Offender Registration for life. Each of the charges, that is Charges 1 and 2, are Class 2 charges under that Act.
68I find it is appropriate to impose only that degree of cumulation of sentences that reflects the different events of sexual offending by you. To do otherwise, may produce a sentence which is not proportionate and would breach the principle of totality in sentencing. A sentence of imprisonment to be served is the only appropriate sentence.
69Would you stand please?
70On Charge 1, you are convicted and sentenced to 18 months' imprisonment.
That sentence is to commence today, 19 October 2018.
71On Charge 2, you are convicted and sentenced to 18 months' imprisonment.
That sentence is to commence on 18 October 2019.
72That is a total effective sentence of two and a half years' imprisonment.
73I order that you are to be placed on a recognisance release order in the sum of
$5,000 for a period of four years. I order that you are to be released after serving an immediate term of imprisonment of 18 months which commences today, 19 October 2018.
74Section 6AAA, that is a declaration as to what the sentence would be if you did not plea, I would have sentenced you to a total effective sentence of four years and three months with a non-parole period of two years and six months.
75I declare that you have served two days of pre-sentence detention. I think that is right, isn't it? Two days? Yes. In respect of the sentence I've just imposed.
76Under the Sex Offenders Registration Act, you are placed on that register for your life and both charges are Class 2 category and pursuant to s.6F of the Sentencing Act, I have noted on the record you have been sentenced as a serious sexual offender.
77Have I got the order right?
78MS COOPER: I this so, Your Honour. I might just - - -
79HIS HONOUR: I always have difficulty with these Commonwealth sentences.
80MS COOPER: You said Charge 1 was 18 months and Charge 2 was 18 months
- - -
81HIS HONOUR: Correct.
82MS COOPER: - - - but the total effective sentence that was two years and six months.
83HIS HONOUR: Yes.
84MS COOPER: What was the amount of concurrency? I am assuming - - -
85HIS HONOUR: Yes, I call it cumulation so what it is - it is 12 months is the answer. So it is 12 months on for Charge 2. It goes on top of the 18 months. That is how you get you the two and a half years and how that is achieved is the commencement date for the Charge 2 sentence is a year away from now which is - the date to that is 18 October 2019. Yes. I just want to check that the recognisance release order part of it is right.
86MS GO: Your Honour, I do have orders - template orders for the RRO.
87HIS HONOUR: Yes.
88MS GO: Did Your Honour want any sex offender programs on it or just good behaviour?
89HIS HONOUR: I have not ordered sex offender programs. He is going to have to deal with that himself because he has been paying for it but it has not worked. Ms Cooper, I have just got the sex offender register documents here.
90MS COOPER: Yes.
91HIS HONOUR: If you wish to approach your client and explain to him what it is.
92MS COOPER: Yes.
93HIS HONOUR: I will have them handed to you - - -
94MS COOPER: Certainly.
95HIS HONOUR: - - - or my associate will go down with you. Ms Go, in respect of the sex offenders programs, this man should be subjected - when I say subjected, he should be given those in prison, not under the recognisance order.
96MS GO: Yes, Your Honour.
97HIS HONOUR: Mr Odell, you can take a seat.
98MS GO: Your Honour, I have the recognisance release order to hand up.
99 HIS HONOUR: Thank you. If I could just have a look at it. Thank you.
100MS GO: And also, Your Honour, there is s.16BA form.
101HIS HONOUR: Yes, to sign it. Yes.
102MS GO: The original.
103HIS HONOUR: Ms Go and your client is to sign the order. I will just explain to you, Mr Odell, about that recognisance release order. What it means is I will sentence you today to two and a half years' imprisonment but I have ordered that you may be released on entering in that recognisance after serving 18 months' imprisonment.
104The recognisance is - first of all there is money involved, you do not have to pay that now obviously but if you breach the recognisance, that is when that becomes relevant. The other part of the recognisance is it is for a period of four years so that you have to be of good behaviour for that period of four years after you get out gaol. That is one part of it.
105The next part of it is after that, you have still got two and a half years left on that recognisance. If you offend in that period of time, then you come back to be resentenced and I want to tell you in my limited experience as a judge, it is that period of time upon your release that is the most risky for you to reoffend
particularly in this sort of case. So I am warning you about that now and I am encouraging you now to engage in sexual offender programs in prison and do the best you can to straighten yourself out because you have a long way to go. All right. Thank you. Remove the prisoner.
106Mr Odell, you have probably received an incredible shock in the last couple of days. It is none of my business but can I encourage you to continue to stay in contact with him.
107MR ODELL: Of course. Yeah, definitely.
108HIS HONOUR: Yes. It will take a lot of adjustment.
109MR ODELL: Yes, I understand.
110HIS HONOUR: Thank you. I thank counsel for this assistance.
111MS COOPER: Thank you, Your Honour.
- - -
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
IN ITS CRIMINAL JURISDICTION
THE QUEEN
-v-
Mark Odell (a pseudonym)
SUMMARY OF PROSECUTION OPENING FOR PLEA
INTRODUCTION
The offender, Mark Odell[1] was born on the 10 November 1985. At the time of his arrest and offending he resided at an address in Hampton, Victoria[2].
[1] A pseudonym name
[2] A pseudonym name
The offender is to be sentenced for the following Commonwealth offences:
| Charge | Offence | Maximum |
| 1 | Between 20 September 2014 and 11 September 2017, access material using a carriage service, the material being child pornography material, contrary to s 474.19(1) Criminal Code (Cth) | 15 years |
| 2 | Between 26 January 2015 and 28 August 2016, transmit material using a carriage service, the material being child pornography material, contrary to s 474.19(1) Criminal Code (Cth) | 15 years |
A further charge relating to the soliciting of child pornography, contrary to s 474.19(1) of the Criminal Code (Cth) is scheduled and to be taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth).
BACKGROUND TO DETECTION
In May 2017, Western Australian Police provided the Victorian Police, Sexual Crime Squad with copies of transcripts of Skype chat logs relating to Victorian Skype user “ThunderShock” and Western Australian Skype user ‘Zachary Keighley[3]’.
[3] A pseudonym name
Skype is an online free program that is utilised to facilitate video and voice calls either person to person or in groups. Skype can be used to send instant messages and also for file sharing with other users of Skype.
SEARCH WARRANT
Following receipt of the chat logs, police executed a section 3E Crimes Act 1914 (Cth) search warrant at the offender’s residence on 12 September 2017. During the execution of the warrant, the offender admitted to investigators that he was the owner of the Skype username “ThunderShock”.
The offender’s Apple iPad containing the aforementioned chat logs was seized along with his mobile phone and home desktop computer.
CHARGE 1 - ACCESS CHILD PORNOGRAPHY MATERIAL
Between 1 November 2017 and 3 November 2017, the informant classified child pornography images and videos located on the offender’s Samsung mobile phone. The material was classified using the Child Exploitation Tracking System (CETS) and Australian National Victim Image Library (ANVIL) scale attached at Annexure 1.
The number of images and videos viewed and categorised by the informant as child are as follows:
Cat
1
Cat
2
Cat
3
Cat
4
Cat
5
Cat
6
Total Images 49 304 61 148 66 12 640 Videos 4 13 11 109 2 0 139 Total 53 317 72 257 68 12 779
The child pornography material had creation dates ranging from 20 September 2014 to 11 September 2017. The file paths of the majority of images and videos identified on the phone were linked to the Telegram application and the offender in his record of interview admitted to using this application.
The Category 1 images depict a range of predominantly young boys aged 8 to 14 years of age, partially naked some in seductive poses.
The Category 2 images depict a range of young boys aged 7 to 10 years touching and masturbating their penises.
The Category 3 images and video depict very young boys ranging in age from approximately 6 months of age to 10 years with adult male penises. The images range from the point of near penile penetration of the boy’s anus to young boys with semen on their faces. Some of the images feature multiple adults with one child.
The Category 4 images and video depict very young boys ranging in age from approximately 6 months of age to 10 years with adult males. They depict anal penetration of children by adult men using their penis, finger and tongue.
The Category 5 images and video depict a series of graphic and violent photographs of young children and infants being bound, gagged and urinated on. There is also an image of toddlers being made to perform oral sex on a dog. There is a video of a child aged 8 to 10 years who is tied to a table whilst an adult performs penis to anal penetration as the child screams in pain.
The Category 6 images contain a number of cartoon drawings depicting multiple young children bound and gagged, and penis to anus penetration of a child.
CHARGE 2 – TRANSMITTING CHILD PORNOGRAPHY
Police subsequently examined the Skype chat log conversations provided by Western Australia police and further logs located on the offender’s iPad. 1
Skype chat logs - 16 April 2016 and 25 January 2017
Between16 April 2016 and 25 January 2017, the offender as “ThunderShock” engaged in Skype conversations with a user named ‘Zachary Keighley. Between 16 April 2016 and 28 August 2016, this conversation was highly sexualised, violent and centred around the sexual and physical abuse of young children. The following is a summary of the chat between the offender and ‘Zachary Keighley’.
a.On 16 April 2016, ‘Zachary Keighley’ greeted the offender and asked “R u from tribe??” to which the offender replied “Yep sure are. No limits 0+ here”. In answer to the question “Pedo??” the offender replied “sure are”.2
b.‘Zachary Keighley’ then discussed previous sexual experiences that he had the previous year with an 18 month old child.
c.The offender stated “I played with a 10yo last year but I need ynger” and disclosed he was 31 years old and living in Melbourne.3
d.‘Zachary Keighley’ and the offender discussed adoption and that the offender’s dream is to “start a fuck family”. The offender also stated that he has no limits and “I like force, rape, snuff and more”.4
e.‘Zachary Keighley’ enquired about the 10 year old child that the offender had previously spoken about. The offender replied that he met the child through an application and that it “was a lucky find”, they “ended up meeting up at a park”, “he was a virgin”, “I pounded his hole”, “he ended up crying”, “was tight and smooth”.5
f.The two discuss that it was difficult to meet like-minded people. ‘Zachary Keighley’ asked the offender whether he would be interested in assisting him to find a child to rape if he was to come to Melbourne. The offender replied “sure thing”. ‘Zachary Keighley’ suggested that age 5 to 6 would be the best and the offender agreed “mmmm very hot ages”.6
g.‘Zachary Keighley’ asked if the offender was “for real?” to which the offender stated “Yes, luv to go hunting together”, “bet you’d look hot pounding some tight holes”, “face fucking them. Sucking there [sic] cocks. raping”.7
h.The offender enquired “whats the most fucked up thing your [sic] into” and ‘Zachary Keighley’ spoke about group raping a boy. The offender replied “filling his hole load after load” and
1 The chat logs provided by WA Police were also located on the offender’s iPad.
2 Exhibit 6 Skype Chat log page 1
3 Exhibit 6 Skype Chat log page 1
4 Exhibit 6 Skype Chat log page 2
5 Exhibit 6 Skype Chat log page 3
6 Exhibit 6 Skype Chat log page 4
7 Exhibit 6 Skype Chat log page 4
then suggested that they will “have to try and find a 4 yo” next time ‘Zachary Keighley’ is in Melbourne.8
i.‘Zachary Keighley’ asked “can we film it??” to which the offender replied “sure just no faces”.
The conversation then turned to discussing adoption or surrogacy and what they would
do with the children. In reply to a comment about punishment of the children by raping them until they bleed, the offender stated “fuck yes. Then get him to clean our blood covered cocks”. The offender stated he would love “a house with a basement”, “imagine going into his room during the night and just raping him”.9
j.The offender enquired “what raping vids you got” to which ‘Zachary Keighley’ stated that he has a long video of a “daddy and teenager fucking a boy” aged approximately 10 years old. The offender replied “beautiful. Just wait till its you and your son”.10
k.On 20 April 2016, the offender commenced the conversation and described himself as living in Melbourne and a “no limits ped perv”, “0+”. During the conversation, the offender and ‘Zachary Keighley’ discussed “hunting together” to find a young boy and “rape him”.11
l.The offender asked ‘Zachary Keighley’ a series of questions about rape, brutal rape and bloody holes. ‘Zachary Keighley’ stated that he had not done it before and is not too sure about hurting a child. The offender stated that the “best way is to use lots of lube. Its very tight. Better if his [sic] drugged out too”.12
m.‘Zachary Keighley’ asked if he would be able to film the rape of the child that the two were speaking of hunting and capturing. The offender stated that he could “but just don’t send it to anyone”.13
n.The offender again stated that he “raped a 10yo last year”, “honest”. ‘Zachary Keighley’ replied that there are a lot of people that make that sort of thing up and asked for details. The offender replied “I met him through an app, I picked him up and went to a park, it started of [sic] soft, then I went real hard and pounded his hole, he was crying and I kept going.” “Drove up leaving him at the park on the ground crying”.
o.The offender stated that his experience with the young child was “really hot” but that he wanted “ynger next time and more time”. He also informed ‘Zachary Keighley’ that he “always perv on boys in the street and at the shops”.14
p.In relation to volume of videos and pictures held, the offender stated that he “used to have heaps” but that he “had to clear” his phone as it was “taking up way to much room”.15
q.The offender and ‘Zachary Keighley’ discussed incest and the offender commented that he wanted a “fuck family” and “I’d luv some sons”.16
8 Exhibit 6 Skype Chat log page 4 & 5
9 Exhibit 6 Skype Chat log page 5 & 6
10 Exhibit 6 Skype Chat log page 6 & 7
11 Exhibit 6 Skype Chat log page 7 & 8
12 Exhibit 6 Skype Chat log page 9 & 10
13 Exhibit 6 Skype Chat log page 10
14 Exhibit 6 Skype Chat log page 11
15 Exhibit 6 Skype Chat log page 11
16 Exhibit 6 Skype Chat log page 12
r.On 24 July 2016, the offender continued to discuss the topic of incest and a “fuck family” with ‘Zachary Keighley’. ‘Zachary Keighley’ recounted an experience with an 18 month old child that he was asked to baby sit. ‘Zachary Keighley’ then sent four (4) pictures to the offender and stated “that’s him. No nudes one though” “just stripped him down, he sucked my dick, I sucked his, rubbed my dick on his ass and then shot my load all over his belly”. The offender replied “amazing. He is beautiful. Love his hair, skin and eyes”. The offender then asked questions in relation to a description of the child’s penis and that he “would luv to taste it”.17
s.Later in the conversation, the offender asked “you like it rough” and stated “I love rape.
Make them cry. And scream”. “Rape them for hours. Get there [sic] holes loose. Fill them with our cum”. “Cage them and make them drink our piss”.18
t.On 28 August 2016, the offender engaged in a further conversation with ‘Zachary Keighley’ where he again discussed the 10 year old child that he had raped. On this occasion, the offender stated that the 10 year old child was a “Cousins friend” and that he “fucked him real nice”.19
u.‘Zachary Keighley’ stated that he had “quite a bit of porn now too” and that he can share videos through Skype. The offender stated “yeah that be great”. ‘Zachary Keighley’ called the offender to play a video over Skype and the offender commented “very hot”. ‘Zachary Keighley’ asked the offender if the video was working, to which the offender replied “I like this vid. Yeah thank you. I love there [sic] cocks”. ‘Zachary Keighley’ also commented “great lil cock sucker haha” to which the offender replied “Sure is. Sucking his daddies cock”. The offender then comments “this is a hot one. Brothers”.20
The discussions involving transmission of textual child pornography ceased on 28 August 2016 but the offender and ‘Zachary Keighley’ remained in contact until 25 January 2017.
Additional iPad Skype conversations: 26 January 2015 to 27 July 2016
Examination of the offender’s iPad revealed additional Skype conversations constituting transmission of textual child pornography between 26 January 2015 and 27 July 2016.21 Examples of child pornography transmitted within those conversations are extracted below.
On 26 January 2015, the offender engaged in Skype chat with user ‘smearmedaddy’. During the conversation, ‘smearmedaddy’ discussed his desire to engage in sexual intercourse with older men whilst at the same time sexually abusing his own children. The offender responded ‘you will…your [sic] gonna fuck babies’. When the offender asked ‘smearmedaddy’ what would make him ‘hard’, the user replied ‘daddy abusing our little daughter’. The offender stated ‘daddys gonna start be [sic] eating her clit…pushing his tounge [sic] inside…getting it nice and wet..his [sic] gonna finger her hole to[sic]’.
Later in the conversation, the offender solicited child pornography material by stating ‘do you have any yng porn …any daddy son … daddy son fucking with cum’. The user stated ‘I don’t share
17 Exhibit 6 Skype Chat log page 17 - 19
18 Exhibit 6 Skype Chat log page 19
19 Exhibit 6 Skype Chat log page 20 & 21
20 Exhibit 6 Skype Chat log page 21 - 23
21 Statement of Brett Eldridge and chat log exhibits produced
ped porn … that’s against the American law’ to which the accused replied ‘ok’. This conduct is the subject of the offence scheduled pursuant to s 16BA of the Crimes Act 1914 (Cth).
On 6 February 2015, the offender engaged in a further Skype conversation with ‘smearmedaddy’ where the user discusses impregnating his little sister and then engaging in sexual intercourse with her newborn daughter. The offender responded ‘soon as the baby comes up…you should start fucking…while she’s still connected by the cord’.
Between 12 May 2015 and 15 May 2015, the offender engaged in Skype conversations with user ‘daveman229’. On 12 May 2015, the offender stated ‘I want to see you eating yng cunt …I wanna make love with you and our kids.’ On 14 May 2015, the offender stated ‘I want you to force a baby on your cock’. On 15 May 2015, the offender stated ‘And you’d be sitting on the couch with a baby cunt in your face. Eating her out …tasting her sweet cunt…shoving your tounge [sic] deep inside eating her cum then you’ll bounce her on your cock till you get her pregnant’.
Between 20 March 2016 and 20 April 2016, the offender engaged in Skype conversations with ‘krazykid4’. On 20 March 2016, the offender stated ‘imagine both us in a cabin in the forrest [sic] somewhere…each naked with a premi swining from your cock…have some cribs to fuck them in…get those white sheets all bloody…banging against the wall as you rape her.’ On 31 March 2016, the offender further stated ‘fuck we need some tiny pussy to rip open …some prem…my cock needs to be covered in blood.’
In a further conversation with ‘krazykid4’ on 20 April 2016, the offender stated:
-you gotta do it
-so you can rip her open
-sweet premi cunt
-get her preg
-fill her with your pedo seed
Later in the conversation, the offender stated ‘you better make that premi cunt messy…I want blood everywhere…rip her arms and legs off…walk around with her on your big pedo cock…bite off her cunt.’
On 28 March 2016, the offender engaged in Skype conversations with user ‘hungpissdaddy’.
During the conversation, there was a discussion about sexual arousal. The offender stated ‘0+here…smooth tight holes…little cocks…silky smooth…edible…I’d eat there [sic] ass for hours and suck there [sic] cocks.’ In response to a question about if he could ‘rape n snuff a boy’, the offender stated ‘0-5…he’d be hot…I wana do 10-13 too… one blond and another with dark features…tanned skin…smooth hole…but has a bush…I’d rape them for hours tie them up suck them milk there [sic] cocks dry’.
On 19 April 2016, the offender engaged in a Skype conversation with ‘mikais2’. During the conversation, the offender stated ‘I raped a 10 yo last year…he was crying at the end…wish I snuffed him…we were in a park…I drove off left him crying in a ball on the ground...virgin ass so sweet…he was on the ground when I left’.
On 27 July 2016, the offender engaged in a Skype conversation with ‘pervmikey’. Towards the end of the conversation, the offender stated ‘stallion cocks are awesome…and they cum bucket loads…fuck thats hot…get it to fuck a baby…watch the cock come out its mouth’.
Between 27 July 2016 and 28 July 2016, the offender engaged in Skype conversations with user ‘capervin’. On 27 July 2016, in response to a question about what ages he had ‘been with’, the offender stated ‘3, 5 and 5…then 13 and up.’ He was then asked what he did with them and responded ‘oral both ways and some fingering’.
On 28 September 2017, the informant also conducted an analysis of the offender’s email account (password provided by the offender) and located a chat between the offender and a male with the username ‘Kod LOHN’ purportedly from Serbia. Following a brief discussion of a sexual nature involving children, ‘Kod LOHN” invited the offender to watch a video and asked “do you like watching video clips with killing, slaughtering adults and kids without sex?”.22
The offender replied “Yes. I’ve watched a few”. ‘Kod LOHN’ sent the offender a link to a website containing two videos of a child that appeared to be aged 8 to 10 years old. The first video depicted this child sitting in the rear of a utility with four men and the child appeared in fear. The second video depicted the child in the rear of the same utility and he was now bound with his hands behind his back. One of the men from the first video was in the rear of the utility with him and this male was armed with a knife. This male then severed the head of the living child as others cheered.23
In response to the video, the offender stated to ‘Kod LOHN’ that he loved all the blood and in reference to the purportedly deceased child “Should fuck his neck”, “Very hot”, “Should eat some of him too”.24
INTERVIEW
The offender participated in a digital record of interview with police during which he stated:
a.He speaks to lots of different people on Skype.25
b.There are chat logs both on his mobile phone and iPad which may contain “stuff relating to underage people”. 26
c.He had written that type of stuff as they were thoughts that came into his head.27
d.He would speak to people using Skype either via chat messaging or by using “cams”.28
e.He resides with two other housemates and they are in a room together as they are a couple.29
f.That he would use the Skype app on his iPad in his room mainly in his bed. To use his account he needs to enter a password on his iPad and then another password on the Skype app.30
22 Exhibit 13 – [email protected] chat log
23 Exhibit 12 USB recording
24 Exhibit 13 – [email protected] chat log
25 Transcript of Police interview paragraph 24
26 Transcript of Police interview paragraph 26 & 27
27 Transcript of Police interview paragraph 28
28 Transcript of Police interview paragraph 32 & 33
29 Transcript of Police interview paragraph 45
30 Transcript of Police interview paragraph 49 – 53 and 61, 69 – 72
g.He was the only person that knew the password. There was also a password required to access his desktop computer and his mobile phone and that no one else knew these passwords.31
h.He used many applications on his devices “Kik”, “Scruff”, “Grinder”, “Whatsapp”, and “Telegram” in order to meet people.32
i.That he had met up with people in real life that he had first met using these applications.33
j.That the youngest person he had actually met with he believed was 18 however he had “not checked his ID” so he could have been younger.34
k.He explained the process of having a Cam conversation. Detailing that it was possible to have a conversation with someone over video chat and that the other person would also sometimes play pornography and the two would masturbate together whilst looking at each other and the pornography at the same time.35
l.He explained the process of using “Zoom Rooms” and “Skype” to have conversations with other users.36
m.He has had multiple conversations with people online relating to child pornography.37
n.He stated that when using Skype his username is ThunderShock and that the associated email address was [email protected].38
o.He remembered having Skype conversations with Skype user “Zachary Keighley”.39
p.He remembered receiving images and videos that were sent to him via a drop box.40
q.That he had viewed “under age stuff” via drop box.41
r.The most recent viewing of these types of images or videos was a month ago on Skype or Zoom.42
s.He described this video as being a series of video clips linked together that went for a
“max of 2 minutes”. This video “showed an adult and a young person doing stuff”.43
t.He described a video containing a child that appeared 5 years of age. “There was a guy basically just jerking off, over the top of them” whilst the child was “just laying there”. The older male then ejaculated onto the child. This video went for 1 minutes and 14 seconds.44
31 Transcript of Police interview paragraph 92
32 Transcript of Police interview paragraph 100 & 101, 139-140
33 Transcript of Police interview paragraph 174
34 Transcript of Police interview paragraph 225 & 245
35 Transcript of Police interview paragraph 292 - 302
36 Transcript of Police interview paragraph 385 – 397
37 Transcript of Police interview paragraph 448 & 449
38 Transcript of Police interview paragraph 470 - 472
39 Transcript of Police interview paragraph 478 & 479
40 Transcript of Police interview paragraph 537 - 539
41 Transcript of Police interview paragraph 576 & 577
42 Transcript of Police interview paragraph 582 - 593
43 Transcript of Police interview paragraph 613
44 Transcript of Police interview paragraph 633 - 644
u.He stated that watching this video made him feel “pretty horrible” and that he was aroused however this may have been from the videos prior to this one.45
v.That he had seen this video in the past however he did not turn the video off and continued to watch.46
w.The offender was shown the chat logs with ‘Zachary Keighley’. He stated that during the chat he had spoken of playing with a 10 year old. However this was just typed in the moment of the conversation and that he had not actually assaulted a child.47
x.He had read stories about incest and that it made him aroused. That the stories would involve cousins or brothers usually aged around 10 years old and up.48
y.He agreed that he had spoken of “going hunting” with ‘Zachary Keighley’ to abduct a child.
However this was just “fantasy in my head” and “in context of the conversation”.49
z.He stated that he would like to find a partner who was open minded and that he had tried to find someone that had similar interests. He clarified that just because someone “was into this” it doesn’t mean that they were “gunna actually do it”. That he would rather date someone open minded rather than someone that tries to “peg hole you”.50
aa. At the conclusion of the interview, he stated he had typed the chat logs “But a lot of it is fantasy and not true”.51
bb. He stated that he does not store videos, that previously he had pictures but that they had been deleted over a year ago. That these pictures would have been stored on his phone. The reason for the deletion of the pictures from his phone was that he became fearful that “something would happen like this, and it has” and “it was really hard…just always being worried and having to watch your back”.52
cc.He denied ever having any videos stored on his mobile phone. That the pictures were images of cocks, bodies, guys. Some of the images were of “teens” maybe 15 to 18 years of age. There was only ever one person in the photos and these images were sent to him via the apps that he had been using. That he only ever had 5 to 10 images stored on his phone.53
SEX OFFENDERS REGISTRATION ACT
The offender will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 (Vic) for the remainder of his life.54
45 Transcript of Police interview paragraph 656 - 659
46 Transcript of Police interview paragraph 663 - 675
47 Transcript of Police interview paragraph 757 – 761
48 Transcript of Police interview paragraph 771 – 785
49 Transcript of Police interview paragraph 807 – 826
50 Transcript of Police interview paragraph 869 – 877
51 Transcript of Police interview paragraph 909 - 911
52 Transcript of Police interview paragraph 913 - 926
53 Transcript of Police interview paragraph 933 – 951
54 Sex Offenders Registration Act 2004 s 34(1)(c)(iii)
OTHER MATTERS
The offender has no prior convictions.
The offender has spent no time in custody in relation to the charges.
On 8 June 2018, the offender was committed for trial in the County Court after indicating a plea of guilty to the charges on the indictment and the scheduled charge.
Commonwealth Director of Public Prosecutions
16 October 2018
Annexure 1 – ANVIL categories
| Category | Guide |
| 1 – No sexual activity | Depictions of children with no sexual activity – however must be sexually suggestive or sexual in nature. Can include nudity, surreptitious images showing underwear (upskirt), sexually suggestive posing, explicit emphasis on genital areas, solo urination by a child. |
| 2 – Solo/sex acts between children | Solo masturbation by a child or sexual acts between children only in which penetration of any orifice does not occur. Includes the penetrative use of sex toys by the victim only. |
| 3 – Non-penetrative adult/child | Non-penetrative sexual activity, between child and adult(s). May include mutual masturbation and other non-penetrative sexual activity. |
| 4 – Penetrative child/child – adult/child | Penetrative sexual activity between children only or adult(s) and children – may include, but is not limited to, vaginal/anal intercourse, cunnilingus and fellatio. Penetrative use of sex toys and/or foreign objects. |
| 5 – Sadism, bestiality, child abuse | Sadism, bestiality or humiliation (urination, defecation, vomit, bondage etc.), torture or child abuse. |
| 6 – Animated or virtual | Anime, cartoons, comics, computer generated graphics, drawings, audio and text depicting/describing children engaging in sexual poses or activity. |
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