P v Winter
[2008] NSWLC 15
•22/08/2008
Local Court of New South Wales
CITATION: P v Winter [2008] NSWLC 15 JURISDICTION: Criminal PARTIES: Police
Winter, PhillipFILE NUMBER: H32588009 PLACE OF HEARING: Wagga Wagga Local Court DATE OF DECISION: 08/22/2008 MAGISTRATE: Magistrate P Dare CATCHWORDS: Possession of child pornography – intellectually disabled offender - applicability of S. 32 Mental Health (Criminal Procedure) Act, 1990 – “objective seriousness” of offending conduct – whether dealt with according to law – consideration of penalty LEGISLATION CITED: Crimes Act, 1900. S. 91H (3).Criminal Code Act, 1995 (Cth). S. 474.19(1)(a)(i)Mental Health (Criminal Procedure) Act, 1990. S. 32 CASES CITED: Apps v R [2006] NSWCCA 290
Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159;
Director of Public Prosecutions v El Mawaz [2006] NSWCA 154
Mouscas v Regina [2008]NSWCCA 181
Police v Power [2007] NSWLC 1;
R v Assheton (2002) 132 A Crim R 237;
R v C; Ex parte Commonwealth DPP [2004] QCA 469;
R –v- Doan (2000) 50 NSWLR 115
R v Engert (1995) 84 A Crim R 67;
Regina v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370;
R v Hemsley [2004] NSWCCA 228;
R v Henry (1999) 46 NSWLR 346
R v Israil [2002] NSWCCA 255,
R v Jones (1999) 108 A Crim R 50;
R –v- Malcolm [2006] NSWCCA 323
Rigby v Regina [2006] NSWCCA 205.
R v Saddler [2008] NSWDC 48.
R v Scognamiglio (1991) 56 A Crim R 81
Regina v Snellen (1991) 57 A Crim R 313.
R v Stroempl (1995) 105 CCC(3d) 187;
R-v- Thomson and Holten (2000) 49 NSWLR 383TEXTS CITED: REPRESENTATION: Sgt. W. Ball for the Informant
Mr G. Reynolds, Solicitor, Messrs Walsh & Blair, Wagga Wagga, for and with the DefendantORDERS:
Before the Court is Phillip Michael Winter who has entered pleas of guilty to the following offences: -
H-32588009 1. Possess 59 computer images of child pornography. S. 91H (3), Crimes Act, 1900. 2. Use carriage service to access child pornography. S. 474.19 (1)(a)(i), Criminal Code Act, 1995 (Cth). 3. 4. 5. Possess 3 computer movie files of child pornography. S. 91H (3), Crimes Act, 1900.
On 18th August, 2008, the Court was advised that there would now be an application for the charges to be dealt with pursuant to Section 32, Mental Health (Criminal Procedure) Act, 1900. The Court file shows the Defendant’s first appearance on 23rd June, 2008, and a plea of guilty entered to Sequence 1.
The charges were adjourned until 7th July, 2008, when pleas of guilty were entered to the remaining Sequences – 2,3,4, and 5. A Pre-Sentence Report was ordered and all matters adjourned for sentence on 18th August, 2008. I mention what appears on the Court file because I was advised when the matter came before me on 18th August, 2008 for sentence that it was now to be subject of a Section 32 Application. Such applications are solemn proceedings and not mere trivialities or matters of form to be mentioned for the first time and rushed through on a busy List Day. They invariably require detailed consideration to be given to medical and associated reports as well as to the circumstances of the offence and relating those facts to the applicable law. The mere establishment of mental illness or intellectual disability, by itself, is not sufficient to warrant the application of the Section. It was one of the reasons why I adjourned the hearing until 22nd August, 2008.
Another reason was that the seized material itself was not before the Court. There is no other way to make the assessment of gravity called for in such cases without the tribunal of fact having to see, at the very least, a representative sample. No-one else’s opinion is relevant to a characterisation to be founded upon the nature, content and number of the pornographic images. The materials need to be made available by the prosecution in each such case and, I would suggest, in advance of the hearing. I have not added that this should be done by agreement of the parties. There should be no argument about it.
Mental Health (Criminal Procedure) Act, 1990.
Section 32 Mental Health (Criminal Procedure) Act, 1900, provides as follows:-
(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the magistrate:
a) That the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate);
(i) developmentally disabled
;
(ii) suffering from a mental illness; or
(iii) suffering from a mental condition for which treatment is available in a hospital but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act, 1990, and
b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,
- the Magistrate may take the action set out in subsection (2) or (3)
(2) The Magistrate may do any one or more of the following:
a) Adjourn the proceedings;
b) Grant the defendant bail in accordance with the Bail Act, 1978;
c) Make any other order that the Magistrate considers appropriate.
(3) The Magistrate may make an order dismissing the charge and discharge the defendant:
a) Into the care of a responsible person, unconditionally or subject to conditions; or
b) On the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both; or
c) Unconditionally.
A further relevant provision of the Act is contained in Section 36 which provides that a Magistrate may inform himself or herself as the Magistrate thinks fit, but not so as to require a defendant to incriminate himself or herself. I have already availed myself of the opportunity to read the factual allegations and his criminal antecedents of which there are none.
In support of the present application I received into evidence a comprehensive report from Doctor Stephen Allnutt, Forensic Psychiatrist, dated 13th August, 2008. Doctor Allnutt was of opinion that the Offender did not manifest symptoms consistent with a major mental illness such as a psychotic, mood or anxiety disorder.
There were antenatal difficulties with poor milestones as a child and difficulties with schooling from a young age requiring his discontinuance of general school and attending a special school in Wagga Wagga for a number of years. In Doctor Allnutt’s view there is a high probability the Offender suffers from an intellectual disability with mild mental retardation. Doctor Allnutt was not able to say this conclusively in what he believed was the absence of formal IQ testing.
A brief letter addressed “To Whom it may Concern” under the hand of Ms Robyn McIntyre, a psychologist, apparently with the Department of Ageing, Disability and Home Care, says the Offender was assessed on 11th July, 2008. The full results of any testing were not released, particularly, it seems, to Doctor Allnutt, the one person who really needed to know, on so-called grounds of ‘privacy’. Be that as it may, the brief letter says that the results support a diagnosis of mild level intellectual disability. The letter continues that a diagnosis of intellectual disability is the same as a diagnosis of developmental disability and/or mental retardation. The letter concludes that it is a condition unlikely to alter in the foreseeable since it is a life-long condition.
I will now deal with the factual material in support of the charges. As is usual in this jurisdiction, the material came before the Court in the form of a Facts Sheet. The Offender has no prior criminal antecedents.
Salient Facts
In 2003, authorities in the United States of America commenced investigations into the dissemination of child pornography through web sites on the Internet. American authorities identified a number of web sites pertaining to child pornography. Through their investigation, a number of international persons were identified as subscribing to these confirmed child pornography web sites. Some of these persons were based in Australia.
American authorities forwarded information to the Australian authorities. The Offender, Phillip Winter, was identified as subscribing to a number of confirmed child pornography web sites using his credit card between 14th March and 16th June, 2003.
On 17th February, 2008, Police obtained a search warrant for the Offender’s residence at West Wyalong. He resides on his parent’s property but in a house separate from the main homestead. Three desktop hard drives, a number of CD and DVD discs, an SD card, details of suspected child pornography web site accounts, and passwords and credit card statements relating to purchased subscriptions to these web sites were taken into custody.
It was necessary to view the offending material to see how it rated according to the COPINE (Combating Paedophile Information Networks in Europe) Reference database which identifies 10 levels of classification. I adopt the description outlined in the Facts Sheet. Taking the COPINE scale as a measure, I identified the majority of images as being 4, 5 and 6. There were, however, quite a number of images in categories 7, 8 and 9. There were no videos or moving images. It must be said that the collection, if such it can be called, is by no means large. In fact, in the experience of this Court, it is quite modest.
It must be said, however, in viewing the compact discs produced by the Prosecution, disheartening though they are, the images depicted therein cannot be described as the gravest of examples. The apportioning of images within the COPINE categorisation establishes that as a matter of fact.
Objective Seriousness.
Section 91H (3) of the Crimes Act, 1900, provides that a person who has child pornography in his or her possession is guilty of an offence. There is a statutory maximum penalty of imprisonment for 5 years. Section 474.19 (1)(a)(i) of the Criminal Code Act, 1995 (Cth) provides that a person who uses a carriage service to access child pornography material is liable upon conviction to a statutory maximum penalty of imprisonment for 10 years.
The charges are being dealt with in the Local Court, however, they are indictable, and the principles enunciated by the Court of Criminal Appeal in R –v- Doan (2000) 50 NSWLR 115 apply. Grove J. (Spigelman CJ and Kirby J. agreeing) in that decision said at [35]:
The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a ‘worst case’”.[35] The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit.
The decision of the Court of Criminal Appeal in Regina v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, although dealing with the importation of child pornography into Australia contrary to the Customs Act, 1901 (Cth) also referred to several authorities dealing also with the possession of child pornography – see, for example, R v Assheton (2002) 132 A Crim R 237; R v Jones (1999) 108 A Crim R 50; R v C; Ex parte Commonwealth DPP [2004] QCA 469; R v Stroempl (1995) 105 CCC(3d) 187. There are also relevant decisions of persuasive authority in Police v Power [2007] NSWLC 1 and R v Saddler [2008] NSWDC 48. I have not, for the purposes of the present Application, gone into depth and detail in the quoted authorities but have included them as an illustration as to the objective seriousness of the present charges.
The objective seriousness of the offending conduct is a requirement for consideration in conformity with such cases as Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 per Howie J at [17], where his Honour observed:-
- “In order to determine whether it is more appropriate to deal with the applicant under Part 3 the Magistrate has to perform a balancing exercise; weighing up, on one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system. It is a discretionary judgment upon which reasonable minds may reach different conclusions in any particular case. But it is one that cannot be exercised properly without due regard being paid to the seriousness of the offending conduct for which the defendant is before the court. Clearly the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the provisions of the Act. It should be emphasised that what is being balanced is two public interests, to some extent pulling in two different directions. It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation.”
The correctness of his Honour’s decision was confirmed in Director of Public Prosecutions v El Mawaz [2006] NSWCA 154 – see, in particular, the leading judgment of Justice McColl with whom Spigelman CJ and Handley JA agreed. His Honour the Chief Justice added (at [7]) that the seriousness of the alleged offence is always a matter entitled to weight in formulating the judgment for which Section 32 (1) (b) calls.
From an analysis of the materials before the Court it appears clear to me that the Offender is developmentally disabled but is not a mentally ill person within the meaning of Chapter 3 of cognate legislation in the Mental Health Act, 1990: Section 32 (1) (a).
I next turn to consider what Howie J., in Confos (supra) referred to as the “balancing exercise” of “weighing up, on one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system” while at the same time paying due regard to the seriousness of the offending conduct. I am not without some sympathy for the Defendant’s situation, however, it is a consideration against which Howie J., expressed the need for caution when his Honour said, “It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation.”
I am of the view, on an outline of the facts alleged in the proceedings, together with the other materials with which I have been informed in accordance with Section 36, and applying the principles from the authorities quoted, that it would not be appropriate to deal with the defendant in accordance with the provisions of Part 3 of the Act. I decline to so deal with the matter because of the seriousness of the offending, and the fact that if I took the course urged upon me by Mr Reynolds, the court could only supervise the offender for a period of six months. I will deal with him in accordance with law.
I now turn to the material that is before me as to the offender’s mental health issues. Much of the material relied upon was material already before me on the application pursuant to Section 32 of the Mental Health (Criminal Procedure) Act 1990. However, that makes it no less significant or important. I refer principally to the report of Doctor Allnutt. In addition to that already discussed, Doctor Allnutt noted the Offender’s capacity for insight and judgment appeared to be limited but adequate. He comes from a relatively loving and supportive familial environment. He has limited experience and knowledge of sexual matters likely as a result of cognitive immaturity derived from his intellectual handicap. Doctor Allnutt said that whether the Offender will or will not re-offend cannot be stated with reasonable medical certainty. Being found in possession of the images and having used his credit card to access these images leads Doctor Allnutt to a conclusion that the Offender has an underlying predilection at least for sexual interest of a paedophilic nature. Having said that, however, he opined the Offender would be regarded as falling into a group of individuals with a low risk of contact sexual offences involving children under the age of 18. In the absence of access to the internet he would be at low risk of accessing child pornography on the internet. He said that risk factors that predict recidivism in this area remain relatively unknown within the literature but it was notable there was no evidence of any further activity by the Offender.
Pre-Sentence Report
A report from Ms Judy Dinnington of the Forbes District Office dated 14th August, 2008 rehearsed much of the background material provided by Doctor Allnutt. The Offender was born on 29th June, 1978. He indicated that he has no friends and often feels lonely and bored. He has no social life unless he accompanies his parents on their outings at which he finds the older age bracket a challenge. The Offender said he knows he has done the wrong thing and is willing to participate in any assessments and counselling addressing his offending behaviour.
He is suitable for a high level of intervention by the Probation Service, including referral for psychological assessment by a Department of Corrective Services psychologist. He is assessed as suitable for a Community Service Order and while eligible and suitable for Periodic Detention, his parents said they would prefer, for safety reasons, to transport the Offender to and from Periodic Detention but that because of their financial situation it would be a cost burden to them.
It is a regrettable but undeniable fact that mentally disordered persons and those who are developmentally disabled frequently come into collision with the criminal law. Some are able to be diverted away from the criminal justice system – others are not. For those who are not, the principles applicable to sentencing are clear – see, for example, in R v Henry (1999) 46 NSWLR 346, where Wood CJ at CL said this: at [254]
Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing."[254] "... the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments.
That statement was reaffirmed by Spigelman CJ in R v Israil [2002] NSWCCA 255, where the following was said: at [23]
[23] "To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law."
See also such authorities as R v Engert (1995) 84 A Crim R 67; Rigby v Regina [2006] NSWCCA 205.
General Principles
The Offender pleaded guilty to Sequence 1 on his first appearance before the Court on 23rd June, 2008 and to the remaining matters on his second appearance, namely, 7th July, 2008. A plea of guilty is an acknowledgment of each of the intrinsic elements of the offence, including the intention to commit the offence. It is also a circumstance that the Court is obliged to take into account. The manner in which a plea of guilty is to be approached by Courts is subject to the guideline judgment of R-v- Thomson and Holten (2000) 49 NSWLR 383. The principles are well known and it is not necessary to rehearse them for present purposes. Accordingly, the Offender is to be accorded the full benefit of his early pleas.
It was not suggested that the Offender had the child pornography in his possession for the purpose of sale or further distribution or that he would profit from the offence.
Relevance of good character.
The Offender has no prior criminal antecedents. For the offence of possession of child pornography where general deterrence is necessarily of importance and is frequently committed by persons of prior good character, it is legitimate for a court to give less weight to prior good character as a mitigating factor: see Mouscas v Regina [2008]NSWCCA 181 per Price J., (Allsop P and James J in agreement) at [37] applying R v Gent [2005] NSWCCA 370 per Johnson J., (McLelland CJ at CL and Adams J., in agreement) at [64] – [66].
Intellectual Disability
I will first of all go to what I understand are some of the relevant authorities. In the case of R –v- Malcolm [2006] NSWCCA 323, the Court of Criminal Appeal considered the “balance between general deterrence and rehabilitation where the applicant suffered from an intellectual disability”. Rothman J. (Tobias JA and Howie J agreeing) said at [10] – [11]:
[11] As was pointed out in R –v- Engert (1995) 84 A Crim R 67, the principles of sentencing do not require automatic consequences. In particular, the fact of a mental disorder does not require automatically, a lesser sentence than might otherwise be the case”[10] “As has been pointed out on a number of occasions, it is not unusual for persons suffering from mental disorders to come before the courts. The sentencing of such a person, a not uncommon experience for judicial officers, requires the exercise of a discretion involving balancing general deterrence, specific deterrence and the prospects of rehabilitation. The difference is that society cannot require of a person who is suffering a mental disorder that they be used as an example to the general public, because a person with a mental disorder may not understand fully the distinction between right and wrong or the gravity of their actions. But the goals of sentencing remain the same. They are the protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform: Veen v R (No. 2).
In R –v- Engert (supra), Gleeson CJ (Allen J agreeing with a few additional remarks, Sully J. agreeing) said at pp 70-71:
“The circumstance that an offender suffers from a mental disorder may well be of considerable relevance in a number of respects to the sentencing task. One of those respects depending upon the facts and circumstances of the individual case, may relate to the matter referred to by this Court in the case of Scognamiglio (1991) 56 A Crim R 81. At 86 the passage in a judgment of the then Chief Justice of Victoria was cited with approval. That passage was in the following terms:
‘In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other, but in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should often be given little weight…General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others’.
The existence of a mental illness or other psychiatric condition or intellectual disability, where causally related to the offence committed, can be relevant to the assessment of the offender’s moral culpability. Where mental illness or intellectual disability contributes to the commission of an offence in a material way, the offender’s moral culpability may be reduced and there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: R v Israil [2002] NSWCCA 255 at paragraph 23; R v Hemsley [2004] NSWCCA 228 at paragraph 33; Apps v R [2006] NSWCCA 290 at paragraph 53.
With respect to this issue, it is necessary to determine whether the relevant mental illness or intellectual disability contributed to the commission of the offences in a material way. It seems to me that it did not. Doctor Allnutt’s report says that when the Offender was asked what led him to offend in the manner he did, he said he was “bored” at the time “with everything”. He said when he was surfing the net “pornographic stuff” came up on his screen and he got “hooked up”. He said he looked at both adult and child pornography. He said he was not sure why he used a credit card to download the child pornography. I think I can answer that: he wanted greater access. He accepted that he might have had a sexual interest in child pornographic images.
Other Programs
Encouragingly, the Offender has already commenced and completed a number of sessions with the Salvation Army’s Positive Lifestyle Program and is progressing satisfactorily.
Penalty
I have considered Section 3A and Section 5 of the Crimes (Sentencing Procedure) Act, 1999 and having done so I do not believe that a custodial penalty, either full-time or suspended, is appropriate for this Offender. I take into account his disabilities. He would be vulnerable indeed in any custodial situation. In that regard, imprisonment would be more burdensome upon him than for the average prisoner – see Regina v Snellen (1991) 57 A Crim R 313.
I propose to deal with the Offender by way of Bond and Recognizance to be of good behaviour.
Sequences 1 and 5
The Offender is convicted. The Offender is ordered to enter into Good Behaviour Bonds under Section 9 Crimes (Sentencing Procedure) Act, 1999, for a period of twelve (12) months. The Bonds are conditioned that:-
q The Offender is to be of good behaviour and appear before the Court if called upon to do so at any time during the currency of the Bond;
q The Offender is to notify the Registrar of this Court of any change of residential address during the currency of the Bond;
q The Offender is to accept the supervision and guidance of the Probation & Parole Service for such period as that Service considers necessary and to comply with all reasonable directions as to counselling and treatment for any identified area of criminogenic behaviour including psychological assessments and to report to the Forbes Office of the Probation Service within seven (7) days to enable that supervision to be put in place.
q The Offender is to continue with the Salvation Army “Positive Lifestyle Program” until completion.
Mr Winter, I am required by law to tell you that if you disobey any of the conditions of the Bonds or commit any offence during the period of the Bonds, particularly offences of a similar type, you will be brought back before the Court which may, depending upon the offending circumstances, revoke the Bonds and impose a penalty with more serious consequences. Those could include a period of imprisonment on a full-time basis or by way of periodic detention or a period of time on a Community Service Order, provided you are assessed as suitable for those alternatives to full-time custody. You will go to the Court Office where the obligations under the Bond and the consequences of a failure to comply with it will be further explained so that you are left in no doubt. You will sign it and be given a copy.
Sequences 2,3, and 4
This Recognizance, pursuant to Section 20 (1) (a), Crimes Act, (Cwth), 1914, is imposed as one penalty in respect of all three offences for which the Offender is to be sentenced: Section 4K (4) .
I have taken into account the provisions of Section 16A. Section 20A requires me to explain the consequences of failing to comply with any condition of the conditional release before imposing the Recognizance. Mr Winter, if you commit any further offence, particularly an offence of a similar type to the present, or if you fail to comply with any condition of the Recognizance, you can be summonsed or arrested and brought back to the Court which has the power, depending upon the circumstances, to revoke the Recognizance and impose a penalty with more serious consequences which could include imprisonment and the imposition of a fine.
The Offender is convicted. Without my passing sentence, the Offender is released upon entering into a Recognizance himself in the sum of $500.00 and without other surety, conditioned that:-
q The Offender is to be of good behaviour for a period of twelve (12) months;
q The Offender is to accept the supervision and guidance of the Probation & Parole Service for such period as that Service considers necessary and to comply with all reasonable directions as to counselling and treatment for any identified area of criminogenic behaviour including psychological assessments and to report to the Forbes Office of the Probation Service within seven (7) days to enable that supervision to be put in place.
q The Offender is to continue with the Salvation Army “Positive Lifestyle Program” until completion.
As with the previous order, you are to proceed to the Court Office the Court Office where the obligations under the Recognizance and the consequences of a failure to comply with it will be further explained so that you are left in no doubt. You will sign it and be given a copy.
As a separate order, I direct that the offending materials subject of the charges be forfeit and destroyed.
P.S. Dare SC
Magistrate,
Wagga Wagga Local Court.
22nd August, 2008.
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