R (Cth) v James Michaell Hutchinson

[2018] NSWDC 80

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R (Cth) v James Michaell Hutchinson [2018] NSWDC 80

Hearing dates:

23 March 2018

Date of orders:

05 April 2018

Decision date:

05 April 2018

Jurisdiction:

Criminal

Before:

Judge AC Scotting

Decision:

1 The offender is convicted.
2 In relation to the possession offence the offender is sentenced to a fixed term of imprisonment for 6 months to date from 1 April 2018 and expire on 30 September 2018.
3 In relation the first transmission offence the offender is sentenced to imprisonment for 12 months to commence on 1 July 2018. That term is to be suspended after serving 3 months of that sentence on 30 September 2018 and he is to be released upon entering into a recognisance in the sum of $500 to be of good behaviour pursuant to section 20(1)(b) Crimes Act 1914 for a period of 2 years on condition that the offender:
(a) is to be of good behaviour and appear before the Court if called on to do so during the term of the bond;
(b) is to inform the registrar of the District Court at the Downing Centre of any change of residential address; and
(c) is to accept the supervision of the Community Corrections Service and obey all reasonable directions with regard to sex offender treatment.
4 In relation the second transmission offence the offender is sentenced to imprisonment for 12 months to commence on 1 September 2018. That term is to be suspended after serving 3 months of that sentence on 30 November 2018 and he is to be released upon entering into a recognisance in the sum of $500 to be of good behaviour pursuant to section 20(1)(b) Crimes Act 1914 for a period of 2 years on condition that the offender:
(a) is to be of good behaviour and appear before the Court if called on to do so during the term of the bond;
(b) is to inform the registrar of the District Court at the Downing Centre of any change of residential address; and
(c) is to accept the supervision of the Community Corrections Service and obey all reasonable directions with regard to sex offender treatment.

Catchwords:

CRIMINAL LAW – possess child abuse material – use of carriage service to transmit child pornography to self - offence - plea of guilty
SENTENCE – mitigating factors – aggravating factors – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition
WORD AND PHRASES – online chat – video chat – psychological condition – emotional development of offender – bisexual orientation of offender

Legislation Cited:

Crimes Act 1900 s.91H
Crimes Act 1914 (Cth) ss. 16A, 16A(1), 16A(2), 17A(1), 20(1)(b)
Crimes (Sentencing Procedure) Act 1999 s. 5
Criminal Code Act 1995 (Cth) s. 474.19(1)

Cases Cited:

Director of Public Prosecutions v D’Alessandro [2010] VSCA 60
Johnson v The Queen (2004) 78 ALJR 616
R v El Karhani (1990) 21 NSWLR 370
R v Porte [2015] NSWCCA 174

Category:

Sentence

Parties:

Regina (Crown)
JMH (Offender)

Representation:

Counsel:

   

Solicitors:

  Commonwealth Director of Public Prosecutions (Crown)
Nikola Velcic & Associates (Offender)

File Number(s):

2016/222058

Publication restriction:

None

sentence

1. JMH, a pseudonym (the offender) appears for sentence after pleading guilty in the Local Court to one count of possess child abuse material contrary to section 91H Crimes Act 1900 and 2 counts of using a carriage service to transmit child abuse material contrary to section 474.19(1) Criminal Code 1995 (Cth).

2. The maximum penalty for the possession offence is 10 years imprisonment. The maximum penalty for the transmission offence is 15 years imprisonment.

Facts

3. The parties presented an agreed statement of facts that can be summarised as follows.

4. The offender is 31 years if age and lives alone on the Central Coast of New South Wales. He had been employed as an engineer in the mining industry on a fly in fly out basis. He has no previous convictions and was bail refused for 4 days after being arrested.

Transmit child pornography – identified victim

5. On 4 June 2016 the Australian Federal Police (AFP) received information about a 15 year old male child communicating with an adult online seeking a meeting to engage in sexual intercourse.

6. On 24 June 2016 officers from the AFP conducted an interview with AH, a 15 year old male (the victim). The victim informed police that he had been communicating with a person who he believed to be an 18 year old female by the name of Estelle Ball, through the messaging application KIK Messenger (KIK) and SMS messages for a number of months. They engaged in sexualised communications in which he had received a number of naked images of a female that he believed to be Ball and a link to a file sharing site that contained an adult pornography movie. He had sent naked and semi-naked images of himself to Ball. He had been asked to meet with Ball on the Central Coast but could not arrange the travel.

7. The mobile telephone service sued by Ball was subscribed to the offender at his home address on the Central Coast.

8. On 22 July 2016 AFP officers arrested the offender at the airport and seized 2 mobile telephones, a laptop computer and an external hard drive.

9. The offender participated in an electronically recorded interview, in which he made the following admissions. He engaged in online communications with the victim, who he knew to be 15 years of age. He had sexually explicit conversations with the victim that he had deleted. He used the profile of a 17 year old female Estelle Ball and sent naked photos of adult females to the victim to keep him interested. He requested and received naked and semi-naked photos of the victim. He talked about having sexual encounters with the victim and the victim’s girlfriend, but did not intend to meet him. He was aware that the victim was a school student. He knew that what he did was not right and wanted to stop chatting with the victim. He used the username ‘Dinosaur Rocks’ on KIK and had set up that username about 2 years before.

10. Forensic analysis of the offender’s devices found 4 child pornography files sent by the victim to the offender. Two of the images were of the victim wearing underwear, one image was of the victim’s penis and one image was of the victim’s penis with ejaculate in his stomach. The first 2 images were classified in Category 1 of the CETS and the others in Category 2 of CETS. The images had been deleted by the offender and were located in a deleted file.

Possession offence

11. Police located 509 files containing child abuse material on the devices of the offender. Of these 316 were classified in Category 1 of CETS, 123 in Category 2, 3 in Category 3, 65 in Category 4 and 2 in Category 5.

12. Examples of the files included, a video file of 2 pubescent females and a naked pubescent male lying on a bed kissing, a screen shot of a pubescent male masturbating, a video file of a pubescent male masturbating, a video file of 2 naked pre-pubescent males performing oral sex on an adult male, a video file of an pubescent male bound and blindfolded with an adult male masturbating him, a video file depicting 2 pre-pubescent males engaging in anal intercourse, and a picture of 2 pre-pubescent makes preforming oral sex on each other.

13. The offender had downloaded software, BSR and Manycam. These 2 programs allowed the offender to appear in Skype video messages as a semi-naked female, by recording footage of the female image and transmitting it during the video messaging sessions.

14. Police located a recording of a video chat between the offender, posing as the semi-naked female and a pubescent male, in which he instructed the male to take video footage of him removing his clothes, exposing his penis and masturbating.

Transmit child pornography – unidentified victims

15. On the offender’s Samsung mobile telephone police located a number of KIK chats with the offender using the username Dinosaur Rocks.

16. Between 16 August 2015 and 3 September 2015 the offender participated in a series of sexualised KIK chats with an unidentified user “joshua.marsden”, who informed the offender that he was 13 years of age. At the request of the offender, that user sent him a picture of a pubescent male holding his erect penis that was classified in Category 2 of CETS.

17. Between 16 August 2015 and 21 August 2015 the offender participated in a series of sexualised KIK chats with an unidentified user “scottgreen990”, who informed the offender that he was 14 years of age. At the request of the offender, that user sent him a picture of a pubescent male holding his erect penis that was classified in Category 2 of CETS and a picture of a pubescent male with an erect penis classified in Category 1 of CETS.

18. Between 16 August 2015 and 16 April 2016 the offender participated in a series of sexualised KIK chats with an unidentified user “Thorbiman”, who informed the offender that he was 15 years of age. At the request of the offender, that user sent him a picture of a pubescent male with an erect penis classified in Category 1 of CETS.

19. On 10 September 2015 the offender participated in a series of sexualised KIK chats with an unidentified user “FelixT123”, who informed the offender that he was 13 years of age. At the request of the offender, that user sent him a picture of a pubescent male’s penis classified in Category 1 of CETS, a picture of the full naked body of a pubescent male classified in Category 1 of CETS and a picture of a close up of an anus classified in Category 1 of CETS.

20. I had access to and viewed a sample book of images and stills from some of the video files.

Victim Impact Statement

21. The Court received a Victim Impact Statement from the victim. The victim has suffered deterioration in the relationship with his parents and has developed a mistrust of online interactions. He feels that his exposure to sexual material has affected his relationships with females and that he has experienced body image issues.

Pre-sentence report

22. The Court received a pre-sentence report (PSR) dated 21 August 2017. The content of the PSR can be summarised as follows.

23. The offender is 31 years of age, with no prior convictions. He lives alone and is in close contact with his family, who are supportive.

24. The offender is a qualified civil engineer and had been working in the mining industry. He resigned after being charged and has subsequently been employed in the family business.

25. The offender reported that he had a sexual interest in younger males in the last few years that he pursued through pornography and online communications. He sourced material from the internet as well as from the victims.

26. The offender was referred to Dr Mark Milic, psychologist, by his lawyers for assessment. He has subsequently begun treatment with Dr Milic.

27. The offender agreed with the police facts. He stated that he knew that his actions were unacceptable and that he was remorseful. He agreed to participate in whatever treatment or program deemed to be necessary.

28. The offender is able to undergo sex offender treatment in custody. The necessary minimum term is 2 years. Corrective Services can provide treatment in the community over a period of 2 years.

29. He was assessed as suitable for community service work and is likely to benefit from supervision.

30. The PSR included a Case Note Report (CNR) prepared by a psychologist employed by Community Corrections on the papers. The psychologist assessed the offender as a medium to high risk of reoffending by reference to the Static 99R assessment tool.

31. An updated PSR dated 16 March 2018 indicated that the offender had continued treatment with his private psychologist. Dr Milic reported that the offender was engaged and enthusiastic.

The offender’s case on sentence

32. The offender tendered a number of reports of Dr Mark Milic, psychologist. The reports are largely repetitive and his final report dated 21 March 2018 is the most informative. The reports of Dr Milic can be summarised as follows.

33. The offender first saw Dr Milic in June 2017 and has attended for treatment on 13 separate occasions since that assessment.

34. The offender is the youngest of 5 siblings. No-one in his family has experienced legal, mental health or substance abuse problems. He bought his own home after living with his brother for about 2 years. He has not had a long term relationship. He did well at school and attended university to complete an engineering degree in 2008.

35. He obtained work as an engineer after leaving university and changed jobs after about 3.5 years. He acknowledged that the fly in fly out work he was doing at the time of the offences affected his social life.

36. The offender developed a sexual attraction to males and females as an adolescent, but had a limited social life. He did not like crowds or parties. He had friends at university but did not tell them about his bisexual persuasion. He envisaged having a long term relationship with a female and getting married. He felt that he was the last of his university friends to be single. He is now worried about finding a long term partner after the offences.

37. The offender acknowledged that he had allowed his attraction to males to drift to a younger age group and he regretted contacting the victims. He has accepted that he betrayed the victims and that the full extent of his actions hit him after he was arrested and in police custody. He is prepared to atone for his actions.

38. He has been prepared to participate in counselling and was confident that he will not reoffend.

39. The offender is concerned about the effect that the offences have had on him and his family. He is fearful of going to prison. He has had difficulty sleeping and has lost weight. He found it helpful to return to work, but he regretted missing a trip to Japan with his friends.

40. The offender has participated openly in treatment and has shown interest in self-improvement. His treatment has focused on recognising his sexual orientation and progressing it in an acceptable way by developing skills to avoid the circumstances that led to the offences. He has taken steps to develop a healthy lifestyle by joining a cricket team and taking in a housemate. He has also commenced private group sex offender treatment from 20 September 2017.

41. The psychologist opined that the offences occurred as a means for the offender to explore his bisexuality without personal contact, as a result of the offender’s avoidant personality.

42. The offender also tendered letters from his sister, brother and sister-in-law. His family described the loneliness he experienced as a result of his fly in fly out work and that he has expressed remorse to them for his actions.

43. The offender also tendered a copy of his bail conditions. He was required to report 3 days per week and had significant restrictions placed on his use of the internet, including that it be disconnected from his residence and that he not use a mobile telephone that permitted connection to the internet.

Consideration

General principles in sentencing for Commonwealth Child Pornography offences

44. The Commonwealth offence focuses on the use of the internet to access and disseminate child pornography.

45. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

46. A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].

47. The comity principle is relevant to the sentences imposed for Commonwealth child pornography offences. The intermediate appellate courts have decided that:

1. general deterrence and denunciation are of paramount importance;

2. the objective gravity of the particular offences must be considered;

3. the offences are not ‘victimless’ because the creation of the material involves the exploitation and degradation of significant numbers of disadvantaged children;

4. limited weight should be given to prior good character;

5. undue focus should not be placed on the need for treatment to achieve rehabilitation at the expense of general deterrence and denunciation; and

6. in serious child pornography offences the appropriate sentence is one involving immediate incarceration and the use of an intensive corrections order may be inappropriate.

Objective Seriousness

48. I have considered the matters set out in R v Porte [2015] NSWCCA 174 at [63]-[72].

49. As to the possession offence, there were actual children involved in the creation of the material. The material included children involved in sexual acts with other children and adults. The facts do not indicate any physical harm was caused to the children.

50. The bulk of the material was in category 1 but that is not necessarily mitigating.

51. The number of images was relatively small at 509 for the possession offence.

52. The possession offence is in the low range of objective seriousness.

53. The transmission offences involved the offender causing the pornographic material to come into existence. The offences involved considerable planning to deceive the victims to provide images of themselves. The offences occurred over a period of a few days to a few months.

54. The offences represent a series of criminal acts of similar nature and that is an aggravating factor. The transmission offences resulted in the creation of a small number of images that were in the lower categories.

55. The transmission offences are in the low range of objective seriousness.

General Deterrence

56. General deterrence is of significance in sentencing offenders for offences of this nature. The intermediate appellate courts have consistently stated general deterrence and denunciation are paramount in sentencing for child pornography offences. This is because:

1. Child pornography is an international problem;

2. The prevalence of child pornography on the internet, demands that general deterrence must be a paramount consideration;

3. The use of the internet makes the offences difficult to detect as a result of the anonymity provided for by the internet;

4. Those inclined to exploit children by involving them with the production of child pornography are encouraged by the fact there is a market for it;

5. Those who make up that market cannot accept responsibility for such exploitation;

6. The harm done to the victims is profound and it is exacerbated by the indefinite circulation of the images on the internet: Director of Public Prosecutions v D’Alessandro [2010] VSCA 60 [21]-[23].

Specific deterrence

57. There is some need for specific deterrence although it is reduced. The offender has taken steps to enter into treatment and accepted responsibility for the offences.

Mitigating factors

58. The offender entered an early plea of guilty. The plea also indicates remorse. The appropriate discount is 25%.

59. The offender had no prior convictions and was a person of good character. The offender is 31 years of age and has an impressive work history.

60. The offender co-operated with the investigation.

61. The offender has good prospects of rehabilitation. The offender has sought long term treatment for his attitudes that led to the offences. He has sought out private group sex offender treatment. The offender has good family support and good prospects for employment. He has also taken steps to lead a healthy lifestyle. Dr Milic describes the offender as committed to his treatment and that he has participated fully in it. Dr Milic opines that he has good prospects for rehabilitation. I prefer the opinion of Dr Milic to the risk of reoffending arrived at by the Static 99R assessment tool. The Static 99R is a fairly blunt instrument and Dr Milic has had an extended opportunity in treatment of the offender to make a more considered and reasoned opinion than the assessment tool can provide.

58. The offender has demonstrated remorse. The offender has accepted responsibility for his actions and expressed remorse to the author of the PSR to the psychologist and to his family. I am satisfied that his expressions of remorse and contrition are genuine.

Penalty

63. I have had regard to section 17A(1) Crimes Act 1914 (CTH) and section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that after having considered all other available sentences that no sentence other than a sentence of imprisonment is appropriate in all the circumstances of the case. The reasons for this finding are that:

1. the offences committed are objectively serious;

2. there is a need for general deterrence;

3. there is a need for denunciation of the offending conduct; and

4. that whilst the subjective considerations relating to the offender are persuasive they are necessarily subsidiary to the duty of the Court to ensure that he is given a punishment of appropriate severity.

64. The appropriate term of imprisonment for the possession offence count is 8 months and for each of the dissemination offences is 16 months. Those terms will be reduced by 25% to reflect the plea of guilty. There should be some partial accumulation of the sentences imposed to reflect the different criminality involved in each offence.

65. The appropriate head sentence is one of less than 2 years. I have considered the imposition of an Intensive Corrections Order and in the circumstances I do not believe that it would be a punishment of appropriate severity because it would not properly reflect general deterrence, denunciation or retribution.

66. The appropriate term of imprisonment to be imposed for each of the offences is not long enough to provide 2 years as a minimum term, to provide for sex offender treatment in custody, or a 2 year recognisance release order, to provide for sex offender treatment in the community. Accordingly, the appropriate penalty for the Commonwealth offences is a partially suspended sentence with a longer period on recognisance, conditioned on the supervision of Community Corrections.

67. The offender is convicted.

68. In relation to the possession offence the offender is sentenced to a fixed term of imprisonment for 6 months to date from 1 April 2018 and expire on 30 September 2018.

69. In relation the first transmission offence the offender is sentenced to imprisonment for 12 months to commence on 1 July 2018. That term is to be suspended after serving 3 months of that sentence on 30 September 2018 and he is to be released upon entering into a recognisance in the sum of $500 to be of good behaviour pursuant to section 20(1)(b) Crimes Act 1914 for a period of 2 years on condition that the offender:

1. is to be of good behaviour and appear before the Court if called on to do so during the term of the bond;

2. is to inform the registrar of the District Court at the Downing Centre of any change of residential address; and

3. is to accept the supervision of the Community Corrections Service and obey all reasonable directions with regard to sex offender treatment.

70. In relation the second transmission offence the offender is sentenced to imprisonment for 12 months to commence on 1 September 2018. That term is to be suspended after serving 3 months of that sentence on 30 November 2018 and he is to be released upon entering into a recognisance in the sum of $500 to be of good behaviour pursuant to section 20(1)(b) Crimes Act 1914 for a period of 2 years on condition that the offender:

1. is to be of good behaviour and appear before the Court if called on to do so during the term of the bond;

2. is to inform the registrar of the District Court at the Downing Centre of any change of residential address; and

3. is to accept the supervision of the Community Corrections Service and obey all reasonable directions with regard to sex offender treatment.

Explanation of the sentence

71. JMH, I have sentenced you to imprisonment for 12 months for each of the Commonwealth offences. Those terms of imprisonment are to be suspended after serving 3 months upon on you entering into a recognisance to be of good behaviour bond for a period of 2 years. If without you without reasonable cause or excuse fail to comply with either of those recognisances by committing further offences or failing to abide by the conditions of them, the Court may impose a fine of up to $1,000, extend the term of the recognisances, revoke the recognisances and imprison you for 9 months for each offence or impose another penalty.

72. The minimum term for the offences that I have imposed is 8 months imprisonment and you are to be released from custody on 30 November 2018.

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Amendments

27 April 2018 - Pseudonym removed in case title

Appearances - Solicitor on record for the Crown correctly named

Typographical error "as" changed to "is" in [29]

Typographical error "her" changed to "his" [62]

27 April 2018 - Correct spelling of name in case title

Decision last updated: 27 April 2018