R v Alderson

[2019] NSWDC 500

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Alderson [2019] NSWDC 500
Hearing dates:	14 February 2019
Decision date:	12 April 2019
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. The offender is sentenced to a Community Corrections Order for 18 months The offender is: To be supervised by Community Corrections for the duration of the CCO and is to be referred by them to CSNSW Psychological Service for a comprehensive assessment. Further, the offender is: To participate as directed by Community Corrections in any counselling and/or treatment or psychological counselling in respect of pornography and child sexual offending, which may include or be limited to: continuing the Psychological Sex Offender & treatment with LSC Psychology. To report to the Community Corrections office at St Leonard’s by noon on Wednesday 17/4/19. I make a forfeiture and destruction order in respect of the 2 USBs on which the offending material was downloaded.
Catchwords:	CRIMINAL – Sentence - use carriage service to access child pornography material – subjective matters – no criminal antecedents
Legislation Cited:	Criminal Code Act 1995 (Cth). Crime (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Regina Alderson, Simon
Representation:	Counsel: Mr M Higgins   Solicitors: Ms E TenKate Ms M Hole
File Number(s):	2017/00209267

Judgment

1. Simon Alderson appears for sentence in respect of a single offence of use carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) Criminal Code (Cth). The maximum penalty provided is 15 years’ imprisonment and/or a fine of $162,000. The offender has not spent any time in custody as a result of being detected committing this offence.

2. The facts are as follows:

3. Between about 21 June 2017 and 22 June 2017 the offender used a carriage service to access child pornography.

4. The offender used his work computer to access 207 files, each containing five to eight child pornography images.

Background

5. On 9 June 2017, the offender was at his workplace.  His workstation was in an open plan office; his work computer was an Apple iMac which was owned by the company.  He had his own log-in and password and unrestricted internet access.

6. A colleague witnessed the offender accessing a number of images depicting young children in sexualised poses.

7. The IT team of the business conducted an audit of the offender's internet access.  It also installed an application, “Silent Screen Capture”, on the offender's work computer which was able to capture screen shots of images accessed by him.  The audit program found the offender had deleted the browser history on his work computer.

Access child pornography

8. On 22 June 2017, a colleague of the offender again saw that he was accessing pornographic images at work.  She alerted the IT department and Silent Screen Capture was used to take screenshots of the offender's activities on the computer.  The screenshots showed that the offender was looking at images of children between seven and nine years of age.  The children were in various stages of undress and were engaged in sexual acts.

9. His employer reported the matter to New South Wales Police on 23 June 2017.

Search warrant and seizure

10. On 4 July 2017, a search warrant was executed at the employer's premises.  The offender's work computer was seized.

11. Police conducted an examination of the work computer and found that the computer contained 207 files, each containing five to eight child pornography images.  The files came from over 50 different websites, including: “Little‑RU‑cute‑girl”, “Petite Nude Models”, “Young Sweeties”, “Dirty Little Daughters”, “Team Flavour”, “Young Cute Girls”, “Little Girl Bits”, “Cute Petite Porn”, “Petite Raw and Extreme”.

12. The examination showed that the offender had accessed child pornography files on 207 separate occasions during the periods from 4.33pm until 8.19pm on 21 June 2017 and from 11.42am until 5.21pm on 22 June 2017.

Classification of images

13. The child abuse material was classified according to the Interpol Base Line Characterisation as follows:

• Category A: relates to images depicting a real prepubescent child involved in a sex act/witnessing a sex act; or the material is focussed/concentrated on the anal or genital region of the child.

• Category B: other child abuse material that is illegal within New South Wakes but does not fit within category A.

• Category C: material that is neither illegal nor child abuse material.  However, it is of interest from an investigative position.

• Category D: material that does not fall within categories A to C.

14. The New South Wales Police classified the files accessed by the offender as follows:

• Category A: 37,

• Category B: 98,

• Category C: 72,

• Category D: zero.

15. The age range of the children depicted in the files is three to 17 years.  The children are predominantly female.  One of the files showed children involved in acts of bestiality.  Police estimated the files showed approximately 2000 child victims.

Arrest and record of interview

16. On 10 July 2017, the offender was arrested in his home in the northern suburbs of Sydney, New South Wales.  He was taken to Chatswood police station where he participated in a record of interview.

17. He made the following admissions:

• he had an account at work with his username and password,

• he had unrestricted access to the internet at work.

Antecedents

18. The offender resides in the northern suburbs of Sydney with his wife and two children.  He has not spent any time in custody since his arrest.  He is now 52 years of age and was 50 at the time of the offending, and he has no criminal antecedents in New South Wales, nor is there any evidence of any criminal antecedents elsewhere.

19. In respect of the time period over which his access occurred on the two occasions, it would seem that the average period of time for viewing any of the 207 files would have been approximately three minutes per file, although I note that 72 of the files fall into Category C, being material that is neither illegal nor child abuse material.

20. The offending relates to a single offence of accessing child pornography material.  There is no suggestion that he provided it to anyone else or that he downloaded it for any purpose other than instant viewing.  It is significant that the material accessed came from various websites which were clearly accessed in the expectation that they would provide child pornography from the title of the websites alone.  Only one of the files showed children involved in acts of bestiality.

21. It has been thought by some in the past that accessing or distributing or downloading child pornography is, in effect, a victimless offence because they are simply electronic images, however all the electronic images available by way of the internet are the result of offending against real children, with the exception of child pornography which is based on cartoon images.  The real children depicted in child pornography have been offended against, and the offence in effect continues by way of distribution of the image to others for such time as the images remain available via the net, that is they may continue to be violated, in effect, for forever thereafter.

22. It is of serious concern that those who access child pornography, even where not for payment, are encouraging those who have originally committed an offence against a child to commit that offence, or continue to commit further offences.  The legislature has reflected the community's abhorrence for such offences by way of providing a maximum penalty of 15 years’ imprisonment for this offence.

23. I accept, as has been well recognised in many past decisions, that both specific deterrence and general deterrence are of great importance in relation to sentencing in matters such as this in order to discourage both the individual offending in making or providing child pornography as well as discouraging its transmission.  It has, of course, become extremely easy since the development of the internet for child pornography to be distributed internationally and to be accessible by anyone who has access to an internet connected computer.  That has done much to cause what appears to be an explosion of such material.

24. The offence of accessing child pornography is easy to commit.  It can be done in the relative safety of a private home or other premises where it is unlikely to be detected.  The offender was detected on this occasion because he was unwise enough to access the child pornography on a work computer in an open plan office where he was observed by another employee.

25. It is conceded by the Crown that his accessing was not done for financial advantage or commercial distribution which would aggravate the offending.  That, of course, does not detract from the seriousness of or mitigate the offending.

26. The offender entered the plea of guilty at the Downing Centre Local Court on 20 February 2018.  The Crown case in the circumstances was a very strong Crown case; however he is still entitled to a discount for the utility of the plea as well as for facilitating the course of justice by pleading guilty at the earliest opportunity. 

27. I assess the discount as appropriate in those circumstances as being 25% less than the sentence that would otherwise have been imposed.  I also accept in respect of this offender from the material before me that he is genuinely remorseful and contrite for his conduct.

28. Subjective material is drawn from the report of Dr Katy Seidler of LSC Psychology, dated 18 May 2008, a report of Jessica Pratley of LSC Psychology, dated 24 August 2018, a report of Dr Gerard Webster, dated 13 August 2018, an email of LSC Psychology to Simon Alderson, dated 24 May 2018, a report of Dr Neil Cavanagh, dated 8 August 2018, a letter to the Court from the offender's wife, dated 7 August 2018, a letter to the Court from the brother‑in‑law of the offender, dated 10 August 2018, and a further report of Dr Seidler, dated 31 January 2019.

29. In addition, the Court has a Sentencing Assessment Report from Conny Davis, Community Corrections officer, dated 11 April 2019, together with a New South Wales Department of Corrective Services Psychological Assessment Report, dated 10 April 2019.  I note Dr Seidler's initial report of 18 May 2018 is some 24 pages in length.  Much of the material contained in it is overly detailed life history of no particular significance in relation to the sentencing.

30. I accept that the offender was born in Australia as the second of four children, with an older brother and two younger sisters.  His younger sisters are still supportive of him; his relationship with his brother has gone through difficult periods but is apparently restored.  I note that his family, in general, continues to be supportive of him.  His father died in about 1986 and his mother repartnered after his father's death, when the offender was approximately 30.  His mother's second partner died of cancer about a decade later.  The offender had regarded the stepfather as "a nice guy" but he did not play a significant role in the offender's life.  There appear to have been no difficulties in relation to his upbringing by way of exposure to violence, drugs or any other relevant factor that might have had some role to play in his accessing child pornography.

31. There is nothing contained in Dr Seidler's reports which, in my view, provides a significant explanation or reason for why the offender fell into the habit of accessing child pornography.  I note, however, that he has been accessing at least adult pornography for many years prior to the commencement of his marriage.

32. There were some difficulties in relation to him and his wife having children, and eventually with medical assistance they were fortunate enough to have two young sons.  His wife describes her husband as someone who loves spending time with his children and engaging with them in their activities such as riding bikes, swimming, hiking and camping, and he is said to assist them with their homework for hours each week as well as reading to them at night.

33. Apparently they have both been encouraged by him to join Cub Scouts as well as to participate in local soccer and rugby clubs outside of school.  She states in her letter that his unlawful action has in no way been exposed to them or impacted on them negatively.  I take that to mean they have not been informed of his commission of this offence.  He is said to be "completely devoted" to them and to demonstrate loving guidance and discipline.

34. His relationship with his wife since marriage has gone through a number of what might be termed rocky periods, and she has been aware of him accessing pornography from a period even before their marriage commenced.  It has been a cause of some disquiet within the matrimonial relationship; his wife noticing that despite protestations in the past that he would cease, he has returned to accessing adult pornography thereafter.

35. He apparently transitioned through school without any difficulty, enjoying it and being apparently academically gifted.  He was never in receipt of any serious school discipline; he completed his secondary education and obtained the equivalent of the Higher School Certificate in Queensland before going on to study at the Queensland College of Arts where he did a Certificate in Commercial Illustration over two years before moving directly on to complete a Bachelor of Arts in Illustrations over a further three year period.

36. At the time of Dr Seidler's report of May 2018; he was studying towards a Masters of Philosophy in Art and Design through the University of New South Wales.  He has also completed a number of other short courses related to his work, such as Animation, HTML Coding and he has a Certificate IV in Training and Assessment.

37. I accept that he has, over time, established a stable and seemingly successful career in art and advertising which continues to be the focus of his employment.  Although he is no longer employed by the business at which he was accessing the child pornography, he has gone on to obtain employment elsewhere.

38. His first professional role after graduation was as a screen printer which he did for about one year, and for one year after that he worked for an advertising agency and then, for six months, in the film industry.  He has been employed in the advertising industry ever since.  That has involved him being employed as an art director in marketing, advertising and also in web development.  He has worked in the past for some six or seven agencies in addition to working on a freelance basis at times.

39. Since July 2017, he worked for a period as a freelancer because he lost his job as a result of the offending behaviour.  As I understand it, he has taken up a new role as head of creative for a social media/marketing agency which is said to align well with the area in which he is studying, that is, the Masters in Philosophy.  Although he has been employed in a number of different places the longest period of employment is some three years which is, no doubt, common for the industry in which he works.  He has, apparently, never been terminated from employment prior to his termination as a result of this offending.

40. There are no significant medical issues nor has he ever had any in the course of his life.  Although he has participated in the past to a minor degree in the consumption of prohibited drugs, that has not been for many years, and I accept he does not have a drug problem, or a problem in relation to gambling or other obsessive or addictive behaviour.  I accept that he functions well in the general community.

41. His detection in relation to this offending has, of course, placed a significant strain on his marriage, and it is yet to be seen whether it will survive.  I note that he is somewhat doubtful that it will.  The offender has no prior criminal history, as previously referred to.  The Pre‑Sentence Report indicates under "Attitudes":

"Mr Alderson at times appeared disconnected from the seriousness of the offending behaviour.  While Mr Alderson expresses deep remorse and embarrassment in regard to his behaviour, he at times appeared to minimise and excuse his behaviour.  When asked to further articulate the motivation for his offending behaviour, he offered that he was somewhat preoccupied by pornography, and that his threshold was low by looking at too much adult pornography and he started to look at child pornography.  He is now said to have indicated he feels guilt and repulsion in regards to his previous occupation with pornography, viewing it as 'a waste of time'."

42. The New South Wales Department of Corrective Services report has assessed him as being in the below average category for the risk of reoffending.  I accept that assessment as appropriate.

43. Of significance in relation to the offender is that he has been attending for sex offender treatment at LSC Psychology since 27 July 2018.  He had previously had some assistance from Dr Gerard Webster, psychoanalyst, on a one to one basis, having five sessions with him, however it is apparent that the offender wanted to move on to another form of assistance, being group therapy through LSC Psychology.  In that regard, he has attended group sessions at LSC Psychology since 27 July 2018 through to at least 31 January 2019, being some 23 group sessions with an additional one individual session.

44. I note in that respect that he has funded that treatment himself.  He has said in relation to his engagement in treatment to have continued to maintain a high level of engagement even when the process has been personally challenging.  He is said to have been well engaged with other group members, regularly offering feedback and support.  It is said,

"In sum, there have been no concerns noted to date with respect to his engagement in the group, and Mr Alderson impresses as a participant who is motivated for treatment".

45. He also reported to Dr Seidler that he has ceased using pornography, although I note that consistent with what his wife has said, in the past he has managed to appear to cease using adult pornography on occasions, although reverting to its use.  There is, of course, never any guarantee.

46. At the time of Dr Seidler's report of 31 January 2019, he was said to be about a third of the way through the program and she recommended that he needed to complete the LSC treatment program in order to address his criminogenic needs in relation to sexual offending behaviour as well as to improve his intimacy and communication skills in relation to his marriage.  She opined that his prognosis for meaningful treatment gains was positive, and indicated that the firm was willing to continue to treat and support Mr Alderson through the treatment process and into a maintenance support program.  In addition they are willing to liaise with supervising officers in relation to his progress or in relation to any risk issues that would arise.

47. I note that the report from Catherine Chung, psychologist from the New South Wales Department of Corrective Services notes:

"Regardless of whether Mr Alderson receives a custodial or non‑custodial sentence, it is recommended that he be referred to CSNSW Psychology Service for a comprehensive assessment post sentencing.  Following the assessment, Mr Alderson's treatment needs including his suitability for a sexual offender's program can be ascertained.  Given his below average risk rating, it is also recommended that Mr Alderson continue his treatment via private practitioner services (LSC) which is a suitable alternative to the treatment programmes available via CNSW, which otherwise may not have capacity to work with Mr Alderson, given the limited options for lower risk offenders."

48. I accept that there is a reasonable to good prospect of rehabilitation, particularly if the offender continues to obtain appropriate treatment and assistance.  I accept that he has made a significant effort to help himself in the period intervening between his arrest and today.  I note that there does not appear to be in his history any evidence of sexual deviancy.

48. At the moment, as I understand it, his wife having become unemployed in recent times, he is the sole supporter of his family.  I note that the Crown's submissions are that the only available disposition of this matter is by way of a custodial sentence, given the maximum penalty for the offence and the paramount need for general deterrence and punishment.  I accept that both general and specific deterrents are always substantial matters in relation to matters such as this, and that previous good character in the sense of not having been convicted of other offences is, unfortunately, a frequent circumstance in relation to matters such as this, but I will take into account the offender's previous good character.

49. In the circumstances, I accept that a sentence of imprisonment is appropriate but I am of the view that it can be appropriately dealt with in terms of the objective seriousness of the offence and also in the community's interest by way of an Intensive Correction Order.

50. Mr Alderson, you are convicted in respect of the offence that between about 21 June 2017 and 22 June 2017, you used a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code.  You are sentenced to a term of imprisonment to be served by an Intensive Correction Order, the duration of which is to be 18 months, that is, one year and six months.

51. As part of that order, you are to participate in any treatment and/or counselling as directed by Community Corrections during the course of the 18 month Intensive Correction Order.  I note that may well include, or be limited, in the assessment of Community Corrections to participation of the current program you are participating in through LSC Psychology.

TENKATE:  Your Honour, I apologise for interrupting, however an ICO is no longer available for prescribed sexual offences such as this one.  I can draw your Honour's attention to s 67 of the Crime (Sentencing Procedure) Act. It was a recent amendment last year and the ICO is not available for prescribed sexual offences, which are defined at s 67 of that Act as including this offence.  Your Honour could make a Community Corrections order with supervision.

HIS HONOUR:  I have some difficulty doing that where I have already said that it required the imposition of a sentence of imprisonment.  Of course I did take into account in making that provision that I could deal with it by way of a non‑custodial order.  In those circumstances, madam Crown, if you have no objection I will change the order made to a Community Correction Order.

TENKATE:  I have no objection to that.

53. HIS HONOUR:  You are sentenced to a Community Correction Order of 18 months that is subject to you accepting during the 18 months any direction from Community Corrections as to participation in any counselling and/or treatment relevant to this offence, which I note, as before, may include or be limited to, as assessed by Community Corrections, participation in the LSC program.

HIS HONOUR:  When was that amendment to the legislation?

TENKATE:  I understood it was last year.  I do not have the particular date.

HIS HONOUR:  It is s 67, is it not?

TENKATE:  It is, your Honour.

HIS HONOUR:  What I have been working from did not actually refer to it as restricting an ICO to non‑sexual offending.

TENKATE:  The Crown does wish to make a destruction order over two USBs that are in the possession of New South Wales Police.  It is by consent, and the Crown had not been prepared to make this application.  The Crown does not have any paperwork.  Is your Honour content to make that order given it is by consent.

HIS HONOUR:  The USBs are what was downloaded from the computer or provided by the business he was employed by in order to evidence the offending?

TENKATE:  They were the offender's USBs on which it was believed images were downloaded.  They were deleted but there is still trace evidence of those files.

54. HIS HONOUR:  I take it there is no problem with those being forfeited and destroyed.  I do not think you actually need an order.  Ms Hole on behalf of the offender has consented to their destruction and he would not want them back, because if he is in possession of them he might be committing an offence again.

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Amendments

11 May 2020 - Amended to protect identities of family members

Decision last updated: 11 May 2020