R v Anderson

[2021] NSWDC 802

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Anderson [2021] NSWDC 802

Hearing dates:

09 November 2021

Date of orders:

09 November 2021

Decision date:

09 November 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 3 years 9 months with a non-parole period of 2 years

Catchwords:

CRIME – Possess/control child abuse material-use carriage service - Use carriage service to solicit child abuse material - Use carriage service to access child pornography - Use carriage service to transmit child abuse material

SENTENCING - Relevant factors on sentence – early guilty plea- Interpol Baseline Child Abuse Scale – assessment of objective circumstances- multiple offences - accumulation and concurrency – Covid - first offender - need for custodial sentence - subjective case - reliance on reports and untested assertions - aggregate sentence imposed

Legislation Cited:

Criminal Code Act 1995 (Cth)

The Crimes Act 1914 (Cth)

Cases Cited:

Burbridge v R [2016] NSWCCA 128

Hutchinson v R [2018] NSWCCA 152

Markarian v The Queen (2005) 228 CLR 357; [2005} HCA 25

Minehan v R [2010] NSWCCA 140

R v Booth [2009] NSWCCA 89

R v Chaplin [2012] NSWDC 301

R v Linardon [2014] NSWCCA 247

R v Porte [2015] NSWCCA 174

The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Texts Cited:

COVID-19 (coronavirus) Response, Corrective Services NSW;

Category:

Sentence

Parties:

Thomas Malcolm Anderson (the offender)
Commonwealth Director of Public Prosecutions

Representation:

Counsel:
Mr R Steward (for the offender)

Solicitors:
RMB Lawyers (for the offender)
Ms S Short (for Commonwealth Director of Public Prosecutions)

File Number(s):

2020/00276303

SENTENCE – EX TEMPORE REVISED

Introduction

1. When he was before the Local Court, Thomas Malcolm Anderson indicated that he would plead guilty to six offences charged pursuant to the Criminal Code Act 1995 (Cth):

1. Sequence 5, possess or control child abuse material obtained or accessed using a carriage service: s 474.22A.

2. Sequence 7, use a carriage service to solicit child abuse material: s 474.22.

3. Sequence 8, use carriage service to solicit pornography, child pornography: s 474.19.

4. Sequence 11, use carriage service to transmit child abuse material: s 474.22.

5. Sequence 12, use carriage service to transmit child abuse material: s 474.22.

6. Sequence 13, use carriage service to transmit child abuse material: s 474.19.

2. The offences charged reflect the time when the offences occurred and the relevant section at that relevant time. Each of the matters, whenever they occurred and whatever section applies, carry a maximum penalty of 15 years imprisonment.

Guilty plea

3. Anderson made admissions as to ownership of the various devices on arrest, so what was contained in those devices meant that a plea of guilty was, in a sense, inevitable. Nevertheless, his guilty pleas still had utilitarian value and the course of justice was assisted.

4. I intend to impose an aggregate sentence. I will reduce each indicated sentence by 25% to reflect that utilitarian value and assistance to the course of justice. I will take care that the process of accumulation does not erode those benefits.

5. Section 20(1)(b) Crimes Act 1914 (Cth) indicates that there is a presumption of imprisonment for matters such as this. Given the seriousness of the charges, particularly sequence 5, a custodial sentence was and is inevitable. This is recognised by Mr Steward who appears for the offender.

Agreed facts

6. There are agreed facts before the Court. The images were assessed on the Interpol Baseline Video Scale which carries two categories. Those categories are almost useless when it comes to discriminating between the nature of the images contained. Why we went from the six category Child Exploitation Tracking System (CETS) scale, to the two category Interpol Baseline Scale has never been satisfactorily explained to me; nevertheless, that is the system that applies. In this case I was spared having to view the images. I thank the police officers and the Commonwealth Director because to view the images even in a court can perpetuate the harm caused to children involved. The summaries allowed me to understand what was depicted. I will not set those details out in full the agreed facts.

7. Anderson was born in 1988; he was working at the time of his employment; he has never been arrested for any other offences. On 23 September 2020, a search warrant was executed at his home in Wollongong. Police seized laptops, storage devices and phones. Category 1 and category 2 images constituting child abuse material were detected on these devices.

8. Sequence 5 relates to his possession of such child abuse material. On his Samsung phone were close to 2,000 category 1 files and close to 1,000 category 2 files. All involved real people. Almost all involved real children. The agreed facts set out a table describing them.

9. He also had possession of a black My Passport hard drive. During the search warrant, he secreted that hard drive down his pants, but during the execution of the warrant, he admitted ownership of it. The hard drive contained over 2,000 category 1 files and 4,000 category 2 files; all involving real people and real children.

10. He also had a mobile phone which was seized; it contained 16 category 2 files, all involving real children.

11. There was also a laptop, it contained 22 category 1 files and 91 category 2 files, all involving real children. The 91 category 2 files involved pubescent males aged under 16 performing sexual acts to themselves or other males of a similar age. All involved webcam recordings in bedrooms and children's bedrooms.

12. In the supplementary summary provided to me, the police officer who viewed the material, at paragraph 18, provided a summary that, I accept, fairly describes a lot of the material as; highly graphic, highest level, real children, sexual acts, sexual acts being done to prepubescent children, children under age 12 performing sexual acts including acts of penetration. It appears young naturally hairless boys were preferred. There are also images which show the brutalisation, torture, tying up of young children. Some were obviously aware of what was happening, others were caught by webcam.

13. Sequence 7 and 8 involved the offender engaged in carriage service communications with like-minded individuals where he indicates his interest in obtaining the sort of material that was found by police and the subject of sequence 5.

14. Sequence 8 involves him effectively making a request for the production of such material.

15. Sequences 11, 12 and 13 all involve the offender transmitting child abuse material via a Messenger app and the facts set out the type of material. Sequence 11 two images, sequence 12 sixteen images, sequence 13 two images.

Objective seriousness

Child abuse material

16. Child pornography, child abuse production and dissemination of child abuse material is an international problem. It has attained prominence in the internet age. Appellate courts have stressed the need to give primacy in sentencing for such matters to general and specific deterrence and denunciation, because it is a form of offending that is difficult to detect: R v Porte [2015] NSWCCA 174 at [52].

17. General deterrence generally requires harsh penalties be imposed; penalties designed to signal what will happen if an offender is caught and hopefully deter people such as this offender. Sadly, harsher and harsher penalties have not dented the production and dissemination of such images. But another reason for the harsh penalties is that those inclined to exploit children by involving them in the production of child pornography or child abuse material are encouraged by the fact that there is a market for it. Those who make up the market cannot escape responsibility for the exploitation of real children.

18. There are a number of factors which bear upon any assessment of the objective seriousness of these matters. Both Mr Steward and Ms Short, solicitor for the Commonwealth Director, referred me to Minehan v R [2010] NSWCCA 140 at [94]; that decision had some additional elements added in the Commonwealth case of Hutchinson [2018] NSWCCA 152. Relevant here are:

1. That actual children were used in the creation of the material.

2. The nature and content of the material which was, as I have indicated, in many instances graphic; including children of all ages but in some case the very young, including babies. In the category 1 material, various forms of sexual intercourse were depicted. Some involved torture and other forms of cruelty and physical harm occasioned to the children and that may be discernible from the material itself.

3. There was a very large quantity of images and videos, involving a large number of children and a number of different children. Whilst as Mr Steward submits, that number is not unusual, it is still a significant number.

4. The images were held for the offender's prurient purposes; that is his sexual gratification.

5. There was here, in relation to the transmit offence, transmission to like-minded individuals encouraging others in their crimes.

6. The offender's motivation, the organisation of the material, his persistence over many years, must all be considered but as they apply to each offence care should be taken, when I come to synthesise all relevant factors, not to double count them.

19. I must be careful to distinguish the matters for sentence, one from the other. The solicit offences were part of a pattern of behaviour to obtain more child abuse material. In one case Anderson suggests what he wanted to be produced. In relation to each of the matters, there was some degree of planning and organisation.

20. Encrypted sites were used but frankly there was little sophistication employed by the offender in acquiring, storing, disseminating, and transmitting the material. He did not expect to get caught. He did not expect to be found out. While the offender primarily acted alone, he was, for sequence 5, part of a network of like-minded persons and that is also indicated in sequences 7, 8, 11, 12 and 13.

21. There was no risk, as I understand, of the material being seen or acquired by vulnerable persons and of course when I come to assess objective seriousness I have to have particular regard to provisions of s 16A of the Crimes Act.

22. These were not victimless crimes. Obviously, harm was done to real children in the production of this material.

23. The bottom line in matters such as this was succinctly summarised by Simpson J in R v Booth [2009] NSWCCA 89 at [40] – [44]:

"It is well to bear firmly in mind that material in question cannot come into existence without exploitation and abuse of children somewhere in the world."

24. What makes the crimes callous is not just this exploitation and abuse of children, but also because every time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse and the degradation it causes.

25. So far as sequence 5 is concerned, of particular importance is:

• the persistence in criminal conduct over many years revealed by his own admissions, a matter that is taken into account both in aggravation and mitigation of sentence,

• the quantity and depravity of the images,

• the use of encrypted systems.

26. For the other matters the transmission and soliciting to like-minded offenders perpetuates the very problem that I have been speaking about. But there is prosecution a concession that there are relatively small numbers of images which fall into category 2.

Maximum penalties

27. In each matter, there is a maximum penalty of 15 years imprisonment, fixed by Federal Parliament. Those maximum penalties are not mere formalities, they are one important guide or yardsticks to the exercise of a judge's discretion. I note that in the case of Markarian v The Queen (2005) 228 CLR 357; [2005} HCA 25 cited to me, the High Court quoted a respected text, which said,

"The change in maximum sentence by parliament will sometimes be helpful where it is sought that parliament regarded the previous penalties as inadequate."

Criminal record

28. Mr Anderson has no prior criminal history. Apart from this type of offending, he presented as a person of otherwise good character. Appellate courts have said time and time again that limited weight must be given to a prior good character in matters such as this: Porte.

COVID-19

29. When I come to synthesise an appropriate sentence, I cannot ignore the impact of the COVID pandemic. COVID has entered our gaols and in the past months I have had the sad experience of having to deal with people who have caught COVID in gaol. A person in custody cannot practice social distancing. A person entering custody will be subject to quarantine and considerable restraints. I have heard evidence of; regular lockdowns, lack of access to work programs and face to face visits. These measures, taken to reduce the chance of infection, produce considerable hardship to prisoners. They will continue for some time until the pandemic wanes: COVID-19 (coronavirus) Response, Corrective Services NSW; viewed 7/8/2021

30. While we all feel heightened anxiety and concerns about the pandemic, prisoners have no control over their lives or who they associate with, so such concerns must be exacerbated. That is particularly the case where, as Mr Anderson does, he suffers from underlying anxiety and depression and other mental health conditions. Again, these matters must be synthesised along with all relevant matters.

Subjective case

31. Mr Anderson did not give evidence, but his personal background is, on the whole, uncontroversial. The controversial aspects I will address shortly. An Aboriginal Australian. He was raised locally. He was and remains close to his mother. But his childhood was affected by his parents' separation; he has a strained relationship with his father. He reports being an isolated child with limited friends, but he says his childhood was “good.” He was able to matriculate but he did not finish university. He reports two long-term partners.

32. He has been on bail since his arrest on 23 September but, as a consequence of these crimes, he lost his long-term career. He had, until these matters took over his life, a long-term partner and they had planned to marry. He reports a history of alcohol and synthetic cannabis use. There is a history of depressive episodes and self‑harm going back a period.

33. He reports viewing child abuse material since he was very young. In recent years, he describes the escalation of his viewing of child abuse material to include the sort of disturbing and graphic images, including torture and bondage, which have been put before me. He reports - and although it is not supported by other evidence - that he has memories of sexual abuse as a very young child under ten.

34. He denies any actual sexual attraction to children but accepts that he used the images for sexual gratification.

35. I found Mr Jones’ report of considerable assistance. A history of suicidal ideation reported. Mr Jones indicates that Anderson tends to drift into psychological depression and anxiety and to deflect other anxieties such as, in this case, the fact that he will be going to gaol. Emails tendered. They indicate; how desperate he is to engage in treatment and his desire to understand more about why he offended. Anderson says he does not want to be in this place again; which indicates at least some realisation, if not insight, into his offending behaviour.

Evidence

36. Recently, the Court of Criminal Appeal New South Wales in Lai v R [2021] NSWCCA 217, reiterated and reinforced earlier statements by judges of the Court about untested evidence from an offender, relayed through psychological reports. The Court said that considerable caution should be exercised in reliance upon such exculpatory material; where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before them in court.

37. It is important to note that the Court of Criminal Appeal was not saying unsworn statements contained in reports were inadmissible. The comments were directed to matters that were in dispute.

38. In many cases, most cases, that come before this Court, reports are tendered, together with a letter from the offender; as they were today. In most cases the psychiatrist or psychologist will form a diagnosis from what is said to him or her. That is the very nature of professional expertise, that they intend and have deployed. Part of the professional skill of a psychologist is in the assessment of the history given, and how it accords with the hypothesised and formed views of the professional.

39. Here, is it clear that Mr Jones was alert to the possibility that Anderson was attempting to, whether consciously or unconsciously, manipulate him so far as his recorded admissions and statements of remorse and regret are concerned; see paragraphs 7 and 8. It is clear from the history taken and Mr Jones' analysis of it that this was not a report that simply parroted what was being said. I ask the question, "Can I, on balance, accept that the history given of child abuse was correct?" Here, there is need for care but as Dr Jones says, what occurred in his offending and the intensity of his offending, and the nature of offending indicates a paedophilic disorder and the nature of it is reflective of the history given of abuse and engagement in sexual matters while still a child and still unable to form rational choices.

40. While the letters and emails attached to the report can be given little weight, they do indicate that Anderson has engaged in a process of self-analysis and has some perspective about his offending, as Ms Short properly submits. There is nothing in the documents that indicates genuine remorse for the impact of his crimes on the children who were used in production of the child abuse material, but at least shows some developing understanding of his crimes. They enable me to have some understanding of how he is to progress if given appropriate opportunities to rehabilitate himself.

41. There is a reasonably positive Sentence Assessment Report to which is attached a Community Corrections psychologist annexure. That report indicates that it is highly unlikely that while in custody, Anderson will be offered programs designed to affect his rehabilitation. I trust that he will be assessed as promised. And, that Justice Health will provide him, with some assistance for his anxiety and depression. But given the pandemic, that is likely to be solely medication, hardly a treatment regime.

42. Mr Jones detailed a personal history and a sexual history going back to when Anderson was very young. He notes a traumatic sexual abuse when he was 23 and that other reports indicate this led to, what they diagnose as Post‑Traumatic Stress Disorder. The history given is complex so far as the guilt that he says he feels. It causes me to wonder whether he is making up excuses. He says he was relieved he was caught. I suspect he was because he was caught in cycle of behaviour of viewing the material for his sexual gratification and then feeling guilt about what he was doing. As Mr Jones says Anderson’s self-analysis and self-opinion makes him magnify the level of his experience of other illnesses and may account for diagnoses such as schizophrenic disorder, bipolar type schizoaffective disorder offered by a psychiatrist.

43. Mr Jones appears a little sceptical about those apparent diagnoses; saying it would require further investigation. At one stage Anderson proffered an excuse that he was really “hunting out paedophiles.” Jones at [55]. I will ignore that particular statement. It is clear from all the material before me that Anderson was engaging in this crime for his own prurient interests. I am prepared to accept that he now regrets what he has done. I am prepared to accept that it is possible he will learn to understand his own behaviour and when, he understands his own behaviour, be able to express appropriate remorse for the harm he has perpetuated against his victims.

36. There is some suggestion of a connection between that reported history and his offending behaviour, a matter I can take into account. It is well recognised that trauma and behaviour learnt in childhood is very hard to resolve and can have a lasting and continuing impact on a person, moderating to a degree their moral culpability for later crimes. But it certainly does not and cannot excuse it.

37. Dr Jones says Anderson has a paedophilic disorder and an alcohol use disorder. He puts forward a plan involving Cognitive Behaviour Therapy and psychiatric monitoring, coupled with offence specific programs. They are certainly available in the community. I note to Anderson’s credit that since his arrest he has engaged with; Mr Brabant, a psychologist, the Illawarra Drug & Alcohol Service and Wayback. He has also seen two psychiatrists for different forms of treatment.

Submissions

46. I have had the benefit of written and oral submissions from Ms Short, solicitor for the Commonwealth Director, and Mr Steward for Anderson. I hope this judgment does justice to them; I have not explicitly referred to all of the material raised but I have sought to consider and address their submissions in coming to my determinations. Some of the matters have been discussed this morning with counsel.

47. Ms Short stressed the quantity and depravity of the matters the subject of sequence 6. She drew my attention to the lack of direct evidence about Anderson’s subjective case. She stressed the need for a degree of judicial scepticism when I came to assess statements of regret. She noted the absence of statements of remorse. I accept it would be hard to accept them in letter form.

48. She stressed three aspects of the sentencing process. First, the need to give appropriate recognition to the offender's underlying mental health history including his anxiety and depression, and the possibility that he was, even unwittingly, exaggerating his symptoms. Secondly, she noted that some aspects of his condition, particularly the paedophilic disorder, and the length of time over which he admitted he was offending, meant that Anderson posed a danger of reoffending on release. Thirdly, she put particular emphasis on the need for specific deterrence.

49. In discussions with her, I indicated that simply gaoling someone may not have that effect. But in this case, a nuanced approach would mean that the risk of returning to gaol should and hopefully will operate to make sure Mr Anderson engages in the treatment programs that he desperately needs to keep the risk of reoffending down.

50. Mr Steward noted that the only real way that the community can be protected is for Anderson to be given as much assistance as possible and for his rehabilitation to be fostered by that treatment and that really could only occur once he is released from custody. There was pragmatic agreement so far as many other matters are concerned.

51. Ms Short took me to other cases. Some comparable cases have head sentences vary significantly. Some of them were summarised in material before me: R v Linardon [2014] NSWCCA 247, R v Porte [2015] NSWCCA 174; Burbridge vR [2016] NSWCCA 128 at [42].

52. I have had regard to the material that was provided to me by both parties and the authorities to which I have been referred. The consistent application of principle needs always be considered and the guidance offered by appellate courts and other decisions is welcome. Past sentences serve as guides but every case and every individual is different. Ultimately:

"…sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases." The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550, quoting from Bell and Gageler JJ

Synthesis

53. Synthesising all of these matters. I have considered s 17A Crimes Ac 1914. Only a custodial sentence could be imposed. I have been assisted by the helpful guide to the application of s 16A in the annexure to the Commonwealth Director’s written submissions.

54. I must impose sentences of the severity appropriate to all the circumstances of the offender in applying the principle of totality when I come to aggregate the sentence. General deterrence is a significant factor for the reasons I have outlined. It is clear for the reasons I have outlined that the offender has to learn from his punishment. He must learn and ensure, that if ever tempted to offend again - he said he has been tempted many, many times in his life - he stops, pauses and seeks the treatment or has recourse to things learnt from the treatment he has had.

55. The circumstances that he was, on balance, himself a victim must be taken into account in mitigation of penalty. As I have indicated, it is not suggested that his mental health, apart from that history, contributed to the commission of offence but given the psychiatric material before me, he will suffer because of his mental underlying conditions he will suffer more from his imprisonment than the notional prisoner without those conditions. I do not under estimate how harsh prison conditions are in New South Wales, conditions that have worsened due to the pandemic precautions being taken..

56. Some of this mental conditions appear to be reactive to the predicament he now finds himself in. This cause does not mean that they do not exist. Anderson acknowledges that he has a problem, he has acknowledged that he wants to explore it. More importantly, he knows that if he is to avoid going back into gaol, he has to do something about those conditions. He must remain motivated to seek the treatment.

57. There are distinct offences, but they are all related one to the other. There needs to be some accumulation as between them but there are many elements and features in common. The solicit and transmit offences relate to his activities with others which enabled him to accumulate the number of images and the videos the subject of sequence 5.

58. There is a need for the overall sentence to reflect his total criminality. There is a need the aggregate sentence, not erode the benefits of the pleas.

59. As there is one single sentence, there will be one single non-parole period. I also, in fixing the term that must be spent in custody, must consider also his need for rehabilitation and the fact that he may not and probably will not qualify for programs in custody.

60. Anderson will, on release, need to engage in and be referred to sex offender programs in the community. It appears he would benefit most from one-on-one programs. The community and Anderson will benefit from such psychological intervention on release. I have taken those matters into account when I fix the minimum term he must spend in custody.

61. In conclusion. I must consider deterrence. I must consider retribution and the community expectation that in matters such as this, severe punishment will be imposed as reflected in the maximum penalties available. I must recognise that every single child depicted in the images and videos was the victim of abuse, some cases here, gross abuse. Every act of viewing, transmitting and solicitation was another act of violation. The sentence must express the community's disapproval of that offending, but also indicate the reduction of 25%.

62. As Anderson is appearing via video link from his Solicitor’s office, I will impose a sentence at 10 past 12 today. Mr Anderson's bail is varied to require him to present to Wollongong Courthouse at 12 o'clock. He will then have to go through security and come into Court 4. I will then assemble the Court and have Corrections ready. I will then pronounce sentence. There will be a term of imprisonment, there will be a parole period as the sentence will exceed three years. I will adjourn until 10 past 12 and then I will pronounce the formal sentence of the Court.

Orders

63. In accordance with the reasons that I indicated prior to the break to enable Mr Anderson to attend the Court, I will set out the indicative sentences for each matter. I take into account the plea on each. I have sought to ensure that that benefit is not eroded. I have formulated, as required the individual sentence for each offence, taking care not to double count matters which apply to them all, particularly when I come to fixing a total sentence.

Indicative sentences

64. For sequence 5, the possession of child abuse material, I indicate a sentence of three years imprisonment.

65. Sequence 7, 007 Use carriage service to solicit child abuse material, I indicate a sentence of one year one month.

66. Sequence 8, Use carriage service to access child pornography, I indicate a sentence of one year three months.

67. Sequence 11, Use carriage service to transmit, I indicate a sentence of one year one month.

68. Sequence 12, Use carriage service to transmit, I indicate a sentence of one year one month.

69. Sequence 13, Use carriage service to transmit, I indicate a sentence of one year one month.

Aggregate sentence

70. You are convicted and sentenced to a term of imprisonment of three years and nine months. Your sentence is to commence today. I fix a non‑parole period of two years to expire on 8 November 2023 on which date subject to s 19AL of the Crimes Act (Cth) you are to be released to parole.

Forfeiture order

71. Pursuant to s 23(D) and the order which has been forwarded to the Court, the four devices, the two Samsung phones, the black hard drive and the one Acer laptop are forfeited to the Commonwealth

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Amendments

05 August 2022 - Correction of judgment date

Decision last updated: 05 August 2022