R v Armstrong
[2020] ACTSC 298
•1 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Armstrong |
| Citation: | [2020] ACTSC 298 |
| Hearing Dates: | 1 July 2020; 26 October 2020 |
| Decision Date: | 6 November 2020 |
| Before: | Robinson AJ |
| Decision: | See [29] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to access child pornography material – pleas |
| of guilty | |
| Legislation Cited: | Criminal Code 1995 (Cth) Pt 1B, ss 23ZD, 473.1, 474.19, 474.22A, 474.22 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) s 11 |
| Cases Cited: | Nguyen v The Queen [2016] HCA 17; 256 CLR 656 R v De Leeuw [2015] NSWCCA 183 Markarian v R [2005] HCA 25; 228 CLR 357 |
| Parties: | The Queen (Crown) Lee Armstrong (Offender) |
| Representation: | Counsel |
| H Snobar (1 July 2020) & L Sutton (26 October 2020) (Crown) S McLaughlin (Offender) | |
| Solicitors | |
| Commonwealth Director of Public Prosecutions (Crown) | |
| Legal Aid ACT (Offender) | |
| File Number: | SCC 85 of 2020 |
| ROBINSON AJ: |
1. Lee Armstrong (the offender) pleaded guilty on 1 July 2020 to three counts which can be summarised as follows:
(a) On about 28 November 2019, the offender intentionally possessed or controlled 66 videos containing Child Abuse Material on a Lenovo branded laptop computer. The offender had previously accessed those videos using a peer to peer file sharing program called “eMule.”
(b) Between 3 August and about 6 September 2019, using “eMule”, the offender intentionally accessed 29 videos containing Child Pornography Material.
(c) Between about 7 October 2019 and about 26 November 2019, using “eMule”, the offender intentionally accessed 37 videos containing Child Abuse Material.
2. The offender was charged and brought before a Magistrate on 28 November 2019, in respect of these offences. Some negotiation occurred in the Magistrates Court and the offender indicated his intention to plead guilty to these offences on 9 April 2020. Pleas of guilty were taken before me on 1 July 2020.
3. The maximum penalties for these offences are set out below and can be noted in accordance with Markarian v R [2005] HCA 25; 228 CLR 357 at [30]-[31]. In addition, it
needs to be noted that on 21 September 2019, s474.19 and the definition of “child
pornography material” under s473.1 of the Criminal Code 1995 (Cth) were repealed. The
definition of “child abuse material” under s473.1 was subsequently amended to include
the old definition of “child pornography material”. In practical terms, counts two and three,
taken together, address accessing the same child abuse material from 3 August 2018
until 26 November 2019.4. The offender is to be sentenced under Part 1B of the Crimes Act 1914 (Cth).
Count Offence Description Maximum Penalty 1 1 count – s 474.22A of On or about 28 November 2019 15 years the Criminal Code 1995 possessed or controlled child (Cth) abuse material (66 videos) 2 1 count – s 474.19(1) of Between about 3 August 2018 and 15 years the Criminal Code 1995 6 September 2019 accessed child (Cth) (repealed) pornography material (29 videos) 3 1 count – s 474.22(1) of Between about 7 October 2019 15 years the Criminal Code 1995 and 26 November 2019 accessed (Cth) child abuse material (37 videos) 5. The hearing of this matter commenced on 1 July 2020 and was adjourned to allow the
Crown to conduct a further analysis of the offender’s computer and for the preparation
of further reports to be submitted on behalf of the offender.
Investigation
6. In November 2019, using law enforcement tools the Australian Capital Territory Joint Anti-Child Exploitation Team detected files of child abuse material being accessed on various peer to peer computer software programs. That Team was able to identify the offender as an internet subscriber to that access. On 28 November 2019, a warrant was
executed at the offender’s residential address. The offender was not present at this time
but returned to the premises after police had contacted him. A search of the premises identified a number of electronic and storage devices, one of which was a Lenovo laptop.
7. On this Lenovo laptop, investigations were conducted into 66 identified files, 20 of which were located in the C drive. 46 of these files were located in the Recycle Bin. Prior to being placed in the Recycle Bin these files had been located on the C drive of the computer. I find as a fact that it is more probable than not that the files located in the Recycle Bin had been put there after the offender had viewed them and had discarded them when they did not meet or had ceased to meet, his tastes and not as any forensic countermeasure.
8. The Crown submitted that the content of the videos is grossly pornographic and degrading in that it is graphic, violent and reflects a high level of depravity. The videos range in duration from 38 seconds to 1 hour and 42 minutes. Under the system of categorisation from the Australian National Victim Image Library there are 5 categories. The Crown drew attention to the fact that approximately half of the videos were category 4, meaning that they depicted penetrative sexual activity between children alone or children and adults. Further, one category 5 video depicted a child chained to a wall with shackles being whipped on the genitalia by an adult male.
9. The categorisation of the videos is as follows:
Cat 1 Cat 2 Cat 3 Cat 4 Cat 5 Total 22 11 1 31 1 66
The Crown’s estimate is that there are 75 victims depicted in the material. One video
depicts a child aged five years old with an adult masturbating the child. The duration over which the offender accessed the material was approximately 15 months. It must be added though, that by some measures, when compared with other offenders the quantum of 66 files is not a large number of files.
Applicable Law
11. There are numerous cases dealing with the assessment of the objective seriousness of child abuse material and the applicable sentencing principles to these offences. It is not necessary to make an analysis of them for the purposes of this case. The New South Wales Court of Criminal Appeal’s decision in R v De Leeuw [2015] NSWCCA 183 at [70]
and [72] covers the ground more than adequately for present purposes:
70 This Court has recently made general observations concerning the sentencing of offenders for Commonwealth and New South Wales child pornography offences: R v Porte [2015] NSWCCA 174 at [51]-[81]. Topics covered in that judgment included:
(a)
the different vices addressed in the Commonwealth access offence under s.474.19 Criminal Code (Cth) and State possession offences, such as s.91H(2) Crimes Act 1900 (NSW): R v Porte at [55]-[56], [157];
(b)
the increased maximum penalties for these offences enacted by the Commonwealth Parliament (in 2010) and the New South Wales Parliament (in 2008): R v Porte at [57]-[58];
(c)
general sentencing principles concerning child pornography offences which have emerged from decisions of intermediate appellate courts throughout Australia, where emphasis has been placed upon the paramount importance of general deterrence and denunciation, and the limited weight to be given to prior good character, together with the need to consider the objective gravity of the particular offences and to keep in mind that these are not victimless crimes: R v Porte at [59]-[72];
(d)
the fact that prior good character and positive personal antecedents, and a reduced or absent need for personal deterrence, are relatively commonplace amongst offenders in possession of child pornography and that significant weight is to be given to general deterrence and correspondingly less weight to matters personal to the offender: R v Porte at [126];
(e)
the fact that a common feature on sentence for this class of offence is the tender of material concerning steps taken with respect to counselling and treatment in aid of rehabilitation - whilst this aspect is important, undue focus should not be placed upon it at the expense of other legitimate and important sentencing considerations including denunciation and general deterrence: R v Porte at [71]-[72];
(f)
the use to be made, in an assessment of objective gravity, of the CETS scale, relevant statutory definitions and an examination by a sentencing court of sample images: R v Porte at [73]-[81], ]113]-[122];
(g)
the importance of attention being given to issues of accumulation, concurrency and totality when sentencing for Commonwealth and State child pornography offences: R v Porte at [96], [98]-[100], [157];
(h)
the importance of ensuring reasonable proportionality between the objective circumstances of the offences and the sentences actually imposed, with the
offender’s subjective circumstances not being allowed to overshadow the
objective gravity of the crimes: R v Porte at [128];
(i) the need for care in avoiding the inappropriate use of an ICO for serious child pornography offences where the appropriate form of punishment should involve immediate incarceration: R v Porte at [129]-[130].
…
72 Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences:
(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010]
VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]-[24]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29].
(b)
The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i)
the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed; (iii) whether the material is for the purpose of sale or further distribution; (iv) whether the offender will profit from the offence; (v)
in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi)
the length of time for which the pornographic material was possessed: R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29
at 49 [99]; DPP (Cth) v D’Alessandro at 483-484 [21]; DPP (Cth) v Guest
at [25].
(c)
General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R
237 at 246-247 [35]-[36]; DPP (Cth) v D’Alessandro at 483-484 [21]; Edwards
v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34].
(d) Less or limited weight is given to an offender’s prior good character: R v Gent at 44 [65]; DPP (Cth) v D’Alessandro at 483-484 [21]; Mouscas v R [2008]
NSWCCA 181 at [37].
(e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246-247 [35]-[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: Mouscas v R at [31]; R v Booth at [29]. (g) The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40]. (h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D’Alessandro at 484 [23].
(i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending: R v Coffey at 552 [30].
Offender’s Subjective Case
12. Tendered before me at the hearing was a Sentencing Assessment Report from NSW Justice dated 29 June 2020, an Intensive Correction Order suitability assessment by ACT Corrective Services dated 15 October 2020 and a Psychological Assessment Report by Dr Clout, a clinical psychologist, dated 15 September 2020. None of these persons gave evidence before me and the offender also did not give evidence before me.
13. From the information available to me, the offender is now a 43-year-old man who had an uneventful upbringing although he did develop severe and chronic eczema from an early age. After leaving school he had various labouring jobs and eventually completed a horticultural course in about 1994. Thereafter, he held various positions in gardening maintenance and landscaping until 2001. He found that gardening work aggravated his skin condition and he retrained himself in IT. He obtained employment in the IT sector and eventually obtained a job at the NDIS in Canberra using his skills in IT. He lost this employment owing to this offending.
14. The offender has no previous criminal record.
15. The offender has not built strong relationships with others. He acknowledged to Dr Clout
that he finds both emotional and sexual intimacy with females can be “a problem” as he
gets a “sense of anxiety”.
16. The history that the offender gave to Dr Clout in relation to pornography is recorded as follows:
14 Mr Armstrong outlined a long history of adult pornography use from his early adulthood and said he looked at it daily before the charges. He estimated that he could watch or look at pornographic material for up to 90-minutes per day, sometimes exceeding this. He stated that he started looking at child abuse material in late 2017, and he developed
an “interest” in teenage girls. He reported that he typically looked at it for “about a third”
of the time he would look at adult material. He said at times he could go “weeks” without
looking at it, although would continue to look at adult pornography. He acknowledged that looking at child abuse material was wrong, although his insight into his adult pornography consumption being excessive was limited. He stated that since the
charges he has been able to reduce his adult pornography use to “two to three times
per week”. He said this still is not “sitting comfortably” with him, but he has not had a
problem not accessing child content. He identified that he does want to work on being
able to get into a “positive” relationship, as he knows his current situation “isn’t healthy”.
17. It seems clear, as he acknowledged to Dr Clout, that the offender has developed a sexual
interest in “early to mid-teen girls”, although he “doesn’t know why”.
18. Dr Clout regarded the history of symptoms and behaviours given to her by the offender as being consistent with a DSM-5 diagnosis of Social Anxiety Disorder with the onset in
the offender’s adolescence. As would be apparent, the offender will find particular
difficulty in dealing with his disorder in a custodial setting. It is also apparent that the offender will require regular and consistent psychological treatment to address his social anxiety disorder and the offending.
19. In this regard a letter from Helen Gibson, psychologist, was tendered indicating that the offender had attended her practice for psychological interventions on eight occasions between 20 July 2020 and 15 October 2020. Albeit belated, that is a promising first step towards the offender helping himself.
20. The offender does not appear to have a problem with alcohol or drug addiction.
21. I am not confident in making any detailed assessment of the offender’s actual remorse
or contrition for the offending. Although the law of evidence does not automatically apply on a sentencing hearing, it is still necessary to have a degree of persuasion from the material to reach conclusions. The reported comments and assessments of the authors of the NSW Justice report and the authors of the ACT Corrective Services report do not reveal a person with a true insight into the effect of the offending on others and consequent contrition or remorse. Rather, the approach of the offender appears to minimise the extent of his actions as playing a harmful part in the lives of other persons.
Plea of Guilty
22. In this case the Crown accepts that the plea of guilty should be taken to have been entered at the earliest reasonable opportunity. It accepts that the plea is indicative of a willingness to facilitate the course of justice. It, however, contends that the weight of the plea should be reduced by the fact that the prosecution case was very strong. I am unable to conclude that sincere contrition or remorse has been demonstrated. I shall allow a 20% discount.
Totality
23. I have had regard to the totality of the criminality encompassed in the three offences and arrived at an effective sentence to take account of the overlapping nature of the offending. Of course, there would be other ways to structure the sentences (Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [62]-[64]).
Consideration
24. The offender is, of course, not being sentenced for any offending occurring outside the ambit of the three counts before the Court, such as events in 2017. Likewise, the offender is not being sentenced for any distribution of the videos.
25. I am satisfied that, having considered all other available sentences, that no other sentence is appropriate in all the circumstances of the case than a sentence of imprisonment.
26. The offender was assessed as suitable for an Intensive Correction Order under s11 of the Crimes (Sentencing) Act 2005 (ACT). I have considered my discretion in relation to the serving of a sentence of imprisonment otherwise than being full-time detention at a correction centre.
27. I am not satisfied here that an order under that section can, in the circumstances, adequately fulfil the important purpose of having the deterrent effect on other persons.
28. I do have regard to the objective of rehabilitation in fixing the period of imprisonment and a period of supervision.
| Order | |
| 29. | I make the following orders: |
(a) For the offence committed on about 28 November 2019 of intentionally possessing or controlling 66 videos containing Child Abuse Material on a Lenovo branded laptop computer, the offender is sentenced to 13 months’
imprisonment reduced from 16 months on account of the plea of guilty.
(b) This sentence shall commence on 6 November 2020 and end on 5 December 2021. (c) For the offence that between 3 August and about 6 September 2019, the offender intentionally accessed 29 videos containing Child Pornography Material, the offender is sentenced to 6 months’ imprisonment reduced from
8 months on account of the guilty plea.
(d) For the offence that between about 7 October 2019 and about 26 November 2019, the offender intentionally accessed 37 videos containing Child Abuse
Material, the offender is sentenced to 6 months’ imprisonment reduced from
8 months on account of the guilty plea.
(e)
Each of these last two sentences shall commence on 6 November 2021 and be served concurrently.
(f)
The aggregate sentence shall commence on 6 November 2020 and finish on 5 May 2022.
(g)
The period of imprisonment is to be suspended after 6 months on the condition that the offender enter into a Recognizance Release Order in the sum of $1,000 for a period of 12 months with the additional condition that:
(i)
He be of good behaviour for a period of 12 months and accept the supervision of the Director-General.
(h)
Pursuant to s23ZD of the Crimes Act 1914 (Cth), a Lenovo Laptop Computer serial number PF0G7MSL is forfeited to the Commonwealth.
I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Robinson.
Associate:
Date: 6 November 2020
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