R v Arnould

[2020] ACTSC 345

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Arnould

Citation:

[2020] ACTSC 345

Hearing Date:

17 December 2020

DecisionDate:

17 December 2020

Before:

Elkaim J

Decision:

See [28]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess or control child abuse material – using carriage service for child abuse material

Legislation Cited:

Criminal Code 1995 (Cth) s 474.22

Crimes Act 1914 (Cth) s 23ZD

Cases Cited:

R v Davison [2020] ACTSC 272
R v Logue [2020] ACTSC 115
R v Mitchener [2019] ACTSC 351

Parties:

The Queen (Crown)

Troy Arnould (Offender)

Representation:

Counsel

E Hobba (Crown)

B Shelton (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Sharman & Robertson (Offender)

File Number:

SCC 207 of 2020

ELKAIM J:

1. On 10 June 2020 the offender pleaded guilty in the Magistrates Court to the following offences:

(a)Possessing or controlling child abuse material (CC4562/2020) contrary to s 474.22A of the Criminal Code 1995 (Cth). The maximum penalty for this offence is 15 years’ imprisonment.

(b)Using a carriage service for child abuse material (CC4563/2020) contrary to s 474.22 of the Criminal Code. The maximum penalty for this offence is 15 years’ imprisonment.

1. On 17 September 2020, the matter was committed to the ACT Supreme Court for Sentence.

1. There is an agreed Statement of Facts in the Crown Tender Bundle (Exhibit A). The summary says that between 11 March and 10 April 2020 the offender accessed child abuse material through a filesharing application. He downloaded 370 images and videos containing this material. He deleted the files after viewing them.

1. A search warrant executed on 21 April 2020 at the offender’s home exposed child abuse material made up of thumbnail images in a computer’s cache. A cache is a “special storage space for temporary files that makes a device, browser, or app run faster and more efficiently.” (Business insider website)

1. The thumbnails were in a selection of the categories in the Australian National Victim Image Library (ANVIL) Scale, the majority being in Categories 1 and 4.

1. The offender told the police that he viewed the material for sexual gratification and that he masturbated while watching it. He looked at the material about once a week and then deleted it as he was aware that it should not be on his computer.

1. In R v Davison [2020] ACTSC 272, at [7], I set out the criteria for assessing objective seriousness of these kinds of offences:

The objective seriousness of the offending can be measured against a number of criteria. As set out by the Crown in its written submissions, these include:

(a)   The nature and content of the material, including the age of the children and the type of activity displayed.

(b)   The number of images.

(c)   Whether the material is for the purpose of sale or distribution.

(d)   Whether the offender will profit from the offence.

(e)   The number of different children depicted.

(f)    The length of time for which the material was possessed.

1. In this case there was no distribution or profit made from the material. However a good deal of it is in Category 4 and the children are very young. One can only imagine the possible physical and certain mental harm suffered by these children.

1. I viewed a sample of the images. When linked with their use for sexual gratification even the most benign (which is not the appropriate word) of the images display unmitigated depravity. As the images went up through the different categories this impression increased. There was even an image involving an animal.

1. The fact that most of the images are in Category 1 obviously makes the offending less serious than if all of the images were in a higher category. This is because of the increasingly degrading activity that the children are subject to as the categories increase.

1. But even if all of the images were in Category 1, the offending would remain serious. If it is necessary for there to be a classification of objective seriousness I would place these offences as about a medium objective seriousness.

1. The offender was born in 1970. He is one of two children. His mother has died but he maintains a close relationship with his father and brother.

1. The offender was sexually abused by a family member when he was a child. Dr Boer, a clinical psychologist, has been treating the offender. He says that persons who were sexually abused as children have a “vulnerability for sexual offending created by being sexually victimised” themselves as children. While I do not doubt the opinion of Dr Boer, because I have seen it expressed in a number of other cases, it never ceases to amaze me that persons who were subject to abuse later become abusers. I would have thought that a person like this offender, having been abused as a child, would not want to see other children abused.

1. The offender has been married for 27 years and there are two children of the marriage. He has disclosed his offending to his family and while they condemn his conduct they remain supportive.

1. After leaving school the offender became a registered nurse and worked in an intensive care unit for about six years. He then undertook a Master of Business Administration degree and gained employment as an IT manager. When he told his most recent employer of the offences he was asked to resign which he did. He is looking for other work. He will no doubt find it very difficult.

1. The offender’s wife is a general practitioner. The offender does not have a criminal record. He does not have a drug or alcohol problem. He had a good social network which appears to be supporting him.

1. The offender told the authors of the Pre-Sentence Report that before his arrest he had been depressed. This may have been related to him disclosing his own abuse to his family shortly before.

1. He also told the authors that when reviewing the material “he wasn’t interested in the bodies/genitals of the children, he was more interested in looking at their faces and eyes”. That statement is entirely inconsistent with him telling the police that he viewed the material for sexual gratification. His statement that he had no desire to go beyond viewing images may on the one hand be seen as a factor in his favour, but I do not regard it as such. As I said in R v Logue [2020] ACTSC 115, at [16]:

Viewing videos of the type that were in his possession may at one level seem like a harmless voyeuristic enterprise. But that could not be further from the truth. Every child in every video was exploited. Not one of those children was capable of expressing proper consent to what was occurring to them. Every one of them will be damaged, sometimes physically, and always mentally, probably for the rest of their lives.

1. The offender has been attending the psychologist on a weekly basis. He has completed a sex offender program and is taking medication for depression. The medication is of assistance.

1. The pre-sentence report says there is a low risk of reoffending. The report says:

To his credit however, Mr Arnould has accepted responsibility for his offending and has reflected on the impact that this has had on victims, and more broadly on his family and friends. His honesty and openness and acknowledging his offending behaviour to prospective employers, family and friends, further supports this. Since being charged with the offences, he has been proactive in taking steps to address the areas he has identified as antecedents to him accessing child abuse material. He has access to mental health support, has commenced medication for depression and has sought the services of an appropriately trained psychologist to address not only his offending, but the trauma he experienced as a child. Mr Arnould appears very motivated to address his offending behaviour, seek an understanding of why he has offended and identify ‘those feelings’ that may lead to a desire to access this material again.

1. I provided learned counsel for the offender with my decisions in Logue,R v Davison [2020] ACTSC 272 and R v Mitchener [2019] ACTSC 351. I did this because in each of these cases the offender was ordered to spend an initial period in custody before being released on a Good Behaviour Order. Counsel had told me that his ultimate submission would be that a sentence of imprisonment should be served in the community by way of an Intensive Corrections Order. I thought it important to bring the above decisions to his attention so that he could tell me why similar orders should not be made in this case.

1. Every case obviously has its own individual facts. These might be in the number of images viewed, the time over which they were viewed and various subjective factors pertaining to each offender.

1. In this case there is cogent evidence that the offender has recognised his misdeeds and taken positive steps, by seeking and continuing with treatment, to address his offending. But is that enough to keep him out of prison? I do not think so. The images and their use for the sexual gratification of the offender are such an overwhelming influence on the sentencing process that I am not prepared to divert from the course I have taken in the other cases.

1. Each of those cases had their individual facts which might have been regarded as points of distinction. But all of these cases have the same level of depravity and abuse of children at their core. It is not enough to say that the offender did not himself physically abuse any child. Each of those children was abused, and as the images through the categories increased, that abuse, physically, became more and more emphasised. Whatever the category the mental abuse I am sure is significant.

1. The offender has no criminal record and he entered early pleas of guilty. The absence of a record is normally a mitigating factor, however in cases of this sort the degree of mitigation is reduced. The same may be said in relation to a plea of guilty. However there is clearly a utilitarian value in the plea and I will apply a discount of 25%.

1. There are two offences, but the offending is essentially the same. Accordingly I intend to make the sentences for each offence concurrent with each other.

1. The offender has not spent any time in custody for these offences.

1. I make the following orders:

(a)For possessing or controlling child abuse material (CC4562/2020), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months) to commence today and end on 16 September 2021.

(b)For using a carriage service for child abuse material (CC4563/2020), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months) to commence today and end on 16 September 2021.

(c)The period of imprisonment is to be suspended after 3 months (on 16 March 2021) on the condition that the offender enter into a Recognizance Release Order in the sum of $1,000 on the condition that he will be of good behaviour for a period of 12 months.

(d)Pursuant to section 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Director of Public Prosecutions the following items are forfeited to the Commonwealth:

(i)1 x Lenovo ThinkPad X220 laptop computer (Serial number: R9-HSN4F).

I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 17 December 2020