R v Ashman
[2010] ACTSC 45
•21 MAY 2010
HUMAN RIGHTS ACT
R v BRUCE RONALD ASHMAN
[2010] ACTSC 45 (21 MAY 2010)CRIMINAL LAW – Child pornography offences – using a carriage service to access child pornography – section 474.19, Criminal Code 2002 (Cth).
CRIMINAL LAW – Child pornography offences – possession of child pornography – section 65, Crimes Act 1900 (ACT).
CRIMINAL LAW – Sentencing - Factors that can be taken into account when sentencing- impact of sentencing on accused family.
CRIMINAL LAW – Sentencing – Material provided through reports – offender not giving evidence – approach to be taken.
CRIMINAL LAW – Sentencing – Pre-Sentence Reports – weight to be given to them – prosecution duties.Criminal Code 2002, s 474.19
Crimes Act 1900 (ACT), s 65
Legislation Act 2001 (ACT), s 133
Crimes (Sentencing) Act 2005 (ACT), Pt 4.2
Crimes (Sentencing) Act 2005 (ACT), s 33(1)(o)
Crimes Act 1900 (ACT), s 342(1)(j)
Proceeds of Crime Act 2002 (Cth), ss 48(2), 316, 69(2), 56
Crimes Act 1914 (Cth), s 16A(2)(p)R v Oliver [2003] 1 Cr App R 28
R v Fowler [2007] ACTCA 4
Mouscas v The Queen [2008] NSWCCA 18
R v Niketic [2002] NSWCCA 425
R v Palu [2002] NSWCCA 381
Carpentieri (2001) 126 A Crim R 359
Markovic v The Queen [2010] VSCA 105
Edwards (1996) 90 A Crim R 510
Wirth (1976) 14 SASR 291
Craft v Diebert [2004] ACTCA 15
R v McLaughlin (ACTSC) Refshauge J, SCC 222 of 2008, 7 August 2009, unreported
EX TEMPORE JUDGMENT
No. SCC 38 of 2010
Judge: Refshauge J
Supreme Court of the ACTDate: 21 May2010
IN THE SUPREME COURT OF THE )
) No SCC 38 of 2010
AUSTRALIAN CAPITAL TERRITORY )R
v
BRUCE RONALD ASHMAN
ORDER
Judge: Refshauge J
Date: 7 May 2010Place: Canberra
THE COURT ORDERS THAT:
1.Mr Ashman is convicted of the offence of using a carriage service to possess child pornography material.
2.On that charge Mr Ashman is sentenced to 18 months’ imprisonment.
3.It is ordered that he be released forthwith upon giving security in the sum of $2,000 without sureties by recognizance that:
(a)you be in good behaviour for 3 years,
(b)you accept supervision of a probation officer delegated by the Chief Executive of the Department of Justice and Community Safety and obey all reasonable directions of that probation officer.
4. Mr Ashman is convicted of the offence of possessing child pornography.
5.On that charge Mr Ashman is sentenced to 9 months’ imprisonment to commence today.
6.The whole of that sentence is suspended forthwith and Mr Ashman is required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 3 years. As a condition of that good behaviour order I direct that Mr Ashman:
(a)direct that you perform 300 hours of community service work within 24 months from today;
(b)I direct that you be on probation subject to the supervision of a probation officer delegated by the Chief Executive for a period of 3 years and that you obey all reasonable directions of the person delegated to supervise you.
7.Pursuant to s 48(2) and s 316 of the Proceeds of Crime Act 2002 (Cth), in respect of Mr Ashman’s conviction of the offence of using a carriage service to access child pornography material, the property specified in schedule 2, namely the black coloured Medion computer tower, the silver coloured Gigabyte Seagate external hard drive and the seven DVDs, be forfeited to the Commonwealth.
8.Leave is granted pursuant to s 69(2) Proceeds of Crime Act 2002 (Cth) for the official trustee to deal with the property referred to in the forfeiture order before the expiration of the appeal period in respect of the forfeiture order. Pursuant to s 56 of the Act the court specifies the value of the property specified in the schedule as $210. Each party is to pay its own costs of and incidental to the proceedings.
9.The non-publication order is discharged
1. The click of a computer mouse in suburban Canberra and payment by the electronic use of a credit card is commonplace and painless, but in the case of access to child pornography by the internet, it becomes an effective cause, by its demand, of the abuse of children, the robbing of their innocence that should be part of their childhood and the cause of long-term psychological and social problems for the victims and thus, for their families, future partners and communities.
2. It is in this context that I am to sentence Bruce Ronald Ashman, who has pleaded guilty to one count of using a carriage service, namely an internet service provider, to access child pornography material and to one count of intentionally possessing child pornography.
3. The first offence contravenes s 474.19 of the Criminal Code 2002 (Cth) which provides for a maximum penalty of a fine of $66 000 and 10 years’ imprisonment, or both.
4. The second offence is contrary to s 65 of the Crimes Act 1900 (ACT) which carries a maximum penalty of a fine of $50 000 at the date of this offence (though since increased to $55 000 with an amendment to s 133 of the Legislation Act 2001 (ACT) made after these offences were committed), or 5 years’ imprisonment, or both.
5. The facts of the offence are in short compass. Mr Ashman, on at least two occasions, accessed through his home computer and downloaded onto seven DVDs, 96 video files containing child pornography. I do not consider, however, this was a course of conduct in any real sense.
6. His downloading was detected when officers of the Australian Federal Police received information that Mr Ashman had accessed a site which had been identified as containing child pornography.
7. A search warrant was executed on his home and his computer and the seven DVDs were seized. In the course of the execution of the search warrant, Mr Ashman admitted that he had sought access to sites containing child pornography, that he had provided his email address for access to the site, that he paid for access using his credit card and had probably received a password which he had used to enter the site.
8. He downloaded material on his computer and then to the DVDs. He said that he had viewed those videos he had downloaded, though not all the way through. He knew that it was illegal to access child pornography material. Police viewed the material seized and formed the view that the material on the seven DVDs was child pornography material. I was provided with an analysis of the material and viewed a selection. The description, part of the agreed statement of facts, was expressly acknowledged by Mr K Archer, counsel for Mr Ashman, and that it was accurate.
9. In addressing the nature of the material, the approach has been taken to follow the scale of seriousness set out by the United Kingdom Court of Appeal in R v Oliver [2003] 1 Cr App R 28 where (at 467) the court categorised the relevant levels as:
1. images depicting erotic posing with no sexual activity;
2. sexual activity between children or solo masturbation by a child;
3. non-penetrative sexual activity between adults and children;
4. penetrative sexual activity between children and adults;
5. sadism or bestiality.
Using that scale there were eight video files of level 1, 15 video files of level 2, 15 video files of level 3, 54 video files of level 4 and four video files of level 5.
10. A more detailed analysis was incorporated as part of the agreed statement of facts. I do not need to describe the material save to say that some of the material was of a most disturbing kind, with oral sex between adults and quite young children, penile-vaginal sex with young children, bestiality and other abhorrent acts. The children ranged in ages from 3 to 15 years old, with the majority, apparently, in the range of three to seven years old. An estimate, not accurate, especially as some faces could not be seen, was of some 377 children who were victims in the course of making those videos. The videos range in time from 1 second to 33 minutes and 51 seconds.
11. Albeit, in only one video so described, I do note that the sexual encounter is displayed as involving an obviously reluctant child who pulls away from the male drawing her towards his erect penis and her facial expression shows that she does not want to perform the obviously desired oral sex. Just as disturbing, but in a sense in the opposite direction, was a quite young girl engaged in oral sex who is smiling and gave a significantly concerning seductive wink to the camera.
12. In summary, there was a significant, but not very large amount of material depicting some hundreds of children, all disturbing and the majority being in the more serious level of sexual activity.
13. Mr Ashman is now aged 49. He was born in Bendigo, Victoria and schooled there. He has three siblings. He was educated in Bendigo, completing Year 12. He had, he said, a good and stable home life, though marred by tragedy when his brother was killed in a motor vehicle collision at age 16.
14. He has graduate qualifications in Telecommunications Systems Management and Employment Relations. He has also had continuous employment since leaving school until losing his job in a redundancy in 2008. He was with the Australian Army for 17 years and then joined a large firm as its human relations manager until his redundancy.
15. He has no prior criminal record and so comes before the court with good character. In R v Fowler [2007] ACTCA 4, the ACT Court of Appeal held that such good character can probably be taken into account in respect of these kinds of offences. I do note that in commenting on R v Fowler, the New South Wales Court of Criminal Appeal said in Mouscas v The Queen [2008] NSWCCA 18 (at [37]):
For the offence of possession of child pornography where general deterrence is necessarily of importance and is frequently committed by persons of prior good character, it is legitimate for a court to give less weight to prior good character as a mitigating factor.
16. Mr Ashman described the process that led to the commission of these offences as being a time when he was “not functioning normally”. He has acknowledged that they were “reprehensible” and that he is ashamed of what he did. I accept that he is remorseful and has shown insight into his offending behaviour and the effect on the victims.
17. The effect on his life and his family has been significant. His wife of more than 21 years is supportive of him but, has a substantial and debilitating post traumatic stress disorder and, fuelled by other childhood challenges, has a long history of severe depression. Treatment is ongoing but she remains fragile.
18. Her sister gave evidence before me and stated that Mrs Ashman was not in a fit state to give evidence. Though she does some part-time work, she also can spend days unable to leave her bedroom. She cannot be the principal carer for their three children and when Mr Ashman is away, the children have to stay with relatives. If Mr Ashman were incarcerated, she said, the children would have to live elsewhere and would have to be split up.
19. I note that there are three children, the youngest suffering from Down Syndrome and the middle child displays significant behavioural problems which require special treatment.
20. A detailed report prepared by Mr Tom Sutton, a psychologist, was tendered. He had consulted with Mr Ashman for three hours, including the administration of a number of tests.
21. On the basis of these tests and his clinical judgement, he expressed the opinions that Mr Ashman was not currently suffering any mental illness or disorder. He has no personality disorder nor any clinical psychopathology. Mr Ashman is not a paedophile, that is, one who has a persistent sexual interest in pre-pubescent children. He reported that there is no risk of his being a danger to young people or prepubescent children and he will not reoffend and I accept that.
22. He noted that Mr Ashman appears to have reacted to the stressors in his life. These included his hampering rheumatoid arthritis and the problems with his children in the context of the death of his brother and his parents at a relatively young age most recently prior to the offences being exacerbated by the loss of his job, an important outlet for him and an outlet for his workaholic tendencies.
23. Mr Sutton pointed out that such external pressures, where there are no other outlets for relief can, especially in males, lead to seeking sexual relief. He said that this provided the clinical explanation for Mr Ashman’s behaviours.
24. His opinion was that it was unlikely that Mr Ashman will reoffend, especially because he not only knows the enormity of what he did, but it has had a devastating effect on himself and his family. In the absence of psychopathy or psychological need for this particular form of relief, there is no real likelihood of reoffending. This was also the opinion of the author of the helpful Pre-Sentence Report that was tendered before me.
25. Mr Sutton does not consider that treatment was necessary. He did note that Mr Ashman is continuing to consult a psychiatrist, but this appears to be for more general support rather than specific treatment, though I did not have any report from the psychiatrist.
26. I am mindful that Mr Ashman did not give evidence before me. I accept the caution expressed by Wood CJ at CL (with whom Smart AJ and Howie J agreed), in R v Niketic [2002] NSWCCA 425 (at [4]):
As the applicant did not give evidence in the sentencing proceedings, the Crown has not had the opportunity to test that account, and for the reasons discussed in R v Palu [2002] NSWCCA 2001 and R v Qutami [2001 NSWCCA 353; (2001) 127 A Crim R 369, it must be given limited weight. I would add my voice to the dissatisfaction expressed in those decisions in relation to the wholly unsatisfactory practice whereby facts of relevance to an assessment of the role of the prisoner are sought to be proved through histories provided to third parties, which cannot be tested.
27. That is a salutary reminder, but I do note that in this jurisdiction, unlike New South Wales, there is a detailed regime for the preparation and contents of such reports under part 4.2 of the Crimes (Sentencing) Act 2005 (ACT).
28. In addition, I note that while the prosecution tenders the Pre-Sentence Report and is bound to do so in discharge of its obligation to ensure that the court is properly informed of relevant matters, especially as to suitability for certain sentencing options, the prosecution has a statutory right to cross-examine the author of the report. This is similar to the situation in New South Wales where in the R v Palu [2002] NSWCCA 381 Howie J said (at [39]):
The suggestion made at one time by the sentencing judge that the Crown was bound by the material contained in a Pre-Sentence Report because the Crown had tendered the document, cannot stand scrutiny. It is enough to refer to the fact that an application for the preparation of such a report is almost inevitably made by the defence and a report will not be prepared without an order of the court. The report is merely tendered by the Crown as a matter of procedural formality. What weight is to be given to the contents of the report so far as any factual material is concerned is, of course, a matter for the court to assess in the light of the other material before it. But the Crown is clearly entitled to make submissions on the contents of the report including asking the sentencing court to reject some assertion of fact contained in it.
29. I would merely add to this comment that in recent times, it has been common for the prosecution to seek an order for preparation of a Pre-Sentence Report in this jurisdiction.
30. I note that while much of the material in the Pre-Sentence Report and, indeed, in all of the report of Mr Sutton, apart from the accounts of his clinical testing, is based on self-report, the authors of Pre-Sentence Reports in this jurisdiction do take specific efforts to confirm what they can and as, indeed, was the case here. That does not entirely, or always, obviate the need as appropriate, for evidence from a prisoner. It does mark this jurisdiction as not being entirely on all fours with the practice fairly criticised in New South Wales.
31. Objectively, this is a serious offence and it merits condign punishment. The community is entitled to expect that the courts will denounce such abhorrent crimes and visit deserved punishment on offenders. Having carefully considered all available sentencing options, I consider that no sentence other than imprisonment is warranted.
32. There are, however, other factors to be considered. The prior good character of Mr Ashman is, as noted above, relevant as is the effectively accepted opinion of Mr Sutton that Mr Ashman is quite unlikely to reoffend.
33. I note, too, that it is agreed that I should make the usual forfeiture orders in respect of not merely the DVDs seized from Mr Ashman but also the computer towers. This is a relevant matter to take into account: Carpentieri (2001) 126 A Crim R 359.
34. Even these matters by themselves would not necessarily justify avoidance of some part of the sentence being served by immediate full-time custody.
35. I note further that there is a plea of guilty and that it was entered at an early time, supported by the admissions that Mr Ashman made when the search warrant was being executed.
36. There is also the position of Mr Ashman’s family. That is a matter which can be taken into account. Ms Y Viskovic, who appeared to argue ably for the prosecution, drew my attention to a recent decision of the Victorian Court of Appeal in Markovic v The Queen [2010] VSCA 105 where the specially convened court of five Judges of Appeal considered the issue of the effect on sentencing of hardship caused to family members. The unanimous court said (at ([37]):
It has long been the position of common law that, unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration.
37. Later, their Honours referred further to this, especially in rejecting a contention that in addition to this principle there was a residual discretion of mercy. Their honours said (at [15])
The common law requirement of “exceptional circumstances” accepts that an offender is entitled to call for an exercise of mercy on the ground of family hardship, but confines the exercise of that discretion to a case where the circumstances are shown to be exceptional. Once that is understood, it becomes plain that there can be no residual discretion to be “merciful” on grounds of family hardship in a case where the threshold test of “exceptional circumstances” is not satisfied. For it is the “residual discretion” to exercise mercy which is engaged when - but only when - the test is satisfied.
Theirs Honours had noted the basis on which the “exceptional circumstances” test had developed. Their Honours said (at [6]-[7]):
The case law reveals that the “exceptional circumstances” test was developed in response to several considerations, as follows. First, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependents… Secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime. Thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less. Fourthly, to treat an offender who has needy dependents more leniently than one equally culpable co-offender who has none would “defeat the appearance of justice” and be “patently unjust”. Hence it is only in the exceptional case where the plea for mercy is seen as irresistible, that family hardship can be taken into account (Footnotes omitted)
38. This is, of course, to be treated with considerable respect. There are other decisions to the same effect in a number of jurisdictions: Edwards (1996) 90 A Crim R 510 and Wirth (1976) 14 SASR 291. Nevertheless, this matter is perhaps a little different in this jurisdiction. In the first place, there is now a statutory requirement in both s 16A(2)(p) of the Crimes Act 1914 (Cth) and in s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) that a court must take into account or consider “the probable effect that any sentence or order under consideration would have on any of the offender’s family or dependents”. The latter provision is a successor to an earlier similar provision, being s 342(1)(j) of the Crimes Act 1900 (ACT).
39. Secondly, the matter is not free from authority and, for me as a single judge, binding authority. In Craft v Diebert [2004] ACTCA 15, Crispin P and Connolly J in the ACT Court of Appeal said (at [9]):
In this case, as his Honour observed, the respondent suffered from clinical depression and was a primary carer of a teenage son with attention deficit hyperactivity disorder. [The DPP] argued that issues of this kind should be considered only in exceptional cases. Whilst acknowledging that s 34(2)(1)(j) of the Crimes Act required sentencing judges or magistrates to have regard to “the probable effect that any sentence or order under consideration would have on any of the persons, families or dependents”, he submitted that it would appropriate for this cause to follow the decision of the Western Australian Court of Criminal Appeal in R v Sinclair (1990) 51 A Crim R 418 at 430. This decision suggested that a similar provision in the Commonwealth Crimes Act was not intended to change the common law principal that the effect on dependents would not be taken into account save in exceptional circumstances. With very great respect to their Honours, we must say that we are quite unable to accept that a legislative requirement to take such a factor into account can be transliterated into a prima facie requirement to ignore it merely because that would reflect the approach previously recognised at common law. A similar issue arose for consideration by the Queensland Court of Criminal Appeal in the subsequent case of R v Tilly (1991) 53 A Crim R 1 at 3 where, after referring to the aspects of retribution, deterrence and rehabilitation, Thomas J referred to the hardship that would result if the respondent were to be parted from her two and a half year old daughter and explained:
Courts, of course, can take account of such matters in a number of ways but are not overwhelmed by them. It is well recognised that very often a prison sentence will result in equal hardship to persons other than the offender. In the case of a male, his wife and children may be the ones who suffer because they lose a father and a person who provides financial support. In the case of a female, it may mean the temporary loss of a mother. It is common that hardship and stress is shared by the family of an offender but that may be an inevitable consequence if the offender is to be adequately punished. An offender cannot shield himself under the hardship he or she creates for other and courts should not shirk their duty by giving undue weight to personal or sentimental factors…
If we may so, with respect, his Honour’s remarks reflect the sad but not uncommon experience of sentencing judges and magistrates. All too often the need to adequately punish the offender and to deter other likeminded people from committing similar offences leaves little, if any scope, for leniency based upon the adverse effect of the sentence upon the offender’s children and/or other dependents. In that sense it might, perhaps, be said that this factor will have a significant impact upon sentencing for very serious offences only in exceptional cases. However, such an observation should not be misconstrued as a legal principle which, in our opinion, could not be accommodated within the language of s 342 of the Crimes Act, let alone the perhaps more broad discretion provided by s 6 of the Periodic Detention Act.
40. In addition, so far as the Territory offence is concerned, the Territory has a special statutory obligation it casts on judges to recognise the rights of children. As I said in R v McLaughlin: (ACTSC, Refshauge J, SCC 222 of 2008, 7 August 2009, unreported):
I have to take into account also the fact that Ms McLaughlin is the carer for her children. Section 11 of the Human Rights Act 2004 (ACT) as well as s 33 of the Crimes (Sentencing) Act 2005 (ACT) both mandate that I have regard to these matters and that I take into account what was said by the Constitutional Court of South Africa in M v The State [2007] ZACC 18 namely that there is a right for the interests of the children to be taken into account even in cases of serious offending.
41. In my view, these matters permit me to consider alternatives to full-time custody in a way in which the inevitable sentence of imprisonment may be served.
42. I also note of significance that Ms Viskovic submitted that a suspended sentence was within the range of permissible sentences and did not submit that, unless I imposed a sentence including a period of full-time custody actually to be served, I would fall into appellable error.
43. I note that the Pre-Sentence Report assesses Mr Ashman as suitable for community service work and to serve a sentence by periodic detention. I am satisfied that community service work is suitable for Mr Ashman and that it is appropriate that he performs such work.
44. Accordingly, I convict Mr Ashman of the offence of using a carriage service to possess child pornography material.
45. On that charge I sentence him to 18 months’ imprisonment to commence today. Had you not pleaded guilty I would have sentenced you to 2 years’ imprisonment.
46. I order that he be released forthwith upon giving security in the sum of $2,000 without sureties by recognizance that:
(a) he be of good behaviour for 3 years,
(b) he accept supervision of a probation officer delegated by the Chief Executive of the Department of Justice and Community Safety and obey all reasonable directions of that probation officer.
47. I convict Mr Ashman of the offence of possessing child pornography.
48. On that charge I sentence you to 9 months’ imprisonment. Had he not pleaded guilty I would have sentenced him to 12 months’ imprisonment.
49. I suspend the whole of that sentence and require him to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 3 years.
50. As a condition of that good behaviour order I direct that he:
(a) is to perform 300 hours of community service work within 24 months from today;
(b) to be on probation subject to the supervision of a probation officer delegated by the Chief Executive for a period of 3 years and that you obey all reasonable directions of the person delegated to supervise you.
51. I also make the order set out in the short minutes of order by consent, namely:
(a) Pursuant to s 48(2) and s 316 of the Proceeds of Crime Act 2002 (Cth) (the Act), in respect of the conviction of the offence of using a carriage service to access child pornography material, the property specified in schedule 2, namely the black coloured Medion computer tower, the silver coloured Gigabyte Seagate external hard drive and the seven DVDs, be forfeited to the Commonwealth.
(b) Leave is granted pursuant to s 69(2) of the Act for the official trustee to deal with the property referred to in the forfeiture order before the expiration of the appeal period in respect of the forfeiture order.
(c) Pursuant to s 56 of the Act the court specifies the value of the property specified in the schedule as $210.
(d) Each party is to pay its own costs of and incidental to the proceedings.
52. There is one other final matter and that, of course, is the question of the non-publication order. Ms Viskovic, submitted that that should be discharged and I discharge that order.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 21 May 2010
Counsel for the Prosecution: Ms Y Viskovic
Solicitor for the Prosecutor: Commonwealth Director of Public Prosecutions
Counsel for the Defendant: Mr K Archer
Solicitor for the Defendant: Ben Aulich & Associates
Dates of hearing: 6-7 May 2010
Date of judgment: 21 May 2010
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