R v Ashton
[2015] VCC 1901
•17 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00688
| DIRECTOR OF PUBLIC PROSECUTIONS (C'TH) |
| v |
| LAWRENCE WILLIAM ASHTON |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2015 | |
DATE OF SENTENCE: | 17 December 2015 | |
CASE MAY BE CITED AS: | R v Ashton | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1901 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Pleaded guilty to using a carriage service to access child pornography and one charge of possessing child pornography – serious offending – hid material to avoid detection – accessed material over 16 to 17 months – large volume of files – initially lacked insight into offending, later showed some insight – mitigating factors are early plea of guilty, contrition – not sentenced as a person of previous good character – conflict of opinion of psychologist and views expressed by offender in record of interview – low risk of reoffending – serious nature of case requires term of imprisonment
Sentence: Convicted and sentenced to 15 months’ imprisonment, to be released after serving four months on a recognisance release order, and a community correction order for 30 months
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr B. Kerlin | CDPP |
| For the Accused | Mr Tickner | Bayside Solicitors |
HER HONOUR:
1 Lawrence Ashton, you have pleaded guilty to one charge of using a carriage service to access child pornography, which is a Commonwealth offence with a maximum sentence of 15 years’ imprisonment (Charge 1). You have also pleaded guilty to one charge of possessing child pornography, which is a Victorian offence with a maximum sentence of five years’ imprisonment (Charge 2).
2 I proceed to sentence you on the basis of the Prosecution Opening which was read out on your plea[1]. In brief, on three occasions in December 2013, you were detected using the internet to access child pornography material and an investigation began. In June 2014, your computer and two external hard drives were seized under a warrant executed at your home, and on analysis, were found to contain at least 10,478 picture files and 1,362 video files containing child pornography material (Charge 1). The dates for Charge 1 are the creation dates for these files from December 2012 to March 2014.
[1] Exhibit A
3 Charge 2 relates to the date the warrant was executed, when you were in possession of 16,614 images of child pornography and 1,717 video files, being the total collection found on the external hard drives.
4 MR KERLIN: Your Honour, I apologise. If I could interject.
5 HER HONOUR: Yes.
6 MR KERLIN: Those figures don't correlate with the opening that I have.
7 HER HONOUR: I beg your pardon. I thought that I had taken it from the opening.
8 MR KERLIN: Yes. It may be, Your Honour, that that was from the previous Crown summary. There was an additional external hard drive. So there was a total of four external hard drives and I'm more than happy to read the quantity that was alleged in relation to each charge for Your Honour.
9 HER HONOUR: Yes. Well I am sorry that I have made that mistake. I think perhaps you had better clarify that for the transcript.
10 MR KERLIN: Yes, Your Honour. So the Charge 1, the access charge, concerns 10,649 picture files and 795 video files. This is at paragraph 19 of the opening, Your Honour. And the knowing possession charge, the state charge, Charge 2, concerned the whole collection which is 22,147 images and 2,137 video files.
11 HER HONOUR: One hundred and thirty-seven.
12 MR KERLIN: Thirty-seven, Your Honour.
13 HER HONOUR: Yes. Thank you. Thank you, Mr Kerlin. Returning to my sentencing remarks. I viewed a sample[2] of the images, but not the video files. While the prosecution alleges that a majority of images (about 65 per cent) were classed as Category 1, which is the lowest level under the Child Exploitation Tracking System (CETS), a significant combined percentage were alleged to be Categories 4 (16 per cent) and 5 (two percent). For the video files, a substantial majority were in Category 4 (75 per cent) with two per cent in Category 5. Category 4 involves penetrative sexual activity between children and adults.
[2] Exhibit B, returned to the prosecution
14 Apart from the depraved nature of the material itself, I am satisfied that the nature of your offending is very serious for the following reasons:
15 First, while you did not access the material to further distribute it or profit from it, you did save the downloaded material, and the external hard drives were hidden. You told police in the recorded interview that you had forgotten that you had hidden them, and the reason for hiding them was to ensure your adult children did not see them when they were at your house. I find that hiding them to avoid detection, by whomever, demonstrates your recognition of the level of criminality you were engaged in.
16 Next, you accessed the material through a file sharing network, and did so over an extended period of 16 to 17 months. I find that this was a course of conduct pursued by you.
17 Next, the total volume of files, and the total proportion of Category 4 files contributes to the offending being very serious.
18 Next, I accept the prosecution submission that there is a wide range of children depicted in these depraved images, with no consistent age preference.
19
Lastly, when spoken to at your house as the warrant was being executed on
5 June 2014, you did not admit that you had retained any child pornography nor did you admit that there was any hidden material. You did admit to looking at "porn" but it is not clear if this was a reference to child or adult material.
20 However, I take into account that in the recorded interview conducted with you later that morning, after a preliminary examination showed the seized devices contained child pornography, you admitted that you were aware that there was child pornography on the devices; that you had consciously downloaded it because you were curious; and that you obtained sexual gratification from viewing the material, which you said included a range of ages, although you said you deleted any images depicting very young children. You displayed a distorted view, saying that while babies were innocent, a 13 or 14 year old can consent, and thought that merely viewing was a passive act. Later in the interview, you did show some insight, referring to the market that is created for people like you to look at, and that none of it is acceptable.
21 These are not victimless crimes. Every child depicted is a victim, not just during the appalling abuse suffered at the time of the creation of the pornography, but forever, as these images cannot be wholly removed from the internet. As they grow older and learn the real significance of what was done to them, if they were not old enough to realise it at the time, they will have to live for the rest of their lives with the awful knowledge that at any given time, someone like you will be looking at them thereby perpetuating their abuse.
22 As has been pointed out by your counsel, there are however some factors which mitigate the very serious nature of this offending.
23 The first of these is your plea of guilty. I accept that you pleaded guilty at the earliest possible time, and that this reflects your contrition, your acceptance of responsibility and your willingness to facilitate the course of justice, by avoiding the need for both a committal and a trial.
24 Your counsel submitted that you showed contrition as early as the recorded interview on 5 June, which I accept to a degree, but I also take into account that you were then aware that child exploitation material had been found in a preliminary examination of the devices, and so your admissions are to be seen in that context. Likewise, it was submitted that contrition is shown by your indication of an intention to plead guilty before the final analysis was complete, but again, while I accept that as an expression of contrition, it is tempered somewhat by the fact that by then you must have realised the extent of what would be found on analysis, and of the strength of the case building against you.
25 You are now aged 63 years, and were aged 60 to 61 at the time of the offences. You have committed no further offences. You have a criminal record but it is related to the cultivation and possession of cannabis eight years ago. Your record is not completely irrelevant though, as it means that you are not to be sentenced as a person of previous good character, which means that even the limited weight to be given to that factor is not available to you.
26 I was told something of your personal circumstances. Your childhood was not the happiest, as you felt far greater attention was given by your parents to your sister who had a debilitating muscle disease. You reacted to this by doing "naughty" things at school to gain their attention, which succeeded, but only in a negative fashion, further diminishing your relationship with them.
27 You have had a strong work history. After completing an electronics apprenticeship with the State Electricity Commission, you moved into private industry where you enjoyed a number of jobs involving the design and fitting of sound and air-conditioning systems in cars, before manufacturers began fitting their own systems. Currently, you work as a sales and service consultant in a job you have held for 19 months.
28 You have been married twice, but you are now single. Your first marriage lasted 19 years and produced two children. Despite an acrimonious separation, and severe difficulties in sharing custody of your children because your wife moved with them to Queensland, you now have a very good relationship with your first wife and adult children. Unfortunately, their lives have not been without problems, with your son being imprisoned on more than one occasion, and your daughter being in a relationship with a man who is also in gaol. Your next marriage dissolved after your second wife stated that she wanted children, which was not your wish. You apparently have a large number of friends, almost all female, but neither your family nor friends were in court to support you as you have been too ashamed to tell them of your criminal charges.
29 I accept that you have made a significant contribution to the community having been a member of the Country Fire Authority for twenty-five years.
30 Following your arrest, your doctor put you on a Mental Health Care Plan arising from the anxiety, stress and lowered mood you were suffering as a result of the charges. He referred you to a psychologist for counselling. I received a report from the psychologist, Dr Grech,[3] detailing your background and your fortnightly attendances on him for therapy since mid-2014.
[3] Exhibit 1 – report dated 18 November 2015
31 You admitted to Dr Grech that you have always looked at pornography, and it seems, continue to do so, but since your arrest, have avoided “anything with any risk of involving underage themes”. You explained your crimes as arising out of curiosity, and that the large volume of material arose because “you don’t know what you get until you download it”. You told him that you did not like sex involving people being tied up and that you immediately deleted an image depicting a child in distress, describing it as revolting. You were unable to explain why you had not deleted everything.
32 Despite these comments to Dr Grech, I note that within the sample of images I viewed, a child was depicted tied up, and other images depicted a child with an animal. It follows that these were images you did not delete. I have already noted that not only did you not delete all the material, you organised it, saved some of it to external hard drives, and stored these separately in a hiding place. These potential differences between what you told Dr Grech and the real situation impact on how much I accept of his opinions.
33 Dr Grech provided a number of opinions. The first I want to specifically address is that he reported that “there were no elements of distorted thinking, or minimisation”. If this is a report from the beginning of his treatment of you, then it is in conflict with the views you expressed at least at the outset of the recorded interview, to which I have already referred. In his report, Dr Grech indicates he perused the "police documents", so his remarks must have been made in light of knowledge of what you told the police. On the other hand, if this report is based on the current situation, then that shows you have begun to rehabilitate, perhaps as a result of the intensive therapy you have undertaken with him. Unfortunately, the position is not made clear in the report.
34 The next opinion he provides that I note is that your reported symptoms of anxiety, stress and lowered mood are reactive adjustment processes arising from the criminal process you are going through. I accept that opinion.
35 Next, Dr Grech notes you have no psychotic symptoms and “no fundamental paedophilic tendencies”. He assessed you as being “situated towards the low end of the risk continuum in both the immediate and medium to longer term” as compared to other sexual offenders, and that the likelihood of you reoffending in a similar way is extremely low. He is of the view that you present as a man with considerable insight into your psychological functioning and behaviour, as well as having increased awareness of the impact of child exploitation.
36 Finally, he notes that you are prepared to continue with therapy to address matters relevant to your offending, including relapse prevention strategies.
37 I find that his report is likely to be based on the current situation, and if so I accept that there have been positive changes from your original distorted thinking about your offending and child exploitation in general. As a result, I find that your prospects of rehabilitation are reasonable, and that you are unlikely to reoffend in a similar way.
38 The time taken between your arrest and the committal (ten months) was due to the time needed to fully analyse the material. While this arises directly from your offending, the time taken for the analysis was out of your hands, and I take into account that you have not re-offended in any way in that time, and have been subject to the symptoms of anxiety, stress and lowered mood over that time, with the possibility of a gaol sentence hanging over you. Further, you were prepared to plead guilty well before the committal, as I mentioned before.
39 I have taken into account the matters to which I must have regard under the Commonwealth Crimes Act with respect to Charge 1, many of which I have referred to in these remarks.
40 Your counsel conceded that your offending involved a high degree of moral culpability, but submitted that an appropriate disposition was either a community correction order, or a combination of imprisonment and a community correction order. You were assessed as suitable for such an order.
41 The prosecutor submitted that only an immediate term of imprisonment was appropriate in all the circumstances of your case.
42 Cases from higher courts make it clear that in most cases of this nature, a term of imprisonment must be imposed. I take into account that you are a man of 63 years and would be going into gaol for the first time, that you have no support currently as you have told no one of your crimes, that you are already anxious about this outcome, and a sentence of imprisonment would mean that you will probably lose your employment, and find it hard to get another job on your release. Ownership of your house may be in jeopardy if you are unable to continue to fund the mortgage.
43 However, these circumstances are not exceptional. Sentencing for the crimes that you committed must have as the primary purpose the need to deter others from committing those sorts of crimes. This is known as general deterrence and is the paramount consideration for such offences.
44 Because I have assessed your risk of reoffending as low, there is a reduced need for my sentence to deter you from reoffending, but that remains a purpose of the sentence to be imposed.
45 I have decided that in all the circumstances I do not have an alternative to a sentence of imprisonment on Charge 1. I will announce the orders in a moment, but the outcome is that you will be required to serve four months immediately of a 15 months’ term of imprisonment before being released on a recognizance release order to be of good behaviour for two years.
46 On Charge 2, if you agree, I will convict and release you on a community correction order for 30 months following the term of imprisonment with the core conditions attached to every community correction order together with the special conditions that you be under supervision (48E Sentencing Act), that you attend, undertake and complete the Sex Offender’s Program (48D(3)(f) Sentencing Act), that you be assessed and if required receive treatment for mental health issues (48D(3)(e) Sentencing Act), and that you perform unpaid community work of 300 hours.
47 The conditions that are attached to every order are that you must not commit another offence punishable by imprisonment during the 30 months of the order, you must comply with any obligation required of you by the community corrections office, you must report to and receive visits from the community corrections officer, you must report to the community corrections centre within two days after the order coming into force, you must notify the community corrections office of any change of address or employment within two days of the change and you must not leave Victoria without permission. In respect of the community corrections order, Mr Ashton, do you agree to those conditions?
48 OFFENDER: Yes, I do.
49 HER HONOUR: For this Charge 2, if you do not complete any condition of the community correction order, you will be brought back before me to be resentenced on this charge and also be dealt with for non-compliance. Do you understand the consequences of not complying with this order?
50 OFFENDER: Yes, I do.
51 HER HONOUR: I should also tell you that both the recognizance release order on Charge 1, and the community correction order on Charge 2 can be varied or discharged on application to the court if your circumstances change.
52 Stand up, please, Mr Ashton. You are convicted and sentenced as follows:
53 On Commonwealth Charge 1, you are convicted and sentenced to 15 months’ imprisonment. That sentence starts today. I direct that you be released under s.20 of the Commonwealth Crimes Act after serving four months on a recognizance release order on condition that you give security by recognizance of $800 to be of good behaviour for two years.
54 On State Charge 2, you are convicted and after serving the term of imprisonment on Charge 1, released on a community correction order for 30 months with the core and special conditions I have already outlined.
55 To make it clear, you will begin today serving four months’ imprisonment. After that period, you will be released, but will have 11 months’ imprisonment effectively suspended for the following two years. If you do not reoffend, you will not serve any more time. If you do offend, you will forfeit $800, and be returned to gaol to complete the sentence. After your release in four months’ time, you will begin the community correction order for 30 months after that.
56 Because of this sentence, you have become a registrable sex offender. The charges are class two offences, and so you will be required, within 7 days of your release from custody, to report your personal details and begin a regime of annual reporting and be otherwise subject to the Sex Offenders’ Registration Act for a period of 15 years.
57
You will now be asked by my associate to sign three documents. The first is your agreement to abide by the conditions which allow for your release from imprisonment after four months, that is the condition to be of good behaviour for the following two years. The second is a form notifying you of your reporting obligations under the Sex Offenders’ Registration Act. The third is the community correction order which you are to sign to indicate that you agree to abide by the conditions. You can take a seat and I will ask that
Mr Tickner accompany my associate to the dock to assist with the signing of these forms.
58 MR KERLIN: Does Your Honour require assistance with the format of the recognizance release order? I had a draft document prepared if that assists Your Honour.
59
HER HONOUR: I think my associate has done that already. Thank you,
Mr Kerlin. Yes, you can take a seat again, Mr Ashton. Yes, I have signed those orders myself.
60 Mr Ashton, if you had not pleaded guilty to the State charge, but had been found guilty after a trial, the sentence I would have imposed on that offence alone is two years’ imprisonment with a minimum of 12 months.
61 In respect of the Commonwealth charge, I will not state the sentence that would have been imposed if you had not pleaded guilty. Until the Commonwealth legislation specifically provides for this, or an authority which binds me states that the Victorian law applies in this instance to a Commonwealth sentence, I do not propose to do so.
62 Yes, anything further?
63 MR KERLIN: No, nothing further, Your Honour.
64 MR TICKNER: As the court pleases. No, there's no custody management issues, Your Honour, that need to be raised. Perhaps it might be appropriate for Dr Grech's report to run with Mr Ashton.
65 HER HONOUR: Yes, certainly. I will ensure that that is provided to the sentence management unit.
66 MR TICKNER: Thank you, Your Honour.
67 HER HONOUR: Yes, thank you. Mr Ashton may be taken into custody. Thank you. I will stand down until 3.15.
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