R v Atkinson
[2016] NSWDC 456
•2 December 2016
|
New South Wales |
Case Name: | R v Atkinson |
Medium Neutral Citation: | [2016] NSWDC 456 |
Hearing Date(s): | Friday 19 August 2016; Friday 14 October 2016 |
Date of Orders: | Friday 2 December 2016 |
Decision Date: | 2 December 2016 |
Jurisdiction: | Criminal |
Before: | Tupman DCJ |
Decision: | Count 1 (Commonwealth offence): Sentenced to a term of imprisonment of 12 months. |
Catchwords: | CRIME — Child sex offences — Using a carriage service to access child pornography — Possessing child abuse material — One Commonwealth offence — One NSW State offence — Over 10,000 child pornography images and videos found — Images and videos range from category 1 to category 6 on the CETS classification scale — Police identified offender when monitoring child pornography websites — Wide range of child exploitation material found on electronic devices belonging to offender — Middle of the range in terms of objective seriousness — No prior convictions — Early plea of guilty — Offender cooperated with police and assisted them in their investigation — relatively good prospects of rehabilitation. |
Legislation Cited: | Crimes Act 1900 (NSW): s 91A(2); |
Cases Cited: | DPP (Cth) and DPP (Vic) v Garside [2016] VSCA 74; |
Category: | Principal judgment |
Parties: | Regina (The Crown) |
Representation: | Ms. M. Catsanos (The Crown) |
File Number(s): | 2015/00224596 |
JUDGMENT
HER HONOUR: This is the sentence matter of Atkinson. The offender is before me for sentence following his pleas of guilty to two counts in an indictment dated 18 August 2016 as follows:
Count 1: A charge of using a carriage service to access child pornography material between 15 April 2010 and 27 July 2016. That is an offence contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of 15 years imprisonment.
Count 2: A charge of possessing child abuse material on or about 31 July 2015. This is a charge contrary to s 91A(2) of the Crimes Act 1900 (NSW) which carries a maximum penalty of 10 years imprisonment.
Thus, he is to be sentenced for one Commonwealth and one New South Wales State offence.
The terms “child pornography material” and “child abuse material” have more or less the same meaning. For each of these offences I will use the term child pornography material or child exploitation material when referring to both offences in this sentence, simply for convenience.
Even though the pleas are entered in this Court on an indictment, I accept that in fact the offender pleaded guilty to these charges in the Local Court and was in fact committed to this Court for sentence. As such, for count 2 I accept he is entitled to a significant discount to reflect the utilitarian value of the plea, and for count 1 this plea may be taken into account in various ways, including as an indication of his willingness to assist the interests of justice. The offender was arrested on these charges on 31 July 2015 and has been on bail ever since.
I must sentence him for count 1, the Commonwealth offence, pursuant to Part 1B of the Crimes Act 1914 (Cth) and in particular pursuant to the provisions of s 16A of that Act. An overriding principle enshrined in that part is that the sentence imposed by the Court must be of a severity which is appropriate in all of the circumstances of the offence. That is clear from s 16A(1).
For count 2 I must sentence in accordance with the general and specific provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) including s 3A of that Act which sets out the general purposes for which a court may impose a sentence.
To comply with both sentencing regimes it is necessary to find what are the relevant facts or the nature and circumstances of the offending, so as to determine the level of moral culpability and the objective seriousness of these particular offences.
The Facts
There is an Agreed Statement of Facts tendered. From that I accept that the offender came to the notice of police who were monitoring various child pornography websites. They discovered that he was uploading child pornography material using different email addresses.
On 21 July 2015 he used an internet account to view a particular website, and doing so, viewed a number of child pornography images. Following this, on 31 July 2015, members of the Australian Federal Police executed a search warrant at his home. He was present. They reviewed a number of electronic devices in his possession which revealed a number of files containing child pornography.
A representative sample of the images found on all of the devices ultimately located in his premises was tendered when I commenced the hearing of this matter for sentence. I viewed that representative sample and then returned the documents to the police via the Crown to avoid them remaining on the Court file and being seen by court officers and other staff.
I have also been provided with an outline of the CETS classification scale relevant for these images. The representative sample which had been provided to me indicates a wide range of child exploitation material found on these devices, ranging from less objectively serious material, including sexualised posing, but also ranging up to and including those at the more serious end of the scale, including actual sexual intercourse and other sexual contact between children and adult males, on some occasions showing a young girl involved in this actual sexual activity with two adult men at the same time. These particular category 4 images in my view are at the more serious end of this classification, category 4, than others might be.
There are also some category 5 images depicted. This classification is the most serious and depraved of all on the CETS classification scale. A sample of images from within this classification tendered were not remarkably depraved, so far as I can recall them.
The material as viewed included all categories in the CETS classification, including category 6, which albeit it is a higher number, is in fact a category that includes drawings or cartoons, not involving the use of real children.
At the time of the initial search, the police found a Lenovo brand hard drive in the offender’s office, on which they located images and videos which they identified as child exploitation material. These were found on a folder path in the name of “eMule” which is a peer-to-peer file sharing application that allows users to download files from and upload files to other users of that program. There were three image files in this folder which were child exploitation material. They are described in paragraph 2 of the Agreed Statement of Facts which I do not propose to read onto the record for public consumption because in my view this Court should as much as possible avoid further publishing child exploitation material, especially when its judgments will be made publicly available.
I do accept that those three images are appropriately classified as one in CETS category 1, and two, category 4 images. These latter two images are serious examples of child exploitation material and given that they indicate the child involved in activity with two males, it seems to me are relatively serious examples of category 4 child exploitation material.
The other device found initially was a Lian Li tower PC which was also located in the offender’s office which also revealed child exploitation images in a separate folder entitled “Aircraft”. AFP officers viewed these images at the scene. They were all cartoons and are described in paragraph 15 of the Agreed Facts. They are appropriately categorised as CETS category 6.
AFP officers conducted an interview with the accused at the premises. He admitted that he was the user of the email address which had brought him to the attention of police originally, but initially told police he did not recall using it at the relevant time. He denied having access or downloading child pornography or child exploitation material. He denied any knowledge of the eMule peer-to-peer application and said he did not know how the images got onto his laptop.
Not long afterwards on the same day while the police were still at his house, the offender asked to talk to them again. There was another record of interview and in that he told police that he had thought about his position and that of his wife and wanted to give more information. He admitted downloading child pornography using the eMule program and that that program had been installed by him on his Lenovo laptop. He also admitted that he had transferred downloaded images to two USBs. He said that he had placed the images on his work computer for the purpose of deleting them. He told police that his work computer was for his own personal use, that he was the only one who used it and that he had built it himself. He advised that he had downloaded the child pornography at his home and office, that it was for his personal pleasure, that he preferred images of girls 15 years and under, not boys, and that he had last viewed images 10 days previously. He was taken to the police station and charged and was released on bail and has remained on bail ever since.
Police then conducted a forensic analysis of items seized during the search warrant and reviewed the lawfully intercepted telecommunications information which related to the Telstra account the offender had used.
Relevantly for count 1 this analysis of his Telstra account indicated that the offender had, during the period 1 April 2010 to 27 July 2015, viewed 363 images from a particular website which were all images classified as category 6. These are all cartoons, but nonetheless child exploitation material.
Analysis of the Lenovo brand hard drive revealed a total of 2,051 image files and 20 video files which had been accessed and downloaded from the internet using a carriage service. All of these files were identified as child pornography and covered the full range of categories. There were 812 category 1 images and videos, 285 category 2, 274 category 3, 243 category 4, 18 category 5 and 439 category 6 images and videos.
Thus count 1 involves the offender’s accessing a total of 2,434 images and videos via the internet over a period in excess of 5 years, ranging in categories up to the most serious category, category 5, and including a significant number of images and videos falling into the category 4 classification, depicting actual sexual activity between children and at least one, and in some cases two, adult males.
During the search, in addition to locating the Lenovo hard drive and the Lian Li PC, police also seized other devices including a Western digital 500 gigabyte hard drive, a black coloured Silverstone computer tower, a Scandisk 8 gigabyte compact flash memory card and a Western digital 500 gigabyte internal hard drive. Count 2 involves the offender’s possession of the child abuse material discovered on each of these devices. They are the following;
(1)On the Lian Li computer tower there were three images identified as category 6 child pornography, namely cartoons.
(2)On the Western digital 500 gigabyte hard drive thee were found 423 image files and 87 video files which were identified as child pornography which covered the full range of classification including 260 within category 1, 63 in category 2, 26 in category 3, 31 in category 4, 6 in category 5 and 124 in category 6.
(3)On the Silverstone computer tower there were 4,027 images and 198 video files which were identified as child pornography. They also covered the full range of CETS classifications including 2,992 in category 1, 292 in category 2, 244 in category 3, 408 in category 4, 44 in category 5 and 245 in category 6.
(4)The scandisk 8 gigabyte compact flash memory card was found to contain 400 image files and 75 video files identified as child pornography. Similarly, to the other devices they also covered the full range of classification, including 296 in category 1, 22 in category 2, 29 in category 3, 107 in category 4, 26 in category 5 and 3 in category 6.
(5)The Western digital 500 gigabyte internal hard drive was found to contain 74 image files identified as child pornography which included 49 images in category 1, 10 in category 3 and 15 in category 4.
In total, on these five electronic devices, police located 7,729 image and video files classified as child pornography which depicted children ranging in age from about 6 months to about 15 years of age. They were both female and male children, although mainly female, and in all there were about 2,000 different children displayed in these images and videos.
When these items were further forensically examined it was discovered that files were duplicated across the devices and in fact about 50% of the total files were duplicates of others. Nonetheless, it must follow that there were at least 3,500 images and videos, and perhaps a little more, contained on these five electronic devices ranging through the full categorisation range, including a significant number in category 4 and some in the most serious category 5. There were 2,000 different child victims exploited in the creation of these images and videos.
These are both extremely serious offences. All criminal offences involving either accessing or possessing child pornography material are serious. The seriousness of any particular charge of course depends on its own facts. With reference to the decision of the Court of Criminal Appeal in Minehan v R [2010] NSWCCA 140 (“Minehan”), as that is also referred to in the subsequent decision of the Court of Criminal Appeal in the R v Porte [2015] NSWCCA 174 (“Porte”), I accept that there are a number of common features in matters such as this which affect, and ought be taken into account in determining, the objective seriousness of any particular offence. These include:
(1)The nature and content of the material including the age of the children and the nature of sexual activity. I have already referred to this. These children ranged in age from 6 months to 15 . The sexual activity ranged from sexual posing through to actual sexual intercourse including some category 5 activities which of course are the most depraved form of child pornography. Even if half of these images amounted to duplicates, there were at least 3,500 images possessed and some of those amounted to the more serious examples of child pornography.
(2)A second factor is the number of images, to which I have just referred, namely at least 3,500 images for the possession charge and 2,434 images and videos in relation to the access charge.
(3)Another factor to take into account is whether or not these images were downloaded or possessed for further distribution. I accept that that is not the case here. The offender I accept downloaded and possessed this material for his own personal use and neither had, nor intended to sell or distribute this material further.
(4)A further factor which might increase the objective seriousness of any particular offence would be whether or not the offender intended to profit from commission of the offences, which clearly he did not in this case.
(5)Another factor to take into account is the number of children depicted and therefore the number of children victimised in the creation of this material. As I have said, this involved 2,000 individual children, which is high.
(6)Another factor to take into account is the length of time over which the offences were committed. I do not know on the evidence the length of time during which the offender possessed this material, but he downloaded this material over a period in excess of 5 years, so there is a relatively lengthy period over which he has been accessing these types of child pornography images and videos for his own use.
Some of the other features identified in Minehan were not present. There was no evidence that any vulnerable person was likely to stumble on these images in the possession of the offender, and inadvertently gain access to them. They were apparently held by him on his home and office computers, and he was the only one who accessed them. However, given the lengthy period of time over which these images and videos were accessed, it must follow that these were not just spontaneous or impulsive discoveries by the offender of these images in the course of accessing the internet.
There is however no evidence of any particularly sophisticated planning. Regrettably, it is far too easy and all too immediate for individuals to be able to access this sort of material. All that is required is an electronic device and an internet connection.
Both of these offences in my view are about at the middle of the range in terms of objective seriousness. I reach that conclusion based on the factors to which I have already referred, but I also take into account some additional factors which elevate the seriousness. One of those is that some of these pieces of child pornography material were videos which elevates the objective seriousness. Further, some of them were taken from a peer-to-peer application which means that at least on one occasion if not more this offender was interacting with a live person at the other end of a webcam. In my view that makes the commission of these offences objectively more serious.
I accept from the authorities, reinforced by the recent decision of the Court of Criminal Appeal in Porte, that both the accessing and possession of child pornography are offences which should be treated very seriously by the courts. They are not victimless crimes. With respect I refer to and adopt the dicta of Simpson J, as she then was, in R v Booth [2009] NSWCCA 89, that child pornography is a callous and predatory crime which in its own terms involves child exploitation, but which, as is known to the Court, often involves children from underdeveloped and disadvantaged countries being persuaded or forced into involvement in the making of this material purely in order to alleviate their own and their family’s poverty and disadvantage.
It ought to be a matter of shame to those in Australia, a relatively wealthy and developed country, who access such material, that they have created and sustained a market where young girls in countries very close to us, like the Philippines and Cambodia, are used to create these images because it makes more money for their family than running a legitimate business. This is even more the case because it is well known that the risk of being caught and apprehended is very low, and more so as peer-to-peer live websites are created, and this industry simply requires a webcam, an exploited child and an internet connection.
Just reciting this makes it clear that general deterrence and denunciation must play a very large role in sentences involving downloading and possessing child exploitation material.
On the face of these objective findings, that is assessing the nature and circumstances of the offending and the objective circumstances of the offending, and the impact that these findings have on an assessment of the offender’s moral culpability, the Court would be looking to the imposition of terms of imprisonment.
I have been referred to the Victorian Court of Appeal decision of DPP (Cth) and DPP (Vic) v Garside [2016] VSCA 74, and in particular to paragraph 61 in which both the Commonwealth and State DPP apparently conceded that there was no sentencing rule that for offences of this type, full time custody would be necessary unless exceptional circumstances are shown. I accept that there is no such sentencing rule, but in any event I do not understand this to have been argued on behalf of the DPP in the matter before me. The DPP has certainly argued that full time custody is required in this case, but that is on the basis of an assessment of the objective circumstances, notwithstanding the subjective case, not because there is a rigid rule requiring the identification of exceptional circumstances to avoid full time custody.
In determining the appropriate sentence for the Commonwealth offence of accessing the child pornography, I take into account the plea of guilty entered early as it was, and the admissions made by the offender almost immediately after being confronted with this material by the police on the same day the police were at his home executing the search warrant. He is entitled to have that taken into account as evidence of his willingness to assist the authorities in the administration of justice. That should sound in a somewhat lower sentence than would have been appropriate had he not pleaded guilty at all, let alone so early. This of course must be tempered by the fact that this plea was to a strong Crown case.
Further, he pleaded guilty to the State charge of possessing the child abuse material at the first available opportunity in the Local Court and as such he is entitled to a discount at the top of the range identified by the Court of Criminal Appeal in R v Thomson & Houlton & Ors (2000) 49 NSWLR 383 and I would discount the otherwise appropriate sentence by 25% to take into account the utilitarian value of that plea.
The Offenders Subjective Case
I must also, clearly enough for both offences, take into account the offender’s subjective circumstances in setting the appropriate penalty. He is now 49. He was born in Australia and went to live for a period of time in Hong Kong after his mother passed away when he was only 12. He returned to live in Australia when he was 16. He has been engaged in a number of different forms of employment since then, including as a sales assistant working his way up to management positions. He has a diploma in photography which he obtained in 1987. He then worked in a management capacity in a photo lab for a period after that. He also worked with Australia Post in various capacities, including as a driver and working up to management for a period of time. He had a serious horse riding accident at one stage and injured his knee and suffered some head injury which meant he could not work for 12 months. Thereafter he went back to work with Australia Post as a truck driver and then went to Toll Express.
He met his wife in 1995 and they married in 2010. He remains married to her, and I understand that she remains supportive of him. In 1998 he moved to another transport company as a manager and worked there successfully. In June 2005 he and his wife moved to Queensland and returned to Sydney in 2009. Whilst in Queensland he obtained qualifications as a scuba diver and bought and leased out dive boats on the Great Barrier Reef.
Since returning to Sydney in October 2009 he has been employed as an underwater photographer. He has obtained a number of qualifications to enable that work. I have viewed a portfolio of his underwater photography. He is very talented in this field and has won awards. That work, as I understand it, remains available to him.
He comes to court as a person with no prior convictions and to that extent he is a person of prior good character. For both the Commonwealth and State offences he is entitled to have the Court take that into account, both in assessing the overall terms of imprisonment but also determining for the State offence whether there are any special circumstances that should alter the non-parole period. However, the fact of his prior good character is of less significance for offences of this type than it might be for others, and it is clearly the case, so far as the Commonwealth offence is concerned, that even though he has no previous convictions he in fact was accessing this material for more than 5 years.
He has two significant health issues, one of which he has been battling for a number of years and the other of which apparently is more recent. He has been suffering from depression since 2010 and in fact first indicated symptoms of depression when he was 12. This I accept has been diagnosed as a major depressive disorder. He has had very significant events occur in his life that have added to this mental state. As I have said his mother died when he was 12 and this is the first occasion on which he expressed depressive symptoms and in fact became suicidal. As I have said he suffered a serious horse riding accident when he was 21, suffering serious physical injuries including an injury which led to some short term memory loss and leg injuries. He also had a subsequent injury when he slipped in the shower, hurt his hand and suffered some nerve damage. He had some depression as a result of that, again with suicidal thoughts and actions.
The fact that he suffers from this psychiatric condition is a matter that I take into account. In this matter there is no clear evidence that this major depressive disorder played a part in his commission of these offences, although I accept it more likely than not had some impact. But I accept that he in fact suffers from this psychiatric illness and has done so since 2010, and that reduces the extent to which general deterrence plays a part in his sentence. Nonetheless, general deterrence for offences like this is a matter which must play a very significant part in determining not just the length of the sentence, but the way in which the sentence should be served.
He has been treated for his depressive illness since 2010 including with medication, some with greater or lesser effectiveness. He currently is in receipt of some medication, dexamphetamines as I understand it, which will be difficult to access in prison and his depressive illness may well, I accept, deteriorate as a result of limited access to medication and I accept almost without doubt that his depression will deteriorate when he goes into prison custody, simply because of the fact that he is going into prison. The prison authorities need to be alive to the fact that this is a man who suffers from a major depressive illness who has displayed actual suicidal behaviour in the past. His risk of attempted suicide it seems to me remains. He should be kept under constant watch when he goes into custody and I would expect for this and other reasons, more probably than not, at least initially, he should be kept and observed in the prison hospital system to ensure that his mental health does not deteriorate in any worse a way than it already is likely to.
He also suffers from another medical condition, namely diabetes. The material has been tendered before me relatively recently. At present it is not entirely clear that it is insulin dependent diabetes. The diagnosis is somewhat uncertain, but because of that he is being treated with insulin as a medication to ensure that he does not suffer further hypertensive episodes. He has however suffered hypertensive episodes in the recent past requiring hospitalisation. Again, that is a matter that the prison authorities must monitor and must provide him with appropriate medical treatment for this condition. If he were to slip into a hypoglycaemic state he is at serious risk in relation to his health and the prison authorities must ensure that he is properly medicated and observed to ensure that this does not happen.
The courts are constantly informed by Corrective Services New South Wales that all medical conditions suffered by all those who are placed in prison are capable of being accommodated and dealt with by the New South Wales Corrective Services Department. The Court of Criminal Appeal constantly advises that, whilst medical conditions can be taken into account in various ways on sentence, the Court must assume that Corrective Services is in a position to attend properly to the medical needs of all prisoners because of the very clear duty of care that it owes to them. It can only be hoped that Corrective Services on this occasion takes notice of this and fulfils their duty of care appropriately to this prisoner.
His prospects of rehabilitation are relatively good in my view. That to an extent is indicated by both the pleas of guilty and the fact that he assisted the authorities immediately.
However, there are some issues that still remain. In his history given to his medico-legal psychiatrist he appears, to an extent, to have minimised his criminality and involvement, particularly in the Commonwealth offence, indicating that he had only started to access those images in 2014. That is clearly not the case from the terms of the charge.
I also accept from the opinion of the psychiatrist, Mr O’Dea, that there are some issues that need to be dealt with in relation to his expressed interest in girls aged 15 years and under, which will require treatment in gaol. There is no evidence to suggest that he is any risk of offending in any way with children. Even though he has been accessing this material for 5 years, there is no indication that he has ever put into practice some of the things that he has seen on the screen, or that he is ever likely to engage in that sort of activity himself. However, he will need to have treatment in gaol to deal with those matters.
The Sentences
On the previous occasion I indicated to counsel that I had a preliminary view about whether the sentences for these two offences needed to be partly accumulated or that there needed to be concurrence. Since reading with some care the decisions in relation to these offences, and particularly the way in which courts ought to sentence for a combination of State and Commonwealth offences, I have revised my view somewhat. It seems to me that there needs to be some partial accumulation of these two sentences. There is not in my view a complete overlap in criminality. Accessing child pornography material is one offence, and in this case it occurred over a period of 5 years. Keeping child pornography material in his possession, 3,500 images or more, can only have been for his further use and viewing. That, in my view, represents a different nature of criminality and the sentences should be partially accumulated to reflect that.
For the Commonwealth offence, count 1, taking into account the early plea and the subjective case, having regard to reported decisions in relation to similar offences and the statistics published by the Judicial Commission in relation to this offence, I have come to the conclusion that a term of 12 months imprisonment is called for.
For the State offence I have concluded that before the 25% discount, taking into account the objective criminality, the subjective circumstances and bearing in mind similar sentences and the Judicial Commission’s statistics, a term of 3 years imprisonment would be called for, which I reduce by 9 months to reflect the discount, giving rise to an overall term of 2 years and 3 months.
For the State offence I will set a non-parole period of 12 months on the finding of special circumstances. Those special circumstances are the following:
(1)The fact that this is his first time in custody;
(2)The fact that both his serious depressive illness and physical condition means that he will experience his time in custody more harshly, and;
(3)The need for a longer than normal period in the community in due course to enable his full rehabilitation.
There will be a partial accumulation by 3 months. That will ultimately give rise therefore to an overall period of imprisonment of 15 months with an overall parole period of 15 months. These sentences must be served full time in the circumstances as there is no alternative.
I can indicate that I ultimately concluded that, even if it had been the case that a sentence of 2 years or less was available, and notwithstanding the decision of the Court of Criminal Appeal and EF v R [2015] NSWCCA 36, I would not in any event have referred the matter for an Intensive Community Corrections Order assessment. After having reviewed the facts fully and all of the authorities in relation to it I had come to the conclusion that this was on offence for which only full-time custody was appropriate.
Formal Sentence Orders
For those reasons I make the following formal orders:
(1)Count 1: The offender is sentenced to a term of imprisonment of 12 months, commencing today, 2 December 2016, and expiring on 1 December 2017.
(a)I decline to set a non-parole period as this will be part of an overall non-parole period.
(2)Count 2: He is sentenced to a non-parole period 12 months commencing on 2 March 2017 and expiring 1 March 2018, with parole thereafter of 15 months commencing 2 March 2018 and expiring 1 June 2019, giving rise to an overall term of imprisonment of 2 years and 3 months commencing 2 March 2017 and expiring 1 June 2019.
(3)I recommend that the warrant taking this prisoner into custody very, very clearly indicates:
(a)This prisoner is a demonstrated risk of suicide, suffers from a major depressive disorder and should be assessed immediately in relation to his mental health, and;
(b)He suffers from diabetes for which he currently takes insulin which should be made available to him immediately after assessment.
(4)I recommend that he be placed in the prison hospital system immediately until he is classified.
(5)I make the forfeiture orders set out in the orders dated today, 2 December 2016.
(a)I note that they relate to the electronic devices obtained on the execution of the search warrant.
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