R v AX (No 3)
[2020] ACTSC 334
•3 November 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v AX (No 3) |
| Citation: | [2020] ACTSC 334 |
| Hearing Date: | 3 November 2020 |
| Decision Date: | 16 November 2020 |
| Before: | Burns J |
| Decision: | See [44]–[52] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to access child abuse material – using a carriage service to possess child abuse material – failing to notify a change in personal circumstances – plea of guilty – breach of good behaviour order – reasonable prospects of rehabilitation – relevance of offender’s youth – consideration of individual and |
| general deterrence and punishment | |
| Legislation Cited: | Crimes (Child Sex Offenders) Act 2005 (ACT) s 54(2) |
| Criminal Code Act 1995 (Cth) ss 474.22, 474.22A(1) | |
| Parties: | The Queen (Crown) AX (Offender) |
| Representation: | Counsel |
| Z Hough (Crown) | |
| R Christensen (Crown) K Musgrove (Offender) | |
| Solicitors | |
| Commonwealth Director of Public Prosecutions (Crown) ACT Director of Public Prosecutions (Crown) | |
| Prudential Legal (Offender) | |
| File Number: | SCC 114 of 2020; SCC 171 of 2014 |
| BURNS J: |
1. AX, you have entered pleas of guilty to the following three offences:
•
first, a charge of using a carriage service between 29 September 2019 and 29 February 2020 to access child abuse material contrary to s 474.22 of the Criminal Code Act 1995 (Cth) (the Commonwealth Criminal Code);
•
second, a charge of using a carriage service on 29 February 2020 to possess child abuse material contrary to s 474.22A(1) of the Commonwealth Criminal Code; and
•
third, a charge that on 29 February 2020, you failed to notify a change in your personal circumstances contrary to s 54(2), of the Crimes (Child Sex Offenders) Act 2005 (ACT).
2. The maximum penalty for each of the Commonwealth offences is 15 years' imprisonment while that for the ACT offence is five years' imprisonment, a fine of 500 penalty units, or both.
3. A conviction on the charge of using a carriage service to access child abuse material places you in breach of suspended sentence orders made by me on 17 April 2019 for offences of possession of child pornography and using a child for the production of child pornography. I will return to that matter in a moment.
The facts
4. On Saturday 29 February 2020, police executed a search warrant at your residential premises in Canberra. You were present during the search. You were residing at those premises with your grandmother, grandfather and fiancée who were all present during the search.
5. During the search, police located a black Samsung mobile phone. Under caution, you made admissions to being the only person who accessed or used the device. You further admitted that there was child abuse material on the device which you estimated to be about 200 images. You told police that you knew downloading and possessing child abuse material was unlawful.
6. You provided police with details of the mechanism by which you downloaded the material from the dark web. You said that you accessed material whenever you had an urge to see naked children, approximately weekly since September 2019. You said that the age range of females in the images ranged from 1 year of age to 16 years of age and that you preferred girls aged between six to eight years. You told police that you would masturbate to the material.
7. Subsequent analysis of the black Samsung mobile phone revealed 1,915 child abuse material files. This was broken down into 1,813 images and 102 videos. 1,471 of the images and 3 of the videos fell within Category 1 of the scale customarily applied to child abuse material. Category 1 includes images of children which are likely to cause offence to a reasonable adult but where there is no actual sexual activity in place. The image must, however, be sexually suggestive or sexual in nature.
8. 77 of the images and 8 of the videos fell within Category 2, which refers to material depicting sexual acts between children only with no part of the body being penetrated, or solo masturbation by a child.
9. 147 of the images and 30 of the videos fell within Category 3, which refers to non-penetrative sexual activity between adults and children.
10. 107 of the images and 59 of the videos fell within Category 4, which depicts penetrative sexual activity between children only or adults and children.
11. Eight of the images and one of the videos fell within Category 5, which depicts material involving sadism, bestiality or humiliation, torture or child abuse.
12. Three of the images and one of the videos fell within Category 6, which is material featuring any of the activities described by Categories 1 to 5 which is not or does not appear to be a genuine photograph and/or feature a genuine child.
13. These are the facts relevant to the charges of using a carriage service to access child abuse material and using a carriage service to obtain or possess child abuse material.
14. On 17 December 2014, you were sentenced by Walmsley AJ in this Court to terms of imprisonment for Commonwealth offences of using a carriage service to transmit child pornography, using a carriage service to access child pornography and for ACT offences of possession of child pornography and using a child for production of child pornography. All of those sentences were wholly suspended. You committed those offences as a juvenile.
15. You breached the orders made by Walmsley AJ on four occasions between December 2014 and December 2018. On each occasion that you came before the Court on breaches of the orders that had been made Walmsley AJ, the sentences were cancelled and you were re-sentenced to lesser suspended terms of imprisonment. Lesser terms were imposed to reflect the fact that you had, to some extent, complied with the terms of the suspended sentence orders. It was an important factor in sentencing you for each of the breaches that none involved any form of sexual offending.
16. As a consequence of your conviction for those matters, you became a registrable child sex offender who was required to report annually until 2022. It was a condition of your reporting obligations, a written copy of which you signed on 6 December 2019, that you were to report details of any user name or identity created, ceased, changed or used by you through the internet or any other electronic communication service, including mobile phone apps, computer and tablet devices.
17. A review of your black Samsung mobile phone seized on 29 February 2020 revealed that you had used five online accounts, three of which appear to have been used for about one month prior to 29 February 2020. You had not reported any of these social media accounts or your user names for those accounts to the chief police officer as required.
18. You were arrested on 29 February 2020 and you have remained in custody since that time.
19. I would describe each of these offences as falling just between the low range and mid-range of such offences. The child abuse material which is the subject of the first two charges is identical for each of the charges. The age of the children depicted and the gravity of the sexual activity depicted, the nature of items or images accessed and the number of children depicted and the length of time over which you accessed the material and had it in your possession are all relevant to this assessment. I note that there is no suggestion that you accessed or possessed the material for the purpose of sale or further distribution, and there is further no suggestion that you were to profit from these offences.
Subjective features
20. You are currently 24 years old and you were 23 years old at the time you committed these offences. As I earlier indicated, you have a prior criminal history relating to creating, accessing, transmitting and possessing child abuse material.
21. I have had regard to the sentencing remarks made by Walmsley AJ on 17 December 2014. The offences then before his Honour were not trivial but there was a compelling subjective case put before his Honour on sentence. You were sentenced as a juvenile and there was evidence that you had become involved in abuse of alcohol and drugs at a relatively early age.
22. You began to watch pornography at age 14 or 15 years and a report presented from a psychologist indicated that you had developed an addiction to pornography. You expressed remorse for your offending conduct and you stated that you noted that children in pornographic photographs are real victims. Walmsley AJ noted a psychiatrist's report which referred to a history of trauma, self-harm and depression. A Pre-Sentence Report suggested that your prospects for rehabilitation were good so long as you addressed alcohol and drug abuse.
23. The sentences imposed by his Honour, and subsequent sentences imposed by myself for breach of his Honour's orders, were directed towards your rehabilitation by addressing your alcohol and drug abuse. You are not to be punished twice for the offences for which you were sentenced on 17 December 2014. The fact that you have previous convictions is relevant to determining to what extent you may be entitled to leniency in sentencing for the present offences.
24. A Pre-Sentence Report dated 28 September 2020 was prepared for your sentence hearing. The Report notes that your previous compliance with supervision on bail, pursuant to court orders, has been inconsistent, with breach action being initiated for failing to comply with directions. The Report notes that since you have been remanded in custody on the present occasion, you have completed the Introduction to Recovery Program and you are employed in a cleaning position.
25. You indicated an intention to reside with your parents in Albury in New South Wales when you are released from custody. You have continuing support from your grandparents who reside in the ACT. You also have continuing contact with your older sister. You are currently in a relationship that has been in existence for about 19 months but you do not have any children from that relationship. You identify as Aboriginal and you have previously been involved with the local Aboriginal community.
26. Prior to being remanded in custody, you were employed in an unpaid position as a carpenter's labourer. You were not receiving any Centrelink payments and you were financially supported by your family. You believe that similar employment will be available to you upon your release.
27. Over the period leading up to your arrest, you were abusing cannabis and also methamphetamine. You told the author of the Report that you believed that you would be able to remain abstinent from illicit substances when released from custody and you intend on engaging in counselling for support.
28. You reported having been diagnosed with depression and anxiety for which you have been prescribed medication for the past four years. You were assessed by Forensic Mental Health upon admission to custody and it was determined that no further contact was required. You requested to be placed on the Opioid Treatment Program, but this was denied due to no evidence of opioid dependency.
29. The Report notes that you engaged in individual counselling sessions with a clinical psychologist, Dr Doug Boer, in 2016 because you were found unsuitable for the adult
sex offenders’ program at that time. After your community supervision expired, you
continued to attend sessions with Dr Boer and this continued during the period that you have been on remand. You have engaged in counselling sessions by telephone with Dr Boer focusing on relapse prevention as well as working on your own trauma as the victim of childhood sexual abuse. Dr Boer recommends that you be assessed again for
suitability to participate in the adult sex offenders’ program run by
ACT Corrective Services which is available both in the community and in custody.
30. In a report dated 27 October 2020, Dr Boer notes that you have not previously revealed sexual abuse by a relative while you were a child and as such, that has not been dealt with therapeutically. Dr Boer was of the opinion that child sexual abuse is a well-known risk factor that can contribute to a person's vulnerability to commit sexual violence through various pathways, including emotional dysregulation caused by illicit drug use. Dr Boer speaks of the steps that you have taken to understand and address your offending behaviour. He recommends continuing treatment.
31. Regarding the present offences, you told the author of the Pre-Sentence Report that you had been reminded of your own sexual abuse as a child which triggered a relapse. You believed that you would not be caught. You told the author of the Report initially that you viewed the present offences as less severe than your earlier offending as there was no victim. You were assessed as a medium risk of general re-offending. Your risk of sexual offending was assessed as well above average. You were assessed as suitable for an Intensive Correction Order.
32. An Updated Pre-Sentence Report dated 26 October 2020 was also prepared. In that Report, you acknowledged that while you did not have direct contact with the children depicted in the photographs and videos, they were still victims of your offending. You advised that you had engaged in discussions with Dr Boer regarding your attitude towards the offences and the victims.
33. I was provided with a letter from your fiancée who has known you since January 2010. She describes you as a very soft, kind-hearted soul. She also speaks positively of your work ethic and the assistance you have provided to her to help her overcome her learning disability. You have expressed remorse to her for your offending and you have apparently been honest with her about your history and feelings. You have plans to be married. I have no doubt that your fiancée is a positive influence on you.
34. I was also provided with a letter from your parents which refers to the continuing family support which you receive and of their attempts to maintain contact with you in the Alexander Maconochie Centre. The letter also refers to significant health problems suffered by your father and their hope that you may be able to live with them in the future to provide them with assistance. Your parents also speak of you repeatedly demonstrating remorse for what you have done. They also refer to the possibility of you obtaining employment in the Albury region.
35. I also take into account the contents of the letter from your grandparents. Finally, I take into account a reference from a former employer for whom you worked as a casual labourer from between September 2019 until February 2020.
Consideration
36. You entered pleas of guilty to these charges at the first reasonable opportunity. This indicates a willingness to facilitate the course of justice and I am also satisfied that in your case it demonstrates a degree of remorse. With regard to the territory matter, I also accept that it had significant utilitarian value. I will reduce by approximately 25 per cent the otherwise appropriate sentences for these offences because of your pleas of guilty.
37. On the other side of the ledger of course, it is an aggravating circumstance that the offence of using a carriage service to access child abuse material occurred at a time when you were subject to conditional liberty. At that time, you were subject to the suspended sentence orders which I had imposed on 17 April 2019 also with regard to child sex offences. As I say, I note that you have been in custody since 29 February 2020, so that the commencement date of any sentences which I impose should be 29 February 2020.
38. The Crown has not disputed your assertion that you were the subject of sexual abuse as a child. There is no clear connection drawn by Dr Boer in his report between this sexual abuse and your mental health issues and drug use. I accept that your ongoing mental illness is a relevant subject factor, but I am not satisfied that it significantly reduces your moral culpability for the present offences.
39. I take into account that you commenced the use of illicit drugs at a relatively early age and I accept that the use of illicit drugs results in emotional dysregulation which is connected with you accessing child abuse material. I have no doubt, however, that you were well aware of this at the time you committed the present offences, because it was a matter which was referred to when you were sentenced by Walmsley AJ in 2014 and on each of the occasions when I re-sentenced you between 2016 and April 2019. You must have been aware of the risk that you would relapse into the use of child abuse material if you relapsed into the use of illicit drugs.
40. I accept that you are remorseful for your relapse and you have expressed that remorse on numerous occasions. I take into account that you made admissions to police during the execution of the search warrant and that you cooperated with police in the investigation of these offences. You have demonstrated your remorse through voluntarily seeking appropriate counselling and treatment and indicating a desire to continue with that counselling and treatment. All of this is relevant to an assessment of your prospects for rehabilitation. I accept that you have reasonable prospects for rehabilitation.
41. I take into account the comparable cases to which I was referred at the sentencing hearing. The sentences imposed in those cases provide guidance as to the identification and application of relevant principles and they provide a range of sentences against which to examine proposed sentences in your matters. Whilst you are still a relatively young man, you are no longer a juvenile as you were when you were sentenced by Walmsley AJ. While rehabilitation is still an important sentencing consideration, other sentencing considerations, such as general and individual deterrence and punishment, must now be given due weight.
42. Having considered the objective circumstances of the offending and your subjective circumstances, I am satisfied that nothing less than sentences involving some period of full-time imprisonment are appropriate with respect to the present offences. I gave consideration to the possibility of imposing an Intensive Correction Order, but such an order involves a significant degree of leniency when compared to a sentence involving full-time imprisonment. The objective seriousness of the present offences makes a disposition by way of Intensive Correction Order inappropriate.
43. I do not accept the suggestion that you did not report the change in your personal circumstances as required because you were unaware of the need to do so. I have no doubt that you were well aware of your obligations. You chose not to comply with your obligations over a short period because at that time you were either accessing child abuse material or contemplating doing so.
Sentence
44. I record a conviction on the charge of using a carriage service to access child abuse material (CC 2020/2892). This places you in breach of the suspended sentence orders that I imposed on 17 April 2019. I cancel the Good Behaviour Orders in those orders and impose the suspended sentences of four months' imprisonment on the charge of possession of child pornography (CH 14/285) and six months' imprisonment for the charge of using a child for production of child pornography (CH 14/286). Each of those sentences will commence on 29 February 2020.
45. The sentence for the offence of possession of child pornography therefore expired on 28 June 2020, and that for the offence of using a child for production of child pornography expired on 28 August 2020.
46. For the offence of using a carriage service to access child abuse material (CC 2020/2892), I sentence you to 12 months' imprisonment, which I have reduced from 16 months because of your plea of guilty. That sentence will commence on 29 August 2020 and expire on 28 August 2021.
47. I record a conviction on the charge of using a carriage service to obtain or possess child abuse material (SCCAN 120/2020) and you are sentenced to 12 months' imprisonment, which I have reduced from 16 months in order to reflect your plea of guilty. That sentence will commence on 29 October 2020 and expire on 28 October 2021.
48. I record a conviction on the charge of failing to notify a change in personal circumstances (SCCAN 121/2020) and you are sentenced to eight months' imprisonment, which I have reduced from 12 months because of your plea of guilty. That sentence will commence on 29 June 2021 and expire on 28 February 2022. I am satisfied that making the sentence for this offence partially concurrent with the sentence for the Commonwealth offences will result in sentences that are of appropriate severity in all of the circumstances.
49. With regard to the Commonwealth offences (CC 2020/2892; SCCAN 2020/120), I fix a Recognizance Release Order commencing on 28 February 2021 with a recognizance self in the sum of $500 for a period of two years, commencing on 28 February 2021 and expiring on 27 February 2023, with conditions that:
a)
you are to accept that the supervision of ACT Corrective Services and to obey all reasonable directions of officers of that service or their delegates;
b)
you are also to undertake such assessments, counselling or treatment for sex offending and drug abuse as directed; and
c)
I recommend that you be assessed for and, if found suitable, directed to attend the adult sex offender program.
50. With regard to the charge failing to notify a change in personal circumstances, that offence will be wholly suspended and there will be a Good Behaviour Order for a period of 12 months, commencing on 29 June 2020. In light of the orders which I have made with regard to the Commonwealth offences, I will impose no further conditions on the Good Behaviour Order for the ACT offence (SCCAN 121/2020) other than the core conditions.
[Speaking directly to offender]
51. The effect of the sentences that I have imposed is that I have effectively imposed an aggregate sentence of two years' imprisonment. You will be eligible to be released on 28 February 2021 on effectively a recognizance or bond to be of good behaviour for a period of two years, with conditions again which are directed towards assisting your rehabilitation from alcohol and drug offending and in that way also assisting in your rehabilitation from sexual offending.
52. You have a lot of people who are supporting you and I have no doubt that you can avoid relapse into the use of child sex offence material if you avoid relapse into drug and alcohol abuse. That seems to be the trigger in relation to your use of child sexual offending material. You have done the right thing to a great extent by having sought out appropriate treatment. It is now up to you to maintain your commitment to that treatment and to avoiding situations which may lead to you returning to the abuse of alcohol and drugs and child sexual abuse material.
I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.
Associate:
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