R v Barber
[2021] ACTSC 78
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Barber |
Citation: | [2021] ACTSC 78 |
Hearing Date: | 27 April 2021 |
DecisionDate: | 27 April 2021 |
Before: | Murrell CJ |
Decision: | Sentenced to two years and six months’ imprisonment to be released on recognizance after 15 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Use carriage service to access child pornography material – Use carriage service to access child abuse material – Possess or control child abuse material – Commonwealth offences |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A(2), 17A, 20(1B), 23ZD Criminal Code Act 1995 (Cth) ss 474.19(1), 474.22(a), 474.22A |
Cases Cited: | DPP v Smith [2010] VSCA 215 Lyons v The Queen [2019] VSCA 242 R v Sutton [2017] ACTSC 95 |
Parties: | The Queen (Crown) Stephen John Barber (Offender) |
Representation: | Counsel Z Hough (Crown) J Purnell SC (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Aulich (Offender) | |
File Number: | SCC 22 of 2021 |
MURRELL CJ:
Introduction
On 4 February 2021, the offender pleaded guilty to six offences:
(a)Count 1: on 24 April 2011, using a carriage service to access child pornography material (10 Category 1 images, also particularised in Count 4);
(b)Count 2: between 1 February and 21 August 2019, using a carriage service to access child pornography material (used his Acer computer to access 122 child pornography files);
(c)Count 3: between 5 March and 21 April 2020, using a carriage service to access child abuse material (used his Acer computer to access 392 child abuse files);
(d)Count 4: on 23 April 2020, possessing or controlling child abuse material that had been obtained or accessed using a carriage service (had possession and control of 4,670 child abuse files across five devices);
(e)Count 5: between 17 and 18 November 2020, using a carriage service to access child abuse material (seven child abuse files on his mobile telephone); and
(f)Count 6: on 18 November 2020, possessing or controlling child abuse material obtained or accessed using a carriage service (the material subject of Count 5).
Counts 1 and 2 are offences against s 474.19(1)(i) of the Criminal Code Act 1995 (Cth) (Criminal Code) (now repealed). Counts 3 and 5 are offences against s 474.22(a)(i) of the Criminal Code. Counts 4 and 6 are offences against s 474.22A of the Criminal Code.
Each offence carries a maximum penalty of 15 years' imprisonment.
The offender has been in custody since 18 November 2020.
The pleas of guilty were entered at the earliest available opportunity and have benefited the administration of justice. I will allow a sentencing discount of 25 per cent.
Facts
The Australian Federal Police use the Australian National Victim Image Library (ANVIL) classification to classify child abuse material. The classification has six categories of child abuse material:
(a)Category 1: images of children that are likely to cause offence, where there is no actual sexual activity, but the image is sexually suggestive or sexual in nature.
(b)Category 2: masturbation by one child or non-penetrative sexual acts between children only.
(c)Category 3: non-penetrative sexual activity between adult and child, including mutual masturbation.
(d)Category 4: penetrative sexual activity between children only or adult(s) and children.
(e)Category 5: sadism, bestiality, humiliating acts, torture or child abuse.
When offending, the offender used a dark web browser to access a website that was dedicated to child abuse material and contained nothing else.
In April 2020, police detected that child abuse files were being accessed on a peer-to-peer computer software program. Further investigations identified the relevant IP address as that of the offender.
On 23 April 2020, police executed a search warrant at the offender's residence. They seized five devices, being an ADATA 1 TB external hard disk drive, an Acer computer, an ADATA 64 GB USB flash drive, a Western Digital 1 TB hard disk drive, and a Lexar 8 GB USB flash drive.
At the time of the search, the offender was present. He told police that he was the sole occupant of the premises, that the Acer computer was secured with a password that was known only to him, and that he was the only user of his service with Telstra.
On the five devices that were seized, police found a total of 4,670 child abuse files. Of the files, 150 were duplicates; the same file was on more than one of the five devices that were seized. Disregarding the duplicates, the files were categorised as follows:
Cat 1 Cat 2 Cat 3 Cat 4 Cat 5 Total Image 2226 495 571 700 219 4121 Video 89 46 29 230 5 399 Total 2315 451 600 930 224 4520
Ten Category 1 images were found on the Western Digital 1 TB hard disk drive and two Category 2 videos were found on the Lexar 8 GB USB flash drive. The remainder of the images were on the other three devices.
Approximately half the material was Category 1 material. However, a significant quantity was Category 4 material (941 files, including duplicates) or Category 5 material (224 files, including duplicates). There were a substantial number of Category 2 or 3 files.
The children depicted in the material range from approximately two to 15 years of age (although in the representative material that I was shown, they appeared generally to be in the middle to upper end of that range).
The material depicted approximately 100 different children; some videos and images depicted the same child.
Inquiries revealed that:
(a)On 24 April 2011, the offender accessed 10 Category 1 images using a carriage service (Count 1 and part of the material the subject of Count 4).
(b)Between 1 February and 21 August 2019, the offender used his Acer computer to access 122 child abuse files (Count 2).
(c)Between 5 March and 21 April 2020, the offender used his Acer computer to access 392 child abuse files (Count 3).
Of these files, 487 are also the subject of Count 4. An additional 27 images that are the subject of Count 2 or Count 3 were recovered by police using specialist tools and are therefore not the subject of Count 4.
After he was arrested on 23 April 2020, the offender was released to bail. His bail was subject to conditions that he would not possess any electronic device capable of accessing the Internet, and he would not access the Internet.
On 18 November 2020, police executed a second search warrant at the offender's residence. They seized his mobile telephone. On it, they located seven files of child abuse material (one video and six images), all of which were Category 1 material. The files depicted pubescent female children in lingerie and adopting sexualised poses. The offender told the police that he understood his bail conditions and that no one else had used the phone.
I have viewed a representative sample of the material.
In sentencing the offender, I must have regard to the considerations in s 16A(2) of the Crimes Act 1914 (Cth) (Crimes Act). Where known, the relevant considerations are addressed below.
Objective seriousness
Matters relevant to an assessment of the objective seriousness of child abuse material offending were discussed in R v De Leeuw [2015] NSWCCA 183.
The following matters are relevant to an assessment of the objective seriousness of various of the subject offences:
(a)Count 4 involved the possession of more than 4,500 files across five devices. The other charges involved significantly less material, particularly Count 1 (10 Category 1 images) and Counts 5 and 6 (seven Category 1 files)
(b)In relation to Count 4, approximately one quarter of the files contained Category 4 or 5 material. There was also a significant quantity of Category 2 and 3 material.
(c)There is no suggestion that the material was possessed for the purpose of sale or further distribution. The absence of any other motive and the repeated offending establishes that the motive for the offending was the obvious one—sexual gratification.
(d)The material was possessed over several time periods between April 2011 and November 2020. There is no evidence of any offending behaviour between April 2011 and early 2019. Count 2 relates to a six-and-a-half-month period in 2019 and Count 3 relates to a six-week period in 2020. While Count 4 refers to one day, it is apparent that at least some of the material (the material the subject of Counts 2 and 3) was retained for a significant period prior to that date, i.e. the offence was not an isolated event.
(e)The material depicted approximately 100 different victims, ranging from two years of age to about 15 years of age.
(f)Counts 5 and 6 are closely related. They are of significant objective seriousness because they were committed when the offender was on conditional liberty for offences of the same type and they were committed in breach of bail conditions.
These considerations show that Count 4 was an offence of substantial objective seriousness, and the other offences were of significant objective seriousness.
Subjective features
When the 2011 offence was committed, the offender was 57 years old. He is now 67 years old.
He has no relevant criminal history. However, for offences of this type, limited weight may attach to an offender's prior good character and limited criminal history because such offences are committed frequently by persons of otherwise good character: DPP v Smith [2010] VSCA 215 at [23] per Nettle JA; R v Porte [2015] NSWCCA 174; 252 A Crim R 277 (Porte) per Johnson J (Leeming JA and Beech-Jones J agreeing). Commonwealth Sentencing Database statistics support the proposition that such offences are often committed by persons with no prior criminal convictions.
The offender is one of three children. He had a reasonably positive upbringing, although the family moved homes on several occasions due to his father's work in the public service. He enjoyed a good relationship with his parents prior to their passing. He has a close relationship with his siblings, but they do not reside in the ACT.
The offender is a single man. He has no children. He lives (and seemingly has always lived) a socially isolated life and lacks productive activities. He has experienced significant depression, at least since 2007.
At stressful times, the offender has self-medicated with alcohol and cannabis. Recently, the offender was diagnosed as suffering from a major depressive disorder, alcohol use disorder, and cannabis use disorder.
The offender has had no significant partner relationships. In his 40s, he engaged the services of sex workers, but did not derive much satisfaction from those encounters. He usually consumed alcohol before meeting sex workers in order to gain the courage to participate. Ms Bollinger, the psychologist who provided a report, stated that the offender's difficulty with interpersonal relationships with adult women may be a contributing factor in his attraction to material concerning children.
After completing Year 12 in Canberra, the offender undertook casual work and travelled for a few years. He then studied for tertiary qualifications in geology, worked briefly in the mining and oil industry, and obtained a clerical position in the public service in Canberra. In 2005, he was subjected to disciplinary action for breaching his employer's code of conduct, an allegation that he disputed. Thereafter, he relocated to the Northern Territory for six months, before returning to Canberra in 2006. Through this difficult period of his life, he experienced a decline in his mental health.
In 2007, he suffered a “breakdown”, involving depression and suicidal thoughts. He was admitted to the Canberra Hospital Mental Health Unit and released on antidepressant medication. He ceased heavy drinking.
In 2008/2009, the offender suffered a mild heart attack.
In 2008, he began a four-year project with Geoscience, which he found most enjoyable. Thereafter, he returned to his substantive position, which he enjoyed far less. In 2014, his position was made redundant, and, at 60 years of age, he took an early retirement.
His mental health declined further, and he experienced feelings of disgust and self-shame.
The offender said that, in 2011, he obtained a computer and an Internet service. He began to search for pornographic material and to view images that were “borderline but legitimate”. After a time, he panicked and deleted the material. However, over time, he resumed searching for material and began to actively seek out more explicit material.
The offender told the author of the pre-sentence report that, in 2015 and again in 2017 (when he felt that his behaviour was becoming compulsive), he attempted to discuss his attraction to child pornography material with his general practitioner, but his attempts were unsuccessful because he felt too ashamed to clearly articulate the problem.
In 2017, he obtained a Working with Vulnerable People clearance and commenced voluntary work with people suffering from dementia, working four or five hours a week. He found the work very satisfying but, with the commencement of the pandemic, work ceased in early 2020.
In 2020, the offender resumed viewing child abuse material when he was confined to his house during the pandemic and had no routine or regular social interaction. At first, he looked at previously saved material. He then began to look for new material. His primary interest was female children aged nine to 15 years.
Following his arrest in April 2020, the offender experienced suicidal thoughts and rang helplines for support. He recommenced drinking heavily and was smoking cannabis to excess.
In June 2020, the offender was referred to Dr Christian Torres, a clinical psychologist with experience in child sex offending matters. The offender recommenced taking anti‑depressant medication and began to feel more stable. However, he also began to feel “sucked back in” to viewing child abuse material. Prior to the revocation of bail, he attended about six sessions with Dr Torres.
When speaking to the author of the pre-sentence report, the offender described a vicious pattern of watching child abuse material, becoming aroused, and then experiencing self‑loathing and disgust. He said that he had attempted to stop the practice and, on one occasion, had buried his external devices in the backyard after finding that he was unable to dispose of the material or devices completely. He said that, after he was placed on bail, he ceased accessing material for a time, but once he had obtained a mobile telephone, he used the device to access adult pornography. He maintained that he was unaware that he had accessed further child pornography.
The offender acknowledged that he was concerned that he may be unable to manage temptation when in the community and he expressed interest in attending a sex offender treatment program. He described his behaviour as an addiction that overwhelmed common sense and morality. He expressed a desire to understand how he had become attracted to child pornography.
The offender displayed insight about the psychological and physical impact of his behaviour on child victims and the role that such offending played in perpetrating victim abuse, but less insight into the reasons for his offending conduct. However, he did express a desire to understand the reasons.
The offender said that he had no desire to have actual physical contact with young people but had nevertheless restricted his movements in the community to minimise possible interaction with young people.
The author of the pre-sentence report assessed the offender as at medium risk of general re-offending.
Ms Bollinger, the reporting psychologist, stated that the offender was likely suffering from major depressive disorder at the time of the 2020 offences, but not at the time of the 2011 offence. She said that his depression, and the alcohol, and cannabis use disorders likely impacted on his ability to inhibit his impulses to offend. His major depressive disorder may have induced him to re-offend.
Ms Bollinger observed that the offender fitted the profile of a “periodically prurient offender”, in that he demonstrated socio-affective deficits in relation to self‑regulation and inhibitory control. She noted that such offenders have the same attitude to offending as the non-criminal population but may struggle with regulating their emotions and may use sex as a coping strategy. They may be drawn to child abuse material to avoid real life confrontations or challenges, rather than out of a specific attraction to minors: at [61].
At [62] of her report, Ms Bollinger said that, while the offender exhibited risk factors for general recidivism, a number of those factors were likely to respond to treatment or lifestyle change. Dynamic risk factors included a lack of stable relationships, general loneliness, impulsivity, and negative emotionality. Ms Bollinger considered that, if the offender received tailored therapy, his risk of committing a contact offence was low. She considered the offender's remorse and insight to be significant factors. She said that he would benefit from psychological therapy targeted at improving his understanding of the reasons behind his offending behaviour and developing strategies to lower ongoing risk.
The offender reported to Ms Bollinger that, while in custody, he had been subjected to threats. Currently, he is in a secure unit, where he is less exposed to risk. Ms Bollinger said that it is likely that full-time imprisonment would have a negative impact on his mental health, given his history of major depressive disorder, suicidal thoughts, and impulsivity.
I accept Ms Bollinger's opinion that, for a person of the offender's personality and given the offences for which he is incarcerated, full-time imprisonment is likely to have a negative impact on his mental health.
The offender tendered a letter from a long-standing friend who stated that the offender had a strong work ethic and had been a supportive friend over many years. The offender had expressed his remorse and disgust about his conduct to the author of the letter.
The Crown accepted, as do I, that the offender has demonstrated remorse for his conduct.
Other considerations
Counsel for the offender submitted that the offender's mental health problems had probably impacted on his ability to inhibit impulses and played a role in the commission of the offences, such that his mental health problems reduced his moral culpability for the offences and may have some impact on the applicability of sentencing purposes, including general deterrence.
I accept that the offender suffers from depression (at times, major depression) and from substance abuse disorders, and I accept that such conditions may have reduced his impulse control. However, I do not accept that they have operated on his impulse control in a way that significantly reduces his moral culpability for the offence or significantly impacts on the sentencing purposes which ordinarily operate in relation to offences of this type.
The offender's conduct can be understood in the context of the general disappointments of his life: his inability to develop meaningful adult relationships; his work disappointments; and his longstanding social isolation (which was vastly increased during 2020, when the opportunities for social interaction were affected decreased by the pandemic. There is an interplay between the offender's generally disappointing and lonely life and the conditions of major depression and substance abuse disorder. These factors explain the commission of the offences, but they do not significantly reduce the offender's moral culpability or affect the application of ordinary sentencing purposes.
Protection of the community through general deterrence is the paramount sentencing consideration for offences of this type, including these particular offences. Such offences are insidious, difficult to detect, and likely to increase with the ever-expanding use of the Internet, both domestically and internationally.
Personal deterrence is an important sentencing consideration. The offences were committed at different times, and over significant periods, and the last offences occurred when the offender was on conditional liberty for prior offences of the same type.
While an offender’s prospects for rehabilitation are always a very relevant consideration, for offending of this type, it is difficult to reliably assess prospects. Risk level was assessed by Ms Bollinger and by the author of the pre-sentence report, but I do not place substantial weight on those assessments, as such assessments are notoriously unreliable. In this case, the fact that the offender committed further offences while on conditional liberty suggests that his prospects of rehabilitation are quite uncertain. On the other hand, he would appear to be an intelligent person who, contrary to comments made in some of the reports, does display significant insight into his situation. He fully appreciates that his conduct is morally wrong, and he has sought and is willing to accept treatment.
The Court must have regard to sentencing patterns throughout the Commonwealth with a view to ensuring reasonable sentencing consistency between different jurisdictions: R v Pham [2015] HCA 39; 256 CLR 550 per French CJ, Keane and Nettle JJ at [23].
The Crown and the offender each provided a table of comparative cases. The cases included R v Sutton [2017] ACTSC 95, R v Ramsay-Feeney [2021] ACTSC 5, R v AX(No 3) [2020] ACTSC 334, Lyons v The Queen [2019] VSCA 242, Peters v The Queen [2018] NSWCCA 126, Miao v The Queen [2017] NSWCCA 89, and Porte.
Sentencing statistics have limited utility. However, for what it is worth, I note that, according to the Commonwealth Sentencing Database, for offences against s 474.19(1)(i), 63 per cent of offenders received a sentence of imprisonment, often in the range of 18 to 30 months’ imprisonment. For offences against s 474.22(a)(i), the statistics show a similar pattern (although the sample is very small). For offences against s 474.22A, no sentencing statistics are available. The statistical information is consistent with the approach taken in the comparative cases.
Having regard to the objective seriousness of the offences and relevant sentencing purposes, I am satisfied that the only appropriate sentences are sentences of full-time imprisonment: Crimes Act s 17A.
Sentences
I impose the following sentences.
(a)Count 1: Use carriage service to access child pornography material—four months’ imprisonment (reduced from six months’ imprisonment), from 18 November 2020 to 17 March 2021.
(b)Count 2: Use carriage service to access child pornography material—11 months’ imprisonment (reduced from 14 months’ imprisonment), from 18 May 2021 to 17 April 2022.
(c)Count 3: Use carriage service to access child abuse material—11 months’ imprisonment (reduced from 14 months’ imprisonment), from 18 August 2021 to 17 July 2022.
(d)Count 4: Possess or control child abuse material—two years’ imprisonment (reduced from two years and six months’ imprisonment), from 18 May 2021 to 17 May 2023.
(e)Count 5: Use carriage service to access child abuse material—nine months’ imprisonment (reduced from 12 months’ imprisonment), from 18 January 2021 to 17 October 2021.
(f)Count 6: Possess or control child abuse material obtained or accessed using a carriage service—nine months’ imprisonment (reduced from 12 months’ imprisonment), from 18 April 2021 to 17 January 2022.
The total sentence is two years and six months’ imprisonment, from 18 November 2020 to 17 May 2023.
Pursuant to s 20(1B) of the Crimes Act, the offender is to be released on 17 February 2022, after serving 15 months of the term of imprisonment, upon the offender giving security without sureties by recognizance that he will comply with the following conditions:
(a)to be of good behaviour for a period of 12 months;
(b)to accept the supervision of ACT Corrective Services;
(c)to obey all reasonable directions of ACT Corrective Services;
(d)to not travel interstate or overseas without the written permission of ACT Corrective Services;
(e)to undertake such treatment or rehabilitation programs as ACT Corrective Services directs, including treatment and programs addressing mental health conditions and sex offending; and
(f)to report to ACT Corrective Services within two working days of release.
Pursuant to s 23ZD of the Crimes Act, I make an order that the items listed in paragraph [9] and the offender’s Telstra mobile phone be forfeited to the Commonwealth.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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