R v Bolton
[2024] ACTSC 314
•17 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Bolton |
Citation: | [2024] ACTSC 314 |
Hearing Date: | 24 September 2024 |
Decision Date: | 17 October 2024 |
Before: | McWilliam J |
Decision: | Term of imprisonment of 1 year and 11 months, released on recognizance after 7 weeks. |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentence – possession of child abuse material – using carriage service to access child abuse material – where offender has disabilities from stroke suffered subsequent to offending – whether intensive correction order appropriate – full time imprisonment and release on recognizance ordered |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A, 16A(1), 16A(2), 16A(2AAA), 16AB(3), 17A(1), 17A(2)(a), 19(5), 19(6), 19AC, 20(1)(b)(iii), 20(1B), 20AB(1)(b) Criminal Code Act 1995 (Cth) ss 474.22(1), 474.22A(1) Crimes (Sentencing) Act 2005 (ACT) ss 29(1)(b), 78(6) Sentencing Act 1991 (VIC) s 44(1) |
Cases Cited: | Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queens [2014] VSCA 342; 46 VR 308 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Director of Public Prosecutions (Cth) v Garside; Director of Public Prosecutions v Garside [2016] VSCA 74; 50 VR 800 Director of Public Prosecutions (Cth) v Thomas; Director of Public Prosecutions (Cth) v Wu [2016] VSCA 237; 53 VR 546 Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73; 259 A Crim R 327 Fedele v The Queen [2015] NSWCCA 286; 257 A Crim R 78 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 James v The Queen [2009] NSWCCA 62 McLeod v The Queen [2018] ACTCA 59 Mertell v The King [2022] ACTCA 69 Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Peters v The Queen [2018] NSWCCA 126 R v Cardwell [2021] QCA 112 R v Cobcroft (No 2) [2022] ACTSC 15 R v Cusack [2021] ACTSC 75 R v Davison [2020] ACTSC 272 R v De Leeuw [2015] NSWCCA 183 R v De Simoni [1981] HCA 31; 147 CLR 383 R v Guode [2020] HCA 8; 267 CLR 141 R v Howe [2017] QCA 7 R v Hutchinson [2018] NSWCCA 152 R v Kelly (Edward); R v Sandford [2000] 1 QB 198 R v Porte [2015] NSWCCA 174; 252 A Crim R 294 R v Tootell; Ex parte A-G (Qld) [2012] QCA 273 R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269 R v Walker [2019] ACTSC 172 R v Wicks [2005] NSWCCA 409 Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1 |
Texts Cited: | Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth) |
Parties: | Director of Public Prosecutions (Cth) ( Crown) Steven John Bolton ( Offender) |
Representation: | Counsel E Gordon ( Crown) D Ager ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Peter Agoth & Associates (Offender) | |
File Number: | SCC 102 of 2023 |
McWILLIAM J:
1․The offender in this matter, Mr Steven John Bolton, is before this court for sentencing, having pleaded guilty to the following two offences:
(a)Possession of child abuse material, contrary to s 474.22A(1) of the Criminal Code Act 1995 (Cth) (CAN 11776/2022) (the possession offence); and
(b)Using a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth) (CAN 11777/2022) (the access offence).
2․The maximum penalty for each of these offences is imprisonment for 15 years.
3․The possession offence involved 536 unique files. The access offence involved 79 unique files.
Facts giving rise to the offences
Detection of offending
4․On 4 March 2022, the police received a referral from the Australian Centre to Counter Child Exploitation Operations Coordination Unit which identified a possible ACT resident accessing child abuse material through peer-to-peer (PTP) networks.
5․On 29 April 2022, police executed a search warrant at the offender’s address. At the time, the offender was the only person living at that address.
6․During the search warrant, police located numerous electronic and electronic storage devices, including:
(a)Asus Eee PC Laptop (the laptop);
(b)Synology DS413 and Synology DS513 Network Attached Storage Device,
(c)Synology DS2419+ Network Attached Storage Device; and
(d)Apple iPad (the iPad).
Count 1 – possession of child abuse material
7․Across those four devices, the offender possessed a total of 536 unique child abuse material files. The charge was for possession on or about 29 April 2022.
8․I am mindful of those whose work involves analysing the material to prepare the necessary information, by way of samples, descriptions and categorisations, for the Court to view in order to fully understand the nature of what was downloaded to constitute the possession offence. In the present case, the agreed facts contained an adequate written description of the material, by reference to categories and samples, so that the Court was able to obtain a full appreciation of its nature: see R v Hutchinson [2018] NSWCCA 152 (Hutchinson) at [47]-[49], per R A Hulme J (with whom Meagher JA and Button J agreed).
9․The 536 unique files may be broken down into images and videos:
(a)33 child abuse material image files comprising:
(i)1 category 1 child abuse material picture file; and
(ii)32 category 2 child abuse material picture files;
(b)503 child abuse material video files (approximately 90 hours’ worth) comprising:
(i)359 category 1 child abuse material video files; and
(ii)144 category 2 child abuse material video files.
10․Of those material files, about 67% depicted prepubescent child victims and about 33% depicted pubescent child victims.
11․It is important to understand the category system used in order to understand the seriousness of the offence. The Australian Child Abuse Categorisation Schema categorises child abuse material according to the following two categories:
(a)Category 1: Files depicting prepubescent children (under the age of 13 years old, approximately) and the child is involved in a sexual act, is witnessing a sexual act or the material is focussed on the child’s anal or genital region.
(b)Category 2: Other illegal files – files that are illegal according to local legislation either by way of age or content.
12․This is not to be confused with other scales that might be used to classify such material, such as the Australian National Victim Identification Library (‘ANVIL’) (which is referred to in a number of the comparable cases discussed below), where a category 1 description relates to no sexual activity. See also R v Porte [2015] NSWCCA 174; 252 A Crim R 294 (Porte) at [73]-[74].
Count 2 – Accessing child abuse material
13․Between 13 November 2021 and 24 March 2022 (a little over four months), the accused accessed 79 child abuse material videos using the laptop.
14․The video files were accessed and downloaded by the user named “ac” from Freenet, a peer-to-peer network with an emphasis on anonymity and security, on the laptop on 2 May 2020. This network is able to download files directly through the internet browsing application while the user is connected to the network. The program had been manually configured to save downloads to the laptop.
15․The child abuse material which is the subject of count 2 is coextensive with count 1. That is, all files which are the subject of the accessing charge are also the subject of the possession charge.
Court’s sentencing task
16․As the Crown submitted, in sentencing for a Commonwealth offence, the Court is to have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth) (Crimes Act). They include the need for adequate punishment (s 16A(2)(k)), specific deterrence (s 16A(2)(j)), general deterrence (s 16A(2)(ja)), rehabilitation (s 16A(2)(n)), and recognising harm to victims (s 16A(2)(ea)).
Nature and circumstances of the offence (s 16A(2)(a) of the Crimes Act)
17․The evaluation of the nature and circumstances of the offence is “objective” in the sense that the Court does not consider matters personal to the offender and determines the seriousness “wholly by reference to the nature of the offending”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. Subjective considerations, or matters personal to the offender, are separate considerations: McLeod v The Queen [2018] ACTCA 59 at [12].
18․The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The maximum penalties here for each of the offences, have been set out above. They indicate that these offences are each clearly serious.
19․Factors relevant to the objective seriousness of offences of this kind (including possession and use) are discussed in R v De Leeuw [2015] NSWCCA 183 (De Leeuw) at [72(b)], Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 (Minehan) at [94] and more recently in Hutchinson at [45]. They include the following:
(a)The nature and content of the material, including the age of the children and the gravity of the sexual activity depicted or portrayed. Here, the nature of the material included video content with significant playback duration (more than 90 hours). The category 1 material and the descriptions and samples in the agreed facts disclose (as the Crown submitted) that the material was depraved and consisted of children engaged in various sexual acts, including:
(i)The vaginal, oral and anal penetrative rape of the children by adults;
(ii)Children committing sexual acts on other children; and
(iii)Children subjected to bondage with their arms and legs bound with restraints.
(b)Whether actual children were used in the creation of the material. Here, actual child victims were used to produce the material.
(c)The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. The majority of the victims here (67%) were prepubescent children, as young as 2 years old. The offences involved material depicting serious harm caused to many child victims.
(d)The number of items or images possessed or accessed — in a case of possession, the significance lying more in the number of different children depicted and thereby victimised: see Porte at [68]. Here, the offender possessed 536 child abuse material files. In relation to the use of the material, 79 files were accessed. That means it cannot be said the conduct was an isolated occurrence.
(e)The length of time for which the pornographic material was possessed. The agreed facts were that the video files on the laptop were saved between 4 May 2020 and 24 March 2022, but the 31 category 2 picture files saved on the storage device, were saved from August 2013. The possession thus extended over years. However, the count on the indictment to which the offender pleaded guilty is limited to possession “on or about 29 April 2022”. Accordingly, the length of time the material was possessed as inferred from the agreed facts has not been considered as a feature of aggravation.
(f)In a case of possession, the offender’s purpose; that is, whether the material is for the offender’s own use or for the purpose of sale or further distribution. In this regard, care is needed to avoid any infringement of the principle in R v De Simoni [1981] HCA 31; 147 CLR 383 at 389. The material here was possessed for the offender’s own use. There is thus no aggravating feature of intended sale or distribution.
(g)In a case of dissemination or transmission, where the material was being distributed and how widely it was distributed (noting that the absence of sale, distribution or dissemination is not a mitigating factor: Porte at [66]). This is not a feature of the subject offending.
(h)Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination or transmission. This is not a feature of the subject offending.
(i)The proximity of the offender’s activities to those responsible for bringing the material into existence, and whether the offender acted alone or in a collaborative network of like-minded persons. Here, the offender acted alone.
(j)The degree of planning, organisation or sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material. The material here was saved across four separate devices, indicating a degree of planning.
(k)The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender. This is not a feature of the subject offending.
(l)Any risk of the material being seen or acquired by vulnerable persons, particularly children. This is not a feature of the subject offending.
(m)Any other matter in s 16A of the Crimes Act, bearing upon the objective seriousness of the offence. No other matters appear to bear upon the nature and circumstances of the offending here.
20․The various matters noted above that are not aggravating features in the present conduct do not mean that the conduct here is mitigated. They have been included to assist with informing (and explaining) the assessment of the range of conduct that may be covered by the offences. Drawing these together, the conduct constituted planned (deliberate) offending, involving material of a serious level of depravity and a number of victims of varying ages. Bearing in mind that the offence can cover possession and access for years and thousands of files, the conduct involved in each offence here was below the medium level of offending.
Victim Impact (s 16A(2)(ea) of the Crimes Act)
21․There were no victim impact statements before the Court. No implication is to be drawn from the absence of a victim impact statement for any of the victims: s 16AB(3) of the Crimes Act. As submitted by the Crown, possession of child abuse material is not a victimless crime. The harm is enduring as the material can circulate indefinitely: Porte at [68]-[69].
Offender’s Subjective Circumstances – character, antecedents, age, means and physical or mental condition (s 16A(2)(m) of the Crimes Act)
22․The offender was 49 at the time the offending was detected. He is now 52. He has no prior convictions. The offender had one breach of his bail conditions in February 2024 but has otherwise complied. He completed his formal secondary education to a Year 12 level. He was accepted into university but did not attend as he was deterred by the expense involved.
23․I accept that the offender is of prior good character. However, for offences of this nature (possessing and accessing child abuse material), limited weight is given to an offender’s good character, as such offenders generally have similar backgrounds and good character: De Leeuw at [72(d)]; Director of Public Prosecutions (Cth) v Garside; Director of Public Prosecutions v Garside [2016] VSCA 74; 50 VR 800 (Garside) at [63]; R v Howe [2017] QCA 7 at [25].
Medical history and current medical needs
24․The offender’s medical condition is heavily influential in the sentencing considerations. The Court had before it expert evidence in the form of a neuropsychological report written by Dr Rowena Beecham dated 22 August 2024, who was not required for cross-examination and whose evidence I accept.
25․Further detailed information is contained in the pre-sentence reports dated 16 February 2024 (February Report) and 16 September 2024 (September Report), in which the latter maintained the opinions of the author of the February Report.
26․On 10 February 2014, the offender suffered a right subcortical parietal haemorrhage (the stroke). He required four months of rehabilitation and was ultimately discharged from the rehabilitation independent living unit at The Canberra Hospital in June 2017. As a result of the stroke, Mr Bolton experiences mobility issues. He remains unable to use his left arm and leg. He is severely impaired (by 75%) in respect of his ability to get around and uses a wheelchair. Otherwise, he requires the use of several pieces of equipment to manage his disability including a walking stick, a sling to secure his paralysed arm and a leg brace for walking. It is clear that the disability continues to significantly affect his life, including with all the social isolation that it brings.
27․The stroke has also left the offender (directly or indirectly) with numerous related disabilities. He now suffers from sleep apnoea, hypertension (high blood pressure), the development of type 2 diabetes and narcolepsy. The report of Dr Beecham diagnosed the offender as having extremely severe depression, moderate anxiety and normal stress. He has experienced suicidal ideation, including on one of those occasions being involuntarily hospitalised for two weeks. He does not appear to have participated in psychological therapy in the community.
28․The offender was previously employed in the computer and animation industry and has previously been employed in the Federal public service as a system administrator. He has relied upon Centrelink payments since 2019. He became a recipient of the Disability Support Pension in 2023.
29․A complex medication regime is required to manage the offender’s various conditions. He lives alone and relies largely on his mother for domestic assistance. She attends his home up to five times a week. Although he indicated that he would be able to independently attend appointments and other supervision requirements if a community-based sentence were imposed, it is likely the offender would require the assistance of his mother to comply with any such requirements.
30․These subjective circumstances of the offender bring into consideration the application of Verdins principles, derived from R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269, which were explained at [32] (references omitted):
Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
31․The application of the above principles was approved in R v Guode [2020] HCA 8; 267 CLR 141 at [8]. Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]-[178] is broadly to similar effect, save for specifically referring to the converse position that a person’s mental illness may present more of a danger to the community, such that considerations of specific deterrence may result in an increased sentence. That additional consideration does not operate here.
32․While the offences relate to events in 2022, some of the files in question were recorded as being saved on the device on 3 August 2013, 6 months before the offender suffered a stroke. This is indicative of the absence of a causal link between the consequences of the stroke and the offending. The consequence is that the offender’s moral culpability is not significantly reduced. Further, the offender’s condition does not overcome the prominence that should otherwise be given to denunciation and general deterrence (discussed below).
33․However, the expert evidence established that, were the offender sentenced to full-time imprisonment, there is a significant chance that he would be at risk of increased health conditions due to a lack of access to the same level of support as he has in his current living situation. It was accepted by the Crown that if a sentence of full-time imprisonment was imposed, the offender would suffer significantly greater hardship than other prisoners (Verdins principles 5 and 6 above).
Plea of guilty and cooperation with law enforcement agencies (ss 16A(2)(g) and 16A(2)(h) of the Crimes Act)
34․The offender pleaded guilty after committal and after the criminal case conference in July 2023, but prior to the matter being set down for hearing. For Commonwealth offences, a sentencing court may take into account the utilitarian benefit of a plea of guilty: Director of Public Prosecutions (Cth) v Thomas; Director of Public Prosecutions (Cth) v Wu [2016] VSCA 237; 53 VR 546 at [149]; and Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1 at [278].
35․Although the plea was not entered at the earliest opportunity, it was still a relatively early plea with clear utilitarian value. The offender also cooperated with police authorities during the execution of the search warrant and the statement of agreed facts contains statements that informed the offending, which the offender made under caution and some of which were against interest. Such cooperation was not of a nature that would itself warrant a significant separate discount, but taken together I consider a discount of 20% is appropriate to reflect the utilitarian and administration of justice considerations.
Remorse (s 16A(2)(f) of the Crimes Act)
36․I have considered remorse separately. The evidence did not directly establish the offender was remorseful. He refused to discuss his offending in any of the reports provided to the Court. I have taken into account the offender’s disabilities and the contents of the pre-sentence reports and medical expert report, which detailed the offender’s medical history. This is a complex and intensely private individual who has lost a great deal of control over his life through disability. In this case, the absence of any demonstrated remorse and the reluctance to discuss his offending is more nuanced than someone who lacks insight into their offending. People demonstrate shame in different ways. It simply means that this is not a factor to which the Court may give much weight in mitigation. However, the absence of remorse does not then aggravate the offender’s subjective circumstances.
Prospects of rehabilitation (s 16A(2)(n) of the Crimes Act)
37․The offender was assessed as having a medium risk of reoffending. The criminogenic risk factors contributing to this included the fact that he lives alone, has little ability to participate in leisure and recreation activities, his social isolation, physical and mental health and his attitude towards offending.
38․However, he obviously has clear protective factors, being his absence of criminal history, absence of alcohol or drug problems, stable accommodation and the significant involvement of his mother in assisting with daily chores and his routine.
39․The Crown submitted that the Court would be guarded about rehabilitation. While I accept the force of that submission, it does not mean that the Court disregards that sentencing consideration. On the contrary, s 16A(2AAA) of the Crimes Act, which only applies where the sentence to be passed involved a Commonwealth child sex offence, requires the Court to have regard to the objective of rehabilitating the person. This includes considering conditions about rehabilitation or treatment options and, significantly here, including sufficient time for the person to undertake a rehabilitation program. Accordingly, applying the principle of individualised justice, this may mean that a sentence is crafted to best target the risk factors that may operate with regard to a particular offender, although plainly not in a manner that is either disproportionately severe, or unjustly lenient, in the pursuit of the objective of rehabilitating the offender: Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queens [2014] VSCA 342; 46 VR 308 at [72].
Time in Custody
40․The offender has had two brief periods in custody referable to the current offences. In total he has spent two nights and four days in custody. This has been taken into account in the final sentence imposed.
Current sentencing practice
41․In the interests of sentencing consistency for federal offences, sentencing judges should have regard to sentencing practices for a subject offence across the country. It is important for courts to follow the national sentencing pattern, rather than any local sentencing pattern: R v Walker [2019] ACTSC 172 (Walker) at [49]. However, what is required is consistency of principle, not numerical equivalence: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [48]-[49].
42․The sentencing principles in respect of child abuse material offences (previously named child pornography) were discussed in Porte at [60]-[61]:
60. The comity principle has been applied in establishing sentencing principles with respect to child pornography offences: R v Gent at 36 [29]. In Director of Public Prosecutions (Cth) v D’Alessandro (“D’Alessandro”) [2010] VSCA 60; 26 VR 477, Harper JA (Redlich JA and Williams AJA agreeing) said at 483-484 [21] (references omitted):
“When construing and applying Commonwealth legislation, this Court follows principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation. It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Fourthly, that those who make up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender’s prior good character. Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty. They include:
(a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed;
(b) the number of images or items of material possessed by the offender;
(c) whether the possession or importation is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence.”
61. These principles have been frequently repeated since D’Alessandro: Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 at 261-262 [96]- [101]; Director of Public Prosecutions v Smith [2010] VSCA 215 at [23]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; R v Linardon [2014] NSWCCA 247 at [58]; R v Martin [2014] NSWCCA 283 at [37].
43․In offences such as the present, general deterrence is a paramount sentencing consideration: see R v Cobcroft (No 2) [2022] ACTSC 15 (Cobcroft) at [20], R v Wicks [2005] NSWCCA 409 at [39]; and Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73; 259 A Crim R 327 at [47].
44․The Crown also drew attention to Mertell v The King [2022] ACTCA 69 (Mertell), R v Cardwell [2021] QCA 112, and Peters v The Queen [2018] NSWCCA 126 (Peters), although the latter two offences pre-dated the introduction of the new sentencing regime.
45․I have separately had regard to cases referred to in those authorities. Among them are Porte and Garside. Each was a case where the relevant court of appeal considered that an intensive correction order (ICO) or community correction order was manifestly inadequate in the circumstances of that case. I have focused on these decisions because the appropriateness of an ICO was a live issue in this case. It suffices to refer to the discussion of Peters, Garside and Porte in Mertell at [26]:
…
(a) In Peters v R [2018] NSWCCA 126, the NSW Court of Criminal Appeal upheld an appeal by the offender on the basis of errors regarding both the utilitarian value of the guilty plea, and totality. The offender was initially sentenced to 18 months’ imprisonment with release after nine months for the charge of possess child abuse material (maximum penalty 10 years), and two years’ imprisonment to be released after nine months for the charge of use carriage service to access child pornography material (maximum penalty 15 years). The offender was originally sentenced to a total effective sentence of two years and nine months’ imprisonment with release after 18 months. The Court resentenced the offender to a total effective sentence of two years and four months, with release after 15 months.
The offender had no prior convictions. The offender was assessed as having a low risk of reoffending, had displayed remorse, and had the support of family. The sentencing judge noted the offender’s good character but stated that it could be afforded little weight in such a case.
(b) In DPP (Cth) & DPP v Garside [2016] VSCA 74, a prosecution appeal, the Victorian Court of Appeal held that the sentence of a Community Corrections Order (ICO equivalent) for a period of four years was manifestly inadequate, however the Court did not proceed to resentence and exercised the residual discretion not to intervene. The offender had accessed and possessed 6,018 images and videos, with 5,748 classified as category 1 (no sexual activity). The charged period covered eight months. The offender had no criminal history and had the support of family. The offender had been complying with his Community Corrections Order and had taken significant steps towards his rehabilitation.
(c)R v Porte [2015] NSWCCA 174 was an appeal by the prosecution. The offender was originally sentenced to 12 months’ imprisonment for the charge of using a carriage service to access child pornography material, and two years and six months’ imprisonment for the charge of possess child abuse material. The offender possessed 34,143 items of child abuse material (27,729 classified as category 1). The offender was 49 years of age at the time of sentence and suffered from significant spinal degeneration requiring surgery. The Court upheld the manifest inadequacy appeal, finding that the only sentences reasonably open to the sentencing judge were full-time sentences of imprisonment. The respond[ent] was resentenced to a total effective sentence of two years and nine months, with a minimum term of one year and 6 months (noting that the offender was also sentenced for a charge of possession of a prohibited weapon). The Court noted in particular that although categories 1 to 5 on the CETS scale involve escalating gravity of the conduct depicted, Category 1 material is nonetheless capable of possessing significant gravity.
46․In Porte, the NSW Court of Criminal Appeal explained its reasoning for finding manifest inadequacy in the sentence imposed, both as to the degree of concurrency and the manner in which it was to be served, that being by way of an ICO, stating at [128]-[132]:
128. Steps taken by the Respondent to progress his rehabilitation are important on sentence. However, the sentences actually imposed must be reasonably proportionate to the crimes which the Respondent committed: R v Booth at [47] [[2009] NSWCCA 89] … . It is important that the subjective circumstances of an offender not overshadow the objective gravity of the crimes for which sentence is to be passed: R v Dodd [(1991) 57 A Crim R 349] at 354.
129. This Court has emphasised the significant degree of leniency involved in the use of an ICO as a sentence. Although statements made in R v Pogson (2012) 82 NSWLR 60; 218 A Crim R 396 at [112]-[123] (in the joint judgment of McClellan CJ at CL and myself) point to the breadth to the concept of rehabilitation, and the capacity of an ICO to operate as a form of punishment, it is necessary not to lose sight of the need for an appropriate level of punishment, in the form of immediate incarceration, in cases of serious child pornography offences such as this.
130. The decision in R v Pogson should not be utilised to pass an entirely inappropriate sentence, which sees an offender such as the respondent with his magnitude of offending, being dealt with by way of an ICO.
131. To proceed by way of an ICO in this case meant that concepts of general deterrence and denunciation “slip through almost without trace”: D’Alessandro at [24].
132. Entirely concurrent sentences of 18 months imprisonment for the ss 91H(2) and 474.19 offences disclose error which is magnified by the order that the terms be served by way of ICO. Having regard to the quantity and nature of the images and videos accessed and possessed by the respondent in this case, the sentences imposed are unjustifiably lenient.
47․An ICO was ordered in Fedele v The Queen [2015] NSWCCA 286; 257 A Crim R 78. Although the content was similar to that in question here, the offending in that case was limited to possession of 10 files (5 picture and 5 video) and access of 4 files on 2 occasions.
48․In this jurisdiction, an ICO was also imposed in Walker. However, in that case, the offender was 22, the quantum of material was small and most significantly, the offender had been in custody, bail refused, for a period of 2 months, which Murrell CJ found (at [52]) addressed, at least in part, the sentencing purposes of punishment and general and personal deterrence.
49․An examination of other sentencing decisions in in this jurisdiction was conducted in Cobcroft, a case involving computer-generated images and fictional cartoon characters, where Murrell CJ referred to R v Davison [2020] ACTSC 272 and R v Cusack [2021] ACTSC 75 at [59]-[60]:
59. In Davison, the offender was sentenced for an offence involving 827 files of which 496 were ANVIL Category 1 (offensive but no actual sexual activity), and 280 were Category 6 (no actual child). After allowing a discount of 25 per cent, his Honour imposed a sentence of nine months’ imprisonment, suspended after three months on the offender entering into a recognizance release order for a period of 12 months.
60. In Cusack, the offender was sentenced under ss 474.22A(1), 474.19(1) and 474.22(1). The factual scenario was somewhat similar to that in the present case. There were 2,517 child abuse files that were common to offences. They were accessed over a period of five years. The decision does not refer to the categorisation of the child abuse files, but I infer that they involved real children. There were some similarities between the offender’s personal circumstances and that of the current offender. In each case, after applying a sentencing discount of 25 per cent, Elkaim J sentenced the offender to nine months’ imprisonment, accumulated to a total of 12 months’ imprisonment. Noting a risk of suicide in custody, his Honour directed that the period of imprisonment be suspended after two months on the offender entering into a recognizance to be of good behaviour for a period of 18 months.
50․Murrell CJ went on to note at [61] that “[c]onsidering the maximum available penalties that may be imposed for the offences, I consider this to be a relatively lenient sentence.” Notwithstanding what may have been a relatively lenient sentence, Cusack contains an additional point of relevance as Elkaim J discussed the appropriateness of an ICO, stating at [8]:
I acknowledge that there have been cases in which an ICO has been imposed (for example R v Burch [2020] ACTSC 192 and R v KB [2019] ACTSC 136), however with respect I am firmly of the view that cases of this type demand a period of full-time custody. I also note that in Burch the Chief Justice said that she would normally impose full-time imprisonment but the circumstances were affected by the COVID-19 pandemic.
Disposition
51․The Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence: see s 16A(1) of the Crimes Act. The Court may only impose a sentence of imprisonment if satisfied that imprisonment is the only appropriate sentence: see s 17A(1) Crimes Act. The parties were in agreement that no sentence other than a term of imprisonment was appropriate in respect of each offence. Section 17A(2)(a) of the Crimes Act expressly requires the Court to state the reasons for that decision. It is sufficient to point to the nature and circumstances of these offences, combined with the legislature’s express intention that such offences warrant a term of imprisonment.
52․In that regard, a matter of considerable significance here is that under the amended sentencing regime for Commonwealth child sex offences, there is a statutory requirement that child sex offenders serve a term of actual imprisonment unless the court is satisfied there are “exceptional circumstances” that justify release immediately: see s 20(1)(b)(iii) of the Crimes Act. The amendment was specifically introduced to “ensure that all offenders convicted of Commonwealth child sex offences serve a period of imprisonment that is not suspended”: see [292] of the of the Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Explanatory Memorandum).
53․The Crown submitted that only a full-time custodial sentence was appropriate, and that the offender’s disabilities were not such that they could not be accommodated in a custodial setting.
54․The offender submitted that all the purposes of sentencing, including adequate punishment, could be achieved without imposing a term of immediate imprisonment, whether that is by way of an ICO or, alternatively, immediate release under any recognizance release order. In respect of the latter, the offender submitted his medical circumstances were such as to warrant a finding of “exceptional circumstances”.
55․It was accepted that the statutory requirement for exceptional circumstances does not apply to any sentence that is to be served by an ICO, as that section applies via a different legislative path. It is able to be imposed as an additional sentencing alternative available under the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), which applies under s 20AB(1)(b) of the Crimes Act.
56․I have given anxious consideration to the imposition of an ICO for this offender. He has been found suitable for an ICO with medium level supervision. The length of the sentence to be imposed is of a duration that would weigh very significantly on this offender, with his complex mental and physical health conditions, were it to be served by way of full-time custody. Unlike the position with regard to community correction orders in Victoria, an ICO cannot be part of a sentence in combination with full-time imprisonment: s 29(1)(b) of the Sentencing Act, compared with s 44(1) of the Sentencing Act 1991 (VIC).That means that if the Court forms the view that any more than 4 days’ imprisonment (being the time already spent in custody) is appropriate, an ICO will not be realistically available.
57․Reluctantly, I accept that the two nights and four days spent in custody is an insufficient time to attribute to achieving the sentencing objectives of adequate punishment, denunciation and general deterrence. The cases where an ICO was found to be manifestly inadequate (Garside and Porte) were of a greater level of objective seriousness than the conduct under consideration here. However, even if I distinguished them on that basis, I have ultimately accepted the consistent submission of the Crown that an ICO is just not appropriate. The reasons for this (required by s 78(6) of the Sentencing Act) are the level of seriousness of the offending here (possession of hundreds of files stored on multiple devices and access to 79 of the video files over a four-month period) combined with the clear message in the legislation and the authorities referred to above of giving general deterrence paramountcy.
58․Specific deterrence is really best targeted by treatment, and he will be better placed to receive that under either an ICO or a recognizance order. The same may be said of orders with conditions directed to the offender’s rehabilitation. Given the view I have formed about an ICO, a recognizance order emerges as the sentencing option most suitable.
Are there exceptional circumstances here?
59․That gives rise to whether the Court should immediately suspend the sentence, which would require exceptional circumstances as discussed above. What constitutes “exceptional circumstances” is not defined in the Crimes Act. Having regard to [45] and [295] of the Explanatory Memorandum, this appears to have been deliberate, so as to provide for “significant judicial discretion”. The Explanatory Memorandum goes on to state (at [295]) that “the phrase is not easily subject to general definition as circumstances may exist as a result of the interaction of a variety of factors which, of themselves, may not be special or exceptional, but taken cumulatively, may meet this threshold”.
60․In assessing the circumstances of this case, the construction of “exceptional” in R v Kelly (Edward); R v Sandford [2000] 1 QB 198 at 208, quoted in R v Tootell; Ex parte A-G (Qld) [2012] QCA 273 at [18] (Tootell), is helpful guidance:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
61․In Tootell, their Honours went on at [24] to explain that:
[w]hat emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.
62․The broad point to be taken from the reasoning in Tootell at [18]-[27] is that the reasoning process required to determine whether circumstances are “exceptional”, such that they warrant imposing a wholly non-custodial sentence, is relative to the objective seriousness of the offence. In other words, the more serious the offence, the more exceptional the circumstances required to rebut the presumption.
63․Although the offender’s complex medical conditions combined are unusual, matters such as depression and social isolation are not. That appears to have been recognised by the offender during the execution of the search warrant when he referred to himself (a “computer geek”) as fitting a stereotype. A stroke is obviously not normally encountered, but it is properly viewed as an event which has caused mobility problems for the offender a circumstance that is not entirely uncommon among those being sentenced as cases such as Porte demonstrate. In total and on fine balance, while the Court is not blind to the offender’s very difficult situation and the consequences that it has had for his independence and reliance upon his mother, I am not satisfied the offender’s circumstances are exceptional in the sense that they justify immediate release upon a recognizance order being made.
64․However, the offender’s circumstances do make it appropriate for the full-time custodial part of the sentence to be significantly reduced. In part that is due to the hardship considerations already mentioned, and in part it is to give those administrating the sentence sufficient time to embark upon treatment under their supervision, including strategies that may target a variety of factors, including those mentioned in the report: financial, family, leisure/recreation, companions, emotional/personal, and attitude/orientation. It is far preferable that whatever supervision and treatment programs that are deemed appropriate for this offender and which the offender commences to undertake do not face an additional hurdle of straddling a custodial environment and then transitioning to a program in the community. With those considerations prioritised, the period of fulltime custody is the minimum that I consider necessary to give effect, at least in part, to adequate punishment and deterrence.
Totality – “one last look”
65․I have taken into account ss 19(5) and 19(6) of the Crimes Act, which provide for the two terms of imprisonment to be imposed to be served entirely consecutively unless the Court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances.
66․In the circumstances here, there is a degree of overlap in the files accessed and possessed. The sentence on the count relating to access is recognised as separate and some element of accumulation with the possession offence is appropriate: see, eg, James v The Queen [2009] NSWCCA 62 at [16]; Porte at [157], each of which was cited in Mertell at [20]. However, it was accepted that in respect of the co-extensive files, the criminality between the two may be properly comprehended by a degree of concurrency. I consider that partial concurrency will still result in the sentences being of appropriate severity.
Orders
67․The orders of the Court are:
(1)For the offence of possession of child abuse material, contrary to s 474.22A(1) of the Criminal Code Act 1995 (Cth) (CAN 11776/2022), the offender is convicted and is sentenced to a term of imprisonment for 18 months (reduced from 1 year 10 months and 16 days), to commence on 17 October 2024 and conclude on 16 April 2026.
(2)For the offence of using a carrier service to access child abuse material, contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth) (CAN 11777/2022), the offender is convicted and sentenced to a term of imprisonment of 15 months (reduced from 18 months 24 days), to commence on 17 June 2025 and conclude on 16 September 2026.
(3)The total effective term of imprisonment is 1 year and 11 months.
(4)The offender is to be released on recognizance from 5 December 2024 pursuant to s 19AC of the Crimes Act 1914 (Cth), upon giving surety (without security) in the sum of $1000 and upon conditions, pursuant to s 20(1B) of the Crimes Act 1914 (Cth), that:
(a)the offender be of good behaviour for the balance of the term of the sentence;
(b)the offender be subject to the supervision of a probation officer appointed in accordance with the order (the Director-General of Justice and Community Safety Directorate or their delegate);
(c)the offender obey all reasonable directions of the supervising probation officer;
(d)the offender refrain from travelling interstate or overseas without the written permission of the supervising probation officer;
(e)The offender undertake such treatment or rehabilitation programs that the supervising probation officer reasonably directs; and
(f)The offender must report to ACT Community Corrections within two working days of release.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam Associate: Date: |
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