R v Bowron

[2022] NSWDC 460

District Court

New South Wales

Medium Neutral Citation:

R v Bowron [2022] NSWDC 460

Hearing dates:

8 September 2022

Date of orders:

8 September 2022

Decision date:

08 September 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1        The offender is convicted.

2        Taking into account the matter on the s 16BA schedule, I impose a term of imprisonment of 18 months to date from 6 September 2022.

3 Pursuant to s 19AC(1) of the Crimes Act 1914, I order that the offender be released on 5 June 2023, after having served nine months of the sentence, on entering into a recognizance in the sum of $1 to be of good behaviour for three years on condition that the offender:

(a)       is to be of good behaviour and to appear before the Court if called on to do so during the term of the bond;

(b)       is to inform the registrar of the District Court at the Downing Centre of any change of residential address; and

(c)       is to accept the supervision of Community Corrections and obey all reasonable directions with regard to participating in sex offender treatment programs, receiving psychological treatment and receiving drug and alcohol counselling.

Catchwords:

CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material

Legislation Cited:

Commonwealth Criminal Code

Crimes Act 1914 (Cth)

Cases Cited:

Bugmy v The Queen (1990) 169 CLR 525

Cameron v The Queen (2002) 209 CLR 339

Danial v R [2008] NSWCCA 15

Deakin v The Queen (1984) 58 ALJR 367

Director of Public Prosecutions v D’Alessandro [2010] VSCA 60 [21]-[23]

Hili v The Queen (2010) 242 CLR 520

Johnson v The Queen (2004) 78 ALJR 616

Minehan v R (2010) 201 A Crim R 243

Power v The Queen, (1974) 131 CLR 623

R v El Karhani (1990) 21 NSWLR 370

R v Olbrich (1999) 199 CLR 270

R v Porte [2015] NSWCCA 174

Xiao v R (2018) 96 NSWLR 1

Category:

Sentence

Parties:

Regina (Crown)
Robert Bruce Bowron (Offender)

Representation:

Counsel:
G Jauncey (Offender)

Solicitors:
Commonwealth Department Public Prosecutions)
Jack Rigg Solicitors (Offender)

File Number(s):

2021/131299

Publication restriction:

None

Judgment

1. Robert Bruce Bowron appears for sentence after pleading guilty in the Local Court to an offence that between 21 September 2019 and 7 May 2020 he used a carriage service to access child abuse material contrary to s 474.221 of the Commonwealth Criminal Code. The maximum penalty for the offence is 15 years imprisonment.

2. The offender also asks the Court to take into account an offence that between 24 August 2018 and 20 September 2019 he used a carriage service to access child pornography material on a s 16BA schedule when passing sentence for the principal offence.

APPROACH TO SENTENCING

3. To the extent that I make findings of fact adverse to the offender I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ)

4. I must have regard to Part 1B of the Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in s 16A of that Act.

5. A Court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: s16A(1) of the Act The Court must take into account the matters listed in s 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in s 16A(2) of the Act is not exhaustive and common law principles apply to sentencing federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].

6. The offender has entered a plea of guilty. For federal offences the Court must consider the offender’s willingness to facilitate the course of justice and can consider the utilitarian value of the plea: Cameron v The Queen (2002) 209 CLR 339 at [14] and Xiao v R (2018) 96 NSWLR 1 at [279]-[280]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]-[28].

7. The Crown case was a strong one. The offender’s plea saved the need for witnesses to be called at trial and the utilitarian value of the plea is high. I am satisfied that the offender’s plea indicates an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 25%.

8. The comity principle is relevant to sentences imposed for Commonwealth child pornography offences. The intermediate appellate courts have decided that:

1. general deterrence and denunciation are of paramount importance;

2. the objective gravity of the particular offences must be considered;

3. the offences are not “victimless” because the creation of the material involves the exploitation and degradation of significant numbers of disadvantaged children;

4. limited weight should be given to prior good character.;

5. undue focus should not be placed on the need for treatment to achieve rehabilitation at the expense of general deterrence and denunciation; and

6. in serious child pornography offences the appropriate sentence is one involving immediate incarceration and the use of an intensive corrections order may be inappropriate.

9. I have had regard to the matters set out in Minehan v R (2010) 201 A Crim R 243 at [94] and R v Porte [2015] NSWCCA 174 at [63]-[72]. For a federal offence the non‑parole period or recognizance release period is the minimum period that justice requires the offender to serve in custody. This is by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen, (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

10. The parties presented an Agreed Statement of Facts that provides as follows.

11. On 7 May 2020 the Australia Federal Police (AFP) attended the offender’s residence in West Ryde to execute a search warrant. During the course of the execution of the search warrant Australian Federal Police officers located a black Compaq laptop which was seized on the basis that a preliminary review of the laptop contained image files accessed as child abuse material.

12. On 7 March 2021 the Australia Federal Police conducted further analysis of the offender’s laptop. Material identified by the Australian Federal Police members as child abuse material has classified into categories as per the Interpol Baseline four tier categorisation system. The four tier system makes reference to the activity depicted in the child abuse material as follows:

13. Category 1. Child abuse material, real child prepubescent under 13 years of age involved in a sex act, witnessing a sex act, where the material is focussed or concentrated on the anal or genital region.

14. Category 2. Child abuse material, other illegal content, child under 18 years of age.

15. Category 3. Non-illegal indicative of an interest in child; eg naturalist images of children, children in swimwear et cetera.

16. Category 4. Non-illegal/ignorable.

17. The AFP analysis revealed that 1,685 image files were identified as child abuse material. Of those images, 1,113 items were categorised as Category 1 and 572 were categorised as Category 2. The majority of the child abuse material accessed by the offender depicted toddlers and young Caucasian females aged two and four years engaging in sexual acts with adult males.

18. The metadata of these images is consistent with the offender having utilised a Microsoft web browser to access the material between 24 August 2018 and 7 May 2020 as shown by the file paths for these images.

19. On 11 May 2021 the offender attended Ryde Police Station, where he was arrested and charged.

SENTENCING ASSESSMENT REPORT

20. The Court received a Sentencing Assessment Report dated 14 June 2022. The salient points in the report are as follows.

21. The offender is presently 65 years of age. He is divorced and lives alone in rental accommodation. He maintains contact with his two adult children. At the time the Sentencing Assessment Report was prepared the offender had not told his children about the offences.

22. The offender worked as a baggage handler for 18 years and was made redundant in 2020. He is presently unemployed and lives off his savings. The offender expressed remorse and told the author of the Sentencing Assessment Report that he was disgusted with himself, ashamed of his behaviour and took full responsibility for his actions.

23. At the time of the offences he had lived alone for many years and curiosity led him to accessing the internet to look at pornography and he was redirected to sites containing child abuse material.

24. The offender acknowledged that his past levels of alcohol consumption were problematic and that he has reduced his intake and engaged with a psychologist for counselling, which he has found helpful. The offender is open to participate in further rehabilitative interventions.

25. The psychologist is of the opinion that he will require ongoing psychological counselling and has assessed the offender as a low to medium risk of re-offending.

26. A Community Corrections psychologist assessed the offender as a low risk of sexual recidivism and that makes him ineligible for sex offender programs offered by Corrective Services. The Corrective Services psychologist recommended that he be referred for further assessment of any dynamic risk factors. The offender is willing to undertake community service work and is assessed as suitable to do so on light duties which are available. He was assessed as a low risk of re-offending and as suitable for supervision.

THE OFFENDER’S CASE ON SENTENCE

27. The offender tendered the following documents:

1. report of Luke Brabant, psychologist, dated 16 May 2022;

2. report of Helen Cruikshank, the offender’s treating psychologist, dated 13 May 2022;

3. a reference from Bruce Holland, dated 24 May 2022;

4. a reference from Milton Brown, dated 6 June 2022;

5. a reference from John McDonald, dated 2 June 2022;

6. a letter from David Hughes, physiotherapist, dated 30 May 2022; and

7. correspondence from Dr Vivian Wu, the offender’s general practitioner.

28. The following is precis of the evidence relied on by the offender. The offender is presently 65 years of age. He was between 62 and 64 at the time of the offences. The offender was raised in Enmore as one of four sons. His mother was a shift worker in the railways and regularly abused alcohol. His interactions with his father were limited and superficial. His father did not display love or affection towards the offender and made him feel inadequate. He was physically disciplined for misbehaviour. He went to his mother for support, but she did not express physical affection towards him.

29. He described Enmore as a tough working class suburb to grow up in, where he was exposed to criminal activity. He was told by his parents to come straight home from school. As a child he was nervous and uncomfortable in public places such as the bank.

30. The offender experienced some anxiety (feeling scared and nervous) at primary school. He was an average student. He developed good friendships and experienced only minor bullying.

31. At high school he excelled at sport and played the drums. He continued to be an average student and to experience distress from anxiety each day. He experienced severe bullying at high school and was physically assaulted on a number of occasions. He received permission to leave school at age 14 from the school principal as a result of the bullying.

32. He worked as a truck driver’s offsider after leaving school. He then worked in a butcher shop and as a soft drink vendor. A person that he worked with when he was 15 years of age murdered two people and this reinforced to him that the world was a dangerous place. The offender left home at age 17 but returned shortly after because he broke his leg. He moved out again after it had healed.

33. He then progressed through a number of casual jobs and evening work as a musician. His weekend and evening work led to insomnia. He tried to return to study at TAFE when he was 32 years of age with a view to obtaining an HSC equivalent so that he could study osteopathy at university. He found the return to the classroom exacerbated his anxiety. At about this time he was diagnosed with irritable bowel syndrome. He could not continue with study at this time. He later obtained qualifications as an acupuncturist, masseuse and herbal medicine practitioner.

34. The offender started drinking alcohol to excess following the breakdown of his marriage in 1994. He has not re‑partnered and has experienced romantic loneliness over the years. By about 2002 he drank alcohol daily and drank to excess on occasions to manage his psychological distress.

35. He obtained his first full‑time job in 2002 as a baggage handler. This was a physically demanding position. He has suffered a number of work related injuries including hernias, shoulder injuries and back injuries. He accepted a redundancy in 2020 and has not been able to return to work.

36. In 2017 the offender was referred by his general practitioner for psychological counselling with Ms Cruikshank. He reported symptoms of depression for the previous two months as a result of a series of life events and excess alcohol consumption. He gave a history of longstanding insomnia and was using benzodiazepine to assist him with sleep and back pain. He attended four sessions at this time. Ms Cruikshank intended to refer him to a psychiatrist, but he stopped attending.

37. In about 2018 the offender’s alcohol consumption increased in response to his poor physical and mental health. He was consuming about ten to 15 nips of bourbon on a daily basis. He developed a tolerance to alcohol and it became less effective at alleviating his physical pain and mental distress.

38. Following the execution of the search warrant at his home, his mental health deteriorated. His computer was seized in May 2020, but he was not charged until about May 2021. He suffered significant anxiety in this period. In June 2020 the offender re-engaged with Ms Cruikshank. He told her about the criminal investigation, his loss of work and that he had increased his alcohol consumption. He completed 10 sessions with Ms Cruikshank in the next six months and further sessions in 2021.

39. Ms Cruikshank opined that the offender was experiencing severe symptoms of anxiety, depression and stress, including reduced concentration of focus, debilitating memory loss and the inability to retain important information, panic attacks, insomnia, checking behaviours and paranoid thoughts. He has also had suicidal ideations. She assessed him as a medium risk of self-harm and developed an urgency plan with him.

40. The offender considered himself unfit to return to work as a result of the mental strain referrable to the investigation and because he needs to find work that does not aggravate his physical injuries. The offender continues to have contact with his brothers who are pro-social influences, but he has been too ashamed to tell them about the offences. He has a pro-social group of friends who are aware of his predicament and have supported him by providing favourable character references.

41. The offender continues to suffer from irritable bowel syndrome and manages it through diet, herbal medicine and acupuncture. He continues to suffer shoulder pain and restricted movement after injuring them in 2010. He manages his shoulder injuries through exercise, pain medication and acupuncture. The offender required four hernia repair surgeries in 2014. The first of these was delayed by increased anxiety symptoms. He manages his ongoing abdominal pain with acupuncture. His use of alcohol increased to manage his pain and as a consequence of his inability to exercise. I note that he has also suffered from other conditions outlined by Ms Wu and the physiotherapist. The offender is concerned about how he will manage his physical condition if he is incarcerated.

42. The offender has reduced his alcohol intake to three nips of bourbon per night with three alcohol free days per week. He wants to reduce his consumption further but has struggled to do so with the outcome of these proceedings pending. The offender told Mr Brabant that he accessed internet pornography about three times a week during the period of the offending. He would look at anything and everything. He clicked on links that took him to child pornography. He did not search for child specific material. He has experienced a loss of libido after the investigation commenced.

43. The offender accepted that he engaged in the offending conduct over an extended period. Psychologists thought that the offender was evasive when asked why he did so.

44. The offender told Mr Brabant that he was remorseful, ashamed and embarrassed. Mr Brabant opined that the offender suffers from generalised anxiety disorder and that is a chronic condition that has been present through most of his life and was present at the time of the offences. He also suffers from a persistent depressive disorder that was first manifested at the time the search warrant was executed, together with alcohol use disorder.

45. In about 1990 the offender was briefly trapped in an elevator and has been scared of enclosed spaces ever since. He experienced significant fear and panic when he was locked in a police cell at the time of his arrest. Mr Brabant opined that he has a recognisable phobia of enclosed spaces.

46. Mr Brabant opined that the offender was a low to medium risk of re-offending and that his risk factors were dynamic and dependent on his engagement with treatment for his mental health. Both Mr Brabant and Ms Cruikshank opined that the offender requires ongoing psychological intervention and counselling for his alcohol abuse.

OBJECTIVE SERIOUSNESS

47. The offender had 1,685 images constituting child abuse material on his computer. The majority of the images depicted toddlers and young females between two and four engaged in sexual acts with adult males. The images were accessed over an extended period of one year and eight months. The child abuse material depicted actual children and involved degradation of vulnerable and defenceless children. The ages of the children in the majority of the images is an aggravating feature.

48. Through his conduct the offender contributed to the market for child abuse material and demand for such material leads to further sexual exploitation of children. The creation of the images involved an element of cruelty and harm to the children involved. I have taken into account the maximum penalty for the offence.

49. General deterrence is of significance in sentencing offenders for offences of this nature. The intermediate appellate courts have consistently stated general deterrence and denunciation are paramount in sentencing for child pornography offences. This is because:

1. child pornography is an international problem;

2. the prevalence of child pornography on the internet demands that general deterrence must be a paramount consideration;

3. the use of the internet makes the offences difficult to detect as a result of the anonymity provided for by the internet;

4. those inclined to exploit children by involving them with the production of child pornography are encouraged by the fact there is a market for it;

5. those who make up the market cannot escape responsibility for such exploitation; and

6. harm done to the victims is profound and it is exacerbated by the indefinite circulation of images on the internet: Director of Public Prosecutions v D’Alessandro [2010] VSCA 60 [21]-[23].There is some need for specific deterrence. The offender has minimised his involvement in the offences to some extent. On the other hand, he did commence treatment for his mental health before commencing his offending conduct. He is open to receiving help and has expressed remorse and shame for his actions.

50. The offender is a person of good character. He comes before the Court with no prior convictions. He has managed to reach the age of 65 before having any criminal convictions. His conviction for this offence has come at the end of a slow decline in his mental health and physical health over many years. The law requires that good character be given limited weight for these types of offences.

51. The offender has good prospects of rehabilitation. He has engaged with treatment and understands the impact that his social isolation and alcohol misuse has had on him. His lack of criminal antecedence stands him in good stead to rehabilitate himself. He presents as a low risk of re-offending.

52. The offender has expressed contrition, shame and embarrassment. He has openly told his friends about the offences and appreciates the gravity of his offending conduct. The offender suffers from a complex mental condition, claustrophobia and a myriad of physical ailments. These conditions will make his time in custody more onerous. He requires treatment that is more readily available in the community.

53. I have taken into account that the COVID‑19 pandemic is still causing unusual restrictions to be placed on prisoners in custody in New South Wales.

54. The delay between the commencement of the investigation and the offender being charged is a significant factor to be taken into account. The offender has suffered elevated anxiety and stress as a result of this delay.

55. I have taken into account the offender’s pre-sentence custody of two days by backdating the sentence to 6 September 2022.

PENALTY

56. I have had regard to s 17A of the Crimes Act1914 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate in all of the circumstances of the case for the reasons I have given in this judgment.

57. The offender is convicted.

58. Taking into account the matter on the s 16BA schedule, I impose a term of imprisonment of 18 months to date from 6 September 2022.

59. Pursuant to s 19AC(1) of the Crimes Act 1914, I order that the offender be released on 5 June 2023, after having served nine months of the sentence, on entering into a recognizance in the sum of $1 to be of good behaviour for three years on condition that the offender:

1. is to be of good behaviour and to appear before the Court if called on to do so during the term of the bond;

2. is to inform the registrar of the District Court at the Downing Centre of any change of residential address; and

3. is to accept the supervision of Community Corrections and obey all reasonable directions with regard to participating in sex offender treatment programs, receiving psychological treatment and receiving drug and alcohol counselling.

60. If the offender fails to comply with the recognizance release order, further action may be taken against him. This may require him to return to the Court.

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Decision last updated: 10 October 2022