R v Burch
[2020] ACTSC 192
•15 July 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Burch |
Citation: | [2020] ACTSC 192 |
Hearing Dates: | 25 May and 15 July 2020 |
DecisionDate: | 15 July 2020 |
Before: | Murrell CJ |
Decision: | For Count 1, the offender is sentenced to a two-year good behaviour order with additional conditions. For Count 2, the offender is sentenced to an intensive correction order with additional conditions. See [79]–[84]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth offences – Possessing child abuse material – Using carriage service to transmit child pornography material – COVID-19 pandemic |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 11, 13, 80 Crimes Act 1914 (Cth) ss 3LA, 16A, 20AB, 23ZD, pt IB Criminal Code Act 1995 (Cth) ss 474.19 (now repealed), 474.22A |
Cases Cited: | Bayliss v The Queen [2013] VSCA 70 Director of Public Prosecutions (Cth) v Zarb [2014] VSCA 347; 46 VR 832 R v Walker [2019] ACTSC 172 |
Texts Cited: | Explanatory Statement, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT) |
Parties: | The Queen (Crown) Bradley John Burch (Offender) |
Representation: | Counsel I Thomas (Crown) J Sabharwal (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Number: | SCC 67 of 2020 |
Murrell CJ
Introduction
The offender is to be sentenced for the following offences:
(a)Count 1: On 10 October 2019, he possessed child abuse material, being data held in a computer or contained in a data storage device, which had been obtained or accessed using a carriage service, contrary to s 474.22A of the Criminal Code Act 1995 (Cth) (Criminal Code).
(b)Count 2: Between 20 June and 11 September 2019, he used a carriage service to transmit child pornography material, contrary to s 474.19(1) of the Criminal Code (now repealed).
The maximum penalty for each offence is 15 years’ imprisonment, a $189,000 fine, or both.
The pleas were entered on the fourth mention before the ACT Magistrates Court.
The Crown submitted that R v Harrington [2016] ACTCA 10; 11 ACTLR 215 remains binding; the Court would not allow a discount for the utilitarian value of the pleas. However, I would allow a discount if the plea demonstrated remorse, acceptance of responsibility, and/or a willingness to facilitate the course of justice.
The Crown submitted that the timeliness of the plea and the strength of the Crown case were relevant to an assessment of the subjective value of the pleas. On the approach advocated by the Crown, which I note differs from that currently taken in New South Wales, I consider that it is appropriate to allow a 25 per cent discount for each of the pleas of guilty.
Facts
Child exploitation material (CEM) is classified according to the Australian National Victim Identification Library (ANVIL) Schema Categorising System as follows.
(a)Category 1: Images of children that are likely to cause offence to a reasonable adult, but where there is no sexual activity taking place.
(b)Category 2: Sexual acts between children only with no part of the body being penetrated.
(c)Category 3: Adults with a child involved in any non-penetrative sexual activity.
(d)Category 4: Penetrative sexual activity between children only or between adults and children.
(e)Category 5: Images where a child is subjected to sadism, torture, bestiality, or humiliation.
(f)Category 6: Audio/visual representations of child pornography, including text describing sexual activity involving a child.
On 26 June 2019, the Australian Federal Police received reports concerning an Australian-based user, “sirelocutus69”, using the social media blogging site Tumblr. Tumblr allows users to exchange private messages over the Internet via instant messaging. The Tumblr profile of “sirelocutus69” described him as an older male into “everything kinky”. The Internet Protocol (IP) address associated with the username belonged to the offender, who resided at Fyshwick, ACT.
Between 9 and 14 June 2019, the offender engaged in sexualised chat on Tumblr with an unknown person with the username “backwoodsdodgeboy”. This person sent the offender a sexually explicit video showing sexual intercourse involving a toddler-aged girl and a still image of what appeared to be the same child with semen on her abdomen. The offender continued to chat with “backwoodsdodgeboy”, speaking about “sharing” the child with the offender and how often the child was subjected to sexual intercourse.
Those facts provide some context to the present offences, but I am not sentencing the offender for that conduct.
On 10 October 2019, the offender’s residence was searched. Police seized the offender’s computer and mobile phone. The offender was arrested. He provided credentials for his computer, mobile phone, and online accounts as required by an order under s 3LA of the Crimes Act 1914 (Cth) (Crimes Act). However, the Crown fairly conceded that it is not uncommon for people to fail to comply and that the offender’s cooperation in that regard could be taken into account under s 16A(2)(f) and (h) of the Crimes Act when he is sentenced.
It would seem that, had the offender not complied with his obligations, it is possible that Count 1 would not have been identified.
Count 1—Possession of child abuse material
During execution of the search warrant, child exploitation images were observed in a folder on the offender’s computer. Police recorded detailed notes of five of the images. Due to subsequent drive failure, the relevant folder could not later be recovered by digital forensics for further analysis. Consequently, Count 1 is limited to the five images, which were described in the statement of facts as “a sample of the images” for the purpose of contextualising the five image that constitute the offence and appreciating that they were not five isolated images. The five images depicted:
(a)two naked prepubescent girls sitting on a bed, with one girl sitting on the other girl’s lap (CEM Category 1);
(b)an adolescent girl lying naked on a bed with her legs spread, while an adult female performs cunnilingus on her (CEM Category 3);
(c)a naked prepubescent girl straddling and kissing a naked man on the bed (CEM Category 3);
(d)a naked adult female lying on a bed while a young boy performed cunnilingus on her (CEM Category 3); and
(e)a prepubescent girl lying on a bed with a male’s erect penis in her mouth (CEM Category 4).
There was no information about the number of other images on the computer or the period over which the five images the subject of the charge had been stored. As such, I am sentencing the offender for only those five images that were possessed by him on just that one day.
Count 2—Use carriage service to transmit child pornography material
On the offender’s mobile phone, police located sexualised conversations relating to children on instant messaging applications. Facebook Messenger allows users to conduct private conversations that are encrypted from end to end. Kik is an internet-based messaging application that allows users to message and send images in chats with one or more people. Kik allows a user to sign up using just a name and email address.
CW
Police located a secret Facebook Messenger chat with an unknown person with the Facebook name CW, commencing at 11:07 PM on 2 September 2019. The offender sent several messages to CW describing how he would perform sexual intercourse with her and her sisters, including one who was nine years old. He told her that “all little girls need a daddy like me”.
These messages were categorised as CEM Category 6.
NB
On 20 June 2019, the offender used Kik to communicate by text with NB, using the username “zenniorbear”. In conversations, NB called the offender “daddy” and, at times, the offender referred to himself in that way. The offender referred to NB using pet names such as “princess” and “little one”. On at least two occasions, the offender asked NB for a selfie and NB replied with an image of a girl’s face. The offender referred to previous communications between him and NB on Tumblr and Kik.
On 21 June, the offender asked NB whether she had been watching pornography lately. He then offered to share a video of himself ejaculating, to which NB responded that they should “save [it] for later”.
On 29 June, the offender asked NB to send a “selfie” and she sent an image that was similar to that sent on 20 June.
On 30 June, the offender told NB that he wanted to “kiss [her] forehead and give [her] huge hugs” and “other things” such as “kisses all over [her] body”. He made reference to performing cunnilingus on her.
These messages were categorised as CEM Category 6.
Although, in the conversation, NB depicted herself as a child or a person under 18 years of age, on the material available I could not be satisfied beyond reasonable doubt that, in fact, NB was aged under 18 years old. The Crown appropriately made that concession.
“Devils Moon”
On 7 September 2019, the offender conversed with an unknown person known as “Devils Moon” using Kik. “Devils Moon” said that she was babysitting her friend’s five-year-old child. “Devils Moon” asked whether the offender was a sex offender, and the offender replied “Haven’t been caught yet, but would be put away for a long time if I was”.
The offender sent “Devils Moon” an image of an erect penis ejaculating onto a sheet, followed by the message “What little girls do to me”. “Devils Moon” replied with a selfie video of a female sitting in a car with a female child behind her. They discussed how the offender could “break in” and sexually abuse the female child while “Devils Moon” observed.
The conversation continued and “Devils Moon” conversed as though she was currently engaged in sexual activity, including digital penetration of the child. The offender encouraged her, stating that he wished that he was present.
On 9 September, “Devils Moon” and the offender discussed how the offender could engage in sexual intercourse with “Devils Moon” and the child. The discussion included drugging and choking the child, making her cry, and ejaculating in her. Referring to the child, the offender said “I would ruin her”.
On 9 and 11 September, “Devils Moon” and the offender exchanged further messages of a similar nature. They discussed anal penetration of a future baby that the offender would like to have with “Devils Moon” and how they would sexually abuse children together.
These messages were categorised as CEM Category 6.
“YourBabyMelanie_”
On 8 September 2019, using Kik, the offender conversed with an unknown person with the display name “Yes I’m Your Baby” and username “YourBabyMelanie_”. The offender and “YourBabyMelanie_” discussed how they would teach a child as young as four to “ride” the offender and fellate him.
This message was classified as CEM Category 6.
Objective seriousness
Count 1
The Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) amended the Criminal Code by, inter alia, repealing s 474.19, expanding the application of existing child abuse material offences to include child pornography material, and inserting the s 474.22A offence of possessing and controlling child abuse material obtained using a carriage service. The amendments came into effect on 21 September 2019, i.e. after the offending the subject of Count 2 but before the offending the subject of Count 1. This largely explains the different ways in which the offences were charged.
In R v Johnston [2020] ACTSC 46 (Johnston), Mossop J stated that the objective seriousness of an offence against s 474.22A is primarily informed by the volume and nature of the material possessed, and that other factors, such as those in R v De Leeuw [2015] NSWCCA 183 at [72], may make the offence more serious: at [18].
In relation to the objective seriousness of Count 1, the following factors are relevant:
(a)The charge relates to the possession of a small quantity of material (five images), which were described as “a sample”, i.e. the offending was not isolated.
(b)The material fell into CEM Categories 1, 3, and 4. The gravity of the sexual activity portrayed in the material ranged in seriousness and some were very serious.
(c)Several of the images were said to depict “prepubescent” girls and one was said to depict a “young boy”, but there was no other information as to the age of the children in question.
(d)It is not clear whether there was any commonality among the children depicted in the five images. At most, six children were involved.
(e)The charge relates to the possession of material on one day.
(f)There is no evidence of possession for sale or distribution.
(g)There was no evidence that there was a risk of others accessing the material.
Any offence involving children of this nature is to be considered serious; the maximum available penalty is a clear indication that that is the way in which the community views such offences.
Count 2
The following factors are relevant to an assessment of the objective seriousness of Count 2:
(a)There were communications with four people, and several communications with two of those persons.
(b)The communications occurred over a period of approximately 10 weeks (June to September 2019), although not consistently throughout that period. However, they comprised a course of conduct, particularly when considered in the context of the earlier exchanges between the offender and “backwoodsdodgeboy”.
(c)There was insufficient evidence to establish beyond reasonable doubt that any person to whom material was transmitted was under the age of 18 years.
(d)The content of the transmissions was highly offensive, particularly in the case of the transmissions to “Devils Moon”.
(e)It was not possible to find beyond reasonable doubt that a real child victim was involved in relation to the communications with “Devils Moon”.
(f)The offender was aware that his conduct was criminal; he told “Devils Moon” that he would be “put away for a long time” if he was caught.
(g)There is no evidence of transmission for sale or distribution beyond the immediate recipient.
(h)The offence was unsophisticated. The offender did not use a secure IP address. The username that was employed did not necessarily evidence subterfuge but was just common practice.
(i)There was little chance of others accessing the material as it was on the offender’s personal phone, which appears to have been password protected.
(j)In one sense, an offence of this type is not to be regarded as a “victimless” crime. While such offences may not cause direct harm to any child, they cause indirect harm by inciting a fascination with deviant behaviour, which possesses an indirect risk of harm (potentially very serious harm) to children. They also encourage an unhealthy and disrespectful attitude to children.
I agree with the submissions of both legal representatives that Count 2 is clearly the more serious of the two offences before the Court. However, having regard to the factors to which I have referred—although undoubtedly serious because such offences serve to exacerbate the deviate fascination of the persons involved, which potentially leads to actual harm to children and promotes a very harmful attitude to children generally—in this case, the offence was of less than moderate seriousness because of the number of exchanges that occurred.
I cannot be satisfied beyond reasonable doubt that any of the transmissions were to children and I cannot be satisfied that any actual interference with children occurred as a direct or indirect result of the transmissions.
Subjective features
The offender was 34 years old at the time of the offences. He is now 35 years old.
He has no prior criminal record.
The offender was born in Canberra but spent most of his childhood in the Margaret River area of Western Australia. He lived with his parents, two older half-brothers from his father’s previous relationship, and two full siblings. The offender reported that his father was an alcoholic and was abusive, and the home atmosphere was tense. Currently, the offender enjoys positive relationship with his parents. His father’s alcohol consumption has reduced significantly.
After completing Year 12, the offender undertook an advanced diploma in computer systems engineering in Perth. He worked on a dairy farm for several years before commencing employment in the ACT Public Service. The offender was employed at ACT Health for about seven years, ultimately as an executive, but left that employment prior to 25 May 2020.
Recently, the offender completed a graduate certificate in public sector management. Over the years, the offender has attempted but abandoned several university courses. Recently, he has been admitted to an online Juris Doctor program at RMIT University.
The offender met his wife in 2012 and they married in 2018. The offender’s wife continues to support him.
As a child, the offender developed an autoimmune disorder, ankylosing spondylitis. The condition affected his joints and limited his ability to engage in sports. Later in life, accidents exacerbated pain in the spinal area. His pain level increased until 2017, prompting him to undergo a spinal operation in 2018. However, he continues to suffer from mild to moderate pain almost all of the time.
At one stage, the offender engaged in online poker to the point that he decided to exclude himself as his behaviour was becoming compulsive. The offender perceives himself to have an “addictive personality”.
Over the years, the offender has seen psychologists because of anxiety and depression. He took antidepressant medication for a period of five years, up until two years ago. After he was charged with these offences, his general practitioner prescribed medication for depression and anxiety and referred him to a psychologist, Mr Aldridge, for treatment for addictive behaviours and depression.
The offender stated that he was introduced to sexual matters at around six or seven years old, when his older half-brothers showed him advertisements for erotic services and soft pornographic photos. By 10 or 11 years of age, he had begun to seek out nude magazines and watch movies with sexual content. By 16 years of age, he was engaged in online sexual chats and sharing naked videos of himself. During his late teens, he would sometimes spend all day in such chat rooms. In his early twenties, he would spend two to three hours per day in chat rooms. He stated that his interests expanded to increasingly taboo and illicit topics.
The offender reported that, at the time of the offences, he had been under considerable stress. He was working over 60 hours per week and was anxious about the security of his position. He had become the carer for an uncle who was dying of cancer. His uncle died in mid-2018. He was financially and emotionally stressed about wedding preparations. In addition, he was suffering from spinal pain. His wife worked at night (she operates a brothel), leaving him with an opportunity to engage in deviant communications. He said that he resorted to pornography to counter stress and escape reality, a behaviour that had begun in his younger years. He indicated that the communications the subject of the offences had no bearing on his sexual interest in real life; rather, they were part of an internet persona that reflected his interests in other people’s deviant fantasies.
Mr Aldridge has been treating the offender since October 2019. He is the first psychologist to whom the offender has disclosed his sexual issues. The offender told him that he had been “in the thrall of pornography since about 10 years old” and had tried to abstain but had not succeeded in sustaining abstinence. Mr Aldridge said that the offender’s “addiction” seemed to centre on lewd conversations with others about sexual fantasies. When the offender presented to Mr Aldridge, he had been highly anxious and ashamed and seem to be genuinely motivated to manage his urges. Mr Aldridge opined that the offender was most probably suffering from a paraphilic disorder, i.e. an intense and persistent sexual interest which markedly deviated from normal sexual behaviour and caused shame and distress to him. Mr Aldridge considered that the shock of the offender’s arrest and the fact that he now had access to experience therapy may mean that he will not reoffend.
The offender told Dr Nielssen, a forensic psychiatrist, that when he received images that he realised were illegal, he deleted them at once. He told Dr Nielssen that he “did not seek the images or transmit them to anybody else” and that he knew that the conversations he was having were “immoral”, but “did not realise it was illegal” and that he believed that he had been using cybersex “as an escape and a coping mechanism”. Dr Nielssen diagnosed the offender with depressive illness in partial remission. He said that “on clinical grounds” the offender would be assessed as having a low probability of recidivism “because he does not have a particular fixation with child abuse material” (as opposed to general pornography) or other criminogenic risk factors.
I take the offender’s assertion about his real sexual interests and his behaviour vis-à-vis the receipt of images with a degree of scepticism. I read into the reports of Mr Aldridge and Dr Nielssen that they too were perhaps somewhat sceptical of some of the assertions made by the offender. If indeed such scepticism is warranted, then that indicates that the offender has not gained full insight into his conduct.
The authors of the pre-sentence report assessed the offender as at low to medium risk of general reoffending and did not assess him in relation to the risk of sexual reoffending.
The offender furnished character references.
The offender’s wife said that the offender had worked hard to atone for his actions, engaging in counselling and attempting to understand the causes of his behaviour. She said that he was remorseful. Generally, he was a warm, patient, and kind person who had often provided guidance to others. He had been deeply committed to his work in the health sector but frustrated by changes in the workplace and a lack of workplace support.
Mr Serena, a colleague, described the offender as hard-working and intelligent. He had observed that, over the past 18 months, the offender had become increasingly overwhelmed, anxious, withdrawn, and unhappy. Mr Serena considered that the charges were “totally out of character”.
Ms Beaver, a friend, described the offender as supportive and caring, and a genuine and loyal friend. She said that, since his arrest, the offender had taken full responsibility for his actions and demonstrated deep regret, embarrassment, and remorse.
Comparable cases
It is implicit in Pt IB of the Crimes Act that, where a court is sentencing for a federal offence, the court must have regard to current sentencing practices throughout the Commonwealth: R v Pham [2015] HCA 39; 256 CLR 550 at [23] (French CJ, Keane and Nettle JJ).
There are only two cases (both in the ACT) where an offender has been sentenced for an offence under s 474.22A of the Criminal Code.
In Johnston, the offender pleaded guilty to three charges, including one charge against s 474.22A. The offender had used Instagram direct messaging to communicate explicit messages to two 10-year-old girls. The search found 291 images constituting child exploitation material across the offender’s hard drive, computer, and mobile phone. The offender was sentenced to 11 months’ imprisonment for the offence against s 474.22A. The aggregate sentence was 14 months and 15 days’ imprisonment, and the offender was to enter a good behaviour order after serving four months’ imprisonment.
In R v Logue [2020] ACTSC 115, the offender pleaded guilty to a charge under s 474.22A and two other charges. The offender possessed 30 videos containing child exploitation material. One depicted bestiality (Category 5) and seven videos were classified as Category 4. For the offence against s 474.22A, Elkaim J sentenced the offender to 12 months’ imprisonment. He was sentenced to a total of 18 months and 28 days’ imprisonment, to be suspended after three months on condition that he entered into a recognizance release order for 18 months.
As to offences against s 474.19 of the Criminal Code, the Crown directed the Court to several cases.
In Director of Public Prosecutions (Cth) v Zarb [2014] VSCA 347; 46 VR 832, an offender pleaded guilty to three offences against s 474.19(1) of the Criminal Code. The offender used a carriage service to access 415 images and transmit a relatively small number of images on two occasions to a covert investigator. The offender was diagnosed with an unspecified paraphilic disorder. Originally, he was sentenced to community correction orders. On appeal, the Court resentenced him to three months’ imprisonment on the charge of accessing the images and a two-year community correction order on each of the two charges involving transmission of the images.
In R v Edwards [2019] QCA 15, an offender pleaded guilty to an offence against s 474.19(1) of the Criminal Code. He had accessed child pornography material on 31 separate dates, involving 639 images and two videos. Most of the material was CEM Category 6, involving drawn figures engaged in sexual activity or sexual stories. He was sentenced to 15 months’ imprisonment, to be released on a recognizance after serving two months, with probation for two years. The Court of Appeal refused the offender’s application for leave to appeal the sentence, rejecting the offender’s submission that Category 6 crimes are “victimless”, and stating that Category 6 material “is not to be treated as substantially different from other categories” and that the fact that most material was Category 6 “does not affect the objective seriousness of the conduct in such a way that a period of actual imprisonment was beyond the discretion”: at [76] and [84].
In Bayliss v The Queen [2013] VSCA 70, the offender pleaded guilty to seven offences against s 474.19 of the Criminal Code, being two offences related to transmission of child pornography material, two offences related to causing child pornography material to be transmitted to the offender, one offence regarding the solicitation of child pornography material, one offence of making child pornography material available and one offence of accessing child pornography material (written stories). He was sentenced to a total of three years and six months’ imprisonment, with a nonparole period of two years. On appeal, the Court found that the term of 12 months’ imprisonment for accessing stories containing child pornography material was not unreasonable, although it contained no images and no child was directly victimised. The offender had a prior conviction for possessing child pornography and was sentenced to an eight-month intensive correction order for that offence.
In Fedele v The Queen [2015] NSWCCA 286; 275 A Crim R 78, the offender pleaded guilty to an offence against s 474.19 of the Criminal Code and to one offence against the Crimes Act 1900 (NSW). The offender possessed five images and five videos containing child pornography material (CEM Category 1, 2, 3, or 4) that had apparently been downloaded from a peer-to-peer file sharing network. Six different children were depicted in the material, as young as six years old. The Court found that the sentencing judge had erred by “imposing a short custodial sentence without considering whether a longer sentence to be served otherwise than in full time custody was the appropriate disposition”: Hidden J at [51], with Davies J agreeing. The Court said that the “particular features” of the case meant that full-time custody was not called for: at [67]. The relevant features included the limited amount of access to pornographic material, the small quantity of material in the offender’s possession, his motivation for offending, and his subjective features. The offender was young, had no prior convictions, was engaging in counselling, and was considered to be unlikely to reoffend. After he had served two months in full-time imprisonment, he received two concurrent ten-month sentences to be served by intensive correction order.
In R v Walker [2019] ACTSC 172, the offender had communicated with children and had recorded and saved communications as video files. There were about 400 files, both still and video images. On the Commonwealth offence of using a carriage service to distribute child pornography, he was sentenced to four months’ imprisonment. The total sentence was 16 months’ imprisonment to be served by way of an intensive correction order with additional conditions imposed (noting that two months had already been served in custody).
Other sentencing considerations
In sentencing the offender, the Court must take into account the matters set out in s 16A(2) of the Crimes Act that are relevant and known to the Court and impose a sentence “that is of a severity appropriate in all circumstances of the offence”: Crimes Act s 16A(1).
It is well established that an offender’s prior good character must be given less weight when sentencing for offences of this kind.
Further, it is well established that, while it is not expressly referred to in s 16A, general deterrence is the paramount sentencing purpose related to offences of this kind and, in many cases, the purpose of personal deterrence also looms large. In this case, general deterrence is an important sentencing purpose. It is also important that a sentence operate to provide some level of personal deterrence and support any possible rehabilitation by the offender.
The Crown submitted that the only appropriate sentence was one of imprisonment and that the objective seriousness of the offending and the sentencing purpose of general deterrence required a period of full-time imprisonment. The Crown submitted that many courts have suggested that, absent exceptional circumstances, a sentence of full-time imprisonment was generally warranted for offences of this type.
Having regard to the relatively low objective seriousness of Count 1, I do not consider that a sentence of full-time imprisonment should be within contemplation for that offence. In fact, I accept that sentences other than imprisonment are appropriate because when one compares this offence with the other matters of this type, the subject of charges that have been considered by a variety of courts, the offence clearly presents as at the lower end of objective seriousness.
The offender submitted that, having regard to the objective seriousness of Count 2, the Court might accept that a sentence of imprisonment was appropriate, but the Court should consider ordering that any sentence be served by an intensive correction order.
I agree that it is appropriate to consider whether an intensive correction order should be imposed in this case. That is because, having regard to the objective seriousness of the offence, it is not abundantly clear that the only appropriate way in which a sentence could be served is by way of full-time imprisonment, and while general deterrence remains the primary sentencing purpose, that purpose may be able to be adequately met while other purposes (including rehabilitation) are met by ordering the service of a sentence by intensive correction order.
There was a discussion concerning whether, if a good behaviour order was imposed on Count 1, the Court could order that a sentence imposed on Count 2 be served by an intensive correction order. Section 80 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) states:
80 Intensive correction orders—concurrent and consecutive periods
(1)A court must not make an intensive correction order with intensive correction to be served concurrently or consecutively with a sentence of full-time imprisonment, a suspended sentence of imprisonment, a sentence of default imprisonment or a good behaviour order.
(2)However, a court may make an intensive correction order with intensive correction to be served concurrently with a good behaviour order if—
(a)an offender is under a good behaviour order but not under a suspended sentence order; and
(b)the offender is convicted of an offence that was committed before the offence to which the order relates.
…
Section 80(2)(b) of the Sentencing Act is unclear. However, the Explanatory Statement to the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT) states:
Sections 80(2) and (3) combined permitted a court to make an intensive correction order concurrently with a good behaviour order where the good behaviour order is not part of a suspended sentence order and where the offender is convicted of an offence committed prior to the offence for which the good behaviour order was made.
The Count 2 offence occurred prior to the Count 1 offence for which the good behaviour order will be made.
The offender was assessed as suitable for an intensive correction order. I note that, ordinarily, I would not consider that an intensive correction order would be an adequate punishment for this offence, given the significant objective seriousness of the offence and the fact that, as highlighted in the intensive correction order assessment report, the offender continues to lack insight into his conduct and continues to attempt to rationalise it.
However, in the circumstances that any imprisonment would be attended by additional constraints because of the current COVID-19 pandemic, I will proceed to impose an intensive correction order. I refer to the fact that, in custody, the offender would be significantly more restricted than would ordinarily be the case, particularly in relation to visits, and that he would run a higher risk of contracting the disease. Although that risk seems to have been very largely addressed by the strict visiting or lack of visiting conditions that operate within the prison at the moment and will presumably continue to operate for the indefinite future.
I am satisfied that the requirements for the making of such an order are met.
Sentence
I impose the following sentences.
In relation to Count 1, having regard to s 20AB of the Crimes Act, I make a good behaviour order pursuant to s 13 of the Sentencing Act, requiring the offender to sign an undertaking to comply with good behaviour obligations for a period of two years.
I impose a community service condition requiring the offender to perform 100 hours of community service within 12 months. The offender must submit to the supervision of ACT Corrective Services and report to ACT Corrective Services by 4 PM on Monday, 25 May 2020. The offender must also comply with any advice regarding appropriate treatment and courses.
In relation to Count 2, I impose a sentence of 12 months’ imprisonment (reduced from 16 months’ imprisonment) from 15 July 2020 to 14 July 2021. Despite having significant reservations about doing so, I make an order pursuant to s 20AB of the Crimes Act and s 11 of the Sentencing Act that the sentence be served by intensive correction in the community.
I include a condition that the offender undertake 200 hours of community service to be completed within 12 months. The offender is to engage in assessment for a sex offender program and undertake the program if assessed as suitable to do so. The offender is to allow ACT Corrective Services to access his home and any related business (to the extent that the offender is in a position to permit such access) in accordance with any request of ACT Corrective Services. Prior notice is not required.
Pursuant to s 23ZD of the Crimes Act and upon the application of the Director of Public Prosecutions, I make an order that the Apple iPhone X (IMEI: 35305409345) be forfeited to the Commonwealth.
| I certify that the preceding eighty-four [84] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Jurisdiction
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Sentence
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Commonwealth offences
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