R v Cartwright
[2018] ACTSC 132
•12 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cartwright |
Citation: | [2018] ACTSC 132 |
Hearing Date: | 12 April 2018 |
DecisionDate: | 12 April 2018 |
Before: | Murrell CJ |
Decision: | See [40]–[43] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit child pornography – using a carriage service to menace, harass or cause offence – remorse and acceptance of responsibility – general deterrence. |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A and 23ZD Criminal Code Act 1995 (Cth) ss 474.17 and 474.19 Crimes (Sentencing) Act 1995 (ACT) s 11 |
Cases Cited: | R v Conway [2017] ACTSC 275 |
Parties: | The Queen (Crown) Daniel Cartwright (Offender) |
Representation: | Counsel Mr M Keks (Crown) Mr A Doig (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Canberra Legal Group (Offender) | |
File Numbers: | SCC 261 of 2017; SCC 262 of 2017 |
MURRELL CJ:
Offences and pleas
The offender pleaded guilty to three offences:
(a)Between about 8 and 9 May 2016, using a carriage service to cause child pornography material to be transmitted, contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth) (the Commonwealth Code).
(b)Between about 21 and 24 March 2017, using a carriage service to cause child pornography material to be transmitted, contrary to s 474.19(1) of the Commonwealth Code.
(c)Between about 21 and 24 March 2017, using a carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Commonwealth Code.
The offences against s 474.19(1) carry a maximum penalty of 15 years’ imprisonment and/or a fine. The offence against s 474.17(1) carries a maximum penalty of three years’ imprisonment and/or a fine.
The offender was arrested on 27 March 2017 and was released on conditional bail. He has served no time in custody in relation to the offending.
On 21 September 2017, he entered a plea of guilty in the Magistrates Court and was committed for sentence. The pleas of guilty are to be taken into account if they demonstrate genuine remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice.
Facts
The victim was born in 2000. As at May 2016, she was 16 years old. As at March 2017, she was 17 years old. She suffers from a medical condition that affects her social skills and ability to make sound decisions.
The offender was born in 1995. As at May 2016 and March 2017, he was 21 years old.
Prior to the events in question, the offender and the victim did not know each other.
The offender contacted the victim through Facebook Messenger. She told him that she was 16 years old.
Offence 1
Between 8 and 9 May 2016 the offender offered to pay the victim $200.00 if she would model in a bikini for a photo shoot. By Facebook Messenger and text messages he asked her to send in photographs of herself naked, wearing a bikini, and showing her cleavage.
By Facebook Messenger, the victim transmitted 13 images to the offender which are classified Category 1 on the Child Exploitation Trafficking System (CETS) scale. The scale contains six categories, ranging from Category 1 (sexually suggestive posing with no sexual activity) to Category 6 (animated or virtual depictions of children engaged in sexual poses or activity).
In August 2016, the victim and the offender began a sexual relationship.
Offences 2 and 3
On 9 March 2017, the victim commenced a relationship with a new boyfriend.
Between 21 and 24 March 2017, the offender asked the victim to send to him a number of photographs by SMS of herself naked and posing in different positions. He threatened her that, if she did not provide further photographs, he would send the photographs that were already in his possession to her boyfriend or post them online. On 21 and 23 March 2017, the offender sent several threatening text messages to the victim. As well as threatening to send compromising photographs to the victim’s boyfriend, he suggested that he might choke the victim or pin her down and assault her. The victim told the offender that she was uncomfortable and scared.
Because of the threats, on 23 March 2017 the victim took photographs. She sent 11 photographs to the offender’s mobile telephone. They included images of the victim with her with her bra on and off, images of her exposed breasts that show her crying, and images of the victim’s genitals and anus. All images are classified as Category 1 on the CETS scale.
The victim urged the offender to delete the photographs that she had sent to him. Ultimately, the offender agreed to meet with the victim. At the meeting, she deleted all compromising photographs from the offender’s mobile telephone.
On 27 March 2017, police executed a search warrant at the offender’s address. They seized his mobile telephone and digital camera. Those devices did not contain any child pornography material.
The offender admitted to police that he knew that it was illegal to possess photographs of a naked person who was under 18 years of age. He admitted that he had asked the victim to provide him with photographs and had threatened to send photographs to her boyfriend if she failed to provide him with further photographs.
Victim impact
As one would expect, the offences have had a devastating psychological effect on the victim. At the time of the 2016 offences, the victim felt frightened, ashamed, and physically ill. She provided the photographs out of a desire to please the offender. At the time of the 2017 offences, she provided the offender with photographs because of the threats that he made to expose compromising photographs to her then boyfriend.
The offences impacted on the victim’s schooling. She could not concentrate in the classroom. She was very depressed and told her friends that she “wanted to fall down the stairs at school and die”. She was barely able to sleep because, when she closed her eyes, she saw the offender’s face. If she did manage to fall asleep, she experienced nightmares. She became concerned about the safety of her family. She felt unsafe outside the home. She lost confidence. Fortunately, the victim’s friends reported their concerns to the school and eventually the victim was able to disclose the cause of her psychological condition.
The victim still feels unsafe and does not like to be alone in public places. She is wary of intimacy. She continues to experience difficulties with sleep.
The offender
The offender is now 22 years old. He is an Aboriginal man. He has no criminal history.
The offender’s immediate family and partner of six months are aware of the offences. They are disappointed by his conduct, but they continue to support him.
The offender left school after completing his Year 10 Certificate. He is employed in the landscaping industry. He participates in positive social activities, mixes with a suitable peer group and has no drug or alcohol problem.
In 2015, the offender was assaulted by unknown assailants. In March 2017, he suffered a “breakdown”, experiencing anxiety and flashbacks to the assault. He attended approximately 15 sessions with a psychologist, concluding in November 2017.
The offender acknowledged the serious impact of his actions on the victim, but claimed that because he was in the midst of a breakdown in March 2017, he was unable to think logically.
ACT Community Corrections report that, if a supervision order is made, the Service will implement strategies that may involve requiring the offender to participate in a sex offender treatment program and counselling or a program designed to improve his attitude towards the offending behaviour.
I take the offender’s pleas of guilty into account as demonstrating an acceptance of responsibility and genuine remorse. In March 2017, the offender complied with the victim’s request to delete the images from his mobile telephone, he made early admissions to the police and he entered the pleas at an early stage. These matters are consistent with an acceptance of responsibility and genuine remorse. By the same token, the Crown case was very strong.
Sentencing considerations
The Court is required to impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1) Crimes Act 1914 (Cth) (Crimes Act). The Court must consider the matters in s 16A(2) of the Crimes Act to the extent that they are relevant and known.
Factors relevant to an assessment of the objective seriousness of the child pornography offences include the nature and content of the material (in this case, all the material was classified as Category 1 on the CETS scale and it related to a 16 or 17 year-old victim who was particularly vulnerable because she suffered from a medical condition), the number of images (in relation to each offence, relatively few images), whether the offender was responsible for bringing the material into existence (he was), the purpose for which the material was obtained (inferentially, for the sexual gratification of the offender rather than for distribution for profit or otherwise), the length of time for which the material was in the offender’s possession (a lengthy period in relation to the first offence and a brief period in relation to the second offence), and whether the offender was participating in an extensive or sophisticated enterprise (he was not).
Another very relevant consideration is the harm done to the victim. Often, in relation to child pornography offences, the victim is not known and the sentencing court has no information about actual harm. In this case, the victim is known and the extent of the actual harm is also known. She was vulnerable. She suffered substantial and continuing harm.
As indicated by the maximum penalty, all child pornography offences are very serious. A term of imprisonment is ordinarily to be expected for such offending.
General deterrence is a critical sentencing consideration for offences involving child pornography; there is a paramount public interest in promoting the protection of children. Such offences may be committed easily and detection may be difficult. Consequently, general deterrence is of central importance. Punishment and denunciation are associated and important sentencing purposes.
The offence of using a carriage service to menace or harass was of a significant objective seriousness. The victim was a particularly vulnerable young person. The threats made by the offender were not idle; the victim knew that the offender had the means to destroy her reputation and her relationship. The victim took the threats seriously; she complied with the offender’s demands. The nature of the threats meant that it was difficult for the victim to disclose her situation and seek help.
As these are Commonwealth offences, the Court should strive to achieve consistency with sentences imposed in other jurisdictions. Of course, consistency does not mean numerical equivalence. However, it does mean according recognition to unifying principles such as the paramountcy of general deterrence and denunciation.
The parties agreed that, having regard to the relevant sentencing purposes and the objective seriousness of these offences, a term of imprisonment is the only appropriate penalty. However, the objective and subjective features and relevant sentencing considerations were such that it was not essential that such a term be served by way of full-time imprisonment.
The Crown provided a helpful schedule of cases that were, in some respects, comparable to the present case, although of course, no two cases are ever identical. I was also furnished with a decision of Penfold ACJ in R v Conway [2017] ACTSC 275 where her Honour proceeded by way of an intensive correction order.
I agree with the submission that, as is ordinarily the case with child pornography matters, it is necessary for the Court to impose a sentence of imprisonment. I also agree that the circumstances do not dictate that such a sentence be served by way of full-time imprisonment.
On the other hand, purposes such as general deterrence, punishment and denunciation indicate that a recognisance release order simpliciter may send an inadequate message of general deterrence and be inadequate to address the other sentencing purposes to which I have referred.
Sentences
For the first offence of using a carriage service for child pornography, the offender is sentenced to 12 months' imprisonment from 12 April 2018 to 11 April 2019. For the second offence of using a carriage service for child pornography, he is sentenced to 15 months' imprisonment, from 12 October 2018 to 11 January 2020. For the third offence, that of using a carriage service to menace, harass, or cause offence, he is sentenced to imprisonment for 12 months, from 12 April 2019 to 11 April 2020.
That is a total sentence of two years' imprisonment.
Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), I order that the total sentence be served by intensive correction in the community.
I impose an additional condition that, unless he has the prior approval of Community Corrections, the offender is not to leave his residence at any time between 10:00 PM and 5:00 AM. Upon request, the offender must present to the police or Community Corrections between 10:00 PM to 5:00 AM.
Forfeiture order
Pursuant to s 23ZD of the Crimes Act, the Crown seeks a forfeiture order.
I am satisfied that the offender has committed a Commonwealth child sex offence and pursuant to s 23ZD of the Crimes Act I make a forfeiture order in relation to the offender’s mobile telephone.
| I certify that the preceding fourty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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