R v Clifford
[2013] VCC 909
•14 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL GREGORY CLIFFORD |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 June 2013 | |
CASE MAY BE CITED AS: | R v. Clifford | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 909 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Guesdon | |
| For the Accused | Mr R. Davis |
HIS HONOUR:
1 Paul Gregory Clifford, you have pleaded guilty to one charge of possession of child pornography.
2 You have also pleaded guilty to two uplifted summary matters, one of possession of an unregistered firearm and one of insecure ammunition. You are the proprietor of a small farm in the area of Loch. The firearm was an air rifle and I accept that in this particular scenario it is just part and parcel of the farm. Accordingly, without going into any more detail you are simply fined an aggregate of $500 in respect of each of those offences. That fine, obviously, with prior convictions, will have to be with conviction.
3 The more serious matters is that of the possession of child pornography.
4 You are now 53 years of age. You pleaded guilty at an early stage. You must get the benefit of that. I accept that there is appropriate remorse and you must also get the utilitarian benefit of that plea of guilty.
5 You do have prior findings of guilt for theft and, most concerningly, for possession of child pornography. That was one count, as I understand it, where you were fined $800 in around about 2005.
6 Firstly, because of the nature of the charge you will be placed upon the Sex Offenders Register and I advise you that the reporting will be for a period of 15 years. I will get you to sign the acknowledgment of that now. I will get you to accompany Ms Smith to the dock, please, Mr Davis.
7 MR DAVIS: Certainly, sir. Your Honour, I will just interrupt you briefly.
8 HIS HONOUR: Yes.
9 MR DAVIS: My client has raised an issue, and I think he is right.
10 HIS HONOUR: What have I done? Something wrong.
11 MR DAVIS: In my recollection, he only pleaded guilty to one count of possessing ammunition without a licence. Although the air rifle was mentioned in the summary, it did not actually form part of the summary charge that was uplifted. My recollection was that ultimately there were two counts before you.
12 HIS HONOUR: Yes, there were two summary matters that were uplifted.
13 MR DAVIS: My recollection was only one, Your Honour.
14 HIS HONOUR: No, two. One, possess a firearm without a licence. Okay, yes, yes.
15 MR DAVIS: There ought only have been one, Your Honour.
16 HIS HONOUR: No, no, no, there are two but there should not have been.
17 MR DAVIS: Yes.
18 HIS HONOUR: Yes. No, that is clear. Yes, I have been given one too many. The Crown agree with that?
19
MR DAVIS: Whether that affects now the fine or not, Your Honour, I do
not - - -
20 HIS HONOUR: No, it does, of course it does. Does that - - -
21 MS GUESDON: Yes. No, that is correct, Your Honour. The information I have is just the one summary offence of possessing ammunition.
22 HIS HONOUR: All right. No, that being the case, that it is just ammunition, what I will do is I will reduce that to a fine of $250.
23 MR DAVIS: Thank you, Your Honour.
24 HIS HONOUR: And bearing in mind the difficulties that a farmer might have, if it assists, I will make that without conviction.
25 MR DAVIS: Thank you, sir.
26 HIS HONOUR: All right, on the ammunition only, okay. All right, the circumstances of the offending which carries, as I have said, five years' imprisonment, were that on 7 March 2012 police executed a search warrant at your address in the Loch area. A computer was seized, which was set up and operating, or capable of operating, and which you said was for your own personal use and was not used by any other person.
27 Subsequent analysis of the items seized revealed that the computer equipment contained a large number of movie and image files containing child exploitation material. The video and image files were saved and located on the GMC computer tower, the Omega external hard drive and the Fuji film USB thumb drive seized from you. Approximately 322 of the movie and image files were identified as depicting children under the age of 18 years in various sexually explicit or pornographic poses.
28 I have now had the opportunity of viewing certainly extracts from that material and, as I indicated to your counsel, the main concern I had before viewing it was the Category 5, which involved sadism and the like, and I am satisfied that if it can be properly categorised as that, those matters were at the very low end of it. It nevertheless remains that there are a significant number of pornographic images that were in you possession depicting children.
29 There were also - and I think this is of significance - in excess of 3000 files of adult pornographic material which, of course, was not a criminal offence and perhaps puts the child pornography into a slightly different perspective.
30 The crime has to be regarded as serious. It calls very much for the application of general and, in your situation, specific deterrence, as well as appropriate punishment and denunciation. I understand from dealing in previous matters, that people in your situation often do not understand the full consequences of this, but to any person who has no interest in it, when looking at it and being aware of it, it is very obvious that the children are extremely unfortunate victims. If there was no market for such a product for such a product those children, or certainly a number of them, would not have their lives ruined.
31 You were interviewed by police and you made full admissions to having it. You said you thought you only had about 20 or so files, and I point out that as I understand it, what are described as files in the Crown opening are in fact simply images. What I would describe as a file probably would be about 20, and I make that clear as well. 322 are images, not individual downloaded files.
32 The Crown submission was that a custodial sentence was appropriate. The defence submission was that Community Corrections Order would suffice. So I then turn to matters personal to you to see whether there must be an active custodial component.
33 You are 53 years of age and you were seen by Mr Simon Kennedy. He said that you presented distinctively and you presented with social anxiety. He said that you had poor social skills. He went through your background and it is clear that you have been on the farm there for a significant period of time. You had worked before that. You have never really had any significant - would that be a fair word - sexual relationships and you spent the last number of years caring for your mother who passed away not long ago.
34 The picture presented is of somebody who was devoted to his mother and, accordingly, did not have relationships and at the time of this offending was essentially living alone in a small rural area.
35 There has been a longstanding, it would seem, problem with other members of the family and I do not intend to buy into that. The psychologist who saw you found that your reasons for having this material were implausible, and I find them implausible myself. He opines that your possession of the pornography was a vehicle for you to reduce negative effect, indicating that it was largely used because you were lonely and unhappy. I have no doubt that that was the case. It seems to me, having now dealt with a number of these matters on circuit, that it is frequently the case that it is a single, lonely man. There is no suggestion that you were sending it on to any other person and there is no suggestion that you have ever, or would offend against children directly. It has been by this vicarious method.
36 You are described as a low to moderate risk of re-offending, but I am careful to note that you do have a prior conviction for it. I consider that custody for you would be a very difficult experience and I take that into account.
37 Also tendered on your behalf were references from the Salvation Army, who have now been dealing with you. You have been endeavouring to rehabilitate yourself with them. You have been proactive in attending grief counselling. You have been dealing with your family or origin and you have, at the time of the writing of the report, completed eight sessions in a positive lifestyle program which was in fact a ten week program. From what I know you may well have completed that. You have obviously been making efforts to rehabilitate yourself.
38 There is also reference from the auctioneer with Elders, who said that you have always shown communication skills, determination and propensity to do it right in your dealings with him in the selling of livestock. There is a further, I was informed, reference from, who are present in court, neighbours to whom you have always been of assistance and realistically been a good neighbour. You and your mother are described as having always been solid and reliable citizens of the Loch community.
39 The leading authority on penalties for this is the matter of R v. Smith, which refers to a New South Wales judgment of Gent. In terms of the criteria listed there, I would say that the nature of the content of the material, whilst hard to judge for somebody in my position, involves children, involves penetration, and in particular, a number of the images were of very young children indeed. So far as a number of the images are concerned, I think that was relatively moderate. I have seen these with many more images than you had. I note that the material was not for the purpose of sale or further distribution and that you were not to profit from the offence.
40 In a situation such as yours a number of children depicted is, of course, entered there by victims is also regarded as a relevant consideration. However, it is noted that offences such as this are committed frequently by persons otherwise of good character. That decision goes on to say that a sentence of immediate imprisonment would ordinarily be warranted but it is recognised that there are occasions where a sentence which does not involve a period of actual custody is not precluded. In the matter of Smith, where the court held that it was not manifestly inadequate, where an immediate custodial sentence had not been imposed, I think there are differences. There was no prior conviction involved there and there were dependents. You have no dependents and you do have a prior conviction.
41 I think the prospects of your rehabilitation are up to you and the risk of you re-offending is also very much up to you and completing a course where maybe it can be brought home to you just what this trade does to children. Perhaps not children in this country but certainly elsewhere.
42 In the end I have taken the view that an active custodial sentence is inevitable. I am aware of the ranges that can exist for such sentences and I think that yours does not need to be a substantial sentence at all. I think that a short custodial sentence, together with a two year Community Corrections Order involving the doing of a sex offenders program is sufficient punishment and protection of the community in your particular situation. I do not propose to impose any work hours, as the punishment has already been effected by the time that occurs. You have been assessed by Corrections and assessed as suitable.
43 Accordingly, on that charge you are sentenced to be imprisoned for a period of two months. If you agree, upon your release in August, you will commence a two year Community Corrections Order with the conditions that I have described, which will just simply be supervision and, effectively, the sex offenders course, it will be with conviction, which is a punishment in itself.
44 All right, if your client is prepared to sign that, Mr Davis, he can do so now. If you will accompany my associate, please. There is no PSD for this, is there?
45 MR DAVIS: No, sir. Thank you, Your Honour.
46 HIS HONOUR: All right, that order is made. I think, in fairness, no one gets any satisfaction with a disposition like this but I think from your client's point of view, as you can explain to him, Mr Davis, you can do it once but not twice.
47 MR DAVIS: Yes.
48 HIS HONOUR: All right, he will go into custody now.
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