R v Connelly-Hansen
[2019] ACTSC 189
•18 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Connelly-Hansen |
Citation: | [2019] ACTSC 189 |
Hearing Date: | 17–18 July 2019 |
DecisionDate: | 18 July 2019 |
Before: | Murrell CJ |
Decision: | Sentenced to a total of 21 months’ imprisonment, backdated to 23 December 2018 and suspended with immediate effect upon entering a good behaviour order for two years. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of indecency with young person – Possess child exploitation material – Guilty plea – Where offending is objectively serious – Where the offender was subject to substantial trauma in private and professional life – General deterrence – Rehabilitation and public protection. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 62(2), 65 Crimes (Sentencing) Act 2005 (ACT) s 12 |
Cases Cited: | Minehan v The Queen [2010] NSWCCA 140 R v Falzon [2015] ACTSC 104 The Queen v TW [2011] ACTCA 25; 6 ACTLR 18 |
Parties: | The Queen (Crown) Allan James Connelly-Hansen (Offender) |
Representation: | Counsel T Hickey (Crown) K Ginges (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number: | SCC 233 of 2018; SCC 234 of 2018 |
Murrell CJ
The offender was charged with one count of act of indecency on a young person on 9 and February 2018, contrary to s 61(2) of the Crimes Act 1900 (ACT) (Crimes Act), and one count of possess child exploitation material on 28 February 2018, contrary to s 65 of the Crimes Act.
The offences carry maximum penalties of 10 years’ imprisonment and 7 years’ imprisonment respectively.
The offender entered pleas of guilty after criminal case conferencing, but before a trial date was set. I will allow a discount of between 15 and 20 per cent on the sentences that I would otherwise have imposed.
The offender was arrested on 28 February 2018 and spent 205 days (about six months and three weeks) in custody, before he was granted bail on 21 September 2018.
Facts
Act of indecency
In February 2018, the offender attended his daughter’s swimming carnival. While at the carnival, he used his mobile telephone to covertly film school children in their swimwear. The offence concerns one 12-year-old girl in relation to whom the offender made three video recordings, lasting a total of about eight minutes. The recordings focused on the girl’s buttocks and upper thighs towards the area of her genitals. In one of the recordings, the victim is clearly identifiable as the offender filmed her face.
The offence came to light because, on the night in question (in the early hours of the following morning, a Saturday), the offender was observed in Civic behaving suspiciously by using his mobile telephone to film women’s breasts, buttocks, and in the vicinity of their genital areas. A nightclub security guard asked the offender to leave the area and, when he refused to do so, the security guard spoke to police. Police gave the offender an exclusion direction. A short time later, he was observed within the exclusion zone. Police arrested the offender and seized his mobile telephone.
A few days later, the offender agreed to provide police with the pass code to his mobile telephone. On examining it, police discovered the indecent video recordings that had been taken at the swimming carnival, which were located in the “deleted items” area of the telephone.
As a result, police obtained a search warrant for the offender’s residence.
In the past, the offender has maintained that the filming was inadvertent. Having regard to the nature and volume of the material, that could not possibly have been the case. In effect, by his plea of guilty the offender accepted that position.
Possess child exploitation material
The search warrant was executed on 28 February 2018.
In a locked cupboard, police located a USB drive that contained child exploitation material. The offender’s DNA was on the USB drive. The child exploitation material consisted of 31,932 images and video recordings.
In accordance with usual practice, a sample of the total material was categorised using the Child Exploitation Tracking System (CETS). Within that system, CETS 1 refers to sexually suggestive posing with no sexual activity. CETS 2 refers to non-penetrative sexual activity between children or solo masturbation by a child. CETS 3 refers to non-penetrative sexual activity between adults/s and a child/children. CETS 4 refers to penetrative sexual activity between a child/children or adults and children. CETS 6 refers to animated or virtual depictions of children engaged in activities covered by CETS 1 to 5. Non-CET material refers to non-illegal or indicative material believed to form part of a series containing child exploitation material.
Based on a sample of images reviewed by police, the material was categorised as follows:
CETS 1 28,000 images 87.7%
CETS 2-3 2,306 images 7.2%
CETS 4 1,306 images 4.1%
CETS 6 80 images 0.2%
Non-CET 240 images 0.8%
I accept that there may be significant repetition of items within the total of 31,932 images and videos.
The material referred to no less than 100 individual child victims.
I viewed samples of the images relating to each CETS category. Even the material that falls within the CETS 1 category would appal members of the public, because of the nature of the victimisation and premature sexualisation of highly vulnerable children in circumstances of complete power imbalance, and the objectification and disrespect for them as human beings.
In the past, the offender has stated that he did not seek out the child exploitation material for reasons of sexual gratification; rather, it materialised when he was searching for images of himself being filmed when he was subjected to abuse as a schoolboy. Clearly, this explanation is illogical given the quantity of material, the fact that it relates to girls rather than boys, and the fact that it contains no images of the offender.
This does not mean that the offender’s assertion about his motivation was a bald-faced lie; if he was thinking logically, an intelligent man like the offender would not invent such a preposterous explanation for his conduct. No doubt, the assertion reflects the offender’s shame and psychological confusion associated with the disclosure of his own abuse and the extent of his abuse of others by viewing and downloading child exploitation material.
Objective seriousness
Act of indecency
The act of indecency was objectively serious.
The offence of committing an act of indecency covers a wide range of activities, including genital contact. In the case of this offence, there was no contact with any child. The victim was and remains unaware of her victimisation.
However, the offender took advantage of his position as a parent to mingle with scantily clad schoolchildren. This was not an impulsive act. The offender recorded several videos, which were of significant duration. Offences of this nature strike at the freedom of children to unselfconsciously engage in sporting activities in which they may necessarily be scantily clad, and the confidence of parents when considering whether their children should engage in such activities. As this offence demonstrates, even well-supervised activities are at risk. In that sense, offences such as this are very harmful to the community.
Possessing CET material
In relation to the assessment of the objective seriousness of the offence of possessing child exploitation material, in R v Cooper [2012] ACTCA 9 at [40], the Court adopted as relevant the considerations outlined in Minehan v The Queen [2010] NSWCCA 140.
Applying those considerations to the present case and noting other relevant matters:
(a)No less than 100 actual children were used to create the material.
(b)The material affected children of all ages, from babies to teenagers. Most of the material fell within the CETS 1 category but there was still a large quantity of material in CETS categories 2 to 4. As noted above, even the CETS 1 material is highly offensive and exploitative.
(c)Accepting that there may be significant repetition of items, there was a vast number of images.
(d)The offender’s purpose in possessing material was not for sale or distribution, but for personal sexual gratification. There is no evidence of payment or material benefit flowing to him.
(e)The level of planning and sophistication was relatively low and limited to downloading and saving the images to separate named folders on the USB drive.
(f)There was no evidence of the involvement of others, and no risk of the material being seen or acquired by vulnerable persons.
(g)The offence concerned the possession of items on one day.
The number of items that were involved and, more importantly, the number of victims that were involved, means that this offence is of significant objective seriousness.
Subjective circumstances
The offender is 52 years old. He has no prior criminal record.
The offender is an only child. After his parents divorced when he was five years old, he resided with his grandparents until his early teenage years. Thereafter, he lived with his mother and step-father or boarded at school.
The offender suffered a highly abusive childhood within his home environment, as discussed below.
Due to the transient nature of his step-father’s employment, the offender attended many schools. As a young adolescent, he was sent to board at St Patrick’s College in Goulburn, where, particularly during his first year there, he was subjected to repeated sexual abuse by two brothers.
When the offender was 15 years old, he informed his biological father of the school abuse by telephone. Two days later, on Father’s Day, his father committed suicide.
The offender gained admission to the University of Canberra, graduating with a Bachelor of Science and Arts. Paradoxically (having regard to the subject offences), the offender’s experience of childhood physical and sexual abuse motivated him to pursue justice in his career. He had a distinguished career, ultimately working as a consultant for the Department of Foreign Affairs and Trade. His greatest contribution related to international work on the genocide in Rwanda.
The Court was provided with many references attesting to the offender’s generally outstanding character.
The discovery of these offences has resulted in a dramatic fall from grace for the offender. In all respects, his life has unravelled.
Following the offences, the offender separated from his wife and daughters, and has since had limited contact with them. He had some contact while he was in custody. However, his original bail conditions precluded contact. The bail conditions were varied in May 2019 and, currently, the offender sees his wife and daughters each week.
The offender lives with his elderly mother for whom he cares. She suffers from an acquired brain injury and her condition is deteriorating. She depends upon him to undertake house work and shopping, to manage her affairs, and to track her whereabouts. This role is emotionally taxing for the offender.
As a result of the offences, the offender’s employment was terminated. He is unemployed and receives a government benefit.
The offender reported that, due to the nature of the allegations against him, he was subjected to threats from other prisoners while in custody.
Fortunately, the offender has retained some close friends who are aware of the offences but continue to support him.
The offender suffered severe abuse through most of his childhood, trauma associated with reporting the abuse, and trauma through his employment. He has reported:
(a)Physical abuse by his biological father towards himself and his mother.
(b)Physical abuse and cruelty by his step-father towards himself and his mother.
(c)Sexual abuse by his grandmother.
(d)Associated feelings of parental abandonment because he was required to live with his grandmother.
(e)Bullying at school, partly due to frequent changes of school and being an “outsider” who had no opportunity to develop a friendship network.
(f)Physical and sexual abuse by teachers and punishment for reporting sexual abuse.
(g)Guilt and grief associated with his father’s suicide two days after the offender reported to his father that he had been sexually abused.
(h)Trauma from working with the Rwanda Genocide Evidence Data Base, and working with and seeing physically and emotionally scarred victims of rape and genocide in Rwanda, including dealing directly with victims and viewing horrific footage of mutilated bodies.
Since October 2018 (just after he was released on bail), the offender has attended weekly sessions (1 to 2 hours every week) with Dr Ruefli, a clinical psychologist. Dr Ruefli has diagnosed the offender as suffering from:
(a)Major depressive disorder, moderate, with moderate/severe anxious distress;
(b)Post-traumatic stress disorder and associated persistent insomnia;
(c)Generalised anxiety disorder and possible associated illness anxiety disorder of the care seeking type; and
(d)Obsessive-compulsive disorder with good insight.
Dr Ruefli’s short-term goal is to support the offender through the criminal justice process. In the medium term, he hopes to treat the offender’s conditions associated with past abuse and trauma
I accept that the offender experienced the abuse that he has reported. Dr Ruefli, who has had an intensive and long-standing engagement with the offender, accepts that the reports are genuine.
In addition, the reports and observations of others corroborate the offender’s account of trauma and abuse.
In about 2003, a friend visited the offender who was working at the International Criminal Court out of The Hague. The friend observed that the offender was not coping with the work and felt that he was suffering from some form of post-traumatic stress disorder.
Since 2010, the offender’s general practitioner has treated him for depression. In 2014, the offender disclosed a history of sexual abuse during childhood to his general practitioner, referring to his grandmother and stating that his father was violent and his step-father was emotionally abusive.
In 2011, the offender was treated for obsessive-compulsive disorder (manifested in overly detailed work reports and undue prolixity) by a psychologist, Mr Cameron.
In 2013, at a St Patrick’s school reunion, the offender and others discussed the abuse at the school. Thereafter, the offender had extensive discussions with an elderly friend in which the offender became distressed when discussing the sexual abuse that he had experienced as a schoolboy. She also came to believe that the offender was suffering from some form of post-traumatic stress disorder.
Another friend stated that, over the years, she has had many conversations with the offender concerning his violent father, the trauma of his father’s suicide, the abuse that he suffered at boarding school, and the confronting work that he undertook in Rwanda. She observed that he has always had difficulty with sleeping.
While in custody, the offender disclosed to the prison psychologist that he had been abused in the school environment.
As to any link between the abuse and trauma suffered by the offender and the offending conduct, Dr Martin, a reporting psychiatrist, opined:
In my view, the most likely explanation is that he has a problem with the emotional and sexual regulation which is closely associated with his own adverse and traumatic experience. There may be an element of compulsion to repeat trauma, especially as formulated by his treating psychologist, Dr Ruefli. People who are extremely distressed sometimes use sexual behaviour as a means of modulating distress, anxiety or mood problems, particularly when their own relationships are suffering problems. In my opinion, the offending behaviour has plausibly occurred, at least partially, in association with such distress as a perverse form of “acting out”, on a background of complex trauma.
Dr Martin also stated that “paedophilic disorder cannot be excluded”. He considered that the offender should be reviewed specifically to address paraphilia and that the offender should possibly engage in a structured therapeutic program around sex offending.
The authors of the pre-sentence report recorded that the offender understood that his behaviours were morally and ethically wrong, and appreciated the impact on the victims. He did not engage in minimisation or blaming behaviour. He was assessed as at medium to low risk of sexual reoffending.
Dr Martin was more cautious, noting the offender’s “significant minimisation and denial of the underlying motivation”. Nevertheless, Dr Martin concluded that the offender was likely to be in the low to moderate range of risk for sexual reoffending.
Sentencing purposes
In relation to the offences of possessing child exploitation material, general deterrence is usually a prominent sentencing purpose. Offences of this nature are abhorrent, widespread, and (as the circumstances of this matter demonstrate) difficult to detect.
On behalf of the offender, relying on expert material such as the opinion of Dr Martin quoted above, it was submitted that, the offender’s moral culpability was somewhat reduced by the link between his own childhood experiences and the offending behaviour. Consequently, less emphasis should be given to using him for the purpose of conveying a message of general deterrence.
While I accept that there is an association between the extreme abuse and trauma suffered by the offender himself and his offending conduct, offences of this type are usually committed against a background of significant disadvantage. The offender’s age, intelligence, and overall life experience must also be taken into account. In the circumstances of this case, general deterrence remains an important sentencing purpose.
Rehabilitation and the associated purpose of public protection are also very important. As the prosecutor observed, the offender’s current psychological treatment plan contemplates addressing the abuse perpetrated against him, but, from a community perspective, it is critical that strategies be developed to minimise the risk of future misconduct against children. No doubt it is envisaged that, parallel to addressing the offender’s own psychological issues, such strategies will be developed.
The prosecutor and the offender’s counsel agreed that the only appropriate sentence was one of imprisonment and that it was appropriate that part of the sentence be served by fulltime imprisonment. I agree.
I was referred to a number of comparable cases, including R v Major [2016] ACTSC 161, R v Falzon [2015] ACTSC 104, R v KJ [2014] ACTSC 353, The Queen v Cooper [2012] ACTCA 9, and The Queen v TW [2011] ACTCA 25; 6 ACTLR 18. These cases indicate that, for offending of a similar nature to that of the present case, the sentence range may be one to two and a half years’ imprisonment. Of course, comparable cases are of limited assistance and each case must be considered on its own merits.
Having regard to the objective seriousness of the principal offence and the need to convey a message of general deterrence, ordinarily I would have required the offender to spend more than six months and three weeks in fulltime custody. However, since being granted bail 10 months ago, the offender has commenced a course of intensive psychological treatment and has developed a support network of persons who are aware of his conduct but will assist his rehabilitation. I am loath to disrupt the offender’s current circumstances because they both support rehabilitation and will minimise the risk of future harm to the community. I am also mindful of the offender’s responsibilities towards his mother.
Sentences
The offender is convicted of both offences and I impose the following sentences.
(a)For the offence of act of indecency with young person: 2 months’ imprisonment, reduced from 3 months’ imprisonment, from 23 December 2018 to 22 February 2019.
(b)For the offence of possessing child exploitation material: 20 months’ imprisonment reduced from 2 years’ imprisonment, from 23 January 2019 to 22 September 2020.
The total sentence is 21 months’ imprisonment, from 23 December 2018 to 22 September 2020.
Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the remainder of the sentence is suspended with immediate effect upon the offender entering a good behaviour order for a period of two years, subject to the additional conditions that the offender is to:
(a)Report to Community Corrections by 4 PM on Friday 19 July 2019;
(b)Submit to the supervision of Community Corrections for a period of at least one year, and up to a period of two years at the discretion of Community Corrections; and
(c)Undertake all assessments, treatment, and programs that may be recommended by Community Corrections, including any assessments, treatment or programs for sex offending.
| I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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