R v Cooper
[2024] ACTSC 235
•22 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cooper |
Citation: | [2024] ACTSC 235 |
Hearing Date: | 16 July 2024 |
Decision Date: | 22 July 2024 |
Before: | Mossop J |
Decision: | See [90] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – charges of possessing or controlling child abuse material, using a carriage service to access, make available, and solicit child abuse material, possessing child exploitation material, and failing to report a change of details as a child sex offender – offender possessed 283,167 files which were images or video identified as child abuse material – previously convicted for possession of child abuse material – diagnosed with Autism Spectrum Disorder and Paedophilic Disorder – where offender seems to have regarded it as a hobby like stamp collecting – sentence to be appropriate in all circumstances and not a crushing one – cumulative sentence of nine years and eight months with aggregate non-parole period for Commonwealth and Territory offences of five years and seven months |
Legislation Cited: | Crimes Act 1900 (ACT), s 65(1) Crimes Act 1914 (Cth), ss 3LA, 16A(2)(h), 16AAB, 16AAC, 16BA, 19(6), 19(7), 23ZD Crimes (Child Sex Offenders) Act 2005 (ACT), s 58A Crimes (Sentence Administration) Act 2005 (ACT), s 108 Criminal Code (Cth), ss 474.19, 474.22(1), 474.22A Magistrates Court Act 1930 (ACT), s 90A |
Cases Cited: | Glasheen v R [2022] NSWCCA 191 Hurt v The Queen [2022] ACTCA 49; 18 ACTLR 272 Hurt v The King [2024] HCA 8; 98 ALJR 485 R v Delzotto [2022] NSWCCA 117; 298 A Crim R 483 R v Michael Cooper [2012] ACTCA 9 R v Stiller [2023] QCA 51; 14 QR 38 |
Parties: | The King Michael Stanley Cooper ( Offender) |
Representation: | Counsel K Hogan ( Crown) T O’Rourke ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Aulich Criminal Law ( Offender) | |
File Number: | SCC 314 of 2023 |
MOSSOP J:
Introduction
1․These are sentence proceedings in relation to offences committed by Mr Michael Stanley Cooper. The offences for which he is to be sentenced are as follows:
(a)Count 1: Possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Criminal Code (Cth) (CAN 2181/2023). The maximum penalty is 15 years’ imprisonment. A mandatory minimum sentence of four years’ imprisonment applies to this offence.
(b)Count 2: Using a carriage service to access child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) (CAN 11568/2023). The maximum penalty is 15 years’ imprisonment.
(c)Count 3: Using a carriage service to access child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) (CAN 11569/2023). The maximum penalty is 15 years’ imprisonment. A mandatory minimum sentence of four years’ imprisonment applies to this offence.
(d)Count 4: Using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (CAN 11570/2023). The maximum penalty is 15 years’ imprisonment.
(e)Count 5: Using a carriage service to make available child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (CAN 11571/2023). The maximum penalty is 15 years’ imprisonment.
(f)Count 6: Using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) (CAN 11572/2023). The maximum penalty is 15 years’ imprisonment. A mandatory minimum penalty of four years’ imprisonment applies to this offence.
(g)Count 7: Possessing child exploitation material contrary to s 65(1) of the Crimes Act 1900 (ACT) (CAN 11573/2023). The maximum penalty is seven years’ imprisonment or 700 penalty units or both.
(h)Count 8: Failing to report as required contrary to s 58A of the Crimes (Child Sex Offenders) Act 2005 (ACT) (CAN 11574/2023). The maximum penalty is five years’ imprisonment or 500 penalty units or both.
2․There are also two breaches of good behaviour orders which need to be dealt with.
3․On 23 November 2023, the offender pleaded guilty to all charges in the Magistrates Court and was subsequently committed to the Supreme Court to be sentenced under s 90A of the Magistrates Court Act 1930 (ACT).
4․The matter remained in the Registrar’s directions list from November 2023 until March 2024, pending the High Court’s decision in Hurt v The King [2024] HCA 8; 98 ALJR 485.
Agreed Facts
5․The facts upon which the offender is to be sentenced have been agreed between the parties and are set out in a Statement of Facts, which was admitted into evidence at the sentence hearing. The Statement of Facts outlines how the offender’s activities came to the attention of the Australian Federal Police (AFP), and the conduct of the AFP leading to the offender’s arrest. The Statement of Facts also sets out examples of the material found on the offender’s devices in explicit detail, which will not be repeated in these reasons.
Detection of offending
6․In late October 2022, the AFP were notified that an internet user based in the Australian Capital Territory had accessed and downloaded child abuse material by means of internet connected peer-to-peer file sharing software.
7․The Territory-based user was subsequently identified as the offender via his IP address.
Search warrant
8․On 28 February 2023, the AFP Joint Agency Child Exploitation Team executed a search warrant at the offender’s home address. During the execution of the search warrant, officers located numerous computing and electronic storage devices, as well as approximately 350 compact discs.
9․Officers served an order under s 3LA of the Crimes Act 1914 (Cth) on the offender, who then provided a document to police that contained relevant passwords and encryption information for his devices. During the execution of the search warrant, officers identified that the application “Frost” was running on the offender’s computer.
Possession of material (count 1, 7) and access material (count 2, 3, 4)
10․During the execution of the search warrant, police seized several devices located in the offender’s study on which child abuse material was identified. The files were generally contained within highly structured folders and sub-folders organised by genre, “series” and “model”. The majority of the files were provocative, sexually suggestive modelling with the exposure of the child’s breasts, vagina, penis and/or anus. These devices included:
(a)Collection 1: One HP laptop, on which a total of 69 child abuse material files were identified. The files primarily depict female children, predominantly ranging from prepubescent age (5-7 years) to early pubescent age (14-15 years). The dates associated with the download of the child abuse material identified on this device ranged from 22 July 2015 through to 23 October 2021.
(b)Collection 2: One PC tower, on which a total of 31 child abuse material files were identified. The files primarily depict female children ranging from prepubescent age (6‑8 years) to peri‑pubescent age (11-13 years). The majority of video files contain provocative, sexually suggestive modelling with the exposure of the child’s breast and/or vagina. The picture files depicted sexual acts including:
(i)the performance of fellatio on adult males by a female child;
(ii)cunnilingus on a child by an adult female;
(iii)masturbation of an erect penis by a female child; and
(iv)use of a sex toy in solo masturbation acts by a child.
The dates associated with the download of the child abuse material identified on this device range from 2 February 2023 to 27 February 2023. The offender told officers that he had used this PC to “run a Freenet server”.
(c)Collection 3: A Seagate 5TB hard drive, on which a total of 95,874 child abuse material files were identified. The files primarily depict female and male children ranging from toddler age (2-3 years) through to early pubescent age (14‑15 years). The dates associated with the downloads of the child abuse material identified on this device range from 1 October 2022 to 30 November 2022. While the majority of files contain provocative, sexually suggestive modelling with the exposure of the child’s vagina, penis and/or anus, a significant quantity of the files depict children in various sexual acts including:
(i)the vaginal and anal penetration by adult males;
(ii)the performance of fellatio on adult males;
(iii)sexual acts, including penetrative acts, between children;
(iv)solo masturbation, including penetrative use of sex toys;
(v)humiliation, including ejaculation onto the child’s face and urination;
(vi)bondage and bestiality scenes; and
(vii)incest themes.
(d)Collection 4: Another Seagate 5TB hard drive on which a total of 113 child abuse material files were identified. The files primarily depict female children ranging from prepubescent age (7-8 years) through to early pubescent age (14‑15 years). The dates associated with the child abuse material identified on this device range from 27 February 2021 through to 20 December 2022. The majority of the files contain provocative, sexually suggestive modelling with a focus on the female child’s breasts and/or vagina. Three of the identified picture files depict fellatio on an adult male and the vaginal penetration of female children by an adult male.
(e)Collection 5: Six Seagate hard drives of various sizes, on which a total of 90,975 child abuse material files were identified across the six storage devices. The files primarily depict both female and male children ranging from toddler age (2-3 years) through to early pubescent age (14-16 years). The dates associated with the download of the child abuse material identified across these devices ranges from 29 January 2020 to 2 December 2022. The majority of files contain provocative, sexually suggestive modelling with the exposure of the child’s vagina, penis and/or anus. A significant quantity of the files depicts children in various sexual acts including:
(i)the vaginal and anal penetration by adult males;
(ii)the performance of fellatio on adult males;
(iii)sexual acts, including penetrative acts, between children;
(iv)solo masturbation, including penetrative use of sex toys;
(v)humiliation, including ejaculation onto the child’s face and urination;
(vi)bondage and bestiality scenes; and
(vii)incest themes.
(f)Collection 6: Two Western Digital hard drives, on which a total of 95,263 child abuse material files were identified across the two devices. The files primarily depict both female and male children ranging from toddler age (2-3 years) through to early pubescent age (14‑16 years). The dates associated with the download of the child abuse material identified across the two devices ranges from 23 September 2017 through to 24 October 2022. The content of the files is as described for the six Seagate drives (Collection 5) previously.
(g)Collection 7: A second HP laptop, on which a total of 288 child abuse material files were located. The files primarily depict female children ranging from toddler age (2‑3 years) through to early pubescent age (14-15 years). The dates associated with the download of the child abuse material located on this device range from 15 November 2021 to 19 February 2023. The majority of the files contain provocative, sexually suggestive modelling and the exposure of the child’s breasts, vagina and/or anus.
(h)Collection 8: One Seagate 500GB hard drive, on which a total of 61 child abuse material files were located. The files predominantly depict female children, ranging from peri‑pubescent age (11‑13 years) to early pubescent age (14‑15 years). The dates associated with the child abuse material located on this device range from 2 January 2014 to 23 September 2020. All of the items contain provocative, sexually suggestive modelling with the exposure of the child’s breasts, vagina and/or anus.
(i)Collection 9: Two SanDisk 8GB USB flash drives and one Lexar 8GB MicroSD card, on which a total of 493 child abuse material files were located across the three storage devices. The files predominantly depict female children, ranging from prepubescent age (5-6 years) to early pubescent age (14‑15 years). The dates associated with the child abuse material located across these three storage devices range from 2 January 2014 through to 23 September 2020. The majority of the files contain provocative, sexually suggestive modelling with a focus on the exposure of the child’s breasts, vagina and/or anus, although at least one file contained a video of penetrative sex between children.
11․Police also seized an estimated 350 CD-ROMs/discs contained within a cardboard box, two disc wallets, and a black storage box (Collection 10). The items were hidden in the offender’s bedroom closet within two sealed wooden speakers. Twelve of the discs were examined by police and a total of 102 child abuse material files were identified. The files primarily depict male and female children, ranging from early prepubescent age (3‑5 years) through to early pubescent age (14-16 years). The majority of files contain provocative, sexually suggestive modelling with the exposure of the child’s breasts, vagina, penis and/or anus; however, a significant quantity of the files contained depictions of children in various sexual acts including:
(a)vaginal or anal penetration by adult males;
(b)fellatio on adult males;
(c)cunnilingus and fellatio by adults;
(d)sexual acts, including penetrative acts, between children;
(e)solo masturbation, including penetrative use of sex toys;
(f)humiliation, including ejaculation onto the child’s face and urination; and
(g)incest themes.
12․All twelve discs had creation dates associated to them ranging from 26 July 2001 to 2 March 2014.
Frost board posts
13․Frost is an online, encrypted messaging system with public and private forums, as well as file sharing and search functionalities. Frost is a Freenet-specific application, and only accessible to someone who has Freenet installed.
14․Freenet is a type of peer-to-peer program that operates using the internet. Freenet users must “insert” the file into the Freenet by creating a ‘key’ for the Freenet files. It works by storing small, encrypted pieces or blocks of content distributed on the computers of its users and connecting through intermediate computers which pass on requests for content and send them back without knowing the contents of the complete file. A Freenet user wishing to download a file, must first locate the file’s manifest key, a key to a block containing the list of the keys to the pieces of the file. The offender hosted a Freenet server.
15․The offender had various Frost boards added to his “useful folder”, including boards titled “Child Models”, “Lolly Cams”, “Teen Model Girls”, “Girl Porn”, “Boy Porn” and “12‑15 girls”. He had created two usernames for posting and communication on Frost, being:
(a)Tantalum; and
(b)Blank Frank.
Using a carriage service to make available child pornography material (Count 5)
16․On 2 March 2019, an anonymous Frost user posted a request for a child pornography video containing a particular child. On 4 March 2019, the offender responded under the username Tantalum. His response included three keys which contained the file name “Task-J”. These keys facilitated access to child abuse material.
17․The “Task-J” files depict a prepubescent female child, aged about 8-11 years, in a montage of various outfits, including gymnastic-type leotards, bikinis, underwear, and an adult’s sheer slip dress. Throughout, the child poses in a provocatively and sexually suggestive manner with prolonged indecent zoom on the child’s breasts, vagina, and buttocks.
Using a carriage service to solicit child abuse material (Count 6)
18․On 12 March 2022, a Frost user with the username “ssfan” posted a message on Frost describing child abuse material that they had in their possession. At the end of the message, the user posted three keys. The first key ended in “CLSC-016”. The second key ended in “ICDV-30157”.
19․The files ending in “CLSC” depict a prepubescent female child, aged about 8-11 years, in a montage of various outfits including gymnastic-type leotards, bikinis, and lingerie. The files ending in “ICDV” depict a peri-to-early pubescent female child, aged about 12‑14 years, in a montage of various outfits including school uniform, bikinis, lingerie, and fishnet stockings. Throughout both, the child poses in a provocatively and sexually suggestive manner with a clear focus on “up-skirting” and prolonged indecent zoom on the child’s breasts, vagina, and buttocks.
20․On 13 March 2022, the offender, as Tantalum, posted the following message on Frost:
Hello ssfan. Yes I would be very interested in anything that you could post. Of all the U15 videos I have I don’t have any of those. Ta
21․Frost user ssfan did not respond and, on 25 March 2022, Tantalum posted again:
Hello ssfan, Just a reminder, They are not too hard to upload since they are all 50‑70 minutes. So what happened? Yes I really need all 61 videos : ) and not to task [sic] too much, any other you may have… Ta
22․By asking for videos to be uploaded, the offender was soliciting child abuse material.
Failure to report (Count 8)
23․The offender is a registrable offender within the meaning of the Crimes (Child Sex Offenders) Act 2005 (ACT) and is required to report a change in personal details until 18 September 2027.
24․A change in personal details includes “details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used by the offender through the internet or another electronic communication service”.
25․As at 28 February 2023, the offender had not reported his “Tantalum” or “Blank Frank” usernames on Frost, as required.
Record of search warrant
26․The offender participated in a digitally recorded interview with police during the execution of the search warrant, during which he made the following admissions:
(a)He had lived at the premises alone since 1996 and all of his computing and electronic storage devices were owned and operated solely by him. He was the only person who had access to his devices.
(b)He did not agree with the legal definition of “child abuse material”. He had his own opinions about pictures of nude children, describing them as “nude art” and “modelling”, which he knew most people would not agree with.
(c)He believed that some children were “born exhibitionists” and “natural show‑offs”, who wanted, and were willing, to be photographed and filmed.
(d)He did not agree that there was harm in downloading or possessing child abuse material because the harm has already been done and the material was freely available on the internet.
(e)His “age of interest” was 11 to 13 years.
(f)He ran a Freenet server “as a service”.
(g)He used two applications, “Usenet” and the Freenet communication application “Frost”, to search for, locate and download child abuse material.
(h)He subscribed to online communication boards which were dedicated to “hard core” sexual assault of prepubescent female and male children.
(i)He viewed the child abuse material and, in relation to the series or collections that he sought, cross-checked the files’ hash value for authenticity before saving the media files.
(j)He regularly backed-up his collection across various high volume storage devices.
(k)He estimated that he possessed about 500,000 unique child abuse material files.
(l)He had watched so much child abuse material that he was desensitised to the content.
(m)He denied having a sexual interest in children. He did not gain sexual gratification from the child abuse material but saw it as a “hobby” or “compulsion” to collect the child abuse material.
(n)He last accessed child abuse material the night prior to the execution of the search warrant, and he last downloaded child abuse material the week prior.
Objective seriousness
Count 1
27․Count 1 is a single rolled up count relating to the possession of child abuse material located across Collections 1-9 described earlier. It relates to the possession of this material on 28 February 2023. The following features are relevant to its objective seriousness:
(a)It involves 283,167 files which were images or video identified as child abuse material.
(b)It involves an estimated 76,007 unique files.
(c)No less than 1250 individual real child victims are depicted, ranging in age from two years to 16 years of age.
(d)The material includes material, described in more detail in the agreed Statement of Facts, that is consistent with the descriptions given earlier in relation to the content of Collections 1-9. It involves very serious sexual conduct involving children, although not the worst categories of sexual violence. The sexual conduct is such as to have caused physical harm and distress to at least some of the children and long-term psychological consequences.
(e)The size and organisation of the collection involves a high degree of planning and organisation, but there was no sophisticated attempt by the offender to hide his identity or the material he possessed.
(f)It was obtained for the offender’s personal use but with some limited further distribution.
(g)It was not obtained for the purpose of sale or profit.
28․I accept the Crown’s submission that the large number of files, the number of real child victims, and the depravity of the child abuse material puts the offending well above the mid-range of objective seriousness for this offence.
Counts 2, 3, 4
29․These counts all relate to accessing child abuse material using a carriage service. They cover contiguous periods as follows:
(a)Count 4: 2 January 2014 to 21 September 2019.
(b)Count 2: 22 September 2019 to 22 June 2020.
(c)Count 3: 23 June 2020 to 27 February 2023.
30․Count 3 relates to the period after 23 June 2020, when the mandatory minimum sentence provisions of the Crimes Act 1914 (Cth) came into effect. The earlier two charges accommodate two earlier periods where different legislative provisions applied.
31․During some of the period of count 4, the offender was on conditional liberty:
(a)From 22 November 2012 (prior to the period covered by count 4) until 25 November 2014, he was subject to a good behaviour order related to a partially suspended sentence for possessing child pornography.
(b)From 9 January 2014 until 8 January 2015, he was subject to a good behaviour order as a result of a conviction in 2014 for failing to report annually as a child sex offender.
32․The volume of material accessed is not individually quantified for each charge. Rather, the agreed Statement of Facts summarises the periods during which the files on the different devices or storage types were accessed. These date ranges do not correspond with the date ranges identified in the individual charges. Dealing with the charges in chronological order, the position is as follows.
(a)Count 4: The period covered is approximately five years and nine months.
(b)Count 2: The period covered is approximately nine months.
(c)Count 3: The period covered is approximately two years and eight months.
33․File collections 2, 3, 4 and 7 are all exclusively within count 3 and, of those, collection 3 alone contains 95,874 files. The other high-volume collections are collection 5 (90,975 files) which relates to counts 2 and 3, and collection 6 (95,263 files) which is spread across all three counts.
34․The accessing of this material involves a degree of technical sophistication in order to access it on the Internet and, hence, involved a degree of planning and methodical execution on the offender’s part.
35․Given the lack of precision in the allocation of files as between individual charges and the varying periods covered by each charge, it is only possible to say that the volume of material and the nature of its content means that each of these offences is above the mid-range of objective seriousness for the relevant offence provision.
Count 5
36․This count relates to the offender’s use of a carriage service to post three keys on the peer-to-peer network, Frost. By posting those keys, the offender made child abuse material available to be downloaded by other users of that application. The nature of the files shared using the keys indicates that, even though there is a degree of sophistication involved, this offending is at the low end of objective seriousness for this offence.
Count 6
37․This related to conduct between 13 and 25 March 2022, in which the offender solicited child abuse material by requesting keys that would allow him to access 61 videos. The nature of the videos is described above and is less serious. However, the volume is not insignificant. The offending is in the low to mid-range of objective seriousness for this offence.
Count 7
38․This relates to the possession of the 102 files that were located on the CD-ROMs, which contained child exploitation material. Given the volume and nature of the material, it is an offence at the low end of the mid-range of objective seriousness for this offence.
Count 8
39․This count relates to the failure of the offender to report a change of details pursuant to s 58A of the Crimes (Child Sex Offenders) Act. That provision picks up the requirements under “a reporting obligation provision” which, in turn, picks up the wide range of obligations under ss 22-56 of the Act. The failure to report by the offender was significant in that the usernames related to services directly involved in further offending and, hence, directly contrary to the purpose of the reporting condition. It is in the mid‑range of objective seriousness for this offence.
Subjective circumstances
40․The personal circumstances of the offender are outlined in five expert reports tendered by the offender. Two of those were from 2024 and three of them were prepared in 2010 or 2011 for the purposes of sentencing on earlier child abuse material charges. Because of the existence of this mass of material relating to the offender’s personal circumstances, no pre-sentence report was ordered.
41․The basic facts about the personal circumstances of the offender are as follows. He is 66 years old. He is single with no children. He was born in Ballarat. He was one of six children born to his parents. His father died when he was four years old. His mother did not remarry. She died of dementia in about 2005. Apart from the loss of his father, he had a stable and coherent family life growing up. He completed secondary school. After school, he got an apprenticeship as a radio technician in Melbourne. Between 1975 and 1990, he worked for the Melbourne and Metropolitan Board of Works and then for a company called TechTronics. He then moved to Perth and later to Canberra, still working for TechTronics. He was made redundant in 1998 but became a contractor to the same company. He worked for another company from 2001 to 2005 and then worked for Lexmark until 2011, when he lost his job due to the earlier offending. He then had a job between 2011 and 2014 fixing poker machines. He appears to have worked briefly for the ACT Government after that. He was retired from formal work until his arrest for the current offences.
42․He has had few friendships during his life. He has had very few romantic relationships, none since he moved to Canberra in 1991 at the age of 33.
43․The report of Ms Tabitha Frew, a clinical psychologist, dated 3 July 2024, related to the offender’s mental condition. She diagnosed him as suffering from Autism Spectrum Disorder, level two, without intellectual or language impairment. She also diagnosed him with Paedophilic Disorder, exclusive type, sexually attracted to females. She described the diagnoses made by Mr Sutton and Dr Barry in 2010 and 2011.
44․Ms Frew made the diagnosis of autism, level two, because the offender demonstrated persistent deficits in social communication and interaction. That was based upon the self‑report that he had not had any stable friendships across his lifespan and is perplexed as to why this is the case. He did not appear to understand the reciprocal nature of relationships. He tended to be withdrawn, and there was a long history of him avoiding or minimising participation in conversations in face-to-face relationships. He had deficits in non-verbal communication behaviours used for social interaction. The history that he gave indicated that the deficits in social-emotional reciprocity were evident from childhood. He had an excellent memory for certain things. He demonstrated ritualised patterns of behaviour with inflexible adherence to routines. This was necessary for the maintenance of his emotional stability. He spoke of great agitation if he was prevented from completing a particular routine.
45․She expressed the opinion that he was more attached to the routine of categorising his many collections, including child abuse material. He demonstrated highly restricted, fixated interests which were abnormal in intensity and focus. He had many collections of obsessional interest across his lifespan. He reported having a home filled with gemstone collections, vinyl records, collections of CDs, thousands of books categorised by genre, hobby magazines, pornography with specific themes, and child abuse material. She referred to Dr Barry’s report of 2011 which described the state of the offender’s home in a manner consistent with hoarding behaviour.
46․She described him as having deficits in “Theory of Mind” skills and gave examples of rigid thinking about the correctness of his own beliefs.
47․She described the highly organised and structured subfolders for the child abuse material as being indicative of autistic behaviour, saying, “In reference to Mr Cooper’s Autism, the filing system, the collection itself, and the sexual enjoyment from the material were all maintaining factors for the offending.” Although she said that in other cases of people with autism and child abuse material it would not be uncommon to find the material stored in files that may not have been opened or viewed, that would be unlikely in this case because the offender also had a special technical interest in photography and videos and “may have viewed all files before storing despite stating this was not the case”.
48․She described him as having a permanent and lifelong condition of Paedophilic Disorder, exclusive type, sexually attracted to females. She did not agree with the diagnosis of Schizoid Personality Disorder made earlier, finding him too animated and verbose for that diagnosis.
49․She gave detailed reasons for expressing the opinion that there was “a direct causal relationship between features of the offender’s Autism Spectrum Disorder and the offending, to a moderate degree”. Those reasons related to:
(a)his autism predisposing him to attachment to his collections and the persons in them;
(b)the consequences of his loss of familiar employment in circumstances where he did not have social skills to initiate and maintain new professional connections;
(c)impairment of his capacity to pick up subtle cues that the subjects of the child abuse material were distressed;
(d)difficulties for him to question his assumptions about his collections of child abuse material;
(e)deficits in empathy for the general vulnerability of children; and
(f)obsessional interests.
50․Ms Frew assessed the offender as having a low risk of reoffending so long as he remained subject to strict controls that restricted his access to the Internet. That assessment of low risk was contributed to by the fact that, as a result of his age, his sex drive would be decreasing. He would benefit from ongoing psychological treatment such as that provided by Professor Boer. She expressed the opinion that the offender does not have the emotional maturity or Theory of Mind skills to cope alone online and, hence, although he may be distressed at the prospect of legal restrictions on his capacity to keep up‑to‑date with computer and technological changes, a restriction on access to the Internet may be a significant help.
51․She said that the offender’s capacity to express remorse is impaired by his autism. He did not yet have insight into how his thwarted social and emotional development and sexual attraction to children were motivations underlying his offending.
52․She described him as being vulnerable in a custodial setting in comparison to other detainees. He would benefit from further psychology sessions with a suitably qualified psychologist in order to manage some of the stressors of the environment in the Alexander Maconochie Centre. She believed that, although a sentence of full-time imprisonment would weigh on the offender more heavily than someone without autism, work, study, or other activities would be a significant contribution to good mental health and better emotional regulation of distress while in custody.
53․The report of Professor Douglas Boer, psychologist, indicated that he had undertaken 12 individual treatment sessions with the offender, and that the offender had engaged well with the treatment program and showed an increasing level of insight. It was Professor Boer who referred the offender to Ms Frew for the purposes of assessment for Autism Spectrum Disorder because of the offender’s focus on collecting, his initial low level of empathy, and his lack of desire for social relationships.
54․The report of Mr Tom Sutton, psychologist, in June 2010 diagnosed Schizoid Personality Disorder. He said the offender had strong obsessive and compulsive traits and temperaments. He was socially naïve and demonstrated paedophilia behaviour, although without a risk of acting on it. At that stage, Mr Sutton said that he could not see him returning to pornographic material in any form.
55․There were two reports of Dr Mike Barry, psychologist, one from December 2010 and the second from May 2011. He also diagnosed Schizoid Personality Disorder. He noted the offender’s social isolation, lack of empathy, relationship avoidance, and hoarding. He did not consider that the offender met the DSM-IV diagnostic criteria for paedophilia because, at that stage, the criteria required an attempt or engagement in sexual activity with prepubescent children (the requirement for that to be established was no longer essential for diagnosis under DSM-5). Dr Barry considered that over the previous year the offender had begun to show insight into his condition and that suggested good prospects of rehabilitation.
Criminal history
56․The offender has convictions for child abuse material related offending.
57․In May 2011, he was convicted of two offences, one Commonwealth and one Territory.
58․The Commonwealth offence was for using a carriage service to publish child pornography between 22-23 April 2008 (Criminal Code 1995 (Cth), s 474.19). On this charge, he received a sentence of 12 months’ imprisonment.
59․The Territory offence was for possessing child pornography (Crimes Act 1900 (ACT), s 65(1)). This related to the period from May 2003 until January 2010. On appeal, the sentence was two years and seven months.
60․The aggregate sentence was three years, with 18 months to be served by periodic detention and the balance suspended with a good behaviour order for two years. Had the offender not, by the time of the appeal, served the bulk of his sentence by way of periodic detention, he would have been required to serve it by full-time imprisonment with an aggregate sentence of three years.
61․In sentencing the offender, regard was had to his then diagnosed Schizoid Personality Disorder, his social isolation, long-term fixation on pornography, the unlikelihood of him becoming a predatory paedophile, and his hoarding. He was sentenced on the basis that he was in possession of some 680,000 images of child pornography and over a thousand videos of child pornography.
62․The good behaviour order associated with the suspension of the sentences operated from 26 November 2012 until 25 November 2014.
63․The offender also has a conviction for failing to report annually as a child sex offender. The offence was committed in September 2013. The conviction occurred in January 2014. The offender was subject to a good behaviour order for a period of 12 months from 9 January 2014 until 8 January 2015.
64․Count 4 currently faced by the offender involved a breach of these good behaviour orders because it involved using a carriage service to access child pornography in the period 2 January 2014 until 21 September 2019. It, therefore, involved a contravention of:
(a)the good behaviour order associated conviction on the Territory charge of possessing child pornography in the period 2 January 2014 to 25 November 2014; and
(b)the good behaviour order associated with the failing to report conviction in the period 9 January 2014 to 8 January 2015.
Plea of guilty and assistance to authorities
65․The offender was initially charged only with the possession offence (count 1). The offender pleaded guilty on the eighth occasion that the matter was before the Magistrates Court. He never entered a plea of not guilty. He indicated on the second appearance that a plea of guilty was expected to be entered. The remaining charges were laid on the same date that a plea was entered to the initial charge, and all matters were committed for sentence to the Supreme Court. It appears that the delay in bringing the subsequent charges was because of the need of police to examine so many electronic files to determine the charges that should be laid. The plea of guilty was at, in effect, the earliest possible stage and a reduction of 25 percent on account of the utilitarian value of the plea is appropriate.
66․The offender made substantial admissions to police during the execution of the search warrant at his house. Although the admissions made did not go substantially beyond what might ultimately have been inferred by police from the material that they seized, it was of assistance to authorities and should be subject to a further reduction in sentence pursuant to s 16A(2)(h) of the Crimes Act 1914 (Cth).
Time in custody
67․The offender has been in custody for 481 days prior to today. That gives a backdate date of 29 March 2023.
Comparable cases
68․There are a limited number of comparable cases which have been decided in the context of the mandatory minimum sentence provisions relating to child abuse material offences under ss 16AAB and 16AAC of the Crimes Act 1914 (Cth).
69․Glasheen v R [2022] NSWCCA 191 involved an offence against s 474.22(1) of the Criminal Code: using a carriage service to access child abuse material. The offender had 64 images which constituted child abuse material. The images included prepubescent children performing fellatio or being sexually penetrated. The offending occurred over an eight day period but was not isolated offending. The offending occurred for the offender’s own sexual gratification. The prospects of rehabilitation were guarded. The earlier offending, which led to the application of the mandatory minimum sentence provisions, occurred in 2014. Those earlier offences included aggravated indecent assault and three offences relating to the production of child abuse material.
70․The offender was resentenced on appeal. The starting point was four years and six months. There was a 25 percent discount for the plea of guilty and a five percent discount for assistance to authorities. This 30 percent discount resulted in a head sentence of three years and one month. A non-parole period of two years and four months was set.
71․In Hurt v The Queen [2022] ACTCA 49; 18 ACTLR 272, the offender was resentenced on charges including a contravention of s 474.22A (possessing child abuse material) related to 486 photos and 55 videos. This was assessed as being a mid-range offence. On a resentence by the Court of Appeal, the starting point was six years which, after a reduction of 25 percent on account of the plea of guilty, led to a sentence of four years and six months. Two other offences led to an aggregate sentence of four years and eight months with a non-parole period of two years and one month. An appeal to the High Court was dismissed. (It is not clear why the High Court, on appeal, described the aggregate sentence as four years and 10 months with a non-parole period of two years and two months: Hurt v The King [2024] HCA 8; 98 ALJR 485 at [72].)
72․In R v Delzotto [2022] NSWCCA 117, Mr Delzotto had previously been convicted of child sexual abuse offences. In 2021, he was convicted of accessing (s 474.22(1)) and possessing (s 474.22A) child abuse material. The possession offence concerned 142 videos and 2511 images. On a resentence by the Court of Criminal Appeal, the starting point was a sentence of six years’ imprisonment. A discount of 25 percent for the plea of guilty and five percent for cooperation led to a sentence of four years and two months. A sentence of one year was imposed for the access offence with an aggregate sentence of four years and six months and a non-parole period of three years. The High Court dismissed an appeal.
73․R v Stiller [2023] QCA 51; 14 QR 38 involved an offence against s 474.22(1) (accessing child abuse material using a carriage service). The offending took place over seven months and involved accessing child abuse material. Two other offences of accessing child pornography, which covered the periods September-October 2014 and June 2020, were taken into account under s 16BA. The principal offence, which dated from 23 June 2020, enlivened the mandatory minimum sentence provisions. Although the number of images accessed was not specifically defined, there were the remnants of 140 unique images found on his most recent device. These were considered category 1 images on the Oliver scale, that is, nude images with no sexual activity. There was a previous conviction in relation to accessing child pornography material in 2010. The offender was cooperative and comprehensively confessed to his offending. He pleaded guilty. The offender was sentenced to imprisonment for three years and six months with a non-parole period of 12 months. This appears to reflect a starting point of approximately five years. Leave to appeal against a sentence on the grounds of specific error and manifest excess was refused. The offending in Delzotto was described as being more serious than Mr Stiller even though Mr Stiller’s offending occurred over a longer period.
Consideration
74․It is not necessary to recite the vices of child abuse material and the need for denunciation and deterrence of its access and possession. The gravity of this type of offending has been legislatively recognised by the specification of the significant maximum penalty and, in particular, through the specification of mandatory minimum sentences for certain offences in certain circumstances.
75․I generally accept the accuracy of Ms Frew’s assessment of the offender. She appears more cautious than Professor Boer as to the offender’s prospects of rehabilitation and I, too, adopt that caution. I accept the opinion of Ms Frew that there is a causal relationship between the offender’s autism and his offending. That is because his autism contributed to his social isolation and obsessional interests, including the interest in collecting, sorting, and categorising the material the subject of the offending. The existence of that condition and its causal relationship with the offending both moderates the extent to which the offender is a suitable vehicle for general deterrence and also moderates to some extent his culpability for the offending. The moderation of his culpability is particularly applicable in addressing the sheer volume of the material because the attractiveness of collecting and organising the material has been increased by his disability. That was recognised in the decision of the sentencing judge on the offender’s previous conviction. In a passage quoted by the Court of Appeal in R v Michael Cooper [2012] ACTCA 9 at [53], the sentencing judge said the offender “seems to have regarded it as a hobby like stamp collecting.” However, the existence of autism as an explanation for aspects of the offending also increases the need for specific deterrence and the importance of a substantial period of supervision in the community if the likelihood of reoffending in the future is to be reduced.
76․I accept the evidence that because of the offender’s autism and a lack of interest in relationships with other people, he is not a risk of acting upon his paedophilic impulses.
77․While there is some room for the development of insight with ongoing psychological treatment, there cannot be the same optimism about his potential for change that there was in 2010 and 2011. I consider that it is unlikely that, unless compelled to do so, he will continue with psychological treatment of the sort contemplated by Professor Boer. I consider that the prospect of rehabilitation is, at best, guarded. It is possible that during a lengthy period of supervision some of his habits may be changed but it is more likely that progress will be modest and track his ageing, rather than rehabilitation through insight into the wrongfulness of his past conduct.
78․I accept that his autism will make the experience of prison more burdensome for him than a person without that condition. It will make it more difficult for him to cope with the interactions with other detainees compelled by the prison environment.
79․In relation to counts 1, 3 and 6, a mandatory sentence of imprisonment applies in accordance with ss 16AAB and 16AAC. In relation to the other offences, both Commonwealth and Territory, there can be no doubt that, having considered the available sentences, no sentence other than a sentence of imprisonment is appropriate on each of the counts on the indictment. This proposition was accepted in the submissions made on behalf of the offender.
80․In relation to those counts where there is a mandatory minimum sentence (count 1, count 3 and count 6), the sentence imposed must be determined in a manner consistent with the decision of the High Court in Hurt v The King. That involves treating the minimum sentence as one of the yardsticks against which the appropriate penalty must be determined rather than merely as a specification of the minimum sentence to be imposed after the court has synthesised all other relevant factors.
81․Contrary to the submissions made on behalf of the offender, I do not consider that the period during which the proceedings were adjourned pending the decision in Hurt v The King, or any other period since a guilty plea was first foreshadowed, is of significance in determining the sentence. The offender has known at all times that he would be required to serve a substantial period of imprisonment, has been in custody throughout almost all of the period, and will be given the benefit of the service of that period by way of backdating.
82․So far as the breaches of the good behaviour orders are concerned, I consider that the breach relating to failure to report can be dealt with under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT) by taking no further action. The breach relating to the possession of child pornography involved a partially suspended sentence of imprisonment. The suspended portion of the sentence was 18 months. Notwithstanding that the offending did not commence immediately following the resentence by the Court of Appeal, the offending engaged in was of the same type as had been earlier punished and, in the circumstances, I consider that it is appropriate to simply impose the suspended portion of the sentence.
83․So far as the new sentences to be imposed are concerned, taking into account the circumstances of this case, the yardsticks of the minimum and maximum available sentences and the comparable cases referred to earlier, the starting point, the aggregate percentage reduction for the pleas of guilty and assistance to authorities, the sentences to be imposed and the extent of cumulation are each summarised in the following table. Those counts the subject of a four year mandatory minimum sentence are indicated with an asterisk.
Count
Starting point
Reduction
Sentence
Cumulation (months)
Breach
18 months
18
7
30 months
30%
21 months
11
8
20 months
30%
14 months
7
1*
8 years
30%
5 years 7 months
49
2
4 years
30%
2 years 9 months
0
3*
7 years
30%
4 years 11 months
0
4
4 years
30%
2 years 9 months
17
5
6 months
30%
4 months
2
6*
4 years
30%
2 years 9 months
12
Total
116
84․The aggregate sentence is 116 months or nine years, eight months and two days. The two days result from the need to avoid sentences starting or ending on 29 February in a non-leap year.
85․As will be apparent from the table, there are significant degrees of concurrency that have been introduced between the sentences on Commonwealth and Territory child sex offences. Consistently with s 19(6) of the Crimes Act 1914 (Cth), that concurrency has been introduced because I am satisfied that imposing sentences that involve a degree of concurrency will still result in sentences that are of a severity appropriate in all the circumstances. Section 19(7) of the Crimes Act 1914 (Cth) requires that reasons be provided for concurrency between sentences. As will be apparent, there is a substantial degree of concurrency between the possession charge in count 1 and the three accessing charges that cover the same overall period. Although the table indicates that only count 4 involves a degree of cumulation upon count 1, that is because counts 2, 3 and 4 have been treated as a group. That extent of concurrency is appropriate because of the close relationship between the process of accessing and possessing the material and because of the need for an overall sentence that is appropriate in all the circumstances and not a crushing one. A degree of concurrency has been introduced in relation to the sentences on counts 5, 6, 7, and 8 so as to arrive at an overall sentence which is appropriate in all the circumstances and which is not a crushing one, but also to recognise the distinct criminality of each of these offences.
86․I consider that a non-parole period at the low end of the usual range is appropriate, having regard to the age of the offender, the contribution to the scale of his offending by his autism, and the desirability that there be a very substantial period during which the offender’s conduct is subject to supervision. The non-parole period on the Territory offences will be 18 months. The non-parole period on the Commonwealth offences will start at the end of the Territory non-parole period and will be 49 months. The aggregate of the Commonwealth and Territory non-parole periods will be 67 months or five years and seven months.
87․The sentences will be backdated to take into account the period spent in presentence custody.
88․The offender will be 70 by the time he is eligible for parole and 75 at the end of his sentence.
89․A forfeiture order for the single device not previously forfeited to the Commonwealth was not opposed by the offender and will be made as sought.
Orders
90․The orders of the Court are:
1.On the breach of the good behaviour order imposed on CAN 543/2010, pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), the good behaviour order is cancelled, and the suspended portion of the sentence is imposed, being a period of 18 months, to be served commencing on 29 March 2023 and ending on 28 September 2024.
2.On count 7, the charge of possessing child exploitation material contrary to s 65(1) of the Crimes Act 1900 (ACT) (CAN 11573/2023), the offender is convicted and sentenced to imprisonment for 21 months, commencing on 29 November 2023 and ending on 28 August 2025.
3.On count 8, the charge of failing to report as required contrary to s 58A of the Crimes (Child Sex Offenders) Act 2005 (ACT) (CAN 11574/2023), the offender is convicted and sentenced to imprisonment for 14 months, commencing on 28 January 2025 and ending on 27 March 2026.
4.On count 1, the charge of possessing or controlling child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of the Criminal Code (Cth) (CAN 2181/2023), the offender is convicted and sentenced to imprisonment for five years and seven months, commencing on 29 September 2024 and ending on 28 April 2030.
5.On count 2, the charge of using a carriage service to access child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) (CAN 11568/2023), the offender is convicted and sentenced to imprisonment for two years and nine months, commencing on 29 September 2024 and ending on 28 June 2027.
6.On count 3, the charge of using a carriage service to access child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) (CAN 11569/2023), the offender is convicted and sentenced to imprisonment for four years and 11 months, commencing on 29 May 2025 and ending on 28 April 2030.
7.On count 4, the charge of using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (CAN 11570/2023), the offender is convicted and sentenced to imprisonment for two years and nine months, commencing on 29 December 2028 and ending on 28 September 2031.
8.On count 5, the charge of using a carriage service to make available child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (CAN 11571/2023), the offender is convicted and sentenced to imprisonment for four months, commencing on 29 July 2031 and ending on 28 November 2031.
9.On count 6, the charge of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) (CAN 11572/2023), the offender is convicted and sentenced to imprisonment for two years and nine months, commencing on 1 March 2030 and ending on 30 November 2032.
10.On the breach of the good behaviour order on CAN 9419/2013, pursuant to s 108 of the Crimes (Sentencing Administration) Act 2005 (ACT), no further action is taken.
11.The non-parole period on the Territory offences starts on 29 March 2023 and ends on 28 September 2024.
12.The non-parole period for the Commonwealth offences starts on 29 September 2024 and ends on 28 October 2028.
13.Pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Director of Public Prosecutions, the following item is forfeited to the Commonwealth: Seagate 500 GB hard drive (serial number 1482121).
| I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 8 August 2024 |
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