R v Cox
[2021] ACTSC 98
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cox |
Citation: | [2021] ACTSC 98 |
Hearing Date: | 24 May 2021 |
DecisionDate: | 24 May 2021 |
Before: | Burns ACJ |
Decision: | See [36]–[41] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use carriage service to access child pornography material – use carriage service to access child abuse material – use carriage service to cause child pornography material to be transmitted – possess child abuse material – where offender accessed and possessed significant quantity of child abuse material – where material accessed over several sustained periods of time – consideration of individual deterrence |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A(1), 20(1B) Criminal Code Act 1995 (Cth) ss 474.19, 474.19(1)(a)(ii), 474.22A |
Parties: | The Queen (Crown) Christopher John Cox (Offender) |
Representation: | Counsel Z Hough (Crown) K Musgrove (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) McKenna Taylor (Offender) | |
File Number: | SCC 37 of 2021 |
BURNS ACJ:
Christopher John Cox, you appear before me to be sentenced for four offences against the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code). There are two offences of using a carriage service to access child pornography or abuse material contrary to s 474.19 (CC 1982/2021; CC 1984/2021), one offence of using a carriage service to possess child abuse material contrary to s 474.22A (CC 6807/2020) and one offence of using a carriage service to cause child pornography to be transmitted to yourself contrary to s 474.19(1)(a)(ii) (CC 1984/2021). Each of the offences carries a maximum penalty of 15 years’ imprisonment.
The facts
A comprehensive Agreed Statement of Facts was tendered in court. I will not now recite the facts in full. In summary, on 4 June 2020 police attended at your residence for the purpose of executing a search warrant, having received information that you were involved in the uploading and transmission of child abuse material.
Police located and took possession of a MacBook Pro, a SanDisk USB and an iPhone 11. Subsequent analysis of these devices showed that they contained child abuse material. During the execution of the search warrant, you made admissions that you were in possession of child abuse material, that you had been accessing child abuse material for 12 to 18 months and that you knew that child abuse material was illegal. You suggested that boredom was a trigger that caused you to access this material.
You were arrested and remanded in custody. You spent two weeks and six days in custody before being released on bail.
I will turn to initially Count 4, the possession of child abuse material (CC 6807/2020). With regard to the charge of possession of child abuse material, an examination of the MacBook Pro revealed 216 videos of child abuse material. These featured both male and female children predominantly between 4 and 15 years of age. The children were depicted engaging in acts varying from exposing their genitalia through to actual penetration by an adult or by an object. Some of the material depicted acts of particular perversion involving the penetration of children as young as 2 or 3 years of age. Many of the files had file names indicative of the type of material which was depicted.
On the SanDisk USB, nine videos and one image of child abuse material were located and depict male children, predominately 11 to 15 years of age. The files depicted the children exposing their penises and engaging in masturbation. On the iPhone 11, four videos depicting child abuse material were located.
Turning now to Counts 1 and 2, charges of accessing child pornography or abuse material. You used your MEGA account, including using your MacBook Pro, to access 254 videos containing child pornography material between 23 March 2017 and 8 May 2019. That is the basis of Count 1, the charge of accessing child pornography material (CC 1982/2020).
You also used your MEGA account, including using your iPhone 11, to access 1,349 items containing child abuse material between 22 January 2020 and 10 May 2020. This is the basis of Count 2, the charge of accessing child abuse material
(CC 1983/2020).
The child abuse material relevant to these counts varied from exposure of the children’s genitals to vaginal and/or anal penetration of a child by an adult. Titles to the files accurately described the contents.
I now turn to Count 3 (CC 1984/2020), causing child pornography material to be transmitted to yourself. This offence occurred on 25 October 2018 when you transmitted two files from one email account operated by yourself to another email account also operated by yourself.
I note that the vast majority of the material which is the subject of the possession charge is also the subject of the charge of accessing child pornography or abuse material. In addition, the transmission charge involves material that is also referred to in the possession charge.
Objective seriousness
In assessing the objective seriousness of these offences, I take into account the nature and content of the material referred to with regard to each charge and, in particular, the age of the child victims and the gravity of the sexual activity depicted. I also take into account the number of images or videos possessed. I note that it is not suggested that this material was for the purpose of sale or further distribution, nor is it suggested that you would profit from the present offences. I must also take into account the number of children depicted and thereby victimised and the length of time for which any pornographic material was possessed.
In the present case, you accessed and possessed a significant quantity of child abuse material exceeding 1500 files in total. The material was accessed over several sustained periods of time between 2017 and 2020. The material depicted a range of sexual activity included exposure of genitalia, masturbation, vaginal or anal penetration of the child by an adult or by an object and also bondage. The children depicted were aged from approximately 2 or 3 years of age to approximately 15 years of age.
It was submitted by your Counsel that these offences fall within the mid-range of such offences. The Crown agreed with this submission. I accept that description. Whilst these offences do not fall within the most serious examples of their type, they are nevertheless, serious examples of this type of offending.
Subjective features
I note that you are currently 48 years old. A Pre-Sentence Report states that you had a positive childhood and that you were not subject to neglect or abuse. You continue to have positive relationships with your parents and your siblings.
You were married in November 2016 and you and your wife have two children together. You separated from your wife in July 2020 because of the current offences. Apparently, both of you have some hope to be able to be together again in the future. Your ex-partner describes you as a wonderful father who was the primary carer for your children before you were charged with these offences.
You were living in Victoria until 2018 when you moved to Canberra with your family for your wife's employment. Since being charged with the present offences you have returned to live with your parents in Victoria. I note that you completed your Year 12 education in Victoria and subsequently completed certificates in Workplace Health and in Safety and Workplace Training and Assessment. You have a consistent work history. You are currently employed as a gardener for a small company in Victoria.
You have a group of longstanding prosocial friends in Victoria. You were somewhat isolated in Canberra. You reported suffering from depression, which was exacerbated when you moved to Canberra.
With regard to the present offences, you told the author of the Report that you initially inadvertently came across child abuse material online. You claimed that you were disgusted when you received this material and that you deleted the material, but you came to access the material as part of a cycle as a means to cope with day-to-day stressors. You claim that you did not want to see a lot of the material sent to you, but it was sent as a bulk folder of material. You engaged in a chat group and you stated that this allowed you to have a network and a space where you did not feel like an outcast.
You denied any sexual interest in young children. I will interpolate at this point to note that I am not satisfied on the balance of probabilities that this last statement is correct. The quantity of the material which you accessed and its nature strongly suggests otherwise.
You told the author of the Report that initially you did not have any empathy for the children depicted but you have now developed an understanding of how these children were being victimised.
You were assessed as a low-risk of general re-offending but your risk of sexual recidivism could not be assessed. You were not assessed for an Intensive Correction Order because you were, at the time of preparation of the Report, residing in Victoria and such an order is not transferrable between jurisdictions.
I refused an application to adjourn the sentencing in these matters to another date to enable an assessment for an Intensive Correction Order to be made because I was satisfied that the seriousness of the offences required a sentence of full-time imprisonment, at least to some extent.
I received a letter from you as part of the material tendered by your Counsel. In your letter you speak of your remorse and of your understanding of the effects of your offending upon the victims. You expressed clear victim empathy and regret for the effects that your actions have had upon your family.
I also received a number of testimonials from longstanding friends which speak of your shame and remorse with regard to these offences and of the fact that these offences are out of character. The authors of the letters offer you their continuing support.
I received a report dated 8 May 2021 from Sam Borenstein, a Consultant Clinical Psychologist. Mr Borenstein is not your treating psychologist but was engaged by your lawyers to provide a report specifically addressing your offending. Without in any way dismissing Mr Borenstein's comprehensive and helpful report, it is clear that he does not identify any mental illness or abnormality which would reduce your moral culpability for engaging in these offences. Mr Borenstein provides an explanation for your offending but based upon your own report of the circumstances surrounding these offences.
I also received a report dated 18 May 2021 from Peter Hanley, who is your treating psychologist. Mr Hanley confirms that you have consulted with him on 18 occasions commencing on 18 August 2020. You have been accepted into the Sex Offender Treatment Program at Central Melbourne Psychology, which is aimed at addressing factors related to your risk of sexual recidivism.
Mr Hanley states that you have made good progress in treatment. You have developed insight into the emotional and interpersonal problems that precipitated your offending and you have taken steps to address those problems in treatment. He further states that you are, apparently, genuinely motivated to continue addressing those problems.
Mr Hanley states that you require specialised sex offender treatment aimed at improving your intimacy skills and further addressing the sexually deviant thoughts that underpinned your offending behaviour. On the basis of your progress in treatment, Mr Hanley is optimistic about your capacity to benefit from future treatment interventions. I observe that there is nothing in this report from Mr Hanley which would support the proposition that your moral responsibility for these offences is diminished.
Consideration
s 16A(1) of the Crimes Act 1914 (Cth) states that I must impose a sentence that is of severity appropriate in all of the circumstances of the offence. I am not to pass a sentence of imprisonment unless, having regard to all other available sentences, I am satisfied that no other sentence is appropriate in the circumstances. Deterrence and punishment should be the predominate sentencing considerations for offences of this type, although rehabilitation is not to be neglected. It is important to deter those who would engage in this type of offence so as to prevent the further corruption of child victims.
In many cases it will also be important that a sentence be imposed which deters the individual offender from committing further similar offences. In the present case I am not convinced that individual deterrence looms large. In my estimation you have reasonable prospects for rehabilitation bearing in mind the successful steps that you have already taken towards rehabilitation. I accept that it is desirable and in the interests of both yourself and the community for you to continue in the process of rehabilitation which you have started.
It has been accepted by the Crown that your pleas of guilty were entered at the earliest reasonable opportunity and not only have significant utilitarian value but also demonstrate remorse. I agree with that assessment. I will reduce by approximately
25 per cent the otherwise appropriate sentences with regard to these offences because of your pleas of guilty.
I also take into account your assistance to the authorities at the time of the execution of the search warrant and the fact that you made comprehensive admissions. You have no previous convictions, but that fact is to be given less weight in sentencing for offences of this type because of the need to give predominance to deterrence. It is also unfortunately the fact that offences of this nature are not infrequently committed by persons of otherwise good character.
A significant degree of concurrency between sentences is justified by the fact that the same material is the basis for a number of the charges, or at least, there is a significant overlap in the material. It is also important to give consideration to totality.
Having considered all other options, including the possibility of an Intensive Correction Order, I have concluded that no sentence, other than one incorporating at least a period of immediate imprisonment is appropriate, even taking into account the pre-sentence custody.
Sentence
I will start with Count 2, which I consider to be the most significant matter. On Count 2 you will be convicted. My starting point was 20 months' imprisonment, but I have reduced this to 15 months because of your plea of guilty. You will be sentenced to 15 months' imprisonment commencing on 4 May 2021 and expiring on 3 August 2022. I have backdated the commencement of this sentence to allow for pre-sentence custody.
On Count 1, I have started with 16 months and I have reduced that by 4 months because of your plea of guilty. You will be convicted and sentenced to 12 months' imprisonment commencing on 4 October 2021 and expiring on 3 October 2022.
On Count 4, I have started with 16 months and I have reduced that by 4 months because of your plea of guilty. You will be convicted and sentenced to 12 months' imprisonment commencing on 3 January 2022 and expiring on 2 January 2023.
On Count 3, I have started with two months' imprisonment and I have reduced that by two weeks because of your plea of guilty. You will be convicted and sentenced to six weeks' imprisonment commencing on 4 May 2021 and expiring on 14 June 2021.
There will be a Recognizance Release Order commencing on 4 October 2021 for a period of two years which will expire on 3 October 2023. There will be conditions attached including, firstly, that you are to accept supervision of the Director-General responsible for Adult Corrections or that person's delegate for that period of two years, or such lesser period as deemed appropriate by your supervising officer. Secondly, you are to undertake such assessments, counselling or treatment as directed, particularly in relation to sex offending. In that regard, I strongly recommend that you be directed to continue in the course of counselling that you have already commenced. Thirdly, you are not to travel interstate without the permission of ACT Corrective Services pursuant to s 20(1B) of the Crimes Act 1914 (Cth).
I make Forfeiture Orders in the terms agreed by parties.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Chief Justice Burns. Associate: Date: 22 July 2021 |
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