R v Currie
[2015] ACTSC 404
•12 November 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Currie |
Citation: | [2015] ACTSC 404 |
Hearing Date: | 2 November 2015 |
DecisionDate: | 12 November 2015 |
Before: | Penfold J |
Decision: | See [52] to [55] below |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender to be sentenced for using a carriage service to solicit child pornography and possessing child pornography – offender created on-line identity as 14-year-old boy – offender engaged in on-line and telephone relationship with 13-year-old girl – offender solicited child pornography images from 13-year-old girl – images kept on offender’s phone – victim impact statements – no criminal history – offender prescribed testosterone blocker and accepting behaviour therapy from psychiatrist – consideration of comparable cases – prison sentence, but no immediate custodial time, required. |
Legislation Cited: | Crimes Act 1900 (ACT), s 65 Crimes Act1914 (Cth), s 20 Criminal Code 1995 (Cth), s 474.19(1) |
Cases Cited: | Minehan vR [2010] NSWCA 140 R v Cooper [2012] ACTCA 9 The Queen v Michael Philpot [2015] ACTSC 96 |
Parties: | The Queen (Crown) Craig Currie (Offender) |
Representation: | Counsel Ms S Jowitt (Crown) Mr A Fraser (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Number: | SCC 143 of 2015 |
The offence
Craig Currie has pleaded guilty to two charges, being:
(a)one of using a carriage service to solicit child pornography material contrary to s 474.19(1) of the Criminal Code 1995 (Cth), which carries a maximum penalty including imprisonment for 15 years; and
(b)one of intentionally possessing child pornography contrary to s 65 of the Crimes Act 1900 (ACT), which carries a maximum penalty including imprisonment for seven years.
The incident
The offences were committed earlier this year, although they arose out of conduct by Mr Currie begun early in 2014. Mr Currie, who is now 36, set up an Instagram profile in which he used a false name, Sam Davis, and described himself as a 14-year-old boy who went to school in Cronulla, Sydney.
In due course, a 12-year-old girl, B, also from Sydney, began to “follow” Sam Davis, and in November 2014 Sam Davis made contact with B, and they began communicating regularly. Communications continued using Snapchat, Facebook and Skype; the Skype contact generally showed Sam Davis sitting in a darkened room with a hood over his head. At some point, the two began mobile phone contact, and there were some very long phone calls. Throughout the phone conversations, Mr Currie maintained his pretence of being a 14-year-old boy. Mr Currie said in evidence at the sentencing hearing that about 75% of their conversation related to general matters such as school, music and so on, but admitted that about 25% of it was sexual in nature.
In January 2015, Sam Davis began sending B photographs of a penis that he said was his, and continued to do so at least twice a day until mid-March.
During the same period, B’s 13-year-old friend, S, had also been in contact with Sam Davis. She also received photos said to be of Sam Davis’s penis. Sam Davis began asking both girls to send him photos of their breasts, vaginas and pyjamas. This was the soliciting offence. B sent photos of her breasts and vagina, but said that she had scribbled over these photos before she sent them. S sent photos of her pyjama pants.
Mr Currie’s identity came to light when B tried to call Sam Davis on the mobile phone number he had been using to contact her. The number was for Mr Currie’s work phone and when he did not answer, she heard a message identifying a business name and the name Craig Currie. She and S then searched the internet for Mr Currie and his employer and found him on both Facebook and LinkedIn. His LinkedIn and Facebook photos depicted the same person they had been dealing with via Skype as Sam Davis, although he looked older in the LinkedIn photo. One of the two girls sent a message to Sam Davis saying “I don’t think you are who you say you are”.
On 17 March this year, the two girls reported the matter to New South Wales police, and on 17 April this year, police executed a search warrant at Mr Currie’s address in the ACT.
The search resulted in police taking possession of a mobile phone and laptop computer issued to Mr Currie by his employer. The devices contained evidence of Skype chats between Mr Currie and the two girls. They also contained relevant videos and pictures, including three videos and 129 pictures (including 18 “thumbnails”) that are the subject of the child pornography charge.
The statement of facts records all the videos and 104 of the pictures as “deleted” – I take this to mean that Mr Currie had sought to delete the material but it remained recoverable from the device concerned.
The 132 videos and pictures have all been classified, under a recognised classification system, the CETS scheme, as:
Depictions of Children with No Sexual Activity – however must be sexually suggestive or sexual in nature. Can include nudity, surreptitious images showing underwear (upskirt), sexually suggestive posing, explicit emphasis on genital areas, solo urination by a child.
There were also on the devices a total of 384 items classified as “Non-illegal material/indicative”. This is described as follows:
Non-illegal material which is related to Child Exploitation Material. Can include:
a.Material which forms part of a series or is a non-illegal depiction of a victim
b.Depictions of offence locations (crime scenes)
c.Depictions of offenders
d.Material, while not illegal, is suggestive of an inappropriate interest in children.
Finally, police also identified 387 items described as:
[CETS 9 –] Files which do not fall into any other category, such as banners and other non-objectionable graphics useful for establishing proportionality. System files and unrelated images – holiday snaps, landscapes, family photos, etc.
It is apparent that the child pornography material occupied a fairly small part of Mr Currie’s devices.
Mr Currie was arrested on 17 April 2015 and charged in the Magistrates Court the next day. He was released on bail and has not spent any further time in custody in relation to these offences.
Mr Currie pleaded guilty to both charges on 16 June this year on the fourth mention in the Magistrates Court, and was committed to this court for sentence.
Evidence
As well as the statement of facts, the following material is in evidence before me:
(a)a victim impact statement from B and one from B’s mother;
(b)a pre-sentence report; and
(c)an ACT Government Care and Protection Services Safety Plan expressed to expire on 5 February 2015, and relating to prevention of contact by Mr Currie with his foster son, who is now nearly three years old;
all of which were tendered by the prosecution.
Mr Currie has no criminal history.
The defence tendered:
(a)a psychiatric report dated 22 June this year from Mr Currie’s treating psychiatrist, Dr Warwick Williams; and
(b)a reference from a friend of Mr Currie and his wife, who has known Mr Currie for seven years and says she cannot reconcile his offences with “the thoughtful and genuinely caring person Craig is”.
As well, Dr Williams and Mr Currie gave oral evidence, which I will refer to as necessary.
Objective seriousness
In considering the objective seriousness of the offences, I have had regard to the following matters.
First, the maximum penalties provided by law, in particular for the Commonwealth offence, indicate that the offences are to be regarded as serious. Having said that, these particular offences are by no means the most serious examples of the offences concerned.
The prosecutor conceded that there was nothing in the statement of facts that allowed me to assume that the child pornography collection consisted of anything beyond the images obtained by Mr Currie of the two girls. That is, the entire collection of pornography assessed might have been material obtained as a result of the soliciting offence. I note also that the only material that Mr Currie seems to have sought to retain was the 25 images on his phone.
Mr Currie’s contact with the two girls was initiated by them, but that came about because Mr Currie had created for his own purposes an image of a 14-year-old boy, and those purposes turned out to be quite improper, given that Mr Currie used his alter ego to engage in sexualised relationships with the two young girls. That is, there appears to have been a degree of premeditation in Mr Currie’s use of the internet to make contact with adolescent girls. I note, however, Mr Currie’s uncontested evidence that he never made any attempt to meet the girls, and knew that he never would meet them.
I note at this point that a number of the factors identified in the authorities (eg Minehan vR [2010] NSWCA 140) as relevant in assessing the seriousness of child pornography offences were not present in this case, including: images indicating cruelty or physical harm to the children involved; creation or possession of images for sale or wider dissemination; the receipt of any payment or other material benefit from the acquisition of the pornography; involvement with any network of like-minded people; and any risk of the material being seen or acquired by vulnerable people.
Before he was charged, but after the two girls alerted Sam Davis to their suspicion that he was using a false identity, Mr Currie made an unsuccessful suicide attempt, and sought medical help. He was referred to psychiatrist Dr Warwick Williams, and first saw him on 8 May this year, several weeks after being charged. The prosecutor disputed that these actions demonstrated remorse, as distinct from regret about being caught. I do not see that the two states of mind are necessarily inconsistent, but accept that an attempt by Mr Currie to deal with his inappropriate sexual interests would have been more probative of genuine remorse if it had been made before he was found out.
The prosecutor read two victim impact statements to the court, one from the complainant B and one from her mother.
B described her sense of betrayal when she discovered that the 14-year-old boy with whom she thought she had formed a real and loving relationship turned out to be a 36-year-old man; she felt “scared, dirty, used and upset”. She mentioned the hours she had spent on the phone to him, the times when he had talked about suicide and she had felt the need to talk to him for hours to make sure he was okay, and the wedge he drove between her and her mother by criticising her mother when she tried to get B off the phone, or refused her permission to meet “Sam Davis”. That in turn made it harder for B to share her concerns with her mother later.
B reported ongoing fear and some withdrawal from other social contact, and concluded with the hope that one day she can forgive herself “for believing in him and for sharing so much of [herself] with a person who abused [her]”.
B’s mother described her daughter’s gradual withdrawal from the family as she spent an increasing amount of time in contact with Mr Currie, and B’s distress when she told her mother of her suspicions about “Sam Davis”. B’s mother said:
I watched [B] who spent a lot of time with our family withdraw from us to being on her phone or iPad in regular contact with Mr Currie. I was faced with regular confrontations from [B] when I attempted to minimize the contact. [B] became defiant, secretive, moody and shut down from us all. [B] would also relay messages from Mr Currie of his love for her and their need to be in constant contact with each other. Anything that I would attempt to do with [B] was undone by Mr Currie.
...
[B] has not been the same since this happened. She was once so independent and free. Now she doesn’t leave my side. I have difficulties getting her to school. I am unable to go to work or down to the shops without her either calling or texting me frequently. Her sleep is unsettled and she is distrusting of anyone that we meet.
The commission of these particular offences has been a tragedy for all involved. However, as already noted, the relevant legislation covers a wide range of behaviour, including far more serious conduct, and I assess both offences as towards the less serious end of the range.
Subjective circumstances
I have also had regard in this sentencing to Mr Currie’s subjective circumstances.
Mr Currie is now 36. As noted, he has no criminal history.
The pre-sentence report indicated that he had a nurturing upbringing in an intact family, and indeed his now retired parents have returned to Canberra to support him, and to provide accommodation to him for as long as necessary.
Mr Currie’s childhood was, however, somewhat disrupted by frequent re-locations required by his father’s job; Mr Currie found it difficult to make and retain friends and suffered some bullying.
Mr Currie has been married for 10 years, but he and his wife have separated since these offences came to light. Mr Currie’s wife remains responsible for the care of a foster child who had been placed with the couple before the offences were committed, but Mr Currie is now excluded from contact with the child. His relationship with his wife remains amicable and supportive.
Mr Currie was employed in a white collar job but resigned after he was charged and has no short-term plans to resume work.
Unsurprisingly, Mr Currie’s mental health has been unstable since the period when the offences were committed. He has engaged in self-harm including, as mentioned, a suicide attempt, and is being treated for depression.
The offences were committed sometime after Mr Currie and his wife underwent two unsuccessful rounds of IVF treatment and he was told that he was unable to father a child. This caused severe depression and a deterioration in his sexual relationship with his wife. However, Mr Currie’s psychiatrist, Dr Williams, reported that his interest in child and adolescent pornography dates back at least 10 years. Thus while his distress over the infertility diagnosis might have precipitated his behaviour, that particular kind of behaviour did not come out of the blue. Dr Williams noted that Mr Currie, like most of his similar patients, could offer no explanation for a sexual interest in children and adolescents.
As already mentioned, Mr Currie first saw Dr Williams in May this year and has seen him a number of times since then. The presentence report also reports that Mr Currie has been seeing a psychologist.
Among other things, Dr Williams has prescribed Mr Currie a testosterone blocker, which Dr Williams explained in oral evidence is to be used as needed, that is, if he feels tempted to engage in inappropriate sexual behaviour such as that encompassed by the current offences. This explains why Mr Currie is not required to take that medication regularly. Dr Williams explained that the testosterone blocker was a “quick fix to guarantee safety” and that Mr Currie has also embarked on what Dr Williams described as a “very complicated multi-faceted behaviour therapy program” which over time has a high success rate “in terms of eradicating any interest in inappropriate sexual objects”. Dr Williams says that if Mr Currie perseveres with this treatment, his risk of re-offending would be low.
Dr Williams further reported that when he first saw Mr Currie, Mr Currie would have met the DSM-V criteria for Generalised Anxiety Disorder (just) and also the criteria for paedophilic disorder. Dr Williams reported that Mr Currie’s interest in children and adolescents was at a “fantasy” level and that he had never tried to engage in actual physical contact with children or adolescents.
Dr Williams also said that because of his depression and previous suicide attempt, Mr Currie would be at risk in prison and would need to be carefully monitored.
Other sentencing considerations
General deterrence is a real issue in offences such as these, which are rarely committed in the heat of the moment and may be very difficult to detect. It is also clear that such offences can be very damaging to the victims. On the other hand, I accept that Mr Currie does not at this stage appear to need personal deterrence.
Mr Currie entered early guilty pleas to both offences. I accept counsel’s submission that the prosecution case in relation to the possession of child pornography seems to have been very strong, but note counsel’s concession that in the absence of any specific evidence of what actually passed between Mr Currie and the two girls, I cannot assess whether the case that Mr Currie actually solicited images from the two girls (rather than simply accepting what he was offered) would have been quite so overwhelming.
It is appropriate to note also that the effect of Mr Currie’s pleas of guilty was to spare the victim the need to appear in court and tell her story. I shall provide sentencing discounts for both offences, recognising what I find to be Mr Currie’s remorse, his willingness to facilitate the course of justice and, in relation to the possession offence, the utilitarian value of the plea.
Given the nature of these offences, the circumstances in which they were committed, and their impacts, I am satisfied that no sentence other than imprisonment is appropriate.
Sentencing database and comparable cases
The Commonwealth Sentencing Database records sentences for one or more soliciting offences imposed on six males with no criminal history. One of those, for nine months, was fully suspended. The others ranged from two years down to nine months imprisonment, including a 12-month sentence with a two-month non-parole period. It seems highly unlikely that the other sentences were served entirely in full-time custody, but it is not clear how much if any of them was so served, or whether any pre-sentence custody was involved. The database also did not provide any information about the circumstances of the soliciting, or the personal circumstances of the offenders apart from their ages.
The ACT Sentencing Database records, for the child pornography offence, that of six offenders with no criminal history sentenced between July 2012 and now, five received prison sentences but three of those sentences were fully or partly suspended.
Counsel referred me to several ACT sentences for the child pornography offence, being the matters of R v Cooper [2012] ACTCA 9; R v Forbes [2014] ACTSC 91; R v DB [2015] ACTSC 28; R v Falzon [2015] ACTSC 104; and R v Matthew Dummett [2013] ACTSC (Burns J, 30 October 2013). Those sentences bear out the general impression given by the sentencing statistics, namely that for first offenders, prison sentences are commonly imposed but rarely served in full-time custody subject to a non-parole period. The matter of Dummett in particular is notable, given that it involved nearly 13,000 images some of which contained far more highly classified images than any of those the subject of Mr Currie’s offence. Mr Dummett was also sentenced for a Commonwealth offence of accessing child pornography, but for the possession offence he received 16 months imprisonment immediately suspended.
Counsel also drew attention to one sentence imposed for soliciting child pornography, being the matter of The Queen v Michael Philpot [2015] ACTSC 96. That involved an offender in not dissimilar circumstances to Mr Currie, in that he was a mature man of otherwise good character in a satisfactory marriage who formed an on-line “relationship” with a 13-year-old boy and solicited images of the boy’s genitalia. The Chief Justice, after reviewing comparable cases from other jurisdictions, noted that the offender, Mr Philpot, had good prospects of rehabilitation, that his rehabilitation would also provide protection to the community, and that other sentencing purposes could also be met by the imposition of a prison sentence immediately subject to a recognisance release order. Her Honour went on to impose a sentence of 19 months imprisonment, and released the offender subject to a two and a half year recognisance release order.
I have taken those matters into account in formulating the appropriate sentence in this matter.
Sentence
Mr Currie, please stand. I record convictions on the charges of using a carriage service to solicit child pornography and possession of child pornography.
I now sentence you to 13 months imprisonment, reduced from 18 months for your guilty plea, for the soliciting offence, and three months imprisonment, reduced from four months, for the pornography offence, to run concurrently with the soliciting sentence and giving a total sentence of 13 months. Since I do not require you to serve any time in full-time custody at this stage, I do not propose to take any account of the night you spent in custody after you were arrested.
The ACT sentence of three months will be suspended with immediate effect and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years. The good behaviour order is subject to the conditions:
(a)that you give security in the amount of $500 for your compliance with this good behaviour order;
(b)that for such period not exceeding two years as Corrective Services considers necessary:
(i)you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate;
(ii)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer;
(c)that you be assessed and, if found suitable, you undertake the Adult Sex Offenders Program; and
(d)that on or before Monday, you attend Corrective Services at Eclipse House to arrange your supervision.
As for the Commonwealth offence on which I have sentenced you to 13 months imprisonment, I order that you are to be released today under s 20 of the Crimes Act1914 (Cth) on giving security in the amount of $500 by recognisance that you will be of good behaviour for the next two years. That recognisance release order is to be subject to the same conditions as I have set for the ACT good behaviour order relating to accepting supervision, undertaking counselling, courses, programs or treatments, being assessed for the Adult Sex Offenders Program and arranging supervision.
What that means, Mr Currie, is that you have got an ACT sentence and a Commonwealth sentence running concurrently – one for three months, one for 13 months – and that each of them is, in effect, suspended from today, so you will not be required to serve any custody as things stand. You will get a separate order relating to each of those suspensions. One will be the ACT good behaviour order and one will be the Commonwealth recognisance release order, and they will have the same set of conditions for each of them, although there will be a separate $500 for each order and that is simply an undertaking to pay if you breach the order, not a requirement of an immediate cash security.
What those two orders mean in short is that for the next two years, you need to keep out of trouble, keep in contact with Corrective Services to the extent that they require, comply with any directions you get from your Corrective Services supervisor and, if appropriate, you participate in the Adult Sex Offenders Program. If you commit another offence during that two years, or if you otherwise breach either of those undertakings, you may find yourself back before this court to be re-sentenced for these offences as well as possibly losing either, or both, of your security amounts and, depending on exactly how you have breached the undertaking, whether it is re-offending or some other breach, you could find yourself serving some or all of those sentences in full-time custody.
If you have any questions about the order, you could ask the court officials or you might want to talk to Mr Fraser about it first.
You may sit down.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: K Harris Date: 23 December 2015 |
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