R v Cusack

[2021] ACTSC 75

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cusack
Citation:	[2021] ACTSC 75
Hearing Date:	28 April 2021
Decision Date:	28 April 2021
Before:	Elkaim J
Decision:	See [36]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use carriage service to access child abuse material – possess child
abuse material
Legislation Cited:	Crimes Act 1914 (Cth), s 20(1B) Criminal Code 1995 (Cth), ss 474.19, 474.22, 474.22A
Cases Cited:	Commonwealth Department of Public Prosecutions &
Department of Public Prosecutions v Garside [2016] VSCA 74
Commonwealth Department of Public Prosecutions v Zarb
[2014] VSCA 347 Peters v R [2018] NSWCCA 126 R v Arnould [2020] ACTSC 345 R v Burch [2020] ACTSC 192 R v Davison [2020] ACTSC 272 R v KB [2019] ACTSC 136 R v Logue [2020] ACTSC 115 R v Pham [2015] HCA 39 R v Porte [2015] NSWCCA 174 R v Sykes [2009] QCA 267
Parties:	The Queen (Crown) Benedict John Cusack (Offender)
Representation:	Counsel
Z Hough (Crown) B Morrisroe (Offender)
Solicitors
Commonwealth Director of Public Prosecutions (Crown)
Boxall Legal (Offender)
File Number:	SCC 285 2020
ELKAIM J:

1.       On 9 December 2020 the offender pleaded guilty to three offences in the ACT Magistrates Court. The offences and their maximum penalties are:

(a) Possession of child abuse material accessed using a carriage service to obtain the child abuse material (CC2020/2875), contrary to s 474.22A(1) of

the Criminal Code 1995 (Cth). The maximum penalty is 15 years’

imprisonment.

(b) Using a carriage service to access child abuse material (CC2020/12658), contrary to s 474.19(1) of the Criminal Code 1995 (Cth). The maximum

penalty is 15 years’ imprisonment.

(c) Using a carriage service to access child abuse material (CC2020/12659), contrary to s 474.22(1) of the Criminal Code 1995 (Cth). The maximum

penalty is 15 years’ imprisonment.

2.       The pleas of guilty were made at an early stage and entitle the offender to a discount, which I assess at 25%.

3.       The child abuse material is made up of 2,517 files. The same files are common to each of the above offences. The Crown accepted that the sentences for the second and third charges should be concurrent. The essential difference between the possession charge and the use of a carriage service charges are that the latter refer to the accessing of the material while the first charge relates to the keeping of the material. The length of time covered by the access charges is almost 5 years. This is significant.

4.       At the commencement of the hearing this morning counsel for the offender asked me to refer the matter for an Intensive Corrections Order (ICO) assessment. The Crown did not oppose the referral but made plain its position that, whatever the result of the assessment might be, it would advocate for a term of full-time imprisonment.

5.       I pointed out to the offender that it was very unlikely that I would ultimately make an ICO and suggested that he consider whether he wished to pursue the referral. After discussing the matter with his legal representatives I was informed that he would not press for the referral.

6.       There is a recognition by the offender of the type of penalties he is likely to attract. He says in his letter to the court:

I know I will be facing harsh penalties for this, and the authorities will keep tabs on me in

some way for the rest of my life. So be it. I don’t seek to evade justice. If it was anybody other

than me I would say throw the book at them, and I don’t see why I would be any exception.

This activity has to stop.

7.       In my view cases of this type would need to be very exceptional before I would consider an ICO. I viewed a sample of the images. There are literally no words to adequately describe what the children who are the subject of the images must have experienced, let alone will be experiencing as they grow up, as a result of the depravity into which they have been steeped.

8.       I acknowledge that there have been cases in which an ICO has been imposed (for example R v Burch [2020] ACTSC 192 and R v KB [2019] ACTSC 136), however with respect I am firmly of the view that cases of this type demand a period of full-time custody. I also note that in Burch the Chief Justice said that she would normally impose full-time imprisonment but the circumstances were affected by the COVID-19 pandemic.

9.       As noted above there are 2,517 files in this case. No doubt some of the files relate to the same child. Nevertheless there is an inordinate number of different children that have been subject to the abuse necessary to produce the files.

10.     The number of files and their content (represented by the sample that I viewed) render the three offences to be well above medium objective seriousness. It must be appreciated that every time one of these images is downloaded its purveyor or producer is encouraged to abuse another child.

11.     There are subjective factors in this case which must influence the sentencing process. Every offender in cases like this will have mitigatory features, some of which might justify a divergence from a particular approach.

12.     But at the same time, and this is fundamental to the general deterrence that must be inherent in sentencing for these types of crimes, every child was abused even if to a different individual degree. Prospective viewers of this kind of material should be comfortably certain, that when caught, they will go to prison.

13.     The offender was born in 1979. He had a positive upbringing as the youngest of four children. He continues to have a supportive relationship with his mother and eldest sister. He lives with his mother.

14.     The offender was in a long-term relationship which ended after 19 years. There are two young children with whom he maintains fortnightly contact.

15.     The offender completed Year 12 and then went on to tertiary education. He has a Bachelor of Science degree and a Master of Philosophy.

16.     The offender worked in the public service for more than 15 years. He resigned after being charged. He does not have any criminal record besides these offences. He does not drink to excess or use illegal drugs.

17.     Once again the court is confronted with a person of good upbringing, a sound education and steady employment. In other words a person who is otherwise a decent and contributing member to society. But then this person delves into child abuse material and destroys practically all of the positive ingredients of his past.

18.     In each case a reason is put forward for the divergence. In this case it is said to be the product of major depression. Dr Stevens, a forensic and clinical psychologist, produced a report and gave evidence before me. He says that the offender has a long history of depression probably going back to 2001 when he saw a psychologist and commenced

antidepressant medication. He says that the offender’s “judgement was severely compromised by his depression”. He says that access to the illegal material was a

method of “self-soothing and as a distraction from his depressive mood”.

19.     I find the concept of watching the sexual abuse of children as a salve to a depressed mood to be somewhat difficult to understand. The Crown submitted that sexual

gratification must be seen as a major factor in the offender’s actions. That is an

approach that I find logical and compelling.

20.     Nevertheless I am bound to respect the opinion of Dr Stevens in particular where there

is no opposing opinion. I will take Dr Stevens’ opinion into account.

21.     Dr Stevens raises another very significant matter. He says that the offender is at a high

risk of suicide. According to his assessment, the risk “is of great concern”.

22.     It is essential that ACT Corrections authorities are made aware of the reality and extent of this risk.

23.     I accept that the offender has displayed real remorse for his actions, and contrary to the submissions of the Crown, I think he has insight into his wrongdoing. He wrote a letter to the court.

I have spent much of the past year coming to terms with what I’ve done, what it means, how

I came to do something so completely incongruous with my own values, and how I am going

to make sure I never ever do anything like it again. I knew it was bad, but I don’t think I

appreciated how bad, not the urgency with which I should have addressed my behaviour. I

didn’t appreciate that the safety of children is at stake in the present, not just in the past when

the material was made. I want to see this material eradicated from the web, and I want for

children to be safe from abuse.

What I write in this letter is not intended to excuse my crimes – there is no excusing my

crimes. I am writing down what was going on in my mind, all the rationalisations and

minimisation I employed – cognitive distortions as one of my psychologists called them.

24.     I also accept that the offender has, and is, making real efforts at rehabilitation. Most notably he has been attending LSC Psychology in Sydney on a weekly basis. As seen in the letter from this organisation, part of its aims are to address sexual deviance. Ms Pratley says that the offender has not missed any sessions and has appeared to be motivated in addressing his issues. Thus far he has been focusing on sexual abuse

education and will “progress to disclosure and more complex therapeutic work”. It will

be important for the offender to continue this treatment in the future.

25.     The desire for rehabilitation is reflected in the letter from Mr McGlynn, a friend of the offender. He says:

Since we first discussed his arrest, I have seen his determination to turn his life around. He has sought help, through counselling and support groups, to address his offending and its underlying causes. He has established a network of family members and friends who are fully aware of what he has done, and who are able to support him with the changes he is

making, and to whom he is accountable… I am confident that his positive attitude towards

transforming his life, his ability to see things through, and his remorse for pain he has caused will ensure that he is able to make, and stick to, the changes necessary to turn his back on his past behaviour.

26.     Ms Keenan, his previous manager, wrote:

I spoke with Ben on the day he took a leave of absence from work, after he was charged. He expressed to me the deep guilt and remorse he felt for his actions, and that his hope was that he would one day, after completing the necessary treatment, be allowed to be a productive member of society again.

27.     Ms ‘H’, a fellow member of Sex and Love Addicts Anonymous, wrote:

It is my firm belief that Ben is putting a big effort into changing his life around to ensure that he will not offend in the same way again.

28.     Ultimately thus it falls upon me to sentence a man who has committed horrific crimes. But he is a person of otherwise good character and good background. Further he has recognised his wrongdoing and is striving to rehabilitate himself. In addition he suffers severe depression which has created a risk of suicide which may be heightened by a term of imprisonment.

29.     The above factors tend towards leniency. But on the other hand I have viewed the pictures. I have seen the children who were being abused. There are, as observed above, many of them, and I doubt whether a single one of their number was not physically or psychologically damaged. Further the damage would not have ceased

when the abuse stopped. In some cases it will affect the whole of the child’s life.

30.     Ms Morrisroe who appeared on behalf of the offender asked me to not impose the same length of full-time imprisonment as I have done in other cases (for example R v Arnould [2020] ACTSC 345; R v Davison [2020] ACTSC 272 and R v Logue [2020] ACTSC 115).

31.     The Crown emphasised that in sentencing I should not only have regard to cases in the ACT but, because the offences were contrary to Commonwealth law, I should also have regard to cases in other jurisdictions (R v Pham [2015] HCA 39; 256 CLR 550). To this end I was referred to Peters v R [2018] NSWCCA 126; Commonwealth

Department of Public Prosecutions & Department of Public Prosecutions v Garside

[2016] VSCA 74; R v Porte [2015] NSWCCA 174; Commonwealth Department of Public
Prosecutions v Zarb [2014] VSCA 347 and R v Sykes [2009] QCA 267.

32.     Generally speaking, with one exception, I do not see the above subjective factors as being sufficient for me to not impose a sentence of full-time imprisonment. I said this in R v Arnould [2020] ACTSC 345:

22       Every case obviously has its own individual facts. These might be in the number of images viewed, the time over which they were viewed and various subjective factors pertaining to each offender.

23       In this case there is cogent evidence that the offender has recognised his misdeeds and taken positive steps, by seeking and continuing with treatment, to address his offending. But is that enough to keep him out of prison? I do not think so. The images and their use for the sexual gratification of the offender are such an overwhelming influence on the sentencing process that I am not prepared to divert from the course I have taken in the other cases.

24       Each of those cases had their individual facts which might have been regarded as points of distinction. But all of these cases have the same level of depravity and abuse of children at their core. It is not enough to say that the offender did not himself physically abuse any child. Each of those children was abused, and as the images through the categories increased, that abuse, physically, became more and more emphasised. Whatever the category the mental abuse I am sure is significant.

33.     The exception is the opinion of Dr Stevens as to the effect of incarceration upon this offender. I suspect that many offenders, especially those taken into custody for the first time, will be depressed and perhaps express suicidal ideation.

34.     The difference here, and the reason I can take it into account, is that this offender’s

depression is a Major Depressive Disorder and carries with it, as I have already stated,

a suicide risk which has been categorised as “a high risk of suicide”.

35.     Although I have not been diverted from imposing a sentence of full-time imprisonment the period in custody will be less than would otherwise have been the case.

36.     I make the following orders:

(i)      Possessing or controlling child abuse material (CC2020/2875): Imprisonment for a period of 9 months (reduced from 12 months) to commence today and end on 27 January 2022.

(ii)      Using a carriage service to access child abuse material (CC2020/12658): Imprisonment for 9 months (reduced from 12 months) to commence on 28 July 2021 and end on 27 April 2022.

(iii)     Using a carriage service to access child abuse material (CC2020/12659): Imprisonment for 9 months (reduced from 12 months) to commence on 28 July 2021 and end on 27 April 2022.

(iv) The period of imprisonment is to be suspended after two months (on 27 June 2021) on condition that the offender enter into a Recognizance Release Order in the sum of $1,000 on the condition that he will be of good behaviour for a period of 18 months and on the further condition that upon release from full-time custody he resume treatment at LSC Psychology. The Recognizance is subject to the conditions set out in s 20(1B) of the Crimes Act 1914 (Cth).

(v)      The opinion of Dr Stevens as to the offender’s risk of suicide should be

immediately communicated to the prison authorities.

I certify that the preceding thirty-six [36] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 28 April 2021