R v Davison
[2020] ACTSC 272
•7 October 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Davison |
Citation: | [2020] ACTSC 272 |
Hearing Date: | 7 October 2020 |
DecisionDate: | 7 October 2020 |
Before: | Elkaim J |
Decision: | See [27] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child pornography – early guilty plea |
Legislation Cited: | Child (Sex Offenders) Registration Act 2005 (ACT) s 15 |
Cases Cited: | R v Logue [2020] ACTSC 115 |
Parties: | The Queen (Crown) James William Davison (Offender) |
Representation: | Counsel S Simmonds (Crown) L Vozella (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Vozella Lawyers (Offender) | |
File Number: | SCC 96 of 2020 |
ELKAIM J:
On 30 April 2020 the offender pleaded guilty to possessing or controlling child abuse material contrary to s 474.22A of the Criminal Code 1995 (Cth).
The maximum penalty for the offence is 15 years imprisonment and/or a fine of $189,000.
A search warrant of the offender’s residence gave the police access to his computer. Examination of the computer revealed 827 files made up predominantly of images but also included 39 videos and 2 documents. The bulk of the images (496) fell into Category 1 on the Australian National Victim Image Library (ANVIL) scheme which relates to “images of children which are likely to cause offence to a reasonable adult, but where there is no actual sexual activity taking place”.
There were 8 videos in Category 2 which describes “sexual acts between children only with no part of the body being penetrated and solo masturbation by a child”. Category 3 concerns “non-penetrative sexual activity between an adult and a child”. There were 10 images in this category. There were 26 videos in Category 4. This category relates to “penetrative sexual activity between children only or adults and children”.
Finally there were 280 images, 2 videos and 2 documents in Category 6. This category covers all the activities in Categories 1 to 5, but the images do not reflect an actual child. This includes replica and cartoon images.
I was asked to view some of the images, which I did. As I said in R v Mitchener [2019] ACTSC 351 at [14]: “Suffice to say their possession displays a depravity which is alien to normal human behaviour”.
The objective seriousness of the offending can be measured against a number of criteria. As set out by the Crown in its written submissions, these include:
(a)The nature and content of the material, including the age of the children and the type of activity displayed.
(b)The number of images.
(c)Whether the material is for the purpose of sale or distribution.
(d)Whether the offender will profit from the offence.
(e)The number of different children depicted.
(f)The length of time for which the material was possessed.
There is no suggestion in this case of distribution of the material or any profit being obtained from it. Nevertheless the number of images is significant as is the nature of the content. It is not clear for how long the material was possessed. Taking into account these factors, including my viewing of a sample of the material, I am of the view that the objective seriousness of the offending is, for these types of cases, at about medium objective seriousness.
The offender was born in 1971. He is one of 6 children. He has generally remained on good terms with his family. He had a lengthy de facto relationship which ended in 2015 when his partner passed away. He is in stable accommodation in a property which he owns with a mortgage. He has lived there for about 18 years.
The offender was subject to some bullying at school, but he did complete high school and obtained a bachelor’s degree.
The offender worked for many years in the public service but resigned in November 2019 when he felt he was suffering from an excessive workload. He has not found further employment since then.
Other than for a short time some years ago the offender has had no problems with alcohol or illicit drugs.
The offender does suffer from a major depressive disorder and ongoing anxiety. He takes antidepressants, although he has had a poor compliance with the medicinal regime, apparently due to financial difficulties. He has chronic arthritis on one side of his body.
The offender’s medical health condition is described by Professor Stevens, a clinical psychologist, as a major depressive disorder recurrent with anxious distress and moderate to severe symptoms.
According to the report the offender “would be ill-equipped to deal with the social challenges of incarceration”.
The professor also says that “a period of incarceration would aggravate his anxiety and chronic depression. It could make him suicidal”. This fact, together with the above diagnosis, must be taken into account.
According to the pre-sentence report the offender does not believe he has done anything illegal but has pleaded guilty on legal advice. He apparently “expressed a belief that his actions had not caused any negative victim impact”.
The offender’s belief could not be more wrong. As I said in Mitchener at [28]:
The subjective factors pertaining to the offender fade into insignificance compared to the subjective humiliation, horror and long-term damage which each and every child pictured has and will suffer.
And this is what I said in R v Logue [2020] ACTSC 115, at [16]:
Viewing videos of the type that were in his possession may at one level seem like a harmless voyeuristic enterprise. But that could not be further from the truth. Every child in every video was exploited. Not one of those children was capable of expressing proper consent to what was occurring to them. Every one of them will be damaged, sometimes physically, and always mentally, probably for the rest of their lives.
Notably in his consultation with Professor Stevens the offender seems to maintain his denial of the criminality of his conduct. As to his plea of guilty he told the professor that he was “hoping for a suspended sentence as it is a first offence. I want a quick out option, no jail term, so I can leave Canberra.”
Also in Logue, from [18] I referred to a number of cases, not specifically comparable, but useful as a guide. I have referred to them again for current purposes.
The offender does not have a criminal record, but this is of less significance in matters of this type. Cases like this call out for significant sentences reflecting the need for general deterrence. All persons must be discouraged from fulfilling their sexual needs through images of children.
I agree with the Crown, and as I said in the cases cited above, a sentence of full-time imprisonment is inevitable. The maximum penalty for the offence is an indication of how serious the community regards this type of conduct. Children are not pawns or playthings for the sexual gratification of adults. There are many terrible types of offences but in my view it is difficult to express more abhorrence than in respect of crimes involving children, their manipulation and their degradation.
However because of Professor Stevens’ opinion about incarceration and the need to encourage rehabilitation, the full-time imprisonment will be suspended after three months.
The offender is entitled to a discount arising from his plea of guilty. I will adopt the submissions of both parties that the appropriate discount is 25%.
I note the plea of guilty was affirmed despite the comments to the authors of the pre-sentence report and to Professor Stevens which might suggest otherwise.
I make the following orders:
(a)For the offence of possessing child abuse material (CAN12940/2019) the offender is sentenced to 9 months imprisonment (reduced from 12 months) to commence today and end on 6 July 2021.
(b)The period of imprisonment is to be suspended after 3 months (on 6 January 2021) on the 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 12 months with the extra condition that:
(i)He engage with a suitably qualified medical practitioner, including a psychologist, and follow that practitioner’s recommendations, for treatment of his major depressive disorder and any other disorder thought by the practitioner to have influenced his commission of the above offence.
(c)I recommend that the concerns expressed by Professor Stevens be brought to the attention of the prison authorities.
(d)Pursuant to s 15 of the Child (Sex Offenders) Registration Act 2005 (ACT) the offender be registered on the child sex offender register.
(e)Pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Commonwealth Director of Public Prosecutions the items contained on the forfeiture order are forfeited to the Commonwealth. This includes one black PC tower S/N 025916299713 containing:
(i)Hitachi hard disk drive, serial number N03GA52V (Exhibit No. 358381/001).
(ii)SanDisk hard disk drive, serial number 141587400823 (Exhibit No. 358381/001).
(iii)Samsung hard disk drive, serial number S3ETNX0J303419E (Exhibit No. 358381/001).
(iv)Samsung hard disk drive, serial number S3ETNX0J30380J (Exhibit No. 358381/001).
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 8 October 2020 |
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