R v DB
[2015] ACTSC 28
•6 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v DB |
Citation: | [2015] ACTSC 28 |
Hearing Date: | 6 February 2015 |
DecisionDate: | 6 February 2015 |
Before: | Burns J |
Decision: | See [11] – [13] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – Particular Offences – offences against children – production of child pornography – possess child pornography – use carriage service to access child pornography |
Legislation Cited: | Crimes Act 1900 (ACT) ss 64, 65 Criminal Code 1995 (Cth) s 474.19 |
Parties: | The Queen (Crown) DB (Offender) |
Representation: | Counsel Ms McMurray (Crown) Mr Robertson (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 229 of 2014 |
Burns J:
The offences
DB, you entered pleas of guilty in the Magistrates Court on 26 September last year to three charges. The first is a charge contrary to s 65 of the Crimes Act 1900 (ACT) alleging that on 5 June 2014 you did intentionally possess child pornography (CC14/5747). The second is a charge contrary to s 64 of the Crimes Act 1900 (ACT) alleging that on 20 January 2010 you did use a child for the production of child pornography (CC14/548). The third and final charge is one contrary to s 474.19 (1) of the Criminal Code 1995 (Cth) alleging that between 15 April 2014 and 15 May 2014, you used a carriage service to make available material and the material was child pornography material (CC5745).
The maximum penalty for the offence of using a carriage service to make child pornography is 15 years' imprisonment. The maximum penalty for the offence of using a child under 12 years for the production of child pornography is 15 years' imprisonment. The maximum penalty for the offence of possession of child pornography is seven years' imprisonment. You may see from those maximum penalties that these are offences which are considered by the legislature and accordingly by the community to be very serious offences. It has been conceded and I think rightly conceded by Mr Robertson on your behalf that these offences call for a term of imprisonment. The question is how that term of imprisonment is to be served.
Offender characteristics and consideration
I take into account the fact that you are still a young man. You are currently 22 years of age, but I note that one of the charges, that is, the charge of using a child for the production of child pornography occurred when you were 17 and as such you were a juvenile. I note also that you have no prior convictions. As was acknowledged by your counsel, that carries less weight in respect of matters of this type, but it does not mean that it is irrelevant. It is still a relevant sentencing circumstance that you are a person who has no previous convictions and you are entitled to a degree of leniency based upon that fact.
I also take into account with respect to the charge of using a child for the production of child pornography that it was a spontaneous offence with virtually no planning or anything of that nature involved. However, as the prosecution has quite correctly pointed out, it is an aggravating circumstance that there was a degree of breach of trust involved because the victim of that offence was a relative. You only had access to that victim because you were trusted by those who were responsible for her wellbeing, her parents and, as such, your actions constituted a breach of that trust.
Based on the material which has been provided to me, and in particular in the psychological report from Dr Harmer, I note that you deny a sexual attraction to children. There are indications that that may not in fact be the case, but I accept that the expert evidence on that issue is inconclusive.
Whilst you have expressed remorse with respect to your offending, there is still the question as to whether you fully understand the impact or the potential impact of your offending behaviour on your victims. I understand from the evidence that was given by Dr Harmer today that she has been at pains to point out to you the fact that these are not victimless offences and that there are victims with respect to the production of child pornography and that when you view that material and make it available to others to view, you are re-victimising the person who was the original victim with respect to the production of that pornography.
I take into account that there was not a large volume of images involved in these offences. This is particularly relevant with respect to the charge of using a carriage service to make child pornography available and also the charge of intentionally possessing child pornography. There were 95 images and 1 video. All of that material, except for one video as I understand it, was category one and the remaining was category five.
You spent 47 days in custody from when you were arrested with respect to the offences. You were arrested and charged on 5 June 2014 and remanded in custody and you were later granted conditional bail on 21 July last year. It appears from the material which has been put before me that your time in custody has had a significant effect upon you and that you have motivation to cooperate in any treatment with respect to your offending behaviour due to your experiences in custody.
I also take into account the fact that you have been subject to strict bail conditions since you were released upon bail. I note that the Pre Sentence Report assessed you as being at moderate to low risk of re-offending. I also take into account that you have a history of employment and I note that you were in employment at the time that you were arrested, but you lost that employment due to your arrest and being remanded in custody.
I am satisfied that you have good prospects of rehabilitation, particularly if you are subject to appropriate treatment as recommended by Dr Harmer. As the Crown correctly submitted, offences of this nature call for sentences that are designed to deter other people from committing this type of offence, so the predominant sentencing consideration with respect to this type of offending is general deterrence, but perhaps less so with respect to the juvenile offence. Having said that, the requirements of sentencing in this particular case do not, in my opinion, require an immediate term of imprisonment to be imposed. The appropriate course, in my view, is to impose sentences which are effectively suspended and to place you under supervision for a significant period of time with appropriate supervision conditions. I accept that your pleas of guilty with respect to these charges were early pleas and as such you are entitled to a discount on sentence. I would reduce the sentences that would otherwise be appropriate by a factor of 25 percent in order to mark your pleas of guilty. I accept that your pleas of guilty indicate remorse with respect to this offending and they also carry significant utilitarian value.
Sentences
With respect to the charge of using a child for the production of child pornography (CC14/548), you will be convicted and you are sentenced to 18 months' imprisonment commencing on 21 December 2014 of which the period commencing on 21 December 2014 and expiring yesterday, 5 February 2015, is to be served by way of full-time imprisonment. That is to reflect the period of time that you actually spent in custody. The balance will be suspended and there will be a Good Behaviour Order for a period of two years from today. In the light of the conditions that I am about to impose with respect to the other charges, I will not impose any further conditions in relation to this Good Behaviour Order.
With respect to the charge of possession of child pornography (CC14/5747), you are convicted and sentences to 12 months' imprisonment commencing today and expiring on 5 February 2016. That sentence will be wholly suspended and there will be a Good Behaviour Order for a period of two years with conditions:
(a)first, that you are to accept the supervision of ACT Corrections for that period of two years or such lesser period as deemed appropriate by your supervising officer;
(b)secondly, that you are to obey all lawful directions of ACT Corrections during that period of two years;
(c)thirdly, that you are to undertake and participate in such assessments, counselling or treatment as directed by ACT Corrections; and
(d)fourthly, you are to reside as directed by ACT Corrections.
With respect to the charge of using a carriage service to access child pornography (CC14/5745), you will be convicted and you will be sentenced to 15 months' imprisonment commencing on 6 February 2015, today, and expiring on 5 May 2016. That sentence will be wholly suspended and there will be recognisance for a period of two years from today with the same conditions as those which I imposed on the charge of possession of child pornography.
Effectively, you have been sentenced to terms of imprisonment commencing on 21 December 2014 and expiring on 5 May 2016. Effectively, the balance of those sentences are suspended as of today and you will be required to comply with conditions for a period of two years. Those conditions include supervision by ACT Corrective Services for that period of two years, or any lesser period that they deem appropriate. You have to obey whatever directions are given to you by Corrective Services during that period and you also have to undertake such assessments, counselling or treatment as directed by Corrective Services, and you also have to reside as directed by Corrective Services.
If you commit no further offences during the periods of those Good Behaviour Orders and recognisance, then you need not serve any further term of actual imprisonment. However, if you commit some further offence during the period of those orders, or alternatively you do not comply with the directions that are given to you by Corrective Services, then you can be brought back before this Court to be dealt with on a breach of these orders at which time you should expect to serve a further term of imprisonment.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: Date: 19 February 2015 |
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