R v Dean

[2023] ACTSC 98

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Dean
Citation:	[2023] ACTSC 98
Hearing Date:	30 January 2023 & 28 April 2023
Decision Date:	4 May 2023
Before:	Berman AJ
Decision:	See [56]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Use a carriage service for pornography – Possessing child abuse material using a carriage service – Possessing child exploitation
material
Legislation Cited:	Crimes Act 1900 (ACT), s 65(1) Crimes Act 1914 (Cth), s 20(1)(b) Criminal Code Act 1995 (Cth), ss 474.19(1), 474.22A(1), 474.22(1)
Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74
Cases Cited:
Director of Public Prosecutions (Cth) v Hizhnikov [2008] VSCA 269
R v Burdon; Ex parte Attorney-General (Qld) [2005] QCA 147; 153 A Crim R 104 R v De Leeuw [2015] NSWCCA 183 R v Middleton [2023] ACTSC 50 R v Porte [2015] NSWCCA 174 The Queen v Gajjar [2008] VSCA 268 Western Australia v Collier [2007] WASCA 250 Wyper v The Queen; R v Wyper [2017] ACTCA 59
Parties:	The King (Crown)
Taylor Cameron Dean (Offender)
Representation:	Counsel
C Pascoe (Crown)
E Chen (Offender)
Solicitors
Commonwealth Director of Public Prosecutions (Crown)
Legal Aid ACT (Offender)
File Number:	SCC 287 of 2022
Berman AJ:
Introduction

1.       As he was growing up, the offender in this matter, Taylor Cameron Dean, faced a number of challenges in his life. He is someone who has been diagnosed with autism spectrum disorder. As a child, he found it difficult to relate to other people and was bullied at school. When he was able to make friends, these friendships did not last because he often moved where he lived, both because of his mother's financial difficulties and in order to escape domestic violence.

2.       He suffers from depression and has been medicated for it in the past. He contemplated suicide when he was 13 or 14 years old after breaking up with his first proper girlfriend. He fully intended to kill himself and would have, had it not been for someone calling to check up on him.

3.       He and his mother moved to Canberra in 2015 when he was 17 years old. He was unable to make friends, finding it difficult to break into any social circle after moving here. He found that he had nothing to do all day and every day, no one with whom to share experiences, and so he stayed at home watching TV and accessing pornography on the internet. He became addicted to pornography and, when he was particularly depressed, he could spend four to seven hours a day watching it. Given the amount he was consuming, it is perhaps not surprising that he began to find what he described as

“normal porn” as monotonous. This led him to go down a “rabbit hole” of seeking greater

and greater stimulation.

4.       That is how the offender explains how he came to commit the serious offences for which I must sentence him. He has pleaded guilty to four offences:

(1) transmitting child pornography material to himself (CAN 5301/2022), an offence

under s 474.19(1) of the Criminal Code Act 1995 (Cth);

(2) possessing or controlling child abuse material obtained or accessed using a

carriage service (CAN 5302/2022), an offence under s 474.22A(1) of the

Criminal Code Act (Cth);

(3) using a carriage service to access child abuse material (CAN 5303/2022), an

offence under s 474.22(1) of the Criminal Code Act (Cth); and

(4) possessing child exploitation material (CAN 5304/2022), an offence under s

65(1) of the Crimes Act 1900 (ACT).

5.       The first three of those offences are Commonwealth matters, each carrying a maximum penalty of 15 years imprisonment and/or 900 penalty units. The last offence is a Territory offence carrying a maximum penalty of seven years imprisonment and/or 700 penalty units.

6.       These pleas of guilty came at the earliest opportunity, which has a significant utilitarian value to the criminal justice system and thus to the community. The sentence I will impose upon the offender is thus approximately 25 per cent less than it would otherwise have been.

Facts

7.       The offences came to light on 12 November 2020, after police went to the home where he lived. They seized four electronic devices, including a mobile telephone.

8.       The transmission offence was committed when the offender uploaded 20 images to his Microsoft OneDrive account on 14 May 2019. Nineteen of the images were of prepubescent children and one was of a pubescent child. The images depicted female child victims, aged between 2 and 12 years of age. They displayed their breasts, vaginas and anuses. They showed those children being vaginally, orally and anally raped by adult offenders, with some of them showing children being ejaculated on.

9.       The access offence relates to 56 videos on the offender's mobile phone. They had been accessed between 28 December 2019 and 5 January 2020. A review of the videos showed that 41 per cent depicted prepubescent children, with the remainder showing pubescent children. In the videos were children aged between 4 and 14. They showed the children's breasts, vaginas, and anuses. Anyone viewing these videos would have seen vaginal, oral and anal rape of those children by adult offenders, as well as acts of solo masturbation and urination.

10.     The Commonwealth possession offence relates to two locations where material was

stored on the offender’s mobile phone when police seized it on 12 November 2020.

The first location contained the 56 videos I have just referred to. The next location was

the “Photo Vault” application on his phone, which contained 146 videos and 255 still

images in one album, and 116 videos and 11 still images in a second album. The videos and images depicted male and female children between 4 and 15 years of age. They showed the children's breasts, vaginas, penises and anuses. They showed vaginal, oral and anal rape of the children by adult offenders. They also depicted acts of solo masturbation, urination and children subject to bondage and ejaculation.

11.     The Territory possess offence relates to those 20 images covered by the transmission offence which the offender possessed once he uploaded them to his OneDrive account.

12.    The description of the material, the subject of the four charges, is enough to demonstrate the seriousness of the offender's criminal behaviour. It is awful to understand that depraved people exist who produce such material, abusing and harming innocent children as they do so. People like the offender encourage that abuse, as these evil people seek to satisfy the demand for videos and images of this kind.

13.     It is difficult to understand how someone could get pleasure out of viewing such material, but there are many people like the offender in this world. The internet has brought about opportunities for men, because it is usually men, to watch as children are defiled and abused because, for some reason, they get pleasure out of seeing that happen.

14.     Courts must play their part in protecting children who might become the victims of those who would satisfy the desires of people like the offender. For that reason, significant sentences of imprisonment are usually imposed for offences of this kind. It is hoped, perhaps forlornly, that this will reduce the demand for child pornography and thus reduce the number of children who are involved in its production. Even if people are not deterred by such sentences from possessing child pornography, nevertheless it is important to mark, in a very concrete way, just how wrong it is.

15.     Consistent with that need to protect children and to demonstrate the seriousness of offences such as these, Courts have repeatedly recognised that a term of imprisonment will ordinarily be expected for offences of this kind: Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 at [62] (Redlich and Beach JJA), [86]-[87] (Priest JA); The Queen v Gajjar [2008] VSCA 268 at [61]-[63]; Director of Public Prosecutions (Cth) v Hizhnikov [2008] VSCA 269 at [26]-[27]; Western Australia v Collier [2007] WASCA 250 at [43]; and R v Burdon; Ex parte Attorney-General (Qld) [2005] QCA 147; 153 A Crim R 104 at 108-9.

16.     In R v Porte [2015] NSWCCA 174, the Court made the following observations regarding offences like the one for which the offender is to be sentenced:

(a) the absence of sale, distribution or dissemination of material does not mitigate

the penalty for a possession offence (at [66]);

(b) the possession of child abuse material creates a market for the continued

corruption and exploitation of children (at [67])

(c) the possession of child pornography is not a victimless crime and that the harm

is ongoing because the material remains in circulation on the internet (at [68]-

[69]).

17.     These observations must be kept firmly in mind when sentencing offenders such as the offender before me today.

18.     The offender knew that it was wrong to view child pornography but continued anyway because of his desire to receive greater stimulation than he had been receiving from pornography involving adults. He understands that the victims of his offending will suffer significantly.

19.     I should make something clear at this point of my judgment. I fully accept the Crown’s

submission that viewing adult pornography where consenting adults agree to being filmed having sex and to those videos being distributed is not part of the same continuum as viewing children being abused in very harmful ways. In contrast to adult pornography, the children involved are not willing participants. Children do not consent or are incapable of consenting and are in a very real sense victims of offenders such as the present.

20.     He gave evidence that he had been trying to get some professional help before he was arrested by police, but what stopped him was the shame and guilt he would experience when he had to tell someone what he was doing. On the evening of his arrest, he got in touch with a counsellor specialising in pornography addiction and has been receiving counselling, which he has found very effective in overcoming his addiction. He says that he has not viewed child pornography since his arrest and that he now tries to go as long as possible between viewing adult pornography. There is no suggestion that he is lying when he says so.

21.     Apart from these offences, the offender is of otherwise good character.

Objective seriousness

22.     A number of decisions of this Court and those in other jurisdictions have led to helpful checklists of matters to be considered when determining the objective gravity of an offender's conduct. For example, R v De Leeuw [2015] NSWCCA 183 at [72(b)]:

(b) The objective seriousness of the offending is ordinarily determined by reference to the

following factors:

(i) the nature and content of the material, in particular the age of the children and the

gravity of the sexual activity depicted;

(ii) the number of items or images possessed;

(iii) whether the material is for the purpose of sale or further distribution;

(iv) whether the offender will profit from the offence;

(v) in the case of possession or access of child pornography for personal use, the

number of children depicted and thereby victimised;

(vi) the length of time for which the pornographic material was possessed.

23.     I have already described the contents of the images and videos the subject of these charges. There was a total of 680 separate pieces of child abuse material, although at least some of those are duplicates, with the same file being found on different locations on the offender's mobile phone. Many offenders sentenced for this type of offence possess significantly more images and videos, but equally many such offenders have fewer.

24.     The material was for the offender's own use. In this regard, it is important to note that the transmission offence did not involve the offender sending the material to others, merely to the offender transferring it between separate devices of his own. There is no suggestion that the offender was deriving a profit from what he was doing.

25.     The exact number of separate victims is unknown, but even without a close analysis of the material, I can confidently say that a significant number of children were harmed in the production of that material.

26.     The offences span a year and a half, but, as I have already noted, the offences ceased more than two years before he appeared for sentence in this Court.

27.     In his written submissions Mr Chen, who appears for the offender, said “the Court can conclude this matter is an unremarkable example of such offending”. While that is true,

that should not be taken in any way as suggesting that the offences were other than
serious indeed.

28.     The offences are not all of the same seriousness. Based primarily on the quantity of the material, the Crown accepts that the offences other than possessing or controlling child abuse material obtained or accessed using a carriage service (CAN 5302/2022)

are “below the mid-range” while Mr Chen would have me find that they are in the “low

range”. I do not believe that sentencing judges are required to engage in resolving

questions as to precisely where on the scale of objective seriousness particular
offences fall.

29.     The remaining offence is, as the parties agreed, the most objectively serious. The offender possessed 584 files containing still images or videos showing a variety of degrading and harmful acts being perpetrated on children. Many offenders possess many more files, sometimes in the thousands, but offences involving fewer files are not unknown. It is a sad thing to say but the acts depicted in those files are not out of the ordinary in offences involving child pornography. The offender possessed this material for some time too, some of it at least for about 18 months. Mr Chen concedes that the objective gravity of this offence is such that a sentence of imprisonment is required.

Subjective Considerations

30.     I have briefly spoken of the offender’s background earlier, but there are a few further

matters I should mention at this stage.

31.     He was seen by a psychologist who described him as having a “significant legacy of trauma from his childhood”. That came from seeing his mother in violent relationships

with men, one of whom had a problem with drugs, and an incident when he was sexually abused when he was six by older children. Given that both his mother and grandmother had depression and anxiety, the psychologist considered that it is likely that he has a biological predisposition to depression.

32.     It is far from clear whether the psychologist believed that the offender’s problems with

autism and depression effected his moral culpability, but in light of her clear statement that these conditions did not contribute causally to the offences, I am not prepared to make a finding that his moral culpability was reduced.

33.     I also note that there is nothing, apart from the one incident of sexual abuse by older children, to suggest that his background was one in which offending by viewing child pornography was normalised.

34.     Perhaps the most that could be said was that his autism contributed to his social isolation which in turn contributed to his use of adult pornography, and his offending occurred in those circumstances.

Hardship to the offender’s wife

1. In addition to the offender’s challenging childhood and attempt to seek rehabilitation

   (described above at [1]-[3]; [18]-[20]), one of the most important matters raised by Mr

   Chen concerns the effect that his client’s imprisonment would have upon his wife. She

gave evidence, which was not seriously challenged by the Crown, as to what would
happen to her if the offender was sent to gaol.

36.     He earns the greater part of their combined income, with his wife working only three days a week. Their financial position is worse than others because she requires a lot of medication. She gave evidence that she could not afford that medication or her health insurance on her income alone. She suffers from two conditions about which she gave evidence: endometriosis and diabetes.

37.     Documents were produced showing that she had surgery in August 2021 and that she will need further surgery in the future. At times, she depends on the offender to assist her showering and with other household tasks because she suffers from chronic pain.

38.     Her blood sugar needs to be constantly monitored. The offender wakes up to her blood sugar alarm and notices when she becomes unresponsive. He reminds her to take her insulin. She has a history of co-dependency with suicidal tendencies, as well as a history of self-harm. Her evidence was that if her husband went to gaol, her self- harming tendencies may manifest themselves and she would not be able to take proper care of her diabetes. She did not believe that she would be safe. The offender's evidence too was that he had fears that she would stop taking care of her diabetes if he was not around.

39.     In response to suggestions that she could move back home with her parents, she explained that she is the oldest of five children and their mother has just been diagnosed with cancer. There would be no bedroom for her if she resumed living with her parents and she would be sleeping on a couch.

40.     The Crown submitted that she is unlikely to need surgery for her endometriosis in the near future, and that she had been apparently able to deal with her diabetes before meeting the offender. In that regard, there was a document tendered showing that she had been admitted to hospital for hyperglycaemia in March 2020, before meeting the offender. There was unchallenged evidence that she had been hospitalised for

hyperglycaemia “many times”. I accept also that circumstances have changed, particularly of course her mother’s cancer diagnosis. Whilst I accept the Crown’s

submission regarding the unlikelihood of surgery for endometriosis being needed in the near future, I do not accept that her family will be able to monitor her diabetes as well as the offender has been. On top of that is the, also unchallenged, evidence concerning the financial problems that the incarceration of her husband would bring. She could not afford all her medication or health insurance on her income alone.

41.     Whilst it is commonplace for breadwinners to be sent to gaol and their dependents to suffer, the effects on the offender's wife, which I have just described, are far from commonplace indeed. I will bear them in mind in deciding what sentence to impose upon the offender.

42.     There is a particular factor here which takes this matter out of what is usually the case where offenders rely on hardship to third parties. Many, if not most, offenders relying on what would happen to their loved ones if they were sent to gaol, well know of such consequences at the time they are committing their offences. There is always something a bit distasteful about an offender relying on hardship to a family member as a reason for mitigation of punishment when the offender knows full well that the family member would suffer significantly in the event a gaol sentence was imposed and, despite that knowledge, they nevertheless commit the offence. But that is not the case here. At the time of his offending, the offender was not in a relationship at all. This then is not one of those cases where an offender commits an offence knowing that someone he cares for will be harmed if he gets caught.

Youth

43.     The offender is 24 years old now. He was 20 when he first started viewing child pornography, continuing past his 21st birthday. I will take his youth into account. Full

adult maturity is not suddenly achieved on a person’s 18th birthday.

Rehabilitation

44.     I am satisfied that the offender has achieved a large measure of rehabilitation already. As I have already mentioned, he was contemplating seeking counselling for what he knew was wrong even before the police knocked on his door, and he contacted a counsellor that very evening. Since then, a period of over 2 years, he has not viewed any child pornography, and his viewing of adult pornography has reduced considerably.

45.     The delay between arrest and today’s sentenced date has allowed the offender to

demonstrate, rather than just promise, rehabilitation. His life now is a very different one to the life he had when he was accessing and viewing child pornography. He is remorseful for what he has done and accepted responsibility for his offending, acknowledging his role in the harming of children used for the purposes of satisfying the desires of people such as he was. He is unlikely to reoffend.

46.     There is another aspect of the delay which I should mention. The offender must have known that he was at risk of going to gaol from the moment police arrived. He has been left in a state of uncertainty as to what would ultimately happen to him for a considerable time now. I will take that into account in his favour when deciding what sentence to impose on him.

Sentencing consideration

47.     Recent amendments to the Crimes Act 1914 (Cth), in particular s 20(1)(b), affect one of the matters for which the offender is to be sentenced. For the Commonwealth offence of possessing child abuse material obtained using a carriage service, there is now a presumption against the offender being released immediately on a Recognizance Release Order. That presumption applies unless there are exceptional circumstances that justify such an order being made.

48.     Contrary to submissions made in earlier other sentencing proceedings in this Court, the parties in the present matter agreed that the presumption had no application when an Intensive Corrections Order (ICO) was being contemplated (cf R v Middleton [2023] ACTSC 50 at [179]). Exceptional circumstances are needed only when a wholly suspended sentence is being imposed.

49.    Mr Chen submitted that the appropriate sentence for his client was a period of imprisonment to be served by way of an ICO. He did not suggest that the offender should be sentenced to imprisonment but released immediately on a Recognizance Release Order. Even in the absence of the presumption, I would not have imposed such a sentence. Therefore, the question as to whether there are exceptional circumstances justifying a sentence of that kind for the offence of possessing child abuse material obtained using a carriage service can be put to one side.

50.     The issue between the parties was how the sentence of imprisonment should be served. For reasons which were not entirely clear when the matter first came before me, there was no pre-sentence report, beyond one noting simply that the offender had not been assessed. For that reason, the matter was adjourned to enable the offender to be assessed as to his suitability to serve any sentence of imprisonment by means of an ICO.

51.     With that assessment completed, the offender has been found to be suitable for an ICO and has signed the appropriate undertaking. He is also suitable for a community service work condition.

52.     There is some overlap between these offences. Most obviously the same 20 images were the subject of the transmission offence and the territory possession offence. I cannot see how someone could transmit something that they did not possess. Further, the access offence concerned 56 files which are also part of the Commonwealth possession offence.

53.     In my view, the offender’s criminality can be adequately covered by a sentence of

imprisonment for the Commonwealth possession offence, with suspended sentences
imposed on the remaining three matters.

54.     As far as the Commonwealth possession offence is concerned, I am satisfied that I

should accept Mr Chen’s submission that the sentence of imprisonment should be

served by means of an ICO. Particularly important in coming to that conclusion are the
following matters:

a)  The offender’s background of social isolation which, in his case, gave rise to the

circumstances in which the offending occurred;

b) His genuine remorse and acknowledgment that the victims of his offending will

suffer significantly;

c) His desire before his arrest to seek professional help, and his demonstrated

rehabilitation after his arrest; and

d) His strong prospects of rehabilitation.

55.     As the Court explained in Wyper v The Queen; R v Wyper [2017] ACTCA 59 at [127]:

… the legislature envisaged that an ICO would be an onerous sentence of imprisonment,

albeit one that was served in the community, and would reflect purposes including

punishment, accountability, denunciation and general deterrence …

Orders

56.     I make the following orders:

1. Taylor Cameron Dean is convicted of transmitting child pornography material to

himself (CAN 5301/2022) and sentenced to imprisonment for 6 months to

commence today 4 May 2023 and to expire 3 November 2023 with a recognizance

release order, pursuant to s 20(1)(b) of Crimes Act 1914 (Cth) (as it then was),

permitting his release immediately with security of $100, without surety, and on the

condition that he be of good behaviour for a period of two years from the date of his

release the recognizance release order thus expiring on 3 May 2025. Were it not

for his plea of guilty, the sentence of imprisonment would have been for 8 months.

The conditions of that order will be:

a. be subject to the supervision of a probation officer appointed in accordance

with the order;

b.	obey all reasonable directions of the probation officer;
c.	not travel interstate or overseas without the written permission of the

probation officer; and

d. undertake such treatment or rehabilitation programs that the probation

officer reasonably directs.

2.    Taylor Cameron Dean is convicted of possessing or controlling child abuse material

obtained or accessed using a carriage service (CAN 5302/2022) and sentenced to

imprisonment for 22 months to commence today 4 May 2023 and to expire on 3

March 2025. Were it not for his plea of guilty, the sentence of imprisonment would

have been 2 ½ years. That sentence of imprisonment is to be served by means of

an intensive correction order. The conditions of that order will be:

a. The core conditions in s 42 of the Crimes (Sentence Administration) Act

2005 (ACT);

b. A community service condition requiring him to complete 300 hours of

service within 24 months from today; and

c. He must submit all technical devices and access codes to ACT Corrective

Services Staff or ACT policing/Australian Federal Police as requested for

relevant investigation.

3.    Taylor Cameron Dean is convicted of using a carriage service to access child abuse

material (CAN 5303/2022) and sentenced to imprisonment for 6 months to

commence today 4 May 2023 and to expire 3 November 2023 with a recognizance

release order, pursuant to s 20(1)(b) of Crimes Act 1914 (Cth) (as it then was),

permitting his release immediately with security of $100, without surety, and on the

condition that he be of good behaviour for a period of two years from the date of his

release the recognizance release order thus expiring on 3 May 2025. Were it not

for his plea of guilty, the sentence of imprisonment would have been for 8 months.

The conditions that order will be:

a. be subject to the supervision of a probation officer appointed in accordance

with the order;

b.	obey all reasonable directions of the probation officer;
c.	not travel interstate or overseas without the written permission of the

probation officer; and

d. undertake such treatment or rehabilitation programs that the probation

officer reasonably directs.

4.    Taylor Cameron Dean is convicted of possessing child exploitation material (CAN

5304/2022) and sentenced to 6 months imprisonment commencing today, 4 May

2023, and expiring on 3 November 2023. That sentence will be wholly suspended

and there will be a Good Behaviour Order for a period of 6 months commencing

today requiring him to accept the supervision of the Director-General responsible

for ACT Adult Corrections, or that person's delegate, for that period of 6 months.

Were it not for his plea of guilty, the sentence of imprisonment would have been for

8 months.

5. The Court Orders that, pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon

the application of the Director of Public Prosecutions the following items are

forfeited to the Commonwealth by consent:

a.	Samsung Galaxy S7, IMEI: 352204083416695 (Ex 3611782/002);
b.	HTC mobile telephone, serial number: ZPST110 (Ex 3611784/001); and
c.	Black SanDisk 4GB Micro SD (Ex 3611784/002).

I certify that the preceding fifty-six [56] numbered

paragraphs are a true copy of the Reasons for

Sentence of his Honour Acting Justice Berman

Associate:

Date: