R v Donald

[2019] ACTSC 129

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Donald

Citation:

[2019] ACTSC 129

Hearing Date:

21 January 2019

Decision Date:

25 January 2019

Before:

Burns J

Decision:

See [11]-[14]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possessing child exploitation material – two charges of using a carriage service to access child pornography material – pleas of guilty – serious criminal offences – lower range of such offences – no prior convictions – prospects of rehabilitation appear to be good

Legislation Cited:

Crimes Act 1900 (ACT) s 65(1)

Crimes Act 1914 (Cth) s 20(1)(b)

Criminal Code Act 1995 (Cth) s 474.19(1)

Parties:

The Queen (Crown)

Jeffrey Alexander Donald (Offender)

Representation:

Counsel

M Keks (Crown)

J Sabharwal (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Armstrong Legal (Offender)

File Number:

SCC 251 of 2018

BURNS J

1. Jeffrey Donald, you have pleaded guilty to one charge of possessing child exploitation material contrary to s 65(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of seven years' imprisonment, a fine of $105,000 or both, and two charges of using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth), each of which offences carries a maximum penalty of 15 years' imprisonment, a fine of $153,000 up until July 2015 and $162,000 thereafter or both. Your pleas of guilty were entered on 20 September 2018, being the third mention of the matter in the Magistrates Court.

2.        You were employed as an Assistant Director within the Cyber and Information Security Branch of the Australian Signals Directorate. As part of your duties, you were assigned an access account to the Defence Protected Network of the Australian Department of Defence within which you could access your personally assigned drive within the Defence Protected Network in the name of jeffrey.donald.

3.        On 16 January 2018, routine analytics conducted within the Defence Protected Network identified your access account as having conducted a number of internet searches which were determined to be inconsistent with appropriate use of Commonwealth IT systems. Due to the findings in the routine analytics, a review was conducted in your Defence Protected Network drive. This analysis identified approximately 8,000 files that had been stored on the drive between 2011 and December 2017. Upon review, it was determined that certain files contained child pornography material. On 24 January 2018, you were placed on leave from your role within the Australian Signals Directorate and your access to sensitive systems was removed.

4.        On 2 February 2018, Department of Defence Security Analyst, DD, provided police with a disc containing a capture of your Defence Protected Network account. The information contained within that capture was present on your Defence Protected Network account as at 17 January 2018. Police conducted an examination of the capture of your drive located within the Defence Protected Network account. As a result of the examination seven images, four text-based documents and 12 PowerPoint slides that were stored on the drive were classified as child pornography. The material identified was categorised using the Australian National Victim Image Library schema as 22 items within category 6, which is described as animated or virtual material, and one item within category 5, which is described as sadism, bestiality and child abuse.

5.        The description of the images, text-based documents and PowerPoint slides set out in the agreed Statement of Facts reveals that the content demonstrated serious depravity. Some of the documents appear to have been accessed on multiple occasions but many appear to have been accessed only on the occasion that they were downloaded to your computer.

6.        It was submitted on your behalf that you were unaware, at the time that you downloaded and subsequently accessed the material that was animated or virtual depictions of child sexual abuse, that this material was unlawful. On the balance of probabilities, I accept that to be the case. This does not absolve you of responsibility for these offences. Your error was an error of law not of fact. I will accept, however, that your ignorance means that, with regard to that material consisting of animated or virtual descriptions of child sexual abuse, your actions were not a deliberate or knowing breach of the law. Of course, one of the images does not fall within this description and there is nothing to reduce your moral culpability with regard to that image.

7.        All offences of possession of child pornography are serious criminal offences. The present case is somewhat unusual in that the vast majority of the material does not depict an actual child; that is, no actual children were used or harmed in the creation of the material. I take into account that the number of files depicting child pornography was not particularly high, being 23 items. There is no suggestion that any payment or other consideration was paid by you to obtain the material. You were not involved in the production of the material and I am satisfied that you were simply an end user who downloaded the material from the internet. You acted alone and there was no risk that the material would be viewed or acquired by vulnerable persons.

8.        I am satisfied that no sophisticated planning was involved in these offences. I am also satisfied the material was for your own use, there being no evidence of dissemination to others. Whilst these offences are by no means insignificant in gravity, they fall within the lower range of such offences.

9.        You are 65 years old and you have no prior convictions. You have been married since 1982 and you have two adult children. You were a member of the Australian Army from 1970 until 1999, and you then continued with the Army Reserve until 2017. You started work with the Australian Public Service in 1999, but your position was terminated in 2018 as a result of these offences. Your financial position is stable, and you have no physical or mental health conditions which need to be addressed. You have no alcohol or drug issues. You continue to have the support of your family.

10.      One matter of concern to me is that no explanation or motive for your possession of this material was put before me. It appears inevitable that you achieved some form of gratification or thrill from accessing this material. With that one caveat there appears to be little prospect of you re-offending and your prospects of rehabilitation appear to be good. I accept that you have demonstrated remorse for these offences. I take into account the positive descriptions of your character in the testimonials presented to the Court at the sentence hearing. While the evidence against you was strong, I also accept that your pleas of guilty entitle you to a reduction in sentence.

11.      With respect to the charge of possession of child pornography (CC18/06955), you will be convicted and sentenced to 10 months' imprisonment, which I have reduced from 12 months, commencing on 25 January 2019 and expiring on 24 November 2019. That sentence will be wholly suspended with a Good Behaviour Order for a period of two years from 25 January 2019 with conditions:

(a)       that you are to accept the supervision of the Director-General or that person's delegate for a period of 18 months or such lesser period as determined by your supervising officer; and

(b)       that you are to undertake such assessments, treatment, counselling or programs as directed by the Director-General or that person's delegate.

12.      With regard to each of the charges of using a carriage service (CC18/06956; CC18/06958), on each such charge you are convicted and you are sentenced to eight months' imprisonment, which I have reduced from 10 months' imprisonment to reflect your plea of guilty, commencing on 25 June 2019 and expiring on 24 February 2020.

13. There will be a Recognizance Release Order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) releasing you on security, self in the sum of $500 from 25 June 2019 on the condition that you be of good behaviour for a period of 18 months.

14.      In light of the condition that I have imposed with respect to the charge of possession of child pornography I will impose no further conditions with respect to the Recognizance Release Order.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.

Associate:

Date: