R v Drummond
[2015] VCC 1658
•17 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01109
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRIS ALAN DRUMMOND |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2015 | |
DATE OF SENTENCE: | 17 November 2015 | |
CASE MAY BE CITED AS: | R v Drummond | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1658 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Pleaded guilty to one charge of using a carriage service to access child pornography – material contained very serious example of Category 4 material – early guilty plea – no criminal history – expressed sincere remorse – has lost contact with wife and daughters
Legislation Cited: Sex Offenders Registration Act 2004
Sentence: Convicted and sentenced to 12 months’ imprisonment, released forthwith on giving security by recognisance of $1,000.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms J. Hortle | CDPP |
| For the Accused | Mr S. Casey | Paul Vale Criminal Law |
HER HONOUR:
1 Kris Drummond, you have pleaded guilty to one charge of using a carriage service to access child pornography, an offence which has a maximum sentence of 15 years’ imprisonment.
2 I proceed to sentence you on the basis of the Prosecution Opening which was read out on your plea[1] and the Text-Based Description of the content of the video[2] the subject of the charge, prepared by the police officer investigating this matter. None of this material was disputed by you.
[1] Exhibit A
[2] Exhibit B
3 As a result of the comprehensive description and with the agreement of your counsel and the prosecutor, I decided that I did not need to look at a sample of the video in order to assess the seriousness of your offending. It is conceded that this is a most, if not the most, serious example of Category 4[3] material. It is sufficient to state that the material consists of a 49 minute video of a very young female child aged between three and five years, whose face is visible throughout, while she is sexually penetrated in multiple ways by an adult male.
[3] The Child Exploitation Tracking System (CETS) states Category 4 files feature “penetrative sexual activity between children only or children and adults, it may include but is not limited to vaginal / anal intercourse, cunnilingus and fellatio.”
4 Among the features making the video a most serious example are that it is very depraved material. The video consists of 14 scenes and it is submitted by the prosecutor, without objection, to be a video of unusually long duration. The video is part of a known series involving this poor girl from the USA although there is no suggestion that you accessed more than this one video. That the child’s face is shown and that she has been subjected to sickening abuse multiple times is likely to have increased the dreadful impact on her which will have been further magnified if she learns, at an older age, of the recording and global distribution of the video. I am told that she has since been ‘rescued’ from this shocking abuse. On the other hand, I accept that many features that may aggravate this type of offending are absent in your case.
5 The police investigation showed that the IP address allocated to you was used to access this material on one occasion on 5 February 2013. A warrant was executed on your home on 24 September 2013, and at that stage you denied any child exploitation material would be found on your computer. Your computer was seized and later forfeited with your consent.
6 Three days later, you sent a text message to your wife effectively admitting what you had done and expressing remorse and insight. On 1 October 2013 you were interviewed and, on legal advice, exercised your right to remain silent. On 12 February 2014 your wife spoke to you on the telephone and the conversation was recorded by police. In it, you made admissions that you had looked for child pornography relating to teenagers. On 21 February 2014 analysis of your computer showed that child exploitation material had been present in the system.
7 Through your counsel and to a forensic psychologist who interviewed you for a report provided to the court[4], you gave the following explanation for accessing the video the subject of the charge. On the night of the offence your wife, who was pregnant with your second child, and your infant daughter were at her parents’ house while you stayed at home. You drank to excess, which was not uncommon for you apparently, and downloaded a random pack of child pornography files, asserting that you were not aware of the exact nature of the files you would receive. You report that you then passed out and woke later to find the file on your computer and say that you do not remember if you viewed it before deleting it. There is no evidence that you saved or shared the file.
[4] Report of Ian Joblin dated 28 September 2015
8 You told the psychologist that you accessed adult pornography over the years but did not harbour any need to access child pornography. This may be contrary to what you said to your wife in the recorded telephone conversation, viz. that you had looked for child pornography relating to teenagers, or it may not be, if you perceive a difference between children and teenagers. At law, of course, there is no difference. The psychologist refers to the ‘pretext phone calls’ at the top of page 5 of his report, but not in the context of there being a difference between these versions. I make no further finding about any of that. He was of the opinion that you are not to be diagnosed as a paedophile and that your real problem is excessive consumption of alcohol. He noted that you reported sexual abuse when in kindergarten, incidentally, the same age range as the victim of the video and he says that this is the subject of continued therapeutic endeavours but expands no further.
9 Given that you have no criminal history which means, of course, no previous charges of accessing child pornography, I agree that it would be difficult for a medical practitioner to diagnose you as a paedophile. I make no finding about your own sexual abuse contributing to this offence and consider your alcohol consumption to be part of the context for your offending but not the reason. In my view it is vital for you to receive treatment for your offending behaviour because I consider there are some questions remaining about your motivation to access such material.
10 I will return to your prospects for rehabilitation again in a moment. Before that I will note the factors which mitigate the extremely serious nature of this offending.
11 The first of these is your plea of guilty. I accept that you pleaded guilty at the earliest possible time and that this reflects your contrition, your willingness to facilitate the course of justice by avoiding the need for both a committal and a trial and your acceptance of responsibility. Your comments to your wife in the text you sent her shortly after the police attended at your house also reflect contrition and acceptance of responsibility. You co-operated with police in consenting to the forfeiture of your computer.
12 You are now aged 29 years, shortly to turn 30, and were aged 27 at the time of the offence. You have committed no further offences. After the offence was discovered you moved away from your pregnant wife and your child and returned to live with your mother. She remains supportive of you but was unable to attend court as she is visiting your sister in the United States. Your other sister and your father also support you. Your father was at court to demonstrate his support but chose to remain outside the court room, which is understandable given his position as a police officer.
13 You completed Year 12 and have worked in a number of jobs and undertaken some further study although not completed the courses. In April 2014, you began your current employment as a baker, which you enjoy.
14 You began drinking alcohol while still at school and acknowledge that you have a problem moderating your intake and recognise that you become disinhibited by alcohol. You have used other drugs in the past but not recently. On the night this offence occurred, you apparently were drinking a home brew. You have attended Alcoholics Anonymous and did so after the offence was discovered, abstaining from alcohol for over 12 months. It was, apparently, a condition of living with your mother that you do so. I am told that you have recently begun re-attending AA. You are also apparently attending a psychologist in keeping with what you said to your wife you intended to do in the recorded messages and telephone conversations, having completed a Mental Health plan with your doctor. No material was available directly from the sources about either of these rehabilitative steps, that is, Alcoholics Anonymous or the psychologist.
15 However, I received references from both of your parents and a close friend, who confirmed their support of you but also referred to the steps you have taken. in particular concerning your mental health by counselling with a psychologist. They all state that you have expressed sincere remorse and worked towards reducing the risk of re-offending.
16 The most significant demonstration of your recognition of the seriousness of the offence and your contrition and insight, is that immediately after its discovery, you separated from your wife and daughter. As a result of a choice exercised by you and your wife, you have not had contact with them except via email with your wife, which has now dwindled, and you have never met your second daughter who was born after the offence was discovered. You have made the decision to have nothing to do with your daughters because of the type of offence that you committed.
17 I accept that you have much greater insight to your offending than most people charged with such an offence. Because of this, your previous good character and your contrition, as well as your support and stable employment I find your prospects of rehabilitation are reasonable. However, your prospects will be no more than reasonable, in my view, unless you receive treatment regarding your offending behaviour, deal with your own sexual abuse, if necessary, and cease drinking alcohol.
18 I take into account the need to deter others from committing such an offence. This is called general deterrence and is of paramount importance in an offence involving the extreme exploitation and degradation of a very young child. As long as there is a market for such despicable material children will continue to be doubly abused by having such depraved sexual acts performed on them and by the recording and replaying of these acts.
19 Although you have expressed rare insight and much contrition and punished yourself by removing yourself from the lives of your daughters, I find it is still necessary for my sentence to deter you from re-offending to a certain extent. In my view, your risk of committing another offence will be reduced by receiving treatment specific to your offending behaviour, not just counselling as to your mental health which you have received thus far.
20 I have taken into the account the matters in the Commonwealth legislation, many of which I have referred to in these remarks.
21 This most serious offence must be denounced by the court on behalf of the community and stern punishment is called for. The prosecutor submitted that only a sentence of imprisonment would serve all the purposes required of a sentence in this case, although it was not urged upon me that you should actually serve any time in custody.
22 Your counsel submitted that while a term of imprisonment was within the range of available sentences, he submitted that it may not be the only option and that I could consider imposing a Community Corrections order.
23 I have considered that but I have decided that I have no alternative to a term of imprisonment because the objective seriousness of your offence is so high. However, because you have no criminal history and have shown unusual insight and victim empathy I have decided to sentence you to a term of imprisonment and then release you immediately on the following conditions. The conditions are that you be of good behaviour for two years, that you be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management for two years and that you attend for assessment, and if suitable, treatment in a sex offender program or programs to reduce re-offending as directed.
24 I will announce the formal sentence in a moment. This sentence means that you will not serve any time in prison but will be released on agreeing to provide security in the amount of $1000 and agreeing to the conditions I just outlined. You do not pay the $1000 unless you do not fulfil the conditions. If you do not fulfil those conditions not only will you forfeit that sum but you will be taken into custody to serve the term of imprisonment.
25 Do you understand what will happen if you do not fulfil the conditions?
26 OFFENDER: Yes.
27 HER HONOUR: The sentence of the court is as follows:
28 On the charge of using a carriage service to access child pornography, you are convicted and sentenced to 12 months’ imprisonment. That sentence starts today. You are to be released forthwith on giving security by recognisance of $1000 to comply with the conditions previously outlined.
29 Because of this sentence, you have become a registrable sex offender. The charge is a class two offence and so you will be required, within seven days, to report your personal details and begin a regime of annual reporting and be otherwise subject to the Sex Offenders’ Registration Act for a period of eight years.
30
You may now come out of the dock now, Mr Drummond and stand next to, or take a seat behind, your counsel. Now you will be asked to sign two documents. The first is your agreement to abide by the conditions which allow for your release from immediate imprisonment. The second is a form notifying you of your reporting obligations under the Sex Offenders’ Registration Act. Just pardon me a moment. I will just have the documents prepared now. Those documents can now be provided to
Mr Drummond for signature. Yes you can up to the Bar table now,
Mr Drummond. Your counsel will assist you with these forms.
31 Finally, I will not indicate what my sentence would have been but for the plea of guilty until legislation specifically requires it for federal offences or an authority binding on me states that it is required.
32 Are there any further order?
33 MR CASEY: No, Your Honour.
34 MS HORTLE: No, Your Honour.
35 HER HONOUR: I thank counsel for their assistance and, Mr Drummond, I do hope that I do not see you again. Yes thank you.
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