R v Dunnicliff
[2023] ACTSC 350
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Dunnicliff |
Citation: | [2023] ACTSC 350 |
Hearing Date: | 27 October 2023 |
Decision Date: | 24 November 2023 |
Before: | Loukas-Karlsson J |
Decision: | (1) The publication of the name of the offender’s ex-partner and the offender’s mother be prohibited pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and instead referred to in accordance with the pseudonyms of these sentencing reasons. (2) I record convictions for each offence. (3) For the offence of using a carriage service to possess/ control child abuse material (CC2022/4413), the offender is sentenced to 12 months’ imprisonment to commence 24 November 2023 and expire on 23 November 2024. (4) For the offence of using a carriage service to solicit child abuse material (CC2022/10963), the offender is sentenced to 18 months’ imprisonment to commence 24 May 2024 and expire on 23 November 2025. (5) I direct that the terms of imprisonment are to be served by way of an Intensive Corrections Order for the period commencing today, 24 November 2023 and ending on 23 November 2025 under s 20AB of the Crimes Act 1914 (Cth). (6) In addition to the core conditions, the conditions of the Intensive Corrections Order will be that the offender: (a) continue to engage with a clinical psychologist, ideally one experienced in Autism Spectrum Disorder, to address his history of Persistent Depressive Disorder and ongoing symptoms; (b) engage with a Sex Offender Program. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use carriage service to posses/control child abuse material – use carriage service to solicit child abuse material – causal link between stunted psychosocial development and offending – reduced moral culpability – youth and positive prospects of rehabilitation – sentence of imprisonment to be served by way of Intensive Corrections Order with conditions for treatment |
Legislation Cited: | Crimes Act 1900 (ACT) s 309 |
Cases Cited: | Boulton v The Queen [2014] VSCA 342; 46 VR 308 |
Parties: | Director of Public Prosecutions ( Crown) Archer Fergus Dunnicliff ( Offender) |
Representation: | Counsel C Pascoe ( Crown) K Musgrove ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Hugo Law Group ( Offender) | |
File Number: | SCC 38 of 2023 |
LOUKAS-KARLSSON J:
Introduction
1․On 16 February 2023, Mr Archer Dunnicliff (the offender) pleaded guilty to the following child abuse material offences:
(a)CC2022/4413: An offence of using a carriage service to possess/control child abuse material, contrary to s 474.22A of the Criminal Code Act 1995 (Cth) (Criminal Code). The maximum penalty for this offence is 15 years’ imprisonment.
(b)CC2022/10963: An offence of using a carriage service to solicit child abuse material, contrary to s 474.22(1) of the Criminal Code. The maximum penalty for this offence is also 15 years’ imprisonment.
2․I must emphasise at the outset of these reasons that offences of possession, control and solicitation of child abuse material are offences which depend on the depraved exploitation of children and young people. It has been said time and time again by the Courts that these offences are not victimless crimes. Child abuse material does not exist without the abuse of children.
3․Taking into account the inherent gravity of the offences, the objective seriousness of the offending and the significance of general deterrence for offending of this kind, a term of imprisonment is undoubtedly required in this case. No sentence other than imprisonment is appropriate in all the circumstances of this case. So much is agreed by both the prosecution and counsel for the offender. The question is how any sentence of imprisonment is to be served, taking into account the particular facts of this case.
4․The facts of this case encompass, in part, the sharing of child abuse material between the offender and his partner at that time. The offender’s now ex-partner was under the age of 18, aged 17 at the time of the offending. I have made an order preventing the publication of his name. As a result, this young person has been assigned a pseudonym in these reasons. The offender’s ex-partner will be referred to by the pseudonym “Luis”. I have also made an order preventing the publication of the name of the offender’s mother. The offender’s mother will be referred to by the pseudonym “Tammie Akerman”.
5․Finally, I do not consider it necessary in these reasons to describe in graphic and extensive detail the nature or content of the depraved material. While I must briefly discuss the facts of this matter, as that will be relevant to assessing the objective seriousness of this offending, I will do so only to the extent it is necessary.
Agreed facts
6․The agreed facts are set out in the Agreed Statement of Facts, which forms part of the Crown Tender Bundle. The agreed facts are summarised as follows.
7․On about 15 February 2022, the offender, via the Telegram messaging application, intentionally requested child abuse material from his ex-partner, Luis. This is the conduct comprising CC2022/10963.
8․On about 6 May 2022, the offender intentionally possessed 39 videos and 10 images (49 files total) containing child abuse material on a USB (“USB 1”). The offender also possessed 10 videos containing child abuse material on a second USB (“USB 2”). All files were obtained using a carriage service. This is the conduct comprising CC2022/4413.
Circumstances of the offending
9․Between November 2021 and May 2022, the offender and his ex-partner, Luis, frequently messaged via the Telegram application. As stated earlier, Luis was 17 years old at the time, and the offender was 18-19 years old. The messages were often of a sexual nature and Luis often instigated such conversations.
10․On 15 February 2022, the offender messaged Luis throughout the day, via the Telegram application. During the day, they exchanged messages of a sexual nature, including descriptions of the offender’s previous sexual experiences. Luis also referenced “pedo stuff” and asked the offender whether he had any “cp” (meaning “child pornography”).
11․At 9:20pm, Luis messaged the offender “u wanna see the 13yo I fucked”, to which the offender replied “Sure”. Luis then sent the offender an image, to which the offender replied “Nice”, and asked Luis “How was it”. The offender then proceeded to graphically describe a sexual experience with a 13-year-old boy. Luis asked the offender “did u put anything special in ur bio to attract kids btw”, to which the offender responded, “Not really”. Luis then asked the offender when he was free so they could have a “threesome with a kid”. The offender stated “I wanna do 1 on 1 with my pet tho too”.
12․Between 9:38pm and 10:03pm, the message exchange continued between the offender and Luis which concerned Luis planning to send depraved material to the offender and discussion of the sexual abuse of young children. A message from the offender indicated this “could put [Luis] in hot water”.
CC2022/10963 – Use carriage service to solicit child abuse material
13․The offender and Luis continued messaging and the offender asked Luis when he would arrive home. A message exchange occurred between 10:12pm and 10:40pm in which the offender asked Luis for “cp”. I note that it is the offender’s message stating “send cp” that gives rise to the solicitation offence.
Search warrant
14․The offender was identified following a referral from the Australian Centre to Combat Child Exploitation.
15․On 6 May 2022, police executed a search warrant under s 3E of the Crimes Act 1914 (Cth) (Crimes Act) at the offender’s residence. The offender was provided with copies of the search warrant for his residence, was offered the opportunity to speak with a legal practitioner and was cautioned.
16․The offender participated in a recorded conversation with police in which he made the following statements:
(a)To his knowledge, he did not have possession of any videos or images of child abuse material;
(b)He last saw child abuse material “a long time ago” or “four-plus years” ago when it “fell into his hands” after he found it on his brother’s computer;
(c)He had viewed child abuse material on other occasions in addition to when he found it on his brother’s computer, and the last time he viewed it was in 2019;
(d)The child abuse material he saw was two videos of male and female adults sexually abusing female children around 12 years of age;
(e)He accessed the “Dark Web” to view forums, including a chat room for child abuse material to “see what was on it”. On this chatroom, in about 2019, he found videos and pictures of adults sexually abusing male children aged 13-14 years old. He sent links to these videos and pictures to his ex-partner via Telegram, as his ex-partner had asked for them;
(f)He estimated that there were “gigabytes of files” contained in the “Dark Web” chat room on which he found the videos and pictures that he sent to his ex-partner;
(g)After he sent the videos and pictures to his ex-partner, he deleted the files because he did not want them on his computer;
(h)He watched child abuse material because “it was interesting” and “it was different”;
(i)When watching child abuse material, he became “slightly” sexually aroused but “wouldn’t act on it”;
(j)He was embarrassed and ashamed by the fact that he viewed child abuse material;
(k)He had a USB that had child abuse material on it, and he was not sure if he had deleted the child abuse material from the USB;
(l)He had another black and white USB that contained child abuse material;
(m)During 2019, he would plug both USBs into his white PC tower.
17․Police seized eight electronic devices, including USBs, laptops, mobile devices and a computer.
CC2022/4413: Possess or control child abuse material
18․On 6 May 2022, the offender possessed or controlled a total of 59 files containing child abuse material on two separate USBs. In total, there were approximately 151 different victims depicted in the child abuse material.
19․Of the 49 files contained on USB 1, the files comprised of 39 videos and 10 images. These files featured male child victims ranging from baby age (six months to two years of age) to pubescent age (about 14-15 years of age). There were approximately 88 separate victims. A majority of the images depicted the sexual abuse of male child victims as young as two years of age.
20․Of the 10 files contained on USB 2, the files comprised of only videos. These files featured female child victims ranging from babies (six months to two years of age) to early pubescent age (about 13 years of age). There were approximately 63 separate victims, with one of the videos being over two minutes in duration and containing a compilation of victims being abused.
21․It is clear that the material depicted the depraved and heinous sexual abuse of children.
Objective seriousness and sentencing submissions
22․Consideration of the nature and circumstances of the offending determines the objective seriousness of the offending. Mere labels regarding objective seriousness are of little utility to the Court. It is important to identify features of the particular case that inform the objective seriousness: R v Toumo’ua [2017] ACTCA 9 (Toumo’ua) at [24].
23․The starting point in assessing the objective seriousness is the maximum penalty. A maximum penalty serves as a yardstick and a basis for the comparison between the case before the Court and the worst case: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]-[31]. They must, however, be balanced against all other factors: R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 (Poynder) at [52]. The offences for which the offender is to be sentenced are serious. The maximum penalties are 15 years.
24․Courts have repeatedly recognised that a term of imprisonment will ordinarily be expected for offending of this nature, as this is reflective of the objective seriousness: DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 (Garside) at [62]; Priest JA at [86]-[87].
25․The objective seriousness of child abuse material offending is ordinarily determined by reference to a variety of factors. Some of these factors were discussed in R v De Leeuw [2015] NSWCCA 183 (De Leeuw) at [72](b):
(a)the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(b)the number of items or images possessed;
(c)whether the material is for the purpose of sale or further distribution;
(d)whether the offender will profit from the offence;
(e)in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; and
(f)the length of time for which the pornographic material was possessed.
26․For offences such as possessing and soliciting child abuse material, further considerations that assist in determining the objective seriousness were discussed in Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 at [94], cited with approval in R v Porte [2015] NSWCCA 174; 252 A Crim R 277 (Porte) at [63].
27․In Porte, the Court also made the following observations in relation to the significance of the absence of certain features of the offending, particular considerations regarding the possession of child abuse material and the fact of ongoing harm caused:
(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 the harm is ongoing because the material remains in circulation on the internet (at [68]-[69]).
Nature, content and quantity of material
28․As I noted at the outset of this judgment, I do not consider it necessary or appropriate for the purposes of my reasons to reproduce in substantial detail the content of the child abuse material. The agreed facts tendered in this proceeding adequately describe the nature of the material and, from that, I am satisfied I can assess the objective seriousness of the offending. The prosecution rightly submitted that the objective seriousness can be adequately gleaned from the agreed facts without need for the Court to view a sample of the child abuse material forming the content of these offences. Counsel for defence did not cavil with this submission. It is one of the most insidious parts of a judicial officer’s working life to be forced to look at such material. Neither is it, in my view, a necessary component of ascertaining the objective seriousness of the offending.
29․I have had regard to the evidence before me in these proceedings which provided descriptions of the nature, content and quality of the child abuse material. I have very briefly summarised these matters at [19]-[20] of these reasons. The offending in this case is very serious. The material is clearly depraved. The nature and content of the material depicts various sexual acts, including the depiction of incest and bestiality themes. Further, many of the victims depicted in the material are pre-pubescent, with some as young as six months old.
30․The offender possessed or controlled a total of 59 files containing child abuse material on two separate USBs. Counsel for the offender submitted that, in comparison to other cases, this is “not a lot of material”. The particular submission was that it does not run into the gigabytes or terabytes that Courts may see in other matters of this nature. While this submission is correct, and I agree the volume of material is less than a Court may deal with in other matters, the authorities are clear that the volume of material is only one indicator of objective seriousness with respect to offences of this type. The primary focus, however, is the type of material and the degree of its depravity: see Director of Public Prosecutions v Latham [2009] TASSC 101; 19 Tas R 281 at [35]; see also Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4.
31․In addition, the authorities are quite clear that in a case of possession, the significance lies more in the number of different children depicted as opposed to the quantum of the material: De Leeuw at [72](b), Porte at [63]. This is such a case, and I must have regard to the extent of victimisation of different children. In total, there were approximately 151 different victims depicted in the child abuse material. The number of children depicted is clearly substantial when seen in the context of the offender’s possession of this material.
Make available to others
32․In this case, there is no evidence of the offender seeking to make this material available to others, for profit or otherwise. While this is the case, counsel for the offender correctly submitted this is not a mitigating factor, although its presence may be an aggravating factor. Indeed, the absence of any benefit or profit does not mitigate the offending: see Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [49]-[50], Porte at [66].
Length of time
33․A time frame for the offending was not specified in the agreed facts or by the prosecution in submissions. However, it is noted that the charge for possession relates to the day of seizure of the two USBs. In any event, there is no evidence before me to suggest that the material was stored for any particular period of time, or any substantial time. I take this into account in assessing the objective seriousness of the offending.
Possession charge
34․Counsel for the offender submitted that the offending falls into the lower end of the mid-level of objective seriousness.
35․The prosecution did not make a particular submission as to where this offending fell on the spectrum of objective seriousness.
Solicitation charge
36․In relation to the charge of soliciting child abuse material, the prosecution submitted the charge relates to the offender’s request that his ex-boyfriend, Luis, “send cp” (i.e. send child pornography). This request followed Luis’ earlier statement to the offender that he would have “presents”, being “more pics and cp”, for the offender once he returned home. The prosecution does not allege that the offender received child abuse material in response to his request.
37․Counsel for the offender submitted the soliciting took place within a private conversation between two consenting participants. Counsel for the offender submitted that the offender recognised his conduct was wrong, however noted that the other participant in the conversation, Luis, was the instigator of the sexualised conversation. It was submitted that it was initially Luis that requested the offender send child abuse material to him. Luis then offered to send the offender child abuse material. The ultimate submission by counsel for the offender was that the conversation, viewed in context, would lead to a conclusion that it was not the offender who was the main instigator or driver of the conversation that led to the offender committing the solicitation offence.
38․In these circumstances, counsel for the offender submitted the offence falls into the low level of objective seriousness.
Conclusion on objective seriousness
39․An assessment of the objective gravity of an offence has always been an essential part of the sentencing process. It is necessary for a Court to “fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 (Kilic) at [19]. The offending in this case is not a least serious instance, nor is it at the higher range.
40․Taking into account the above, I assess the objective gravity of the possession offence to be in the mid-range. I have concluded that the offending falls in the mid-range arising from the factors discussed above. The material contained videos and images of children, including very young children. The material is clearly depraved. Indeed, the number of different children depicted is a significant factor for consideration in cases of possession for personal use. At the same time, I have balanced this against the single date of possession in coming to my conclusion.
41․In relation to the offence of solicitation, I have assessed the objective seriousness to be in the lower range. The request from the offender to “send cp” is the conduct constituting the soliciting offence. The material was not requested for further dissemination or sale, nor was it for the purpose of any profit. It was a request made after an hour of sexualised conversation during which the offender was responding to the conversations instigated by Luis. While this is relevant to the objective gravity of the offending, it does not in any way ameliorate the offender’s responsibility for this conduct. The solicitation, passive or otherwise, contributes to an appalling culture of child abuse and exploitation.
Subjective circumstances
42․The offender was aged 19 at the time of the offending and is 20 years old at the time of sentence. The prosecution properly accepted that the offender’s youth should be taken into account in determining the appropriate sentence.
43․In evidence before me are various materials elucidating the offender’s subjective circumstances. Notably, this includes the Psychologist Report prepared by clinical psychologist Ms Vanessa Quigley, a Pre-Sentence Report (PSR) prepared in relation to the offender, a letter of apology by the offender and character references tendered on behalf of the offender. Also in evidence before me is a record of academic transcript, confirmation of a future psychiatric appointment to address new mental health diagnoses, a letter of termination for prior work held by the offender and a letter of employment for current work.
44․The wealth of the material explaining the offender’s subjective circumstances describes the history of a young person whose upbringing was impacted by his parents’ divorce, with no real ongoing relationship with his father. The offender was raised in a challenging family environment, where, in the opinion of Ms Quigley, the offender was exposed to “emotional neglect and abuse and physical abuse”. This is accepted by the prosecution. The evidence supports the conclusion that the offender’s upbringing is likely to have detrimentally impacted his emotional and cognitive development.
45․The offender has a good and supportive relationship with his mother, and he relies upon her for emotional support. He reported that he is close to his brother, but that they do not really talk.
46․The offender reports that he was “not too great” at school and often fidgeted and could not engage. He appeared to obtain average marks. Whilst he made some friends in high school, the offender’s final year was heavily impacted by COVID-19 lockdowns, and he described spending “half the year on the computer”.
47․The offender is currently studying, having restarted a Bachelor of IT. The offender noted that his restrictive bail conditions made it impracticable to properly undertake his studies last year, so he is reattempting first year after a slight relaxation of conditions.
48․The offender has worked casually since age 16, initially in customer service in retail food. He was working at Telstra for 16 months, however, was terminated from that role when the extant offences became known to his employer. The offender has since gained alternative ongoing casual employment.
49․The offender advised he does not engage in drug use nor excessive alcohol consumption. Random urinalysis testing undertaken by ACT Corrective Services confirmed this.
Psychologist Report – Ms Quigley
50․It was accepted by both parties that the Psychologist Report of Ms Quigley dated 2 July 2023 provided evidence of significant weight in this matter.
51․Ms Quigley has diagnosed the offender with “persistent depressive disorder, with anxious distress, early onset and intermittent major depressive episodes, with current episode”. Ms Quigley opined that the offender also met the diagnostic criteria for Attention Deficit Hyperactivity Disorder (ADHD) and has been given a provisional diagnosis of Autism Spectrum Disorder.
52․Ms Quigley provided some insight into the emotional and relational development of the offender, noting the following:
As a result of his social difficulties and avoidance, [the offender] has no experience with mature relationships. [The offender] presents with an underdeveloped sexual and attachment system and has had limited opportunity to develop and maintain healthy intimate relationships… [H]e presents with immature intimacy skills and difficulty with the normal expression of sexual desire and behaviour which has also had a significant impact on his emotional and psychosocial maturity. The distress and avoidance associated with normal social and relational experiences has meant [the offender]’s normative adult experiences have been very limited and, from a psychosocial perspective, his development is more consistent with a young adolescent.
53․Ms Quigley further noted the following in relation to the lens through which she clinically assessed the context of the offending:
Clinically speaking, [the offender]’s offending appears able to be understood through a combination of environmental stressors, untreated mental health issues, and the exacerbating impact of a lack of psychological support and limited exposure to appropriate relationships, immature intimacy skills and stunted psychosocial development. Due to the nature of his interpersonal difficulties, he is someone who is vulnerable to decomposition in mental state in the event of the threat of abandonment which is a significant trigger to [the offender]. These mental health issues appear to have contributed to reactive decision making and impulsivity, and impaired reasoning. This is likely to have overridden his ability to… apply consequential reasoning to decision-making.
(emphasis added)
54․On the report of Ms Quigley, it is open to find that the offender had reduced moral culpability for the offending, particularly the offence of soliciting the material. The offender’s diagnosed conditions have, in part, impacted on his psychosocial immaturity, with his development being more akin to an adolescent than an adult. Ms Quigley found that the offender was exhibiting traits of the diagnosed conditions at the time of the offending.
55․Further, the diagnosed conditions, in particular the interpersonal and social anxiety associated with them, would:
…make a period of imprisonment more difficult... Specifically, [the offender] is likely to experience more anxiety and fear navigating the interpersonal dynamics and relationships within the custodial environment, and he is likely to find the experience harder and more anxiety provoking than someone without a social anxiety disorder and related impairments. His residual depressive symptoms are also likely to impair his ability to cope with the challenges and limitations of a custodial environment.
(emphasis added)
56․The offender has shown insight into his need for mental health assistance. He engaged with ‘headspace’ throughout 2021. In 2023, the offender has undertaken a further course of six counselling sessions, described as “low level Cognitive Behavioural Therapy”. It was underlined that the offender is on the waiting list for further psychological support.
57․Given the comprehensive findings of Ms Quigley, counsel for the offender submitted it is open to the Court to apply, at least in part, the principles enunciated in R v Verdins [2007] VSCA 102; 16 VR 240 (Verdins). I deal with this issue later in coming to discuss Verdins and other related principles, with reference to Ms Quigley’s report.
Pre-Sentence Report
58․In evidence before me is a Pre-Sentence Report (PSR) prepared in relation to the offender. The PSR covered much of the same material covered in the Psychologist Report detailed above.
59․I note the following from the PSR:
When the Agreed Statement of Facts was read to [the offender], his reaction was quite emotional. He was observed to cry and had difficulty discussing and accepting his offending behaviour. He reported to this Service that reading the Agreed Statement of Facts “made him feel horrible”, and that at the time of his offending behaviour he did not consider the consequences of his actions.
…
[The offender] is adamant that his offending behaviour was linked to time, place, and situation, such as poor mental health, a new relationship with an anti-social person, and immaturity. He ‘knows’ that this behaviour will never be repeated and will accept any sentence the Court imposes.
[The offender]’s mother believes the current listed offences have been a ‘rude awakening’ and a reminder that ‘there are consequences for all behaviours’. She believes that [the offender]’s immaturity, curiosity, and the fact that he was attempting to become an independent adult may have contributed to poor decisions and ultimately his offending behaviour.
60․I further note that the offender expressed to the author of the PSR a “willingness to engage with any recommended training/referral/counselling to address relevant concerns, including engagement with a Sex Offender Program should he be sentenced to a community-based order”.
61․I will return to the issue of the imposition of a community-based order such as an Intensive Corrections Order (ICO) later in these reasons.
Pleas of guilty: s 16A(2)(g)
62․For Commonwealth offences, a plea of guilty is a relevant consideration pursuant to s 16A(2)(g) of the Crimes Act. In sentencing Commonwealth matters, the Court is not required to specify a discount, although it may be desirable to do so in the interests of transparency. I will specify a discount in the interests of transparency.
63․The offender entered pleas of guilty prior to the matter being committed to the Supreme Court. This was an early plea.
64․A Court may reduce the sentence if satisfied that an offender’s plea demonstrates genuine remorse, acceptance of responsibility or a willingness to facilitate the course of justice: Cameron v The Queen [2002] HCA 6; 209 CLR 339 at [14]. The Court may take into account the utilitarian value of the plea: s 16A(2)(g)(iii) of the Crimes Act.
65․The prosecution submitted that the timeliness of the plea, as well as the strength of the prosecution case, are factors which may be taken into account in assessing the subjective value of the plea: Tyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at [114]. The prosecution accepted that the offender’s pleas were entered prior to the matter being committed to the Supreme Court and have resulted in a benefit to the community in avoiding the need for a trial. However, the prosecution submits that the pleas were entered in the face of a strong prosecution case.
66․Counsel for the offender submitted the pleas are very early pleas and that they have a high level of utilitarian value: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99; Toumo’ua. They have saved resources of the Australian Federal Police and Commonwealth Director of Public Prosecutions in not having to prepare for a trial, including not having police witnesses attend Court. The plea has also saved the resources of the Court and community.
67․Counsel for the offender further submitted that the plea of guilty can be seen as accepting responsibility for the offending conduct and as displaying a degree of remorse.
68․The ultimate submission by counsel for the offender was that the plea can be characterised as a very early plea of guilty and, therefore, a discount of 25 percent is appropriate: Williams v The Queen [2018] ACTCA 4; 83 MVR 505 at [48].
69․Taking into account the relevant matters noted above, in my view, a discount of approximately 25 percent is appropriate.
Remorse and cooperation: ss 16A(2)(f) and (h)
70․Tendered in evidence before me was a letter of apology under the hand of the offender. It included the following:
…I am currently 20 years old. I appear before the court charged with possessing child abuse material (CC2022/4413) and using a carriage service to solicit child abuse material (CC2022/10963), I have plead[ed] guilty to these charges at the earliest opportunity.
I realise that my behaviour was not only inappropriate and insensitive but also contributed to the perpetuation of the production of this material and I take full responsibility for this. I am truly sorry for my actions. I am now aware that this type of material has devastating and long-lasting effects on the victims involved.
My immaturity and curiosity made me engage in looking at this material and navigating my sexuality and a new relationship contributed further to engaging in this behaviour. On reflecting on my behaviour at the time I should have thought through more clearly the ramifications of the behaviour and sought professional or parental help navigating the relationship rather than bowing to peer pressure.
I now feel as if I am a horrible person and that my actions will have people view me as something I am not. I have experienced depression and anxiety since being charged with the offences and have sought assistance from professionals. I was devasted that I have disappointed my mother and am working to restore her faith in me. As a result of these charges, I lost time undertaking my university studies, lost my housing spot and lost my secure job at Telstra. These have all impacted my mental health, future prospects and financial stability.
I want to make it clear that I have taken steps to educate myself on the impact of my behaviour. I have stopped consuming such content and will actively discourage others from doing so. I understand that it will take time to fully make up for my mistakes, but I am committed to doing so and making amends.
Once again, I want to express my sincere apologies to anyone that my actions may have hurt or affected in any way. I know that I have a lot to learn and I am willing to do the necessary work to become a more responsible and respectful person.
I understand that my actions have serious consequences, and I am committed to doing everything in my power to address the harm that I have caused. I am grateful for the opportunity to express my remorse and to take steps towards making things right.
71․Counsel for the offender submitted that the offender has expressed remorse on numerous occasions, evidenced by the letter authored by the offender to the Court and in the Psychologist Report. The offender further reported he was “ashamed, hated himself, is angry that he did it and it was one of the dumbest things he has done and will always regret it”.
72․As stated earlier, the PSR author noted that on reading the Statement of Facts the offender was observed to cry, had difficulty discussing and accepting the facts and that they made him “feel horrible”.
73․The prosecution submitted that, during the search warrant, the offender made numerous admissions which are largely consistent with his reports to Ms Quigley and the PSR author. These admissions facilitated the investigation and prosecution.
74․The prosecution properly accepted, based on the offender’s statements to Ms Quigley, that the offender takes “responsibility for what [he] did” and “knows what [he] did was wrong”. The prosecution properly accepted the existence of remorse on the part of the offender.
75․I take into account the offender’s remorse.
References
76․Three references were tendered in support of the offender.
77․A reference under the hand of the mother of the offender dated 18 August 2022 included the following:
…
These charges have significantly impacted [the offender]’s studies with him having to withdraw at the time of the charges and recomplete those units. He has successfully done that and has moved on with his studies and is enrolled in units for the remainder of this year. [The offender] realises the irreparable damage that these charges and sentences will have on his future ability to work in government and in cyber security. This is devastating as it has been something that he has talked about since he was in high school.
Since being in Canberra, [the offender] had secured work with Telstra in a retail position. Earlier this year, Telstra terminated [the offender]’s employment immediately on learning of his charges. This was devasting to [the offender] and he lost his income which affected his immediate living circumstances. It has taken some time for [the offender] to secure alternative employment and this is now in area where he is not utilising his Information Technology skills.
Working in the field of child protection I am well aware the trauma experienced by the victims of abuse. The ongoing systemic abuse by producers of child sexual exploitation material is often not addressed and the outcome for those children is poor.
…
I have witnessed [the offender] be completely devastated and demoralised due to his actions, the charges and the upcoming sentencing. This experience has left an indelible impact on [the offender] and is not one he wishes to repeat in his lifetime. I believe [the offender] to be truly remorseful for his actions, to understand the consequences of his actions and the part his actions have contributed to the trauma of the victims of these crimes.
78․A reference under the hand of a family friend dated 4 July 2023 was tendered and included the following:
…
I have spoken to [the offender] regarding the events in question and it is a source of intense regret for him, he knows the behaviour was wrong and wishes he could take it back. He is disappointed in himself and the disappointment he has caused his family. His feelings of being ashamed, embarrassed and the judgement of others leaves him struggling with his self-worth. He is utterly despondent in the knowledge of the impact of this in pursuing a future in cyber security, particularly in the government sphere. [The offender] understands that his actions have caused harm to others and simply by participating this perpetuates the cycle of abuse for victims. [The offender] now understands that by viewing abusive material this creates the ongoing production of such material.
[The offender] has never been before the courts previously nor [I] believe is likely to again. This is a situation that [the offender] takes responsibility for and would like to move forward from and continue to make a positive contribution to society.
79․A reference under the hand of another family friend dated 19 October 2023 was tendered and included the following:
…
[The offender] was devastated when he told me about his charges. As I stated before, [the offender], his family and my family spend a lot of time together and I know [the offender] loves and respects me. [The offender] is extremely worried, even now, that I will lose respect for him and be a different person around him. [The offender] was, and I imagine still is, embarrassed about these charges and worried what the people who love him will think.
80․I take these references into account on sentence.
Criminal History
81․The offender did not have a prior criminal history at the time of offending and may therefore be regarded as of good prior character, as is often the case in matters of this type: R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at [63]. However, it is well established that an offender’s good character must be given less weight in relation to sentencing for offences of this kind. As Nettle JA said in DPP v Smith [2010] VSCA 215 at [23]:
… [G]eneral deterrence is regarded as the paramount sentencing consideration – because of the public interest in stifling the provision and use of child pornography; and less or limited weight is given to an offender’s prior good character because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character.
82․Further, the Victorian Court of Appeal approached this question in the following manner in Garside at [88]-[92], concluding at [92]:
In my opinion, the better view as to the relevance of good character to be applied in cases of child pornography is as expressed by McHugh J in Ryan, and by this Court in SD. In Ryan, a case involving multiple sexual assaults on young boys over a long period, McHugh J said:
Counsel for the offender submitted that in considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case.
83․In R v Maruskanic [2019] ACTSC 337, Burns J said at [26]:
It has been said that evidence of prior good character may not carry as much weight when determining an appropriate sentence for offences of this kind as might otherwise be the case. However, that does not mean that prior good character is to be ignored.
84․I accept that the offender is a person of prior good character. I ascribe the relevant weight in accordance with the authorities discussed above.
Time in custody
85․Both the prosecution and counsel for the offender agreed at the sentence hearing that the offender has spent four days in custody solely referable to these offences.
86․The offender appeared before the Court on 7 May 2022 and the Court ordered that he be brought to an approved health facility pursuant to s 309 of the Crimes Act 1900 (ACT). On 9 May 2022, following a finding that he did not satisfy the criteria for emergency detention under s 85 of the Mental Health Act 2015 (ACT), the offender again appeared before the Court and was granted bail.
Comparable cases
87․As the High Court held in R v Pham [2015] HCA 39; 256 CLR 550 (Pham) at [23] (French CJ, Keane and Nettle JJ), a Court sentencing for a Commonwealth offence must have regard to sentences that have been imposed in other states and territories. As Gleeson CJ explained in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [6] (approved in Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [47]), the criminal justice system must be fair, and systematic fairness necessitates reasonable consistency. The consistency that is sought is consistency in the application of the relevant legal principles.
88․In Pham, the Court held that comparable cases serve two purposes. First, they provide guidance as to the identification and application of relevant sentencing principles. Second, comparative sentences may yield discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence: Pham at [28], citing Hili at [49].
89․There are a number of decisions of this Court relating to offenders who committed similar offences. It should be further noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
90․The following cases provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54]. The cases I was referred to are as follows:
(a)Mertell v The King [2022] ACTCA 69
The offender in this case was charged with nine counts of accessing and/or possessing child abuse material. Between 23 June 2020 and 13 January 2021, the offender possessed 513 child abuse material files, which included 56 duplicate files (Counts 1-6). The offender also accessed 71 child abuse material files (Counts 7 and 9), all of which were also the subject of two of the possession charges. The offending involved an estimated 50-75 separate child victims, and the offender was in possession of the offending material for a substantial period. The offending was described as objectively serious.
The offender was a 68-year-old male who was estranged from his family and reported limited social networks or romantic relationships. The offender had been diagnosed with ADHD and Autism Spectrum Disorder, however no direct causal link was established between the offending and the offender’s ADHD and Autism Spectrum Disorder. The offender had no prior criminal history. “Exceptional circumstances” were not established.
Following an appeal, the offender was sentenced to 30 months’ imprisonment, to be released on a Recognizance Release Order after 12 months.
(b)Phibbs v R [2023] VSCA 123 (Phibbs)
The offender was charged with one count of use carriage service to make available child abuse material and one count of use carriage service to possess child abuse material.
In relation to the first count, the offender used a chatline service to make available child abuse material. He exchanged voice recordings with another male that discussed sexual offending against children. In relation to the second count, the offender possessed two videos and one image.
The offender was 47 years old at the time of sentence and had entered an early plea. He had no prior convictions and completed 10 sessions of the Sex Offender Treatment Program at his own expense prior to sentence. He was deemed to be at a low-moderate risk of recidivism and was remorseful.
The offender’s sentence was reduced after successful appeal, resulting in a total effective sentence of six months’ imprisonment, with the sentences being served wholly concurrently.
(c)Lyons v The Queen [2019] VSCA 242
The offender was charged with one count of use carriage service to access child pornography, one count of use carriage service to transmit child pornography and a further offence of soliciting child pornography material using a carriage service which was taken into account in sentencing for the second count.
In relation to the first count, police located 779 images and videos on a mobile phone (640 images and 149 videos). In relation to the second count, police located Skype chat log conversations on an iPad in which the offender transmitted child pornography material between 26 January 2015 and 28 August 2016. The solicit child pornography offence (wherein the offender sought “young porn” from a chatmate) was taken into account in relation to the second count.
The offender was 28 years old when the offending began and 32 years old on sentence. There was an early plea of guilty, and the offender had no prior convictions. The offender demonstrated little insight into his offending and had offended over a considerable period of time, that being three years. The offender had cooperated with authorities. The offender reported also being a victim of sexual abuse at the age of seven. He was found to meet the diagnostic criteria for paedophilic disorder, and there was a “compelling need” for treatment to address the cause of the offending.
The offender was sentenced to 18 months for each count, with the second count to commence 12 months after the first count. The total effective sentence was two years and six months’ imprisonment, to be released after 18 months upon entering a recognizance to be of good behaviour for four years. The sentence was unsuccessfully appealed by the offender.
(d)Peters v The Queen [2018] NSWCCA 126
The offender in this matter was charged with one count of possess child abuse material and one count of use carriage service to access child pornography.
The offender possessed a total of 480 images and 72 videos comprising child abuse material in a cloud storage account; 24 images in a messenger app on the iPad; and 40 images and 60 videos stored on the laptop computer. The videos included victims aged between five and 15. All the files subject of the second charge were duplicates of files subject of the first charge.
The offender was 39 years old with no criminal history. The offender was raised in a stable and supportive family and had coped easily at school. There were no concerns as to substance abuse or mental illness, and he was assessed as having a low risk of recidivism. The offender demonstrated remorse, and had familial support.
The offender appealed the sentence, which was upheld on the basis of errors regarding the utilitarian value of the guilty plea and totality. The offender was resentenced to a total effective sentence of two years and four months’ imprisonment, to be released after 15 months.
(e)Huggett v The Queen [2021] NSWCCA 62
The offender in this case was charged with one count of use carriage service to access child pornography material and two further counts of possess child abuse material. Counts 2 and 3 were dealt with as summary offences under s 166 of the Criminal Procedure Act 1986 (NSW). The maximum penalty was therefore two years’ imprisonment.
In relation to Count 1, the offender admitted to using the website “Chatstep.com” to access child pornography material. The offender admitted he would enter chat rooms where child pornography material was being made available by other users and access it via a download link. 88 child abuse material images were accessed by the offender between 21 April 2016 and 19 July 2016.
In relation to Count 2, the offender possessed the 88 child abuse material images on his mobile telephone. In relation to Count 3, the offender possessed 145 child abuse material images on his laptop. A review of sample images showed that the child abuse material depicted at least 25 different victims between the ages of seven and 14.The offender was 22-23 years old at the time of the offending. He had a prior criminal history, however no similar offending was disclosed. The offender “blamed his ex-partner for downloading child pornography material on his devices” and took “no responsibility for the offences”.
The offender was sentenced to a total effective sentence of three years and 10 months’ imprisonment, with a nonparole period of two years. The offender’s appeal against sentence was dismissed.
91․At the outset, it is noted that both parties properly conceded that the objective gravity of the offending in the comparable cases is largely more serious than in the present matter, and that the subjective circumstances of the offender in this case are largely not reflected in the comparable cases. It was submitted by both the prosecution and counsel for the offender that Phibbs was the most comparable of the authorities referred to by the parties.
92․I note the summaries of cases provided in the judgment of R v Middleton [2023] ACTSC 50 (Middleton) at [143] which were determined subsequent to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), specifically Director of Public Prosecutions (Cth) v Barnes [2023] VCC 147, Director of Public Prosecutions (Cth) v Bremner [2023] VCC 51, R v Coker [2021] NSWDC 805, R v Dregmans [2022] NSWDC 55, R v Horner [2023] ACTSC 23 (Horner), R v Khqustiaan [2022] NSWDC 128, R (Commonwealth) v Nafarette [2022] NSWDC 225 (Nafarette), R v Pedersen [2021] NSWDC 535 and Woods v R [2023] NSWCCA 37.
93․I note in particular the decision of Horner, a decision of Baker J of this Court.
Youth
94․As stated earlier, the offender was aged 19 at the time of the offending and is now 20 years old at the time of sentence.
95․There are a number of common law principles relevant to the sentencing of young offenders. These principles are helpfully summarised by McClellan CJ in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [22]-[23], and adopted in this jurisdiction in R v BM (Unreported, Supreme Court of the ACT, 29 October 2012, Refshauge J) at [23]:
The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age.
(emphasis added)
96․The principles in relation to sentencing young offenders were also clearly set out in Clarke-Jeffries v R [2019] NSWCCA 56 at [45].
97․Counsel for the offender made brief submissions in relation to how youth, among other features, may moderate the overall disposition of the sentence. This submission was made in the context of the stunted psychosocial development of the offender, the various mental health diagnoses, and the prospects of the offender’s rehabilitation. There is certainly evidence before this Court that the offender presents with a degree of emotional immaturity that reflects significant limitations in his psychosocial development.
98․In my view, in such cases, the offender’s youth is a relevant mitigating circumstance. However, this must be taken into account along with general deterrence, specific deterrence and denunciation, in light of the nature of the offending.
99․It is appropriate that I deal with this issue under the heading of “Verdins and De La Rosa: Moral culpability and other relevant matters”.
Deterrence and denunciation
Specific deterrence: s 16A(2)(j)
100․The prosecution submitted that this is a matter where there is a need to ensure that any sentence is sufficient to ensure personal deterrence is achieved. The prosecution correctly accepted that the following aspects of the PSR and Ms Quigley’s report indicate that the proceedings have already had some deterrent effect on the offender:
(a)the offender’s mother reported that she and the offender have “discussed at length how his offending behaviour contributed to the demand of child exploitation material” and that she “believes [the offender] is now aware of how his behaviour continues to contribute to the ongoing trauma of the children involved”;
(b)the offender’s description of the impact of the arrest, which caused him to feel that he “was ruined”; and
(c)the offender’s report that the offending was “one of the dumbest things [he had] ever done in [his] life and [he] will always regret it”.
101․However, the prosecution submitted that specific deterrence remains a relevant sentencing consideration. This is particularly so in circumstances where the PSR author found that the offender “did minimise and justify his offending behaviour”, and where Ms Quigley found that the offender “appears to demonstrate limited insight into his offending” and that “while he notes that it is wrong, he did not appear to completely understand this through his careless possession of the materials”.
102․The prosecution acknowledges that the offender was able to provide an explanation for the offending that contextualised his motivation and suggested a lack of paedophilic attraction. However, the offender did admit (to the PSR author and in his conversation with police during the search warrant) to being “slightly” sexually aroused when viewing the material. That is deeply concerning to the Court and warrants treatment.
103․Further, the prosecution submitted that any sentence must illustrate to the offender that there can be no legitimate explanation – including any perceived obligations to, or desire to maintain a relationship with, a partner – for engaging in these types of offences. It is important that, in being sentenced, the offender understand that the bounds of sexual curiosity obviously must not extend to child exploitation material. Child exploitation material involves sexual exploitation of children. The sexual exploitation of children is depraved and illegal. It is not a matter for curiosity; it is a matter for treatment.
104․I accept the submissions made by the prosecution as they accord with my view of the relevant evidence as I have referred to above.
General deterrence and denunciation: s 16A(2)(ia)
105․General deterrence is an undoubtedly important sentencing consideration for offences of this nature. In Poynder, James J endorsed the comments to the following effect:
…Issues of general deterrence and personal deterrence [loom] large in the sentencing exercise to ensure that persons who engage in this conduct are made an example of to others and to try and prevent further corruption of children…
106․Offending involving child abuse material occurs on a global level and is becoming increasingly prevalent with the use of the internet as a means of allowing people to access and obtain child abuse material anonymously: De Leeuw at [72](e) and (f). Such offending is difficult to detect given the anonymity provided by the internet. As stated earlier, the Courts emphasise time and time again that child abuse material offences are not victimless crimes. Accessing and possessing child abuse material creates a market for the continued corruption and exploitation of children, and children are sexually abused in order to supply the market.
Consideration
107․Counsel for the offender properly submitted that there is no dispute that general and specific deterrence are highly relevant sentencing considerations for offending of this type. Counsel for the offender submitted the Court may consider that the offender’s relative youth, emotional and social immaturity, diagnosed mental health conditions, otherwise prosocial lifestyle and the limited time frame of the offending warrants consideration in the sentencing exercise.
108․In this regard, I consider that the evidence of Ms Quigley is of significance with regard to the matter of general deterrence. Ms Quigley’s findings of the relationship between the offender’s undiagnosed Autism Spectrum Disorder and ADHD on his criminogenic needs is an important consideration, and I accept it is appropriate that there be some moderation in relation to general deterrence.
109․As stated earlier, Ms Quigley made a finding in her report that that the offender’s development is more consistent with that of a young adolescent. Counsel for the offender submitted that, in view of the offender’s diagnosed mental health conditions and Ms Quigley’s finding that the offender has experienced stunted psychosocial development, the offender’s moral culpability would be reduced. I will return to the matter of deterrence in discussing the application of the principles from Verdins and Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 (De La Rosa).
Verdins and De La Rosa: Moral culpability and other relevant matters
110․The principles set out in De La Rosa at [177]-[178] guide how a mental condition is to be taken into account in sentencing:
(a)Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence;
(b)It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed;
(c)It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced;
(d)It may reduce or eliminate the significance of specific deterrence;
(e)Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.
(emphasis added)
111․Similarly, the Victorian Court of Appeal in the case of Verdins set out the relevance of mental health to sentencing at [31]:
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
(1)The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
(2)The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
(3)Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
(4)Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or the date of the sentence, or both.
(5)The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
(6)Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
(emphasis added)
112․In my view the De La Rosa and Verdins principles are enlivened and relevant on the facts of this case.
113․The offender’s diagnoses and mental health may be relevant in the ways identified in De La Rosa, including to moral culpability, general deterrence and hardship in custody.
114․In assessing the offender’s moral culpability, the Court has had regard to the offender’s ability to:
(a)understand the wrongfulness of his actions;
(b)make reasonable judgments; and
(c)control his faculties and emotions: R v Israil [2002] NSWCCA 255 at [23].
115․As previously noted, Ms Quigley’s report provided diagnoses of Persistent Depressive Disorder (dysthymia) manifesting in “anxious distress”, “intermittent major depressive episodes”, and ADHD. The report also noted a provisional diagnosis of Autism Spectrum Disorder.
116․Ms Quigley’s report further stated, “[t]hese are clinically significant conditions with considerable impact upon [the offender]’s thoughts, emotions and perceptions of threat and are associated with a range of impairments with respect to his emotional wellbeing, judgement and behaviour”. Further, Ms Quigley confirmed that the offender would have been experiencing all the conditions noted in her report at the time the offences were committed.
117․As stated earlier, Ms Quigley opined that the offending occurred against a background of “environmental stressors, untreated mental health issues and the exacerbating impact of a lack of psychosocial support and limited exposure to appropriate relationships, immature intimacy skills and stunted psychosocial development”. Ms Quigley found that offender’s mental health issues “appear to have contributed to reactive decision making and impulsivity, and impaired reasoning…[which] is likely to have overridden his ability to rationalise and apply consequential reasoning to his decision-making”.
118․The above opinions are evident in the nature of the interactions between the offender and his ex-partner. The prosecution accepted that some causal link may be found between the offender’s mental condition and the offending conduct. However, the prosecution also submitted that the offender, an adult at the time of the offending, should have had some capacity to understand the wrongfulness of possessing images and video files depicting the abuse of children. The prosecution therefore submitted, correctly in my view, that the offender’s mental health should have moderate bearing in reducing the offender’s moral culpability for the offending.
119․I accept on the evidence before me, particularly for the offence of solicitation, that there was a causal link between the offence and the offender’s stunted psychosocial development and related developmental immaturity. So much is evident when assessing the context of the solicitation offence in view of the wealth of evidence proffered by Ms Quigley.
120․I note in this context that in Cluett v The Queen [2019] WASCA 111; 279 A Crim R 57 (Cluett) at [74], Buss P, Mazza JA, and Mitchell JA accepted evidence that the offender’s Autism Spectrum Disorder was a contributing factor to his offending and endorsed the sentencing judge’s finding that the offending was not sexually motivated:
[T]he appellant’s autism spectrum disorder was a contributing factor to his offending. On the sentencing judge’s unchallenged findings, the appellant’s fixation on his ‘research’ led him to obtain or access the images. While there was no rational basis for thinking that viewing the images was required for that purpose, the lack of rationality in the appellant’s thought processes was a product of his autism spectrum disorder. In our view, although the appellant appreciated the illegality of his conduct, his autism spectrum disorder reduces both his moral culpability and the significance of general deterrence as a sentencing consideration.
121․I note the evidence before me in this case is somewhat more limited with respect to sexual motivation. However, I also note it is relevant to consider the stunted psychosocial development of the offender in view of the specific context of these offences. I am satisfied that, despite the offender’s appreciation of the illegality of his conduct, the offender’s mental health conditions moderate his moral culpability in accordance with the principles enunciated in Verdins and De La Rosa.
122․The evidence in relation to the impact of imprisonment on the offender’s health is discussed in the report of Ms Quigley. The prosecution acknowledged, consistent with Ms Quigley’s findings, that a custodial sentence will likely weigh more heavily on the offender because of his mental health. I accept this to be the case on the evidence before me.
Statutory and Other Relevant Considerations
123․The Court must sentence the offender in accordance with the principles of sentencing for Commonwealth offences, which are contained in Part 1B of the Crimes Act. Section 16A(1) states that a sentence must be of a “severity appropriate in all the circumstances of the offence”. A non-exhaustive list of factors to be taken into account are contained in s 16A(2).
124․I further note s 17A of the Crimes Act which provides that a Court may only impose a sentence of imprisonment if satisfied that imprisonment is the only appropriate sentence.
125․In Middleton, I discussed the new sentencing regime that was introduced into the Crimes Act for Commonwealth child sex offences in 2020. This regime applies to the charges currently before me for sentence as the offending conduct occurred after 23 June 2020. There is a statutory presumption that offenders will serve some period of actual imprisonment unless there are “exceptional circumstances”. Notably however, the prosecution submitted that the Court is not required to make a finding as to exceptional circumstances if an order is made to impose an ICO: see R v Dean [2023] ACTSC 98 at [48]. I note this is contrary to the previous prosecution submission made in Middleton.
126․The prosecution submission in this case is correct. Exceptional circumstances only arise if the sentence is to be made under s 20(1)(b) of the Crimes Act. However, the imposition of an ICO would be imposed under s 20AB. Consequently, the statutory presumption that offenders will serve some period of actual imprisonment unless exceptional circumstances apply would not be enlivened through the imposition of an ICO.
Concurrency, accumulation and totality
127․Section 16B of the Crimes Act requires a Court in sentencing a federal offender to have regard to any sentence (federal, state or territory) that the offender will be sentenced to or continues to be subject to. The provision effectively accommodates the application of the common law principle of totality: Johnson v The Queen [2004] HCA 15; 218 CLR 451; Hili at [25].
128․Where a Court sentences an offender for more than one offence, the overall sentence must be “just and appropriate” to the totality of the offending behaviour.
129․In Pearce v The Queen [1998] HCA 57; 194 CLR 610, McHugh, Hayne and Callinan JJ stated at [45]: “A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”
130․Here, the prosecution submitted the offences each contain distinct criminality and were committed approximately three months apart. The sentences require some degree of accumulation.
131․The Court must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, along with totality, as a just and appropriate measure of the total criminality involved.
132․In the circumstances, I propose a degree of accumulation is warranted on the facts of this case.
Rehabilitation: ss 16A(2)(n) and 16A(2AAA)
133․Pursuant to s 16A(2AAA) of the Crimes Act, a Court sentencing an offender for a Commonwealth child sex offence must take the objective of rehabilitation “in addition to any other matters” into account. I will take into account the following:
(a)whether it is appropriate when making an order to impose any conditions about rehabilitation or treatment options; and
(b)whether it is appropriate in determining the length of any sentence or nonparole period to include sufficient time for the person to undertake a rehabilitation program.
134․This requirement is not expressed as displacing or overriding the requirement that the sentence must be of a “severity appropriate in all the circumstances of the offence” (s 16A(1)). That is, while the requirements of s 16A(2AAA) must be taken into account (where applicable) in the instinctive synthesis of relevant considerations, the subsection does not permit or require a Court to impose a sentence which is disproportionately severe or unjustly lenient in pursuit of the objective of rehabilitating the offender: cf. Boulton v The Queen [2014] VSCA 342; 46 VR 308 at [72].
135․Ms Quigley identified the offender to be in the low-risk range for general recidivism, and concluded that the offender’s successful treatment of his mental health conditions is integral to his rehabilitation.
136․Both the PSR author and Ms Quigley identified several factors which, in addition to the offender engaging in ongoing mental health treatment, will likely support the offender’s rehabilitation, namely: family support, the absence of prior criminal convictions, engaging in employment or study, pro-social peers, lack of consumption of illicit substances and maintaining leisure activities. Ms Quigley noted in her report that the offender:
… [P]resents as prosocial with several protective factors (i.e. (previously) stable employment, his desire to maintain family relationships, willingness to engage with clinical services, and a motivation for change), and has no related criminal history. He is considered to be at low risk of general recidivism. If he is able to address his mental health, his risk of repeat would be also be low with the main factors impacting on his recidivism dynamic (i.e. changeable) in nature. Overall, [the offender]’s main criminogenic needs relate to a history of unresolved childhood difficulties, likely due to undiagnosed or treated autism and associated personality vulnerabilities, recurrent mental health issues in the context of relationship breakdowns, and difficulty tolerating strong emotions and maintaining appropriate boundaries.
137․The prosecution did not cavil with these conclusions, however noted that the evidence indicates that the offender’s prospects of rehabilitation hinge significantly on his motivation to seek, and engage regularly in, mental health treatment. Given that the offender’s mental health issues can manifest in “reactive decision making and impulsivity, and impaired reasoning”, the prosecution submitted that the Court would not consider the offender’s path to successful treatment a certain or simple one, and should take this into account in balancing the offender’s rehabilitation with the need for general deterrence and protection of the community. However, the prosecution properly accepted the opinions of both the PSR author and Ms Quigley that the offender presents as “willing to engage” in recommended psychological treatment.
138․The offender is a young man who, as noted above, accepts the need for mental health support and has, in the past and more recently, been proactive in obtaining such. He has further expressed a willingness to engage in any recommended training and to accept referral or counselling to address his criminal behaviour, including a Sex Offender Program, should he be sentenced to a community-based order. Counsel for the offender submitted that the offender has positive prospects of rehabilitation. I agree there is real potential for rehabilitation in this case.
139․Consistent with the factors identified above at [136], Corrective Services has found the offender suitable for low-level of supervision and lists a number of protective factors including stable accommodation, employment, education, limited historic consumption and use of illicit substances, pro-social peers and leisure activities.
140․As stated by the then Chief Justice of the High Court, French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32], “[R]ehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest”.
141․On the evidence, the offender’s prospects for rehabilitation are good. I have taken into account the submissions of the prosecution in coming to my conclusion. It is indeed correct to state that rehabilitation will hinge significantly on his motivation to seek, and engage regularly in, mental health treatment. I accept the submission of the prosecution that the offender’s path to successful treatment is not a simple one.
142․I accept on the basis of the opinion of Ms Quigley that rehabilitation is an important consideration having regard to this offender’s youth, prosocial and protective factors, and assessed low risk of general recidivism. I accept that the offender’s criminogenic conduct has arisen from a history of unresolved childhood difficulties, together with undiagnosed and unsupported Autism Spectrum Disorder and other mental health difficulties.
Imposition of an ICO
143․The PSR disclosed the offender had been deemed not suitable for an ICO due to his unwillingness to consent to it. However, the PSR noted that there would be no concerns with the offender being sentenced to an ICO, should he consent.
144․At the sentence hearing, counsel for the offender submitted that the reason the offender did not consent historically to the ICO was because of his reticence to disclose the offences to his former flatmates, which would have been required in the process of an ICO assessment. It was submitted that the offender feared losing accommodation if the offences became known. Counsel for the offender submitted at the sentence hearing that the offender now consents to the imposition of an ICO as he has stable accommodation.
145․The prosecution confirmed that such a disposition would not be inappropriate on the evidence in this case, should the offender consent to an ICO. Counsel for the offender submitted that s 78(5) of the Crimes (Sentencing) Act 2005 (ACT) permits the Court to make an order for an ICO even in the absence of a report recommending such an order.
146․As I noted in R v Elson [2020] ACTSC 264 at [85] and R v Paredes Valdez [2022] ACTSC 126, it must be remembered that although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence. An ICO is considered to be a “significant punishment, coming second only to a term of full-time imprisonment”: R v Srna [2018] ACTSC 337 at [13]. Its content will require strict adherence and, if this is not followed, may result in a period of full-time custody.
147․On the facts of this case, I am satisfied that the term of imprisonment I shall impose should be served by way of an ICO.
Sentence
148․This Court recognises that the offender’s crimes have contributed to the market demand for child abuse material. The harms associated with offending of this nature are ongoing, and the child abuse material depicted the sexual abuse of a significant number of children.
149․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and subjective matters of the offender. I have taken into account both the primacy of general deterrence and the individual importance of rehabilitation in this case.
150․The appropriate sentence for the offence of using a carriage service to possess/control child abuse material is 16 months’ imprisonment, reduced to 12 months on account of the plea of guilty.
151․In relation to the offence of using a carriage service to solicit child abuse material, the appropriate sentence is two years’ imprisonment, reduced to 18 months on account of the plea of guilty.
152․There will be a degree of concurrency between the two sentences. Thus, overall, a period of two years’ imprisonment.
153․I will order that the sentences be served by way of an ICO. I have taken into account the time spent in custody in setting the overall sentence.
154․Finally, I note for the record that the prosecution sought an order for the forfeiture of two devices that were used in connection with the offending. This order was sought pursuant to s 23ZD(1) of the Crimes Act. Those devices relate to the offender’s two USBs which comprise the charge of possessing/controlling child abuse material. On the date of the sentence hearing before me, I made the order for forfeiture of the two USBs with the consent of both parties.
Orders
155․I make the following orders:
(1)The publication of the name of the offender’s ex-partner and the offender’s mother be prohibited pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and instead referred to in accordance with the pseudonyms of these sentencing reasons.
(2)I record convictions for each offence.
(3)For the offence of using a carriage service to possess/control child abuse material (CC2022/4413), the offender is sentenced to 12 months’ imprisonment to commence 24 November 2023 and expire on 23 November 2024.
(4)For the offence of using a carriage service to solicit child abuse material (CC2022/10963), the offender is sentenced to 18 months’ imprisonment to commence 24 May 2024 and expire on 23 November 2025.
(5)I direct that the terms of imprisonment are to be served by way of an Intensive Corrections Order for the period commencing today, 24 November 2023 and ending on 23 November 2025 under s 20AB of the Crimes Act 1914 (Cth).
(6)In addition to the core conditions, the conditions of the Intensive Corrections Order will be that the offender:
(a)continue to engage with a clinical psychologist, ideally one experienced in Autism Spectrum Disorder to address his history of Persistent Depressive Disorder and ongoing symptoms;
(b)engage with a Sex Offender Program.
| I certify that the preceding one hundred and fifty-five [155] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 24 November 2023 |
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