R v G.P

[2010] NSWDC 300

CITATION:	R v G.P. [2010] NSWDC 300
JUDGMENT DATE:	12 November 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	1. Possess child pornography (2007/17017): Convicted, Sentenced to fixed term of 7 months and 15 days;. 2. Commit an act of indecency on person under the age of 16 years outside Australia (2009/97647): Convicted. Sentenced to 15 months imprisonment to date from the 12th March 2011 and expiring on the 11th June 2012. The offender to be released on 11th February 2012 on a recognizance release order, himself in the sum of $10.00. 3. Attempt to commit an offence of indecency on person under the age of 16 years outside Australia (2009/172517) Convicted. Sentenced to 15 months imprisonment to date from the 12th March 2011 and expiring on the 11th June 2012. The offender to be released on 11th February 2012 on a recognizance release order, himself in the sum of $10.00. 4. Attempt to commit an offence of indecency on person under the age of 16 years outside Australia (2009/106899): Convicted. Sentenced to 15 months imprisonment to date from the 12th July 2011 and expiring on the 11th October 2012. The offender to be released on 11th February 2012 on a recognizance release order, himself in the sum of $10.00. 5. Attempt to commit an offence of indecency on person under the age of 16 years outside Australia (2009/111168): Convicted. Sentenced to 15 months imprisonment to date from the 12th July 2011 and expiring on the 11th October 2012. The offender to be released on 11th February 2012 on a recognizance release order, himself in the sum of $10.00. 6. Attempt to commit an offence of indecency on person under the age of 16 years outside Australia (2009/172518): Convicted. Sentenced to 15 months imprisonment to date from the 12th November 2011 and expiring on the 11th February 2013. The offender to be released on 11th February 2012 on a recognizance release order, himself in the sum of $10.00.
CATCHWORDS:	Criminal Law - Sentencie after trial - acts of indecency upon 3 teenage Nepales boys whilst in Nepal - Cwth charge - competent commercial photographer - photographing of indecent poses by boys - suse of pornograph DVD - use of other indecent photographs earlier taken of other Nepalese boys - indecent advances by offenders upon boys whilst in company of each other - touching, hug, massage, grooming trhough indecent photographing - complainants gentle resistance initially - Sentence after plea - possess child pornography - agreed facts - importance of prosecutors preparing the agreed facts in sexual indecency matters - cataloguing of indecent material - items found in storage are of house - poor quality images - susbjective matters - prior good character - many charitable acts - middle class family - travel journalist - lack of frank history to psychiatist and counsellor - absence of contritiion - absence of insight.
LEGISLATION CITED:	s. 6A Crimes Act 1914 (Cth) s. 91H (3) Crimes Act 1900
CASES CITED:	R v Pearce (1998) 194 CLR 610 R v Stroempl (1995) 105 C.C.C (3d) 187 The Queen v Oliver [2003] 1 Cr.App.R 28 The Queen v Gent (2005) 162 A.Cr.R 29 at [99] Saddler v The Queen [2009] NSWCCA 83 at [23 Minehan v The Queen [2010] NSWCCA 140 at [82]-[92] R v Zappella unreported NSW CCA 5 November 1991 pp 2 and 3 R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina G. P.
FILE NUMBER(S):	2007/17017; 2009/97647; 2009/172518; 2009/106899; 2009/111168 ; 2009/172517
COUNSEL:	Crown: W Roser
SOLICITORS:	Defence: Mr C Jeffreys

JUDGMENT

1. To his friends and relatives, G. P. presents as friendly, extroverted, community oriented and gregarious in nature. He described his occupation to police as photographer/charity worker. To three teenage Nepalese boys in the Sauraha, Chitwan in Nepal, he presented as a predatory, manipulative paedophile, also interested in trophy taking.

2. On 15 June 2010 he was arraigned upon seven counts alleging acts or attempted acts of indecency upon three teenage boys who were, at the time of the alleged offences, aged between thirteen and fourteen years. In respect of two charges, the jury, in accordance with directions so to do, returned verdicts of "Not guilty". On the remaining five allegations the jury was satisfied beyond reasonable doubt he was guilty. Those verdicts were returned on 7 July 2010. The allegations were hotly contested throughout the trial which lasted 13 days.

3. Upon the offender’s return to Australia on 19 July 2007 he was arrested. On the same date, but as I understand it before his arrival, a search warrant was executed upon premises in Cowles Road, Mosman where the offender resided when not overseas. In the course of executing the search warrant police located thirteen videos, fifty-two printed images, two magazines and 108 computer generated images that met the classification of child pornography.

4. On 11 August 2009 the offender pleaded guilty to having in his possession these items of child pornography in answer to a charge laid pursuant to s 91(H)(3) of the Crimes Act1900. Today G. P. is to be held accountable for his criminal conduct in Nepal and his possession in Sydney of this child pornographic material.

5. As sentencing Judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this Court committed by this offender harming the three victims that he did and his possession of the pornographic material. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to him, called subjective matters.

6. The starting point for these assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and the offender. The fact finding task in respect of the trial matter will need to be confined to finding facts in accordance with and consistent with the jury’s verdicts. The trial matters represent offences against the laws of the Commonwealth. Section 16A of the Crimes Act 1914 (Commonwealth) requires a sentencing court to take into account a number of specific matters.

7. These 16A matters have the advantage of providing a useful checklist of matters relevant to sentencing. Before any sentence can be made, there will also be more technical questions relating to deterrence, discounts, the balance of parole against the non-parole period, however expressed and of course the ultimate term of imprisonment or other penalty to be imposed for the whole of criminality before the Court.

8. What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus the protection of the community, also needs determining, see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts Of The Indicted Matters

9. The offender was issued with a current Australian passport in June of 2006. Entries in the passport, as best I can tell, indicate visits to Nepal in July 2006 - (that may in fact be June 2006), Bangladesh, Cambodia, Vietnam, Thailand, Malaysia and Singapore, returning to Australia, Perth in September 2006. During this 2006 visit to Sauraha, the offender met the three under sixteen year old boys SL, MD, AG and a fourth boy then under sixteen ST, and possibly two others. After leaving in July 2006 the offender maintained email contact with MD. I should note it appears the offender’s first trip to the village was in November 2005. I do not rule out that he may also have been in the village in February of 2006. The offender told Nepalese police he returned to Nepal on 27 May 2007.

10. It is unclear to me from his passport entries when he arrived. He appears to have been in Thailand from 15 to 18 May 2007. In any event, he returned to Sauraha Chitwan on 20 June 2007 when he booked in for six nights to room 779 at the Riverview Jungle Camp Hotel. This accommodation consisted of a single room containing a double bed and other minimal furniture and an ensuite in which were located a toilet and a shower.

11. In the June, July 2006 visit (summer) the offender met some six boys, including the complainants, who were at the time on a riverbank. The river was a feature of the village where the youths swam and elephants were taken to be washed. The offender engaged these boys in conversation. He had already taken and, after engaging the boys, continued to take photos of them.

12. The initial photos appeared to be taken of the boys as they were stripping to their swimmers/underwear while two unattended elephants were making their way up the riverbank. There are later photos of head and torso of the group, some still with water droplets and other photos of the boys now clothed ready to leave the bank. (See Exhibit 1 and Exhibit D). I am also satisfied beyond reasonable doubt that in 2006 the offender took a series of photos at the riverbank, probably on the occasion of this first encounter, that are indecent. Several of these photos are to be found in Exhibit U (I think it was).

13. The reason I have come to the view the indecent photos were taken at this first encounter, is that two of the boys photographed in the indecent photos appear to be wearing the same coloured swimmers/underpants that each was wearing on the occasion of the first group of photographs earlier referred to being taken. Exhibit U indicate to me the photos were written to the camera memory card on 22 June 2007 and saved to a computer file on 4 June 2007 at a time when the offender was already in Nepal and planning to renew his acquaintance with the boys.

14. The accused saw and interacted with the boys over the following days in 2006, continuing to photo them, asked questions about their schooling and generally ingratiated himself with them. Significantly, his enquiries during this first encounter also extended as to their ages. After his departure, he continued, as I earlier remarked, email contact with MD.

15. This contact included sending some of the photographs he had taken of the boys, although I doubt it included any of the indecent ones. In June 2007 he informed MD that he would be visiting Sauraha and upon his arrival notified MD by email that he was in the village. During his stay at least four of the boys, including the complainants and ST, from the 2006 group visited the offender.

16. The first visit by all three complainants and ST is the occasion that the offences charged related to the indecent touching or attempted indecent touching by the offender occurred. All four boys attended upon the offender in room 779. They were asked by the offender whether they wanted to see a blue movie or not. They agreed and the offender, using his computer, played a heterosexual pornographic movie showing men and women having sex.

17. I am satisfied beyond reasonable doubt the offender also showed indecent photographs of under sixteen year old Nepalese boys he had earlier taken before his arrival in Sauraha. During and/or after showing the movies and pictures, the offender made indecent advances towards each of the four boys. So far as I am concerned, only three of them are of relevance. This aspect needs to be given in some detail shortly. At this point it is sufficient to note, as each advance was made by the offender towards one boy, it was made in the presence of three others, two of whom were also then under the age of sixteen and TS, who was then under the age of eighteen.

18. Each of the boys were seated on the double bed during the period the advances were being made to the others, either next to or very close to the selected candidate. The attempted act of indecency upon MD then aged fourteen, occurred during the showing of the blue movie. MD was in the middle of his friend’s on the bed. The offender was standing in front of them. While MD was watching the pornographic acts on the screen, the offender touched his penis on the outside of his pants. The offender presented as “joking”. MD removed the offender’s hand away and after that, the offender did not do anything [count 3].

19. AG was aged thirteen. He too was on the bed watching the blue movies and had seen the pornographic photos. The offender was sitting beside him. The offender attempted to touch AG’s penis on the outside of his clothing. He tried to do this more than once [count 4]. At the same time and place and in the context of the attempts to touch him and the display of pornographic movie and pornographic pictures, the offender hugged AG. The jury was advised in my summing-up that the evidence on that charge lacked any real detail other than the verb “hugged”. The jury verdict reflects that it was satisfied beyond reasonable doubt that bodily contact in the form of a hug was pursued by the offender in an attempt to arouse emotionally and sexually the young person for the purpose of advancing the offender’s pursuit of that boy’s submission to him, through his sexual advances [count 6].

20. SL was also thirteen years of age. On this visit with the others, the offender started to show some nude photos and then played a blue movie. The boys sat on the bed watching the computer screen. The offender started to touch SL at the genitals and as he did so, to use the words of SL, the offender said “If you touch there, these sort of feelings come. This is how you feel.” The offender tried two or three times but SL moved his hand and said “I feel embarrassed, don’t touch me there” [count 7]. Although SL claims to have only gone to room 799 on one occasion in June 2007, it would appear to me he went on at least one other occasion. On that second occasion, as it would seem to me, but in any event the jury have decided it occurred, SL was persuaded to give the offender a massage. He massaged the offender’s arms, chest, side of chest, legs and thigh. SL did this massaging because the offender asked him to do it, so he did it. The offender was described as being only in his underpants.

21. The massaging occurs whilst the film was playing. No other boy makes reference to the offender being in any state of undress. It is for this reason I am of the view the incident happened when others were not around [count 1]. I should record that although each complainant was present when others were sexually assaulted or an attempt was made to sexually assault them (save for the last offence) none was willing to describe what he saw in respect of the others. I have put this down to the sensitivities of the boys, particularly in respect of the sexual intrusion that others may have encountered in their presence. There was also a reluctance of each to describe what happened to him personally, often preferring the plural first person pronoun “we” to the first person singular pronoun “I” or “me”.

22. Although not constituting part of the offences charged, I should also note that each of the complainants was subjected to subsequent indecent photographs of himself being taken. The significance of this ongoing pursuit of the boys is that it constitutes further grooming, presumably for some subsequent visit. It demonstrates the insatiable sexual appetite and predatory attitude that the offender had towards each complainant and constitutes trophy gathering for his later sexual gratification. It is entirely inconsistent with any sense of remorse.

23. These photographs, as a group, reflect a greater carnal interest in the relevant complainants, are more studied, posed and crafted than the more light hearted, outlandish behaviour photographs of the year before which I have also classified as indecent. When challenged by the Nepalese police about the photographs on his computer they alleged “it was his business” to him. He replied “It’s not my business, it’s a hobby. I am really sorry but I like it”.

Objective Criminality Of The Indicted Matters

24. From the facts as he finds them to be a sentencing judge is required to assess what is called the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of an offender. That is done by comparing objectively the criminality Exhibited in the instant offences with criminality of offences of a similar kind. It is in this way that objective seriousness of criminality of offences can be evaluated. Objective criminality has an important, indeed most important, impact upon the overall sentencing outcome.

25. In the normal course of events the court has no real interest in the sexual activity of men and women in the community. There are however at least two obvious exceptions to this proposition. Firstly, sexual activity that is forced upon another without that other’s consent. And the other area, whether consensual or not, is that sexual activity which involves a power imbalance between a normal adult and young children. The concern to protect young children from this power imbalance and from exploitation also applies as I will deal with alter to pornographic images.

26. Justice Lee in describing the jurisprudential philosophy behind State Crime Act 1900 sections which deal with offences against young children made the following observations:

“One begins with the proposition that our community views with great concern the sexual molestation of children by adults. And that has been acknowledged by the [State] legislature in providing for greater penalties when the victims are under sixteen. That acknowledgment has been in our legislation over a long period of time. Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life caused by such conduct.
R v Zappella unreported NSW CCA 5 November 1991 pp 2 and 3.”

27. I am satisfied the offences against the three complainants were committed as part of a studied careful grooming process that commenced as early as June 2006. In taking the indecent photographs of the six boys in 2006 the offender was seeking to normalise the taking of photographs of the genitalia of these boys. He certainly established at that time his particular sexual interest in them.

28. One of the teenage witnesses spoke of the regard Nepalese have towards tourists and an appreciation of the importance of tourists for Nepal. I am satisfied the boys sought to welcome the offender and sought to themselves to minimise his sexual interest in each as part of their accommodation of foreign visitors.

29. The offender continued his grooming of the boys through his ongoing email contact with MD and his sending of photographs, presumably for the consumption of all of the boys.

30. Upon his arrival to Sauraha he was quick to call the call the complainants and TS to him. By that I do not mean that he contacted each of them but rather urged MD to bring his friends with him. Almost immediately upon their arrival to his motel room he returned to his theme of 2006, sexual interest in the boys by showing them blue movies and indecent photographs of other young Nepalese boys. Both of these grooming tools, but particularly the photographs were designed to “normalise” their nakedness for his sexual arousal.

31. By his indecent acts towards them he made clear his desire to have greater sexual contact between himself and any or all of them. Those sexual acts for which he has been found guilty were to be forerunners of more intrusive sexual contact. Each offence of attempted touching of the genitals, however successful that may have been, is the more serious because it is done in the presence of others and that seriousness is graded upwards again because the others were themselves thirteen, fourteen, sixteen and impressionable.

32. Within the concept of “act of indecency” there is a substantial range of activity falling short of sexual intercourse that qualifies as indecent. This can include conduct more intrusive and of greater invasiveness of the psycho/sexual privacy than the conduct exhibited in this offending that I have before me.

33. Intrusion beyond clothing, intrusion beneath underwear and onto the skin or the massaging of the body and in particular the male sexual organ itself, the touching of the penis, none of the conduct complained of reaches that level of intrusion. Nor was there any conduct towards any of the victims of a threatening or physically overpowering of them. That is to say the offender’s conduct was not as serious an abuse of his power as it could have been. Nonetheless it was a serious abuse of power because of his age difference and he presented as a wealthy visitor from a First World nation.

34. One of the complainants, it will be recalled, describes him as “joking [around]”. All claim to have resisted his approaches and he appears to have accepted their resistance after a couple or more attempts at least for the time being and subject to their further grooming.

Victim Impact Statements

35. I have received victim impact statements from the three complainants. The material contained in the victim impact statements is not sworn evidence and has not been subject to cross-examination. To the extent that opinions are expressed in the statement I would recognise that they were not opinions of any qualified expert.

36. The victim impact statement, coming as it does from the primary victim, may if I accept it as reliable, and frankly I do, provide unsworn evidence as to the facts of the offence and their affects upon each victim. The function of statements such as these is to give to the victims an opportunity of being heard in the sentencing proceedings as to the effect of the crime upon them by publicly identifying the impact of the trauma visited upon them by the actions of an offender.

37. Secondly, it enables the sentencing proceedings to assist victims as they move towards some closure of resentment or brooding arising from the criminal conduct of offender. Thirdly, it contributes to an offender at least hearing first hand and perhaps gaining an insight into the impact his offending conduct has upon the victim. And finally, it is of course part of the continuum of reminders to a sentencing judge such as myself of the impact criminal offending can have upon the ordinary men, women and in this case children that are its victims.

38. A victim impact statement was submitted by each of the complainants. Without seeking to minimise the importance of the impact upon each the following salient points can be taken from each of the three statements.

• Tourists to Nepal are regarded highly and treated with respect. The Nepalese show hospitality to tourists. As a consequence of the offender’s acts each complainant has become less confident and more wary in his approach to tourists.
• Two of the victims reported he was scared by the offender’s unlawful acts towards him. One reported he felt strange and uncomfortable. One reported he did not know what was right or wrong or what he should do. Another said he imagined really bad things and wondered what would happen later on. One said he did not understand why the offender did what he did. One remarked
  “what [the offender] did is extraordinary in our culture. Our culture is totally different. We as children would not be regarded nicely by society if people found out what had happened to us. In our society our honour is delicate. If broken it cannot be restored. Any dishonour can reflect badly on the whole family”.
• Each of the complainants became embarrassed and shamed by travelling in the back of the open police jeep to the police headquarters. By contrast the offender sat inside the cabin but the boys travelled in the open rear and in the presence of police officers. In respect of this one boy noted no-one in his family had ever been to a police station, no-one had been in trouble with the police and he feared his very public trip to the police station would bring embarrassment to his family. Another noted that people were staring at them. He was later asked what crimes he had committed. That theme was repeated in the other two statements.
• The schooling of each boy was affected in that each was distracted. As events turned out the arrest and exposure of the acts of the offender occurred at exam time, and I believe it to be the end of school year exam time, for Nepalese school children.
• Each found coming to Australia to attend court and give evidence as a scary and confusing experience. Two of the boys expressed, and I should note it was unfounded, concern for his physical safety whilst here. That does not make of course the fear any the less real.

Possessing Child Pornographic Material

39. I turn now to the facts relating to the possession of items of pornography. I should note this charge is confined to the items of pornography found at Mosman on 19 July 2007. It does not include material found on the offender’s computer or camera memory card arising from his visit to Asia in 2006 and 2007.

40. There is an agreed statement of facts prepared by Federal Agent Mulroney that has been tendered. I note Court of Criminal Appeal authority requires the Crown Prosecutor to accept responsibility for preparing such statements. In a case such as this there are compelling reasons why an agreed statement should be prepared by a Crown Prosecutor.

41. The objective criminality of possessing child pornography depends upon assessing a number of factors. There have been different approaches to that task, see The Queen v Oliver [2003] 1 Cr.App.R 28, The Queen v Gent (2005) 162 A.Cr.R 29 at [99], Saddler v The Queen [2009] NSWCCA 83 at [23], Minehan v The Queen [2010] NSWCCA 140 at [82]-[92].

42. The premises searched in Cowles Road, Mosman was where the offender resided when not overseas and presumably not down in Bega/Merimbula area. Police searched the offender’s bedroom and a storage area under the house. In that storage area police found a number of boxes marked with their contents. I am satisfied the markings were made by the offender. In one box was an orange bag containing an inner white bag. Within that white bag were pornographic magazines with a focus on teenage males. One of the boxes seized contains a number of DVDs. That box carries the date 24 March 1999.

43. The statement of facts prepared by Federal Agent Mulroney at

5.“Also located in the boxes underneath the house was a box containing numerous video tapes, many of which bear no classification. The cover depicts males who appear to be under the age of sixteen engaged in sexual activity. That box also contained a number of pages which appeared to be A4 printouts of Internet pictures. Some of those pictures were of young males who appear to be under the age of sixteen in various states of undress and arousal.”

44. If I interpolate into the statement what Federal Agent Mulroney did not note was that some of them were repeats of earlier photographs in the group.

6. Also located during the search was a computer hard drive that has been subject of further forensic analysis.

7. At 12.50pm on 19 July the offender returned to Australia from Bangkok on a Thai Airways flight. He was spoken to by Federal Police and advised of his rights. He indicated to police at that time that as a result of legal advice he declined to comment further other than to claim he was innocent of the charges. He was then charged with the matter before the court.

45. Federal Agent Mulroney classified the material in his statement of facts as follows:

Category 1. Images depicting erotic posing with no sexual activity.
Category 2. Sexual activity between children and solo masturbation by a child.
Category 3. Non penetrative sexual activity between adult(s) and child(ren).
Category 4. Penetrative sexual activity between adult(s) and child(ren).
Category 5. Sadism or bestiality.

46. These categories find their origin in The Queen v Oliver [2003] 1 Cr.App.R 28. When classifying the material according to this criteria Federal Agent Mulroney noted so far as the classification of the VHS videos were concerned:

Category 1. Videos depicting erotic posing with no sexual activity.
• Total of three videos.
Category 2. Videos depicting sexual activity between children or solo masturbation of a child.
• Total of two videos.
Category 4. Videos depicting penetrative sexual activity between adult(s) and child(ren).
• Total of eight videos.

47. A total of thirteen of the videos located in the box identified in para 5 were classified as child pornography.

Classification Of Printed Images

48. A total of fifty-two of the printed images located in the box identified in para 5 were classified as child pornography. I did not count them but on my estimate there would be ten of those would have been repeats.

Category 1. Images depicting erotic posing with no sexual activity.
• Total of fifty images.
Category 3. Images depicting non penetrative sexual activity between adult(s) and child(ren).
• Total of one image.
Category 4. Penetrative sexual activity between adult(s) and child(ren).
• Total of one image.

Category 1. Images depicting erotic posing with no sexual activity.
• Total of one magazine.
Category 2. Images depicting sexual activity between children or solo masturbation by a child.
• Total of one magazine.

Classification Of Images located On The Computer Hard Drive

49. During the review of the images stored on the computer equipment it was determined that 108 were child pornography images. Of those 108 images all but seventeen of the images were stored in the “temporary internet files” directory on the system. The remaining seventeen images were located in a folder labelled “old stuff/web pics” and are categorised as follows. So it should be noted this classification relates only to seventeen of the 108.

Category 1. Images depicting erotic posing with no sexual activity.
• Total of sixteen images.
Category 2. Images depicting sexual activity between children or solo masturbation by a child.
• One image.

50. I have not seen any of the images that were on the hard drive. I have to rely upon Detective Mulroney’s classification of them and of the fact that there does not appear to me to be any dispute as to the tender of that statement or any request for Federal Agent Mulroney to be cross-examined.

51. The images on the hard drive appear to have been entered on the hard drive in the main during 2001 with seventeen being loaded onto the hard drive in 2004. The images on the hard drive in the main appear to have been last accessed in 2003 with the late arrivals being last accessed in 2004. For much of the time between 2004 and 2007 the offender had been overseas. Even so he does not appear to have been actively accessing in recent years the material seized by police in the Mosman residence.

52. The printed material seized by the Federal agents on 19 July 2007 is far inferior in photography reproduction and composition to the offender’s photography. It is likely the offender had outgrown the poor quality of the downloads from the computer in preference to his own pornography snapped from his own camera, loaded as it was with its own memories; that is, his own personal memories.

53. Mr Jeffreys argued that some material was not child pornography or alternatively that I could not be satisfied beyond reasonable doubt it was child pornography because I could not be satisfied the images displayed were of boys under the age of sixteen.

54. I have viewed the images in Exhibit SD. On the basis of age or reasonable possibility of age, I would exclude no more than twenty printed images and one DVD may have involved a participant aged sixteen or more but that, of course, may well be counted as the adult in the classification. And when I say one may have been aged sixteen or more that is based upon the cover displayed that was exhibited in Exhibit SD. While there was no onus on the offender to prove any participant was sixteen or over I note Mr Jeffreys did not seek to advance the submission by reference to any particular image or images.

Objective Criminality Of The Pornographic Images

55. When dealing with the objective criminality of the indicted offences I referred to the antisocial nature of a middle aged man exploiting the power imbalance to advance his sexual desires or fantasies that concern to protect young children from the power imbalance applies equally to child pornographic images.

56. In a Canadian case decided in the Ontario Court of Appeal R v Stroempl (1995) 105 C.C.C (3d) 187 the court held

“The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense possessors such as the appellant instigate the production and distribution of child pornography and the production of child pornography in turn frequently involves direct child abuse in one form or another.”

57. The trial judge was right in his observation that if the courts thought the imposition of appropriate sanctions stifled the activities of prospective purchasers and collectors of child pornography this would go some distance to smother the market for child pornography altogether. In turn this would substantially reduce the motivation to produce child pornography in the first place. That observation has been applied in other cases in Australia.

58. I seek to highlight from that citation the clause “the production of child pornography in turn frequently involves direct child abuse in one form or another”. I note that when dealing with the indecent assaults or attempted indecent assaults cases that were on the indictment the part the accused’s production of child pornographic pictures played on that occasion as an active grooming tool in seeking to make sexual advances more attractive.

59. Putting to one side eight videos and one printed image, the remaining five videos, fifty-one of the printed images, two magazines and 108 computer stored images fell into the lower three categories. That is they ranged from erotic posing to non penetrative sexual activity between adults and children.

60. Many of the printed images and those on the hard drive had been downloaded from the Internet. Downloading is generally regarded as less serious than taking of the original film or cropping any image to enhance its effect. The absence of access for some considerable time demonstrates there had been no commercial gain from the images or swapping or dealing with them in any way with any other third party. This offence is less serious than the offender’s possession of the material on his camera memory card or his possession of the pornographic material on the hard drive of his computer in Asia in 2007.

61. This offence has its origins earlier in time than the indicted offence. One can date the possession of the items as coming at least some time after March 1999 and certainly by 2000. While the possession charge relates to a specified date in July of 2007 one cannot ignore when determining the level of criminality that the possession charged had its roots going back six or more years.

62. While I have already noted the absence of access since 2003/2004, established for some and possibly all of the material, it should be remembered that possession does not require access. The offence of possession requires dominion and control over the item and that dominion and control had been going on for a number of years.

Subjective Matters – Background, Relationship, Family Dynamics

63. The offender is currently aged 55. At the time of the offending on the indicted charges he was 51. Obviously in respect of the other offence he was younger still when that first began. Aged between 30 and 40 he was in a de-facto relationship with Ms Allgaier for some fifteen years. They had separated but were still close friends. For some of his period on remand he has resided with her at her home in Merimbula. He is the youngest of three siblings.

64. His mother is aged ninety-one and I believe lives still in the family home at Mosman. Not surprisingly at her age her health is fragile. In September this year she had open-heart surgery and spent some recovery time in intensive care. Although the operation was two months ago her need for care and support must still be great. The incarceration of the offender will be a serious blow to her receiving that ongoing personal support and care from him.

65. The offender has a wide network of contacts, acquaintances and friends within Australia and overseas centres he frequents.

Education, Training, Skills & Employment

66. The offender obtained his HSC certificate at North Sydney Boys High School. He is assessed as probably being well above average intelligence. He studied journalism at TAFE, worked for his older sister initially as an instructor in a scuba diving and travel business, he then travelled to Asia and Europe the first time in 1975. He did casual work overseas and met Miss Allgaier in the Greek Isles.

67. On return he established a handyman business in the Northern Suburbs while attending TAFE. He contributed wind surfing and travel articles to magazines from time to time. I understand he has written a book in respect of windsurfing. He became involved in aerial photography between 1992 to 2004 and a cleaning business. These businesses he sold in 2004 using as I understand it the proceeds to fund his further travel.

General Health

68. He appears to be in reasonable physical condition. He apparently takes medication for an esophagocele spasm. He is also taking anti-depressant medication for some eight months or so for anxiety issues. His GP notes a diverticulitis disease, cholesterol issues, lower back pain, anxiety issues and sleep issues. He has also sought treatment for haemorrhoids in the past.

69. There do not appear to be any mental health issues or indeed general health issues that would impede his rehabilitation prospects. Nor are there any drug or alcohol issues that need attention.

Psycho-Sexual Issues

70. The offender retained one of the eminent forensic psychiatrists to prepare a report for the court. Dr Westmore’s report is Exhibit S3. Dr Westmore makes clear in the final page of his report his diagnosis as based upon the history given to him by the offender. Frankly the offender has wasted his money. There is no point in seeking a psychiatric opinion if one is going to be less than fulsome or frank or honest in the history one gives.

71. The history given to Dr Westmore does not detail with any specificity the true reasons for his possessing pornographic images and videos relating to underage either pubescent or post pubescent boys for several years. Nor does it recount with any detail his substantial camera memory card and the 2006/7 substantial collection of pornographic photos of pubescent and recently post pubescent underage boys orchestrated and taken by him through centres in Africa and Asia. The history given ignores the jury findings of blue movies and picture displays to a group of four males, three of whom were underage, within minutes of their arrival at his hotel room after a year’s absence from Nepal.

72. His account maintains the fiction of sexually precocious behaviour by these boys that the jury has rejected. It maintains another fiction the jury rejected of spiteful and malicious fabrication of untrue allegations being made by the boys because he had refused to pay to two of them money each had sought from him.

73. The account given to Dr Westmore ignores the findings of the jury that the offender was the proactive and assertive party seeking sexual connection to thirteen and fourteen year old boys in 2007.

74. I reject his account to Dr Westmore that he had found pornographic material dumped on his driveway before a council clean out and indeed that account did not last very long because the account he gave to Probation and Parole was that he kept the pornography after it had been left at his premises by a former housemate.

75. I am satisfied beyond reasonable doubt the selection of each and every DVD, image, magazine and computer printout was made by him because he was attracted to it and it reflected his sexual interest in males aged under sixteen.

76. The history supplied by the offender included details of long term relationships with his former de-facto and two shorter relationships, one of a heterosexual nature and one of a homosexual nature and earlier bisexual encounters in his teenage years. The offender told Dr Westmore he regarded himself as bisexual. He claimed his sexual fantasies involved both male and female in their twenties, that he attached to men between twenty to thirty-five and women between twenty-five and forty-five. He denied sexual fantasies involving pre-pubescent children.

77. Having regard to the general history of offending behaviour both with the complainant boys and in relation to the pornography as described by the offender to Dr Westmore, Dr Westmore has ruled out a condition of paedophilia. However the collection of inappropriate pornography and the history of offending in relation to the complainants did suggest to Dr Westmore a psycho-sexual disturbance. Dr Westmore recommended specialist counselling.

78. The offender undertook four counselling agreements with Linda Cross. I do not have the history he has given to her. I accept that based upon the account he gave to her she was entitled to come to a view that the offender “was innocent and naive of the ages of the participants, of the participants of the material in question” and that “his values regarding holding family and children in such high moral regard would prevent him consciously seeking out young children in pornographic material”.

79. Given those findings by her and accepting that she was entitled to make them I am satisfied the offender has been less than frank or fulsome with Miss Cross. It is likely he attended the counselling sessions with a view to mitigating penalty and after the verdicts in the trial. I am satisfied his participation was a sham and that he refuses to accept in any public forum what is patently obvious from the evidence generated by his camera, by his computer in Nepal and by the possession of the pornography that he had at Mosman, that his sexual interests at least include focusing upon teenage boys, including those in their commencement of teenage years.

80. I do not rule out that Dr Westmore’s diagnosis would change had he been fully and honestly advised by the offender of the fact, circumstances and true feelings entertained by him during the offending period.

Character & Criminal Antecedents

81. Prior to being charged with the offences before the court the offender was not known to police either Federally or State wide. There are thirty-seven testimonials before the court attesting to the good character, charitable acts and generous nature of the offender dating from 1993 to very recent times. Organisations such as the Destitute Children’s Home, Pokhara; Trekking for Kids Inc, Washington DC (although related to the Pokhara matter); Non Violent Communications, Nepal; Yiriwa Nursery School, The Gambia have acknowledged his charitable work in the Nepal and The Gambia.

82. Other referees write claiming his criminal acts are out of character for the person they know. Others focus on his working career and commitment to charitable acts. Others speak of his sense of community in helping and taking an interest in others such as the aging or destitute children. Others note his social skills and capacity to mix. Others note his integrity, thoughtfulness and endless generosity.

83. In 1993 his focus appeared to be on those with disabilities. In more recent times it appears to be on the aged and of course his work in Nepal and The Gambia point to a charitable interest in young children.

84. There is no doubt the offender’s public profile is one he could be rightly proud of. But that view must be tempered by his dishonest claims of money being demanded from him by two of the complainants. That certainly goes to his integrity. His collection of pornographic images contained on his camera memory card and his computer in Asia, and for some time, go to the question of whether these acts were out of character. And his pursuing many, many underage youths in foreign countries to pose in a sexual context so that he could add to his pornographic collection go to another darker side of his interest in younger children.

Attitude To Offences

85. I have already noted he has sought to minimise his antisocial nature of his possessing images of child pornography in Mosman. His defence at the trial demonstrates an absence of contrition, indeed an absence of insight into why his conduct in room 779 was antisocial conduct of a high order.

86. His dealings with Dr Westmore, Probation and Parole and Miss Cross demonstrate, if further demonstration was needed, a total unwillingness to confront the reality of his sexual interest in pubescent and post-pubescent teenage boys.

87. I find there is no contrition or remorse attaching to any of his criminal conduct.

Rehabilitation Prospects

88. He has strong family support, a wide network of friends who regrettably it seems to me are willing to accept his account of the offences proved against him. In those circumstances I cannot as I normally would do regard family and network support as indicative of rehabilitation. I have assumed he will be permitted to travel to countries and places he has visited before. Frankly I do not regard that as indicative of rehabilitation prospects. He has no insight into his offending and a sense of grievance at being brought to trial. Clearly that situation does not bode well for his rehabilitation.

89. He has shown a willingness to participate in sham dealings with professional healers. While he maintains his present attitude counselling is a waste of professional skills and talents and of no use to the offender.

90. I should note I am not disagreeing with Dr Westmore that counselling would be beneficial if the offender accepted the premise that he has a desperate need for counselling. Frankly, even accepting future conduct is difficult to predict, recent conduct, especially recent conduct that is not regretted is always regarded as a strong predictor of future conduct. Put simply I would regard his rehabilitation prospects as poor.

91. But for S 16A(3) Crimes Act 1914 (Commonwealth) I have either dealt with or will shortly refer to all matters that constitute the check list for sentencing matters set out in S 16A. I should note there is nothing in the offender’s dealings with investigators of his offences that could impact favourably upon the sentencing outcome or indeed unfavourably.

Setting The Sentence

92. The maximum penalty available for the indecent acts or attempted indecent act offences prescribed by the Commonwealth Parliament is twelve years imprisonment and was so in 2007. Clearly the Commonwealth Parliament is looking to courts to set tougher penalties than was the case when indecent assaults carried a maximum of as I remember it, five years in State matters.

93. It seems to me the rationale for this increase is the recognition of the tidal wave of power abuse that comes not just with the age differential but the status of moneyed (by comparison with the local population) tourist from a First World country. In this case there is the focus upon the intrusion into the privacy and as one victim put it “the honour” of these young complainants. The breach of privacy aspect is aggravated by the offender’s act being done to one victim in the presence of three other young boys. Lest there be confusion I note that one of them was sixteen at the time.

94. I have noted that the level of indecency and intrusion was towards the lower rungs. I have noted an absence of remorse which disentitles the offender to any mitigation on that account. I note his prior good character and well earned reputation among those he associates with as a man of charity and otherwise good conduct. I need to ensure that he is adequately punished for his offending conduct. I need to consider the deterrent effect that the sentence will have upon him. My own view is that even thought the sentence I have determined upon is one of imprisonment his rehabilitation prospects are poor. That is to say that the deterrent effect upon him will soon be lost after his release if it has any effect upon him at all. It seems to me he will regard it as nothing more than a price to be paid and a risk to be taken for the kind of conduct he is interested in pursuing.

95. I acknowledge that a sentence of imprisonment is a sentence of last resort. S 16A(3) requires the court to have regard to the nature and severity of the conditions that may be imposed on or may apply to the offender under a sentencing order.

96. He will be housed, I anticipate, in a single sex prison with paramilitary oversight. His capacity for decision making will be severely compromised in almost all aspects of his life. The bulk of inmates he will associate with will be younger, less educated, less travelled and less sophisticated than he and primarily only concerned in themselves and their own criminal issues. Brutality is the most ready agent for dispute resolution behind the gaol walls. Offenders convicted of sexual offences, particularly sexual offences against children, are despised within the gaol culture. It is unlikely he will be well regarded by his fellow inmates. Programs, should he be interested in any, are limited, sometimes difficult to obtain access to and generally poorly resourced.

97. More and more research is showing that the prison culture and mores is counter productive to rehabilitation.

98. This offender’s time in custody is likely to be a difficult, if not very difficult experience for him. In my view prison is a sentence of last resort to be availed of only when the need for punishment is so great it precludes any lesser sentencing option. That is in my view the indicted case. I am satisfied that so far as the indicted offences are concerned only full time incarnation is an option.

99. I have been asked to take into account his time in prison in Nepal. While it is true that his imprisonment in Nepal related to his association with the complainants it went beyond that. He was placed in custody because of the pornographic material on his hard drive. In respect of the pornographic material on his hard drive it was the minority of it that related to the complainants. The vast majority of it related to other, primarily, young boys.

100. It was the intention of the Crown to prosecute the offender in relation to his showing to the complainants indecent films and taking naked photographs of them. On 19 November last, Judge Berman SC of this court stayed counts on the indictment relating to conduct consisting of showing indecent films and taking photos of the complainants when naked. The basis of that stay was that the offender had already been convicted and it would appear punished for these offences.

101. The offender has already received acknowledgment of and benefit for his conviction and punishment in Nepal by not being prosecuted for the offences in respect of which the Crown had sought to prosecute him on the indictment. To me, to take account of his time in gaol, would be double counting it.

102. I have determined that the appropriate sentence for counts 1, 3, 4, 6 and 7 is a term of fifteen months imprisonment for each. In accordance with Pearce’s (R v Pearce (1998) 194 CLR 610) case there will be some accumulation of the sentences. For that purpose counts 1 and 7 will be concurrent with each other (both are offences against SL); the sentence for counts 4 and 5 will be concurrent with each other (both are offences against AG) but partly cumulative to counts 1 and 7. The sentence for count 3 will be partly cumulative to the other four sentences. All sentences for the indicted matters will be partly cumulative to the State matter of possess items of child pornography. The maximum penalty for that offence is five years imprisonment.

103. I have examined already the objective criminality of that offence. Had it stood alone a term of imprisonment would have been set but a full time custodial sentence would not have been required. However that situation changed because of the subsequent offending. The offender is entitled to a discount based upon the utilitarian value to the Justice System of his guilty plea. It has resulted in the freeing of resources, contributed to the confidence in the criminal justice system that those guilty of crimes should be held accountable for them and to the strong likelihood that any further litigation generated by these proceedings will not focus upon his guilt for possessing items of child pornography. The plea was early entered before the magistrate.

104. The sentence I would have said but for the plea would have been one of nine months imprisonment. I have found there was no contrition. That being so the discount that I have set is little more than fifteen per cent. It might actually be closer to twenty per cent and amounts to one and a half months. The sentence I will be imposing then is a fixed term of seven months and fifteen days. That sentence will commence from today.

105. Would you stand up please Mr G.P.

106. G.P. in respect of the State matter that you on 19 July 2007 at Mosman had in your possession items of child pornography, namely numerous CDs, videos, disks, photographs and computer printouts depicting males apparently under the age of sixteen in various states of arousal and undress and engaged in sexual activity you are convicted. For that offence I set a fixed term of seven months fifteen days to commence from today 12 November 2010 and to expire on 26 June 2011.

107. You are also convicted that you on or about June 2007 at Chitwan in the country of Nepal being an Australian citizen and whilst out of Australia did commit an act of indecency on a person, namely SL, give you a massage at a time when SL was then under the age of sixteen years, namely thirteen years. In respect of that offence I sentence you to fifteen months imprisonment to commence on 12 March 2011 and to expire on 11 June 2012. I should not that that represents a four month accumulation on the last one.

108. Likewise you are convicted that you in respect of the same complainant and whilst still being a citizen outside Australia did commit an act of indecency upon him by attempting to touching his genitals through his pants, he then being under the age of sixteen years, to wit thirteen years. You are sentenced to the same penalty of fifteen months with the same commencement date and the same expiry date.

109. In respect of counts 4 and 5 on the indictment relating to AG, namely that at the same time and place in Nepal, again you being an Australian citizen outside Australia, did attempt to commit an act of indecency upon him, namely by attempting to touch his genitals through his pants when he was then aged thirteen and attempted an act of indecency, namely “to have sex with him” you are convicted and in respect of each you are sentenced to fifteen months imprisonment to commence from 12 July 2011 and to expire on 11 October 2012. And again for your information that is a further four month accumulation.

110. In respect of the final count which is count 3, you are convicted at the same time and place and again in the same circumstances of attempting to commit an act of indecency on a person under the age of sixteen years, namely fourteen years, that person being MD, namely to touch his genitals. And you are sentenced to fifteen months imprisonment to commence on 12 November 2011 and to expire on 11 February 2013.

111. I make a recognisance release order that you be released from these sentences on 11 February 2012. That gives you a total time in imprisonment counting all offences of fifteen months.

With the recognisance release order is there a need to require him to make some deposit of money? Have a seat please sir while I work that out.

ROSER: I understand that your Honour has to make the order but there’d no lodgement of money, a nominal amount.

HIS HONOUR: For the purposes of the order being effective and enforceable I require that you lodge the sum of $10 with the relevant authority at the relevant time.

oOo

***Appeal pending***