R v Henderson
[2023] ACTSC 110
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Henderson |
Citation: | [2023] ACTSC 110 |
Hearing Dates: | 21 April 2023, 2 & 11 May 2023 |
DecisionDate: | 11 May 2023 |
Before: | Norrish AJ |
Decision: | See [119] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –possession child abuse materials – transmission child abuse materials – prior good character – mental health issues – applicability of ‘Verdins principles’ – risk of suicide and responsibility of correctional authorities – general deterrence and personal deterrence – lack of insight – applicability of ‘Bugmy principles’ – importance of recognising the harm to victims paramount – early pleas of guilty and co-operation – taking responsibility for offending |
Legislation Cited: | Criminal Code Act 1995 (Cth) ss 474.22, 474.22A |
Cases Cited: | Boulton v The Queen (2014) 46 VR 308 |
Parties: | The King (Crown) Peter Henderson (Offender) |
Representation: | Counsel L Hannigan (Crown) E Chen (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions Legal Aid ACT (Offender) | |
File Number: | SCC 136 of 2022 |
Norrish AJ
Introduction
1․Peter Henderson appears today for sentence in respect of two offences to which he pleaded guilty on 25 May 2022. The offences are breaches of the Criminal Code Act 1995 (Cth), hereinafter to be referred to as 'the Code'. One offence alleges that the offender between 7 October 2021 and 31 March 2022 used a carriage service to transmit child abuse material. This offence, which I will refer to as the 'transmission' offence, is contrary to s 474.22(1) of the Code.
2․The second offence is an offence of using a carriage service to possess child abuse material on 2 April 2022. This I will refer to as the ‘possession’ offence. This is an offence contrary to s 474.22A(1) of the Code. I am informed that each offence carries a maximum penalty of 15 years imprisonment. As I understand it, the offender is 37 years at the present time. I note from material provided to me that there have been two days of presentence custody which I will take into account. The offender was arrested on 2 April 2022.
Crown evidence
3․There was presented to the Court an agreed statement of facts setting out relevant details in relation to the offending. In outline that statement of facts discloses that on 1 April 2022, a female who was in a relationship with the offender called police to report that she had 'child abuse' material in her possession. This person is described as a 'co-accused' of the offender and will be referred to as such hereinafter. She has already appeared before her Honour, Loukas-Karlsson J, of this Court, as I understand it last month, and awaits sentencing next month.
4․I have not been provided with any material in relation to matters concerning her sentencing other than what flows from the material provided in relation to this offender and some information from the Bar table. Police attended upon this co-accused and found child abuse material on her mobile phone. She advised the investigators that she had obtained this material from the offender. On 2 April 2022 a search warrant was executed at the offender's residence where police eventually seized his mobile phone, a laptop and an external hard drive. Each of these electronic items is the subject of a forfeiture order that I will make at the request of the Crown.
5․It was discovered by examination of these three devices that there were 1,715 files of child abuse material on them. Further inquiries revealed that between 7 October 2021 and 31 March 2022, as particularised in the charge, the offender transmitted 68 files of child abuse material as well what is described as 'text-based child abuse material' to the co-offender via an encrypted messaging service called WhatsApp. The material within the files and the text-based material constitutes the 'transmission' offence.
6․The offender at the time of his arrest made admissions under caution to the possession and transmission of child abuse material and his early cooperation with the investigators against his own interest has been taken into account. I accept that his early cooperation is some evidence of contrition on his part. Of the 1,715 files which I referred there were 397 that were described as Category 1 videos, 1,067 Category 1 images, 27 Category 2 videos and 224 Category 2 images. Examination revealed that 121 of the total files found were located on the offender's mobile phone, 169 files were located on the offender's laptop and 1,425 files were located on the external hard drive.
7․Under the current categorisation system called the 'Australian Child Abuse Categorisation Scheme' (ACACS), Category 1 material involves images of pre‑pubescent children perceived to be under 13 years of age or else a child at the very first signs of puberty involved in a sex act, witnessing a sex act or where the images focus or concentrate on the anal or genital region of the relevant child. Category 2 material is 'other illegal content' involving a child under the age of 18 years of age that does not fit within Category 1 and may include images of children likely to cause offence to a reasonable adult where the child is subjected to sadism, torture, humiliation and the like.
8․The images may depict a child involved in activity or observing other persons involved in relevant activity. Category 3, which is the third category under this system, is not relevant to this matter. This system of categorisation replaces a system in place for many years which categorised relevant material in six different categories as the cases to which I was referred from earlier in the last decade set out. The Crown has summarised what is shown in some of the child abuse material in the facts available to the Court. Detailed descriptions need not be repeated for this judgment.
9․In summary, those images and videos include acts of fellatio by or on children under the age of 10, some as young as four or five, penetration of various orifices of such children, bestiality, urination on one occasion on a one‑year‑old child or a 'pre‑pubescent baby', the vaginal rape of a child no older than three years with a gag around her mouth and crying and the torture of a child no older than two years suspended upside down above the ground for at least nine minutes and 40 seconds, struck with fists, burnt with a cigarette lighter and having her face pushed into the vaginal region of an adult female, amongst other material.
10․The facts state that there are 1,000 individual child victims and that the child victims are largely between one and 10 years of age. The material is rightly described as 'highly depraved'. Some of the material described to me is not adequately described by those words. I have also been shown a collection of images which depict some of the depravity that the offender admits possessing.
11․The offender met the co-accused on a dating application called Tinder sometime in 2020. On 7 October 2021 they commenced communication through WhatsApp and apparently, according to the facts 'discovered' that they each had a sexual interest in children.
12․The offender has told a psychologist and this Court that a former partner also had a sexual interest in children and introduced him to the material, or some of the material, that was in his possession on 2 April 2022. He gave evidence before me that he had separated from that person in 2019, this is, it would seem to me on my calculation, approximately two years before he commenced any sort of relationship with the co-accused. The relationship with the earlier partner, that is the person who he said introduced him to child abuse material, was a relationship that lasted for about four years.
13․Apart from the offender transmitting 68 files of Category 1 material to the co‑accused, they participated in text-based child abuse material in which the rape of children was discussed including discussion between the offender and the co-accused about having a child for the purposes of using it for sexual activity. Excerpts of that text-based material are included in the statement of facts. During the course of these conversations the offender, at various times, forwarded to the co-accused particular child abuse files, the content of which can be understood from the detail of the conversations that occurred.
14․The excerpts of these text-based conversations are taken from recorded conversations on 7 October 2021, 21 October 2021, 31 October 2021 as well as 28 March 2022 and 31 March 2022. Those excerpts are themselves depraved communications on the part of both parties. They reflect on the part of both parties an enthusiastic enjoyment in participating in the text conversations and digesting the child abuse material that was forwarded by the accused. Even if the co-accused and the offender were 'role playing', as the offender asserts, the discussions, in their terms, brings shame upon both participants, particularly in the context and consideration of the 'handling' of child abuse files during those conversations.
15․Two pre-sentence reports have been prepared, one dated 14 April 2023 which provides little material but arises out of something of a misunderstanding between the offender and the Service, not of his fault, and a full report which was earlier prepared dated 4 October 2022. The pre-sentence report from the ACT Corrections Service sets out a history or background of the offender in similar terms, although less detailed, than the material contained in a psychologist's report, and also dealt within the evidence of the offender which I will deal with later.
16․The effect of this evidence is to note that the offender left home at the age of 13 because of physical abuse from his mother and his stepfather. He lived in a youth refuge for a period of time and never returned home. As his evidence before me expanded upon this, it appears he was taken in by a kindly family in the area where his parents lived on the South Coast and stayed in that environment, which was apparently a peaceful and caring environment, until he finished school. At the age of 16 he relocated to Albury, NSW and ultimately undertook studies in music at the conservatorium there.
17․He has a dysfunctional relationship at the present time with his biological father and no relationship at all with his mother and two of his brothers. As at October 2022, according to the pre-sentence report, he was in stable accommodation. He set out in the discussions with the Community Corrections Service officer details of his education and employment and I am prepared to accept that he has generally been in employment throughout his adult life. At the time of the preparation of the pre-sentence report, he is receiving income from casual employment as well as some Jobseeker benefits.
18․He claims in his discussions with the pre-sentence author that he does not associate with 'anti-social' elements, which may be true if one ignores his relationship with the co-accused and the other female ‘partner’ to whom I referred. There is little history of alcohol and drug use to negative effect. He has a history, however, of mental health concerns and has had dealings with ACT mental health programs over a period of time, at least until May 2022 when he was referred to a consultant psychologist and a general practitioner. He claimed to the pre-sentence author, as he claimed to the psychologist and this Court, that he did not “condone” possessing child abuse material and denied “any personal interest” in the material itself.
19․This denial, or these denials, stand quite at odds with the facts of the matter as I understand them to be and this became much clearer in his evidence before me as he sought to explain his involvement in these offences. He said in his evidence before me that he had shared a hard drive with the former partner who had initially downloaded child exploitation material. He later actively downloaded material for the benefit of his ex-partner and claimed, however, that he learnt to “disconnect” from the nature of the material as he said it was for her “benefit”.
20․He claimed that he continued possession of the material for an extensive period of time quite obviously for at least two years after separating from his ex‑partner because of what he claimed to be an “emotional connection” with the material and his ex-partner. Even if this were true, it is an absolutely pathetic excuse for his continued possession of this vile material. He told me in his evidence that, as I said earlier, that relationship finished in 2019 and I have already given the chronology of his contact with his co-accused. He said in the material available to me from his own mouth that the co-accused reminded him of his ex-partner.
21․He said that he shared the child exploitation or child abuse material with his new partner “upon her request”. He claimed to take full responsibilities for his actions but the author for the Community Corrections services was circumspect about this aspect and said that it was a matter that would require further examination. Further examination of the matter by reference to his evidence shows that it is not correct. The pre-sentence author noted his primary risk factors relating to general offending arose out of this offending behaviour and his attitude, mental health concerns and the character of his personal relationships.
22․His risk of sexually reoffending was not assessed as the relevant risk assessment tool or actuarial instrument that is used does not assess risk for the types of offences with which I am now concerned. He was assessed by the Community Corrections service as being suitable for a 'low level of intervention' commensurate with the assessed risk. Various recommendations were made should there be any supervision. He is assessed as being suitable for an Intensive Correction Order and particular matters that should be targeted whatever supervision is ordered would include the offence, specific behaviour, his mental health and his personal relationships.
Defence evidence
23․In the defence case the offender gave evidence and produced a report from a psychologist. He spoke of the truth of the histories that he gave and, as I said, expanded upon the detail of his background contained within those respective reports. He told me that his mother was prone to striking him with a riding crop and his stepfather, who was a former policeman in the ACT, beat him regularly. He said he would receive beatings twice a week on average as did other children in the family and ultimately, as I said earlier, he left home at 13 moving into the residence of a foster family in a nearby town.
24․His treatment up until the age of 13 is said to be a contributing factor to the 'diagnosed' post-traumatic stress disorder referred to in the report of the psychologist. As to the offending, he referred again to the 'disconnection' he claimed to have from the child abuse material. He admitted, as he has admitted to the psychologist, that he was aware that what he was doing was wrong, but he did not feel 'personally involved' or aroused by what he viewed. He said that the collection of the material was not his idea originally, but he maintained that he kept the material because he “genuinely loved” the person and had been “weak” to permit himself to use the material to maintain the relationship.
25․He said that the child abuse material was not sexually satisfying and repeated his earlier claims that he had no sexual interest in the abuse of children. However, he gave rather unsatisfactory explanations as to why he would use the material, as the agreed facts state, in the development of his relationship with his co-accused. I should also point out that his text-based conversations with the co-accused contradict his lack of interest in the material that he provided to her. In fairness, he also said in his evidence that all this amounted to a “poor excuse” but it also, in my view, had elements of ex post facto justification for his conduct.
26․He agreed in evidence that at the very least the best explanation he could provide, if I could use that expression, for his possession and then transmission of this material or the use of the material was to develop relationships with females in which he had a sexual interest. Whilst, of course, this is not consistent necessarily with a sexual interest in children, his explanation for possession of this material and the transmission of it does not make the offending less serious. Thus, his account is that the use of child abuse material was to develop sexual relationships with an adult.
27․This explanation is just another aspect, in my view, of the sexual exploitation of children by the use of child abuse material. He agreed in cross-examination from the Crown that he had had a relatively stable life since leaving the violent environment in which he grew up. He told the Court that ultimately he determined that the co-accused in this matter was “not his type”. But, of course, it is the fact that he spent a considerable period of time, the best part of at least five months, communicating from time to time with that co-accused and transmitting material to her.
28․So far as the counselling he had received since his arrest, he gave evidence that this was directed at his depression and his post-traumatic stress disorder. It would seem, based upon what he told the Court and the other material available to the Court, that he had not taken any counselling in relation to the fact that he had been in possession of child abuse material, reflecting what could only be described as an abnormal sexual interest in such matters, emphasised by the fact, of course, that he was prepared to use child abuse material ,which he found himself “disgusting”, to develop a relationship with an adult person.
29․The defence material included character references and letters of support from various people and a report from the Woden Community Service who has been engaged with the offender since February 2023. There is also the psychological assessment that I have referred to dated 7 January 2023. Referees include a friend of 22 years who lives at Terrigal, has played with the offender in several bands and lived with him for a short period of time. He attests that the offender's “honesty, loyalty and strong work ethic” and he claims that the offender has shown “empathy and selflessness” but claims that his generosity had left him vulnerable to manipulation and emotional and physical abuse amongst other matters.
30․With the greatest of respect to that referee, that if that is asserted to be some interpretation of the offender's offending, it reflects a fundamental misunderstanding of the facts of the matter. He, in this reference, claims that the offender has made genuine efforts to improve himself and is confident that he has “great potential” for rehabilitation and will remain a productive and “valuable member of society”.
31․An older brother who claims to be aware of the charges and has four children and three grandchildren of his own said that he has never had an issue with the manner of the offender's relationship with children related to him. He described the offender as being “helpful, considerate and an invested member of our household”. He noted recent losses of the offender including the loss of a dog with whom he was very close, and a close friend. He noted at the present the offender was “focusing” on his mental health and his musical interests and he referred to his exceptional talent as a musician.
32․A friend who has known him since 2016 and claims knowledge of the charges that I am concerned with states that the Court proceedings have had an effect upon the offender and his mental health. That person noted his affection for his current domestic animal, a dog. She had met the offender through their shared interests in that breed. She noted various “personal tragedies” and noted that in the last few months before writing the reference, the offender seemed more motivated to return to his interests. She claims in the reference that the offender is not a “criminal” but rather had made “questionable decisions” and again had “allowed himself to be manipulated”. She claims that with correct support he will return to his normal self.
33․It is hard to understand how she and the other referees should refer to the offender being ‘manipulated’ into committing the offences with which I am concerned, given the history that is available to me from the offender himself. There is another reference from a cousin who claims that he is not surprised at his willingness to accept responsibility for his own actions. That referee noted that he expressed regret for his conduct. She called the offender a “kind and caring person”. It would seem to me, again, without being unduly critical, that the offender has shown far more interest in his pet dog than the welfare of the victims shown in the various images that the police in the investigation of this matter have had to digest and that have been brought to my attention.
34․The cousin refers to the offender’s skill as a musician and other personal interests. The cousin claimed that he had a stable domestic situation at the time of the preparation of the reference and he stated that he can contribute to the community with ongoing mental health support.
35․The Woden Community Service report, which is relatively short, made on 18 April 2023 noted the offender had been attending on a weekly basis since earlier that year. The “Recovery Worker” who prepared the report stated that the offender’s mental health challenges “are not related to the offence for which he is currently facing court proceedings”. She claims that he is a person of good character who “demonstrates compassion and empathy towards others”.
36․Turning to the psychologist’s report, that ‘diagnoses’ the offender at the time of assessment in January 2023 as having symptoms consistent with post-traumatic stress disorder with moderate symptoms and major depressive disorder with recurrent moderate symptoms and anxiety.
37․It refers to a history of childhood trauma and a range of symptoms suffered by the offender in his 30s as between 3-7/10 as described by the offender. The psychologist said that on the history given there was a genetic pre-disposition to anxiety and depression and the offender may have suffered depressive symptoms for many years. Rating the offender’s depressive symptoms on a scale devised by the psychologist at 6/10 during the offender’s 30s.
38․The psychologist states that at relevant times the offender suffered what is described by the psychologist as “mental illness” that is, an underlying pathological infirmity of the mind whether of long or short duration, whether permanent or temporary, but did not include a condition resulting from the reaction of a healthy mind to extraordinary external stimuli. The psychologist applied a number of psychological tests that are set out in the report and I have been through those matters very carefully.
39․I have undertaken an assessment of the Personality Assessment Inventory very closely. I will come back to that shortly. The psychologist set out the family history, that I have referred to, of deprivation up until the age of 13 and general stability in his adult life. The offender estimated to the psychologist that he had been employed for about 80 per cent of the time of his adult life in a range of different occupations.
40․He had previously had treatment for depression and dealing with “traumatic memories”. He had been in his mid-20s on antidepressant medication but not, it would seem, in recent years leading up to the assessment by the psychologist. He had not had any difficulties with the use of alcohol and had, in the past, only occasionally used cannabis. With regard to his relationship with child abuse material, he claimed that the woman with whom he was in the previous relationship, not the co-accused, had “loaded most of the material”.
41․I take that to mean downloaded most of the material that was in his possession at the time of his arrest. Again, he claimed that his inability to let go of the child abuse material centred around this previous relationship and claimed that he was emotionally detached to the material. He claimed that he did not look at the material after he had separated from the previous relationship.
42․It is difficult to accept that this could be true in light of the fact that, amongst other things, he was prepared to transmit particular files to the co-accused. To my mind, the description the offender gave of his possession of the material reflected something of an over-simplification and downplaying of his own criminality. The fact that he was so enthusiastic in his provision of material to the co-accused sits at odds with that history that he gave the psychologist.
43․He said to the psychologist that he was fearful of incarceration; that his brief time in custody when arrested in relation to this matter had “scared him”. The psychologist opined that the origin of his post-traumatic stress disorder was the violence directed at him by his mother and stepfather. I questioned him about the issue of the effect upon him of the violence shown against the children in the child abuse material in his possession. He was obliged to accept the fact that the evidence shows that the material involving violence against children in his possession reflected violence far more extreme than anything that he had experienced during his childhood.
44․There was a Personality Assessment Inventory undertaken and I am satisfied on very close examination of the various subsets of tests that were untaken that the conclusions reached by the psychologist are generally in accordance with that testing. With regard to his conclusions, the psychologist opined that the mental impairment of the offender that he had described would have “some effect” on his capacity to exercise appropriate judgement.
45․This, of course, has to be assessed in the context of working out the character of the ‘appropriate judgment’ exercised by the offender. The receipt of and the continued possession of material over an extended period of time and the decision to provide part of that material to another person to encourage a personal relationship in the context of text descriptions of violence against children, underscores his lack of impulsivity and the lack of consideration by him of the consequences of his behaviour referred to by the psychologist.
46․The psychologist, in what I would regard as an understatement, expressed the view, not some sort of medical analysis, that the accused had “exercised poor judgment” in accessing, retaining and sharing child abuse material. He stated that the tests undertaken by him revealed on the part of the offender a lack of ability to concentrate and that his history of trauma, his anxiety and depression would create symptoms which may have, or would have, had a disinhibiting effect upon the offender.
47․However, the psychologist does state that the offender was aware that his conduct was morally wrong and criminal but, he did not give that aspect of the conduct “much consideration”. The psychologist also states that the offender’s mental impairment did not obscure the offender’s intent to commit the alleged offences, nor contributed causally to the commission of the offences. The psychologist stated the offender would be vulnerable in custody and formed the view that he was of a high risk of suicide as he described it if incarcerated. The psychologist concluded this on the basis of the Personality Assessment and also a past history of on a prior occasion some years before of self-harm. He recommends counselling for the offender’s conditions as well as psychiatric treatment. He said that access to suitable treatment would be better outside of custody than inside custody. I should point out in relation to this matter that it was heard on 21 April 2023, the date that the offender gave evidence.
48․I had received the written submissions of the parties beforehand, and I heard oral submissions, the detail of those matters I will come to shortly. The matter was adjourned until 2 May 2023 for sentence. Counsel for the offender advised the Court that he was unavailable on that date, and he would make arrangements for a colleague to take the sentence. A few days before 2 May 2023, however, I was advised through my Associate that the offender had been hospitalised after a self-harm incident in late April.
49․An application was made to adjourn the matter so that further evidence could be adduced in relation to this development. This application, whilst notionally opposed by the Crown, could not be refused. Particularly, in my view, as the offender was entitled to have the counsel who represented him in the plea proceedings to be available to make relevant submissions about these further developments.
50․An affidavit was filed before 2 May 2023 affirmed by the solicitor annexing correspondence between the offender’s counsel and a friend of the offender who gave some detail of history of the offender being hospitalised on 24 April 2023, as well as a ‘discharge summary’ in respect to the offender’s treatment at a hospital in Canberra. Whilst the affidavit and the application were framed in the context of ‘fresh evidence’, clearly it was not fresh evidence. No leave was required to produce further evidence as the Court had not made any final Orders in relation to the matter. As far as I was concerned, as I said on 2 May 2023 and as I said again today, both parties were within their rights to produce any relevant evidence for the sentencing proceedings up until final orders were made.
51․As it turned out, the evidence now available to the Court today establishes that the offender, on 24 April 2023, overdosed on 100 mg of Diazepam combined with alcohol and he was taken by ambulance to Calvary Hospital. On 25 April 2023, he was admitted to what was described “Ward 12B” and was discharged the following day. The discharge summary is unsigned and the author is unknown. But I accept, for the purposes of these proceedings, it is admissible hearsay evidence of the facts disclosed in these documents; bearing in mind, it is a business record of a hospital. It asserts that the offender had overdosed on prescription drugs in combination with alcohol requiring hospitalisation for something less than 48 hours and that the offender was discharged to community support.
52․His counsel relies on this further evidence as establishing that the risk of self-harm as the facts describe it, is not hypothetical and should be taken into account as impacting upon the sentence to be imposed even if it meant the Court “reduced the figure” as it was expressed by counsel for the offender by a small amount. That is, on the basis that the Court would have already formed some view as to what the appropriate sentence was to be imposed in this matter without the aid of this additional material.
53․It was specifically submitted that in this matter, giving weight to ‘deterrence’, was at the risk of danger to the offender’s health. I accept the first submission. I do not accept the second submission and I will come back to the reason for that shortly. The Crown did not object to the evidence but given no oral evidence has been called either from the offender or from a medical professional. The Crown’s hands, in this matter, were obviously somewhat tied.
54․Whilst the Crown accepted the prima facie evidence confirmed the risk of self-harm or possibly suicide, in the Crown’s submission it did not effectively change what had been previously submitted by the Crown in relation to this matter in terms of general principle. It was a relevant matter to the ultimate sentence to be impose however if the Court were to determine, notwithstanding this evidence, there should be a full term of imprisonment the care of the offender was, in fact, a matter for the correctional authorities in the ACT. I accept ultimately that this further evidence can be taken into account in slightly diminishing the effective sentence to be imposed, particularly the minimum term to be served by the offender and the relationship of the minimum term to the balance of the sentence.
55․However, the material is not of a character that deters the Court from continuing to give weight to the various matters that have to be taken into account in ultimately requiring the imposition of a full term of imprisonment to be served for a period of time by this offender. The care of the offender in custody is, of course, the responsibility of the correctional authorities as the legislation and common-sense dictates.
56․With regard to the psychologist’s assessment of the matter, he claimed that it was unlikely that the offender’s primary sexual orientation is to prepubescent children. Of course, this analysis, again, begs the issue or the question of the motive for the offender to possess this material and transmit it for his personal sexual interest to an adult.
57․The psychologist, quite properly, noted a number of strengths in the background of the offender. Including an avoidance of alcohol and drugs and the absence of prior convictions. He stated that there was no indication of generally held antisocial attitudes except in relation to sexual fantasy. He noted the offender expressed regret for his actions and he clearly expressed remorse with a “good understanding of why [his] actions were morally wrong”.
58․He said to the psychologist that “I feel guilty. I wanted a relationship, to feel loved. It makes me sick to be honest”.
Defence submissions
59․With regard to the defence submissions, I have taken into account all the submissions that have been made by the accused as well as the Crown’s submissions. I will summarise them and I will make some comment upon the submissions as I move through them rather than returning to analyse them later in my consideration of the matter.
60․The defence written submissions point to the assessment of the offender’s post-traumatic stress disorder and major depressive disorder by a psychologist and his vulnerability in custody having regard to his background and his mental state .Also, the fact that he had abstained from offending since coming under the attention of the authorities, his compliance with onerous bail conditions for over a year including restricting his access to the internet and his promising prospects of rehabilitation, as well as his willingness to engage in therapeutic treatment, I take these matters into account but, of course, one expects nothing else of offenders who are given the benefit of bail but to comply with the conditions fixed for their conditional liberty in the community, otherwise they are required to be in custody.
61․So far as his willingness to engage in therapeutic treatment, it seems to me that he has been willing to engage in treatment for matters relating to his depressive disorder, and his PTSD, but not in relation to the underlying cause of his offending. It was submitted by his counsel that the “punitive and protective purposes of sentencing can be achieved with a period of imprisonment, but his prospects of rehabilitation and the purposes of rehabilitation should ensure that the sentence is not disproportionately severe and can be allowed to be served by way of Intensive “Correction Order”.
62․The purposes of sentencing in this matter in my view cannot be satisfied, even making an allowance for all the favourable matters that could be put on his behalf or recognised in the mitigating circumstances, as permitting the imposition of an Intensive Correction Order for this offending.
63․As far as the objective seriousness of the offending is concerned, counsel for the offender rightly drew my attention to the decision of Minehan v The Queen [2010] NSWCCA 140. It is submitted in the written submissions of the accused, that the Crown’s submissions that the offending is at the ‘high end’ of ‘mid to high end’ of the objective seriousness spectrum should not be accepted. Noting other decisions where offenders have been in possession of tens of thousands of files, such as the decision of R v Porte [2015] NSWCCA 174, and R v De Leeuw [2015] NSWCCA 183( herein after where I refer to those judgments I will refer to them simply by the name of the offender) the defence rejects the Crown’s submission that the offence is of a gravity at the upper end.
64․Whilst conceding that ‘files’ involving cruelty and torture exist it is submitted that there has been no analysis as to what proportion of the files consisted of such material. It must be fairly said that one of those files which I summarised earlier is so horrific that standing by itself it represents an extreme example of child abuse material that this society just cannot permit people to possess, nor allow them to be free on possession of material of such a vile character.
65․Another submission made by the accused was that the possession of the material related only to “one day”. The counsel for the accused relied upon a decision of R v Burch [2020] ACTSC 192, particularly at [33]-[35]. This particular submission of the accused’s counsel cannot be accepted. Whilst the offender is charged with possession on the day of his arrest, his own admissions establish his possession of this child abuse material for over two years before that date.
66․That is no offence of De Simoni principles (see R v De Simoni (1981) 147 CLR 383) as they are sometimes described, to sentence the offender on that basis. He is not being sentenced for a more serious of different offence than the current charge. He is being sentenced because on 2 April 2022 he was in possession of child abuse material that he had been in possession of for an extended period of time beforehand. Burch was an entirely different case where the facts revealed, when one read the judgment, that he was sentenced for his possession of only five files, as they were the only files that could be retrieved on the day of his arrest .Because of damage done to the hard drive in the examination of the material by the investigators and, in the absence of other evidence, there was nothing that could be done by Murrell CJ other than to be satisfied that the offender had possession of those files on the day of his arrest.
67․It is submitted by counsel for the accused that the textual descriptions of the offender’s fantasies did not affect the assessment of the level of the seriousness of that offence. It is claimed that the fantasies were “nothing more than that”. But of course, the transmission matter is not concerned solely with the text-based material, but also the transmission of child abuse material in the course of those communications. As I have already pointed out, the textual descriptions, or text conversations, reveal on the part of the offender an interest and an enthusiasm for the material that was being sent that contradicts the claims of the offender to the psychologist and the Community Corrections officer, that he was, in effect, disinterested in that material.
68․Reliance is placed upon the psychological report to invoke principles set down in decisions such as R v Verdins [2007] VSCA 102, and the New South Wales decision of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, particularly in the judgment of McClelland J, at [177]-[178]. It was also sought to invoke the High Court decision of Bugmy v The Queen (2013) 249 CLR 571 (at [43]-[44]) on the basis of the accused’s deprived background normalised antisocial behaviour had “warped the offender’s moral compass”. It was submitted that the offender’s moral culpability could thus be reduced. The difficulty with this submission is that there is no evidence from the offender himself, or in the analysis of him by any professional, whether it be a psychologist or someone from Community Corrections, that his development or his treatment as a child has in any way contributed to his offending with which I am concerned .In any event, he admits his moral responsibility in relation to the character of the offending and admits to an awareness of the immorality of this aspect of the matter at the time of the offending.
69․It was submitted that rehabilitation is an important consideration to be taken into account, not only for the benefit of the offender, but the protection of the community, citing a decision of DPP v Hermann [2021] VSCA 160, particularly at [112]. There can be no doubt that this is true. This has been stated to be the case as early as the late 1970s in South Australia in the famous judgment of King CJ in Yardley v Betts (1979) 22 SASR 108 to the same effect. That particular decision has been adopted in New South Wales in many decisions over the years.
70․It was submitted by counsel for the offender that imprisonment may be counterproductive to his rehabilitation, citing the decision of Boulton v The Queen (2014) 46 VR 308, particularly at [108]-[109]. In that judgment, the Victorian Court of Appeal noted that imprisonment can be “seriously detrimental” to an offender and thus “hence to the community”. In this matter it is not submitted, as was suggested in Boulton, that the offender might be led into institutionalisation, or be unfit to life outside of gaol, if he was not incarcerated. It was not submitted that he would become more antisocial by reason of being incarcerated. But it was also submitted that he may be forced to reside with anti‑social people. This is a consequence of the conduct with which I am concerned. Some of the aspects of the circumstances of the incarceration of the offender are clearly relevant to the finessing of the final orders, but ultimately such matters are not matters that prevent the imposition of a term of imprisonment.
71․Strong protective factors were noted in submission as were noted by the psychologist and I need not reiterate those matters. It was submitted on behalf of the offender that he was willing to undertake psychological treatment and that he would respond well to such counselling. The problem is, as I have said, it was clear from his evidence and the detail of the reports that such counselling that he has received thus far has not concerned itself to address the aberrant behaviour of possessing child abuse material. It was submitted on behalf of the offender that I should afford him a discount of 25 per cent to recognise the utilitarian benefit of the pleas of guilty, the timing of the pleas of guilty and, of course, the facilitation of the course of justice by those pleas of guilty and his cooperation.
72․I should say in passing the Crown's written submission was that the discount should not be so great but it seems on oral presentation of its case, the Crown conceded that within its own submissions there was some contradictions and ultimately that the issue of a discount of 25 per cent was within a reasonable exercise of discretion by the Court. I was reminded in the defence submissions of the operation of s 19 of the Crimes Act 1914 (Cth) in respect of Commonwealth sex offences and particularly the terms of s 19(5) of that Act.
73․I will come back to the issue of totality of criminality as it is concerned with that particular section shortly. The defence submitted that a partially or wholly concurrent sentences would give proper effect to the concept of totality. I agree that there should be some degree of concurrency between the two sentences I am required to impose but clearly the two sentences cannot be 'wholly' concurrent. That would not reflect a proper examination of the totality of the criminality in this matter. Ultimately it was submitted that I should impose a sentence that required the offender to serve his term of imprisonment by Intensive Correction Order in the context of what Commonwealth legislation might otherwise refer to as 'exceptional circumstances'.
74․There are a number of circumstances that are to the benefit of the offender's position but the combination of circumstances I am required to consider including the character of the offending is not, in my view, 'exceptional'. Amongst other things, by reference to the authorities cited by both the Crown and the offender, I do not see the degree of insight in this offender such as to permit a conclusion of exceptionalism to which is referred in the submissions of the defence. Most importantly, it seems to me, that any claim of exceptional circumstances must fail by the consideration of the fact that by his own admission and by any objective analysis of the matter the offender's moral culpability is not, in any way, diminished by his mental conditions given the lack of causal relationship.
75․That is not to say, of course, that mental disabilities are not relevant to sentencing even where there is no causal relationship. But in this particular matter the issue of moral culpability requires, in my view, some establishment of a causal relationship. I should also say by reference to ‘Bugmy principles’, in that regard I note in that decision of the High Court the observations ,particularly at [43]-[44], that this is not a case, firstly, of the extremity of deprivation of opportunity and the like that arose in Bugmy and, further the background of violence occasioned to the offender during his childhood does not explain his criminal conduct.
76․In Bugmy the Court noted by reference to that particular offender that an offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence. Of course, Mr Bugmy was charged with an offence of violence that might arise when frustrated, such that the “offender's moral culpability (for the inability to control that impulse) might be substantially reduced”. Such is not the case here.
Crown submissions
77․I turn now to the Crown's written submissions. Properly the Crown has set out that sentencing principles for Federal offenders, such as this offender, arise under part 1B of the Crimes Act 1914 (Cth), hereinafter to be referred to as the Crimes Act.
78․Of particular pertinence are the terms of s 16A(2) requiring the Court ultimately to impose a sentence in respect of each offence which is of a severity appropriate to the circumstances of the case correctly applying, of course, relevant common law principles, including those of proportionality and totality. The Court is required not to impose a term of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case (see s 17A of the Crimes Act). This is undoubtedly correct.
79․The Crown went through a number of matters that arise under s 16A(2), sometimes referred to as a “checklist” of issues, but not an exclusive checklist of issues, relevant to sentencing Commonwealth offenders. Principally, the Crown identifies the nature and circumstances of the offending and analyses the matter by reference to the judgment of RA Hulme J in the decision of Minehan to which I earlier referred. The Crown summarises the features of both charges ultimately analysing the offending in relation to the possession charges at the 'mid to high range of seriousness' for offending of this type and that the transmission charge was at the 'higher' level of seriousness having regard to the depravity of the images and the character of the text-based child abuse material, as well as the purported frequency and consistency of the transmission of this material.
80․In respect of this aspect of the Crown's submissions, it is appropriate to consider the application of Minehan and the categorisation of the offending in the manner that the Crown sought to use. The possession charge, in my view, is the more serious of the two charges. That is plainly so particularly by reference to the significant greater number of files involved although, the number of files is not necessarily determinative of the seriousness of the offending. This is so also notwithstanding the exchange of text messages between this offender and his co-accused.
81․While the text messaging is, in some instances, depraved, as I have said, particularly so in the context of discussions revolving around the character of the files forwarded to the co-accused, the co-accused was an adult and a willing participant in the transmission of files and the conversations that ensued. The Crown advised the Court that the co-accused, when arrested, was in possession of 2,000 files of child abuse material presumably obtained independently of this offender on the sparse information provided to the Court.
82․On reflection, this Court was entitled to be provided with greater detail as to the facts relating to the co-accused. But at this late stage nothing really turns upon this. I must sentence this offender on the facts relevant to him. As previously analysed from the offender's evidence to this Court, the offender's reason for possession of the material was his purported emotional relationship with the material because of the circumstances in which he acquired that material and the attachment to the woman that provided him with at least some of that material.
83․But that possession continued through the relationship with the co-accused and it is during the relationship with the co-accused that the offender transmitted material to her. The breakup of that first relationship left him in possession of the material and he claimed that he could not get rid of it because of his emotional connection. This is a very poor reflection upon his priorities and a reflection, in my view, notwithstanding his claims of being disgusted in the material, that he possessed a complete lack of empathy, sympathy or regard for the victims shown in the images or the videos that he held onto over that period of time up to and including the relationship he had with the co-accused.
84․His explanation, as I said earlier, of the “role playing” with his co-accused and the text messages with “no intent involved” falls at odds with some of the enthusiasm of the communications. As it turned out, the purported wishes of the two of them to participate in particular activity never eventuated. At the same time, the offending in both offences specifically reflects a complete disregard for the true content of the material or any sort of display of empathy or sympathy for the victims shown in the video recording. The offender's motivations for possession and transmission of child abuse material, in my view, are not, of themselves, aggravating factors but they leave the offending at a serious level but not at the high or higher end of the seriousness described by the Crown.
85․The use of expressions such as middle level or high level of criminality in relation to this type of offending in reality disguise the fact that all offences of wilful possession and intentional transmission of child abuse material are serious offences. They become more serious when the number of files possessed and/or transmitted are taken into account. The earlier cited case of Burch relating only to five files that could be proved to be in the possession of the offender and the outcome of that case emphasised that point. But it also emphasised the seriousness that is placed upon possession of even a small amount of this type of material.
86․The possession charge itself is not to be judged solely by reference to the number of files. Referring back to the matters identified in Minehan and adopted by Johnson J in De Leeuw, I point out these features of this offending in respect of the possession charge. The subjects of the child abuse were real children and a number of the images contained physical and sexual abuse of the gravest seriousness. The torture of the two-year-old child hanging upside down is so disgustingly depraved, as I said, it is almost impossible to imagine what type of person could derive any pleasure or interest in such events. It is as extreme as one could conjure of such a category of child abuse even allowing for the fact, as was discussed in Veen v The Queen(No 2) (1988) 164 CLR 465 in relation to homicides, that when seeking to identify more extreme cases than the case of bar one could always conjure up a “worse case”. The fact that the offender was disconnected from the subject matter provides no comfort at all to the community or the victims, no doubt victims are filmed and recorded overseas, and provides no mitigation to the seriousness of the possession of those images.
87․The only reaction of a person of common decency coming across such material, assuming it was downloaded without knowledge of what was to come, would be to delete the material immediately. Of course, this did not happen and the offender, as I have said earlier, provides no rational explanation other than one consistent with weakness and disregard for the seriousness of the subject matter. That having been said, the purpose of the possession was for his own use, albeit that there was limited transmission after coming into possession of the material, that gives rise to the second charge. Such dissemination has occurred was to an adult female with whom he had a romantic interest. On his version, which I am prepared to accept, he acquired at least some of the material from one such person, that is an adult female with whom he had a romantic interest. He shared the material with only one person, there was no payment involved, and no commerciality in the possession or the related transmission. There was ‘distance’, as it is described in Minehan, from the ‘source’, there are a large number of individual victims (said by the Crown to be 1000). There was no explanation from the offender in a technical sense of the manner of acquisition, but clearly there was little planning, such as there could be, and the offending could not be described as sophisticated. I am prepared to accept there was no risk of the material being seen by vulnerable people or being seen or acquired by people susceptible to influence by the material.
88․Therefore in the context of the conceivable range of numbers of files that can be acquired, such as for example in Porte, and De Leeuw, although there were only a minor proportion of Category 1 files ( under the current system )in those cases, the lack of commerciality, the absence of the risk of acquisition to vulnerable people, but noting the character of the material and the number of victims, this is a case where the seriousness of it does not require a crushing sentence. But it does require immediate imprisonment to give proper weight to general deterrence and personal deterrence, even allowing for the matters relevant to the assessment of those matters, such as might arise under the Verdins principles to which I will refer in a moment. Whilst not at the higher end of criminality, these offences are significantly serious, such as to require as I have said, weight to be given to general and personal deterrence in the context of all other matters to be taken into account.
89․This is a matter taken up by the Crown in the context of dealing with the facts of the case, at [21]-[24], setting out various considerations, particularly to the weight to be given to general deterrence. So far as the character antecedents, age, means, physical and mental condition of the offender, the Crown notes he is of prior good character, but submits that good character should be given less weight in offences of this type, given that they are frequently committed by persons that are of good character.
90․I must confess that I have never understood the logic of this. Good character is what it is. In the frequency of offending of a particular type where persons of good character are involved, one would have thought as a matter of logic that simply meant that in such sentencing exercises, good character will more frequently arise for consideration. It should not reduce its significance in the individual case, if one is to give individualised justice to a particular offender. Of course, where good character is an enabler of offending, such as in circumstances of sexual assault, or sexual offences arising out of a particular relationship with a particular victim, taking advantage of good character in those circumstances obviously requires less weight to be given to that feature. But of course, the offences with which I am concerned can be committed by anybody with access to a computer or a mobile phone irrespective of their background.
91․As to the mental health of the offender, the Crown accepts the diagnoses of the psychologist, the Crown did not require him for cross examination. It is submitted that the diagnoses did not reduce the offender’s moral culpability in a material way, and with that I agree. As I said earlier in the context of considering Bugmy considerations and their reflection upon moral culpability, the lack of causal connection between the mental conditions or the accused’s background with the offending severs that connection. The offender was assessed by the psychologist as being fully aware of his moral responsibility.
92․In relation to that aspect of the matter by regard to what the parties have referred to, and the written submissions have referred to as Verdins principles. I note in respect of that decision, particularly the six matters that are set out at [32], I do not propose to reiterate them. In my view, in a shortened way, I point out that I regard the mental conditions of the offender as being relevant to matter number 2, that is the relationship of the mental health of the offender to the kind of sentence that will be imposed, and conditions which should be served. It has a slightly moderating effect upon the impact of general deterrence, but obviously does not eliminate its significance. It is not relevant to the specific deterrence required to be considered in this particular matter, but is relevant to points 5 and 6 as they are sometimes described in that judgment, because it seems to me that the condition of the offender will be relevant to the manner in which he will serve his sentence, and the potential impact upon his mental health is to be recognised.
93․The Crown accepts the assessment that the offender is at risk of self-harm, particularly whilst in custody, but as I have already pointed out the Crown’s position in writing, and in oral submission is that these matters have to be weighed with many other matters, and ultimately should not dictate whether or not the offender should serve a custodial sentence, and I agree that that is so. It was submitted by the Crown, and I accept, that people in custody will receive a standard of health care equivalent to other people in the ACT with access to appropriate health services, citing s 53 of the Corrections Management Act2007 (ACT).
94․It is submitted by the Crown in its written submissions that specific deterrence is a relevant factor, and I agree that that is correct, it is submitted by the Crown that notwithstanding the protestations to the contrary, the offender must have a degree of sexual interest in children, this increases the likelihood of reoffending, and he must be deterred from that. It should be pointed out, of course, the secretive character of this type of offending makes it difficult to detect, and opportunity to commit this type of offence do not arise out of direct contact with or association with children. The Crown submitted his text messages reveal the enthusiasm the offender has for the material that was in his possession.
95․It is submitted by the Crown that his primary attraction to adult females is in itself not a protective factor, bearing in mind the circumstances in which this offending occurred that I have summarised previously. The offender’s sexual gratification, even indirectly, from child abuse material increases the importance of specific deterrence with which I agree, and, as the Crown has submitted, this is underlined by the fact that the offender by his own statements had been involved in the possession of this material for a lengthy period of time. The Crown conceded that other matters arising under s 16A(2) of the Crimes Act such as the express contrition and the pleas of guilty are relevant matters to be taken into account.
96․I have already dealt with the issue of the Crown’s submissions in respect of how this can be done, particularly by regard to the discount to be given to the pleas of guilty. I do not propose to dilate upon the matter any further, other than to indicate that ultimately, notwithstanding some reservations about the insight of the offender and his willingness to take full responsibility for his conduct, in all the circumstances, particularly by regard to the timing of the plea, he is entitled, in my view, to a discount of 25 per cent upon the otherwise appropriate sentences to be imposed.
97․It is correct though, as the Crown submitted, that his expressions of regret and remorse are 'largely framed' around holding onto the material because of past relationships or continuing relationships ensuring that the material can be shared with a person who has an interest in it. It is submitted by the Crown, and I accept this to be true to some extent, that the offender appears to minimise his consumption of child abuse material by framing it as a response to the deviant interests of his own female partners. He fails to recognise his own deviant interest in developing relationships with women by the use of this material. It is submitted by the Crown that the accused, by regard to some of the matters raised with the psychologist, does not fully grasp the gravity of the possession of child abuse material.
98․The Crown submits in respect of the issue of the prospects of rehabilitation required to be taken into account under s 16A(2) of the Crimes Act that they are not assured. They are not capable of measurement and in light of the failure of the offender to have complete insight into his offending, one should be circumspect about them in the future. With this I agree but at the same time, it seems to me to be a matter that militates in favour of an extended period of supervision to provide effective counselling if it can be provided to try and draw the offender to reflecting upon the circumstances of his offending. The Crown has reminded the court of s 16A(2AAA) of the Crimes Act relating to the requirement to have regard to rehabilitation in sentencing an offender for a Commonwealth child sex offence. The Crown submitted, however, that this provision did not permit or require the court to impose a sentence which is either disproportionately severe or unjustly lenient in pursuit of the effective rehabilitation of the offender. With this I agree.
99․The Crown reminded the court of the requirement to have regard to totality of sentencing, citing the High Court judgment in Pearce v The Queen [1998] 194 CLR 610 at [45]. The Crown reminded the Court that if I was to fix a minimum term for a sentence of less than three years, I would be required not to fix a non-parole period but to order the offender to enter a Recognisance Release Order. The Crown referred also to s 19(5) of the Crimes Act dealing with the presumption in favour of accumulation of sentences. In that regard, I am drawn back to the issue of totality of sentencing which, of course, arises in this matter and I referred to it earlier.
100․Totality of sentencing is a principle that requires a sentencing judge to impose a sentence or sentences which reflect the overall criminality of the offending (see, for example, Johnson v The Queen [2004] HCA 15 at [18]).While there are many decisions dealing with various aspects of the application of the totality principle, one particular authority that reflects the practicalities in this regard is the decision of R v Holder & Johnston [1983] 3 NSWLR 245, particularly at 260, where Street CJ noted that in order to give effect to totality and not to produce a disproportionate result, there will be a requirement not only to give effective concurrency of sentences but to telescope sentences, that is to overlay various sentences to ultimately reduce the total sentence from what would have been the outcome if sentences were just imposed 'end to end'. In this particular matter, there is a degree of concurrency required because it is clear on the facts available to me that the material transmitted, not the individual text communications but the files that were transmitted, were files already in the possession of the offender for which he must be individually sentenced.
101․Further, in relation to Commonwealth child sex offences, there is a presumption of serving a term of imprisonment before any release on a Recognisance Release Order and only will a person be released immediately if there are exceptional circumstances. I have already dealt with the fact that there are not exceptional circumstances in this matter and I do not propose to dilate upon that.
102․The Crown also referred the Court to various comparative sentences or purportedly comparative sentences in accordance with what is required to ensure consistency of sentencing as discussed in decisions such as R v Pham (2015) 256 CLR 550 at [28] and Hili v The Queen (2010) 242 CLR 520, particularly at [49]. The Crown said that the comparative cases were chosen because of the similarity of the objective facts, for example, the number of files possessed and similar subjective circumstances of the respective offenders.
103․In regard to the comparative cases, it seems to me that there were three categories of them provided to the Court, either deliberately or inadvertently. The first category were decisions such as Minehan, Porte and De Leeuw which I have previously cited and which contain principles agreed between the parties that are required to be applied in this case. In the second category, that is cases that were more comparable on a factual basis, were decisions such as Peters v The Queen [2018] NSWCCA 126, DPP (Cth) v Garside [2016] VSCA 74, DPP (Cth) v Zarb [2014] VSCA 347, Burton v The Queen [2020] NSWCCA 127 and Mertell v The King [2022] ACTCA 69. The third category were decisions such as R vMajor [2016] ACTSC 161, the decision of Burch to which I earlier referred, a judgment of Murrell CJ, and another decision of this Court of R v Johnston [2020] ACTSC 46 per Mossop J.
104․So far as the particular cases relied upon by the Crown, Peters emphasised the paramount public interest objective in promoting the protection of children and the concomitant need for general deterrence. This was an appeal by the offender against error for failure to recognise the discount for the utilitarian benefit of the plea and failing to give proper regard to totality. One count related to 676 files in breach of New South Wales law with a different maximum penalty and it should be pointed out that with many of these various comparative decisions, not all the maximum penalties align with what I am required to consider here. The second count involving duplications of many of these files was a breach of Commonwealth law carrying a maximum penalty of 15 years' imprisonment. Mr Peters was sentenced to a total sentence of two years four months with a minimum term effectively of 15 months’ imprisonment.
105․Garside involved two counts relating to possession of 6,000 images, 5,748 of which were category one under the old system which means no sexual activity and there the offender received a Community Corrections Order which was held to manifestly inadequate and provides little guidance for this Court.
106․Zarb was a Crown appeal against the inadequacy of a Community Corrections Order for three counts. One count of accessing child pornography relating to 416 files found on a laptop, downloaded over 15 months, one count of transmitting child pornography with the offender engaged in conversation on an adult website sending three abuse files to a covert operative and sending 10 pornographic images to different recipients on one day. That was a matter where there was a sentence of three months’ imprisonment with a two-year community corrections order. The Court noted the offender’s powerful mitigating factors but also noted that he had high moral culpability. The Court noted amongst other things “the appalling effect which these offences are likely to have on children who are used to make the pornography”.
107․Burton was a case involving similar facts to where the offender was sentenced to a total sentence of 21 months’ imprisonment to be released on a Recognizance Release Order after serving 12 months. He was a member of the Australian Defence Force and had been involved in Skype communications over two years with various adults transmitting graphic written descriptions of sexual activities he would perform with children.
108․Mertell, a decision of the Australian Capital Territory, involved a failure by the judge to properly apply totality principles where the ultimate sentence imposed by the Court of Appeal was 30 month’s imprisonment with the 12-month minimum term.
109․I do not need to go through the facts of all these matters. One would have thought that Mertell and Peters were probably of the most assistance, but it is to be borne in mind that each sentencing exercise is an exercise in individualised justice with multiple variables arising for consideration when dealing with an individual offender.
110․In regard to the observations I made about the heinous character of this offending I am reminded of the remarks of Simpson J ,which were adopted with approval in the New South Wales judgment of Porte , to which I earlier referred, in the decision of R vBooth [2009] NSWCCA 89.There her Honour noted these matters at [40]:
It seems to me that possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.
111․I address these remarks, contained at [41]-[44] of her Honour’s judgment, directly to Mr Henderson, if I may, as otherwise my remarks are delivered in a third person:
[41] In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in undeveloped or disadvantaged countries that lack the resources to provide adequate children protection mechanisms. The damage done to the children may be, and undoubtedly is, profound. Those who make use of the product feed upon the exploitation and abuse and upon the poverty of the children the subject of the material.
[42] What makes the crime callous is not just that it exploits and abuses children it is callous because each time the material was viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse and the degradation it causes.
[43] And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.
[44] It is for that reason that this is a crime in respect of which general deterrence is of particular significant.
112․Additionally, if I may be so bold to add to her Honour’s wisdom, are other matters that concern judges (and the community) as well. That is the thought as to what happened to those children after these images were obtained? And what happened to these children before these images were made? Were they killed? Were they further exploited in other ways that were not shown on film?
113․What we see is just a snapshot of degradation and deprivation and what happens otherwise we can only imagine. But we have to be mindful of the fact that when sentencing offenders that enjoy one year old children being brought into a room to be vaginally penetrated, in all probability the victims are not brought there borne on a gold chariot treated with kindness and affection to that point or afterwards.
Further consideration
114․Coming back to some other outstanding matters in this sentencing exercise, I have taken into account his prior good character and the fact that he has been, in some respects, burdened by the deprivations of his background. The mental health of the offender is also relevant in a number of ways as reducing, as I have said, slightly the overall and individual sentences to be imposed and the adjustment or extension of the period of supervision in the community. But the character of the offending and the need to give particular attention to specific deterrence and the continuing presence of the need for general deterrence do require a period of fulltime custody contrary to the submissions of his counsel. As I have earlier pointed out from high authority and great wisdom of judges more senior than I, the interests of the protection of children, the condemnation of the accused’s conduct, condemnation of the depraved character of the abuse of multiple children that was in his possession and the transmission of that material for his own selfish pathetic purposes requires him to spend time in custody.
115․I have taken into account the self-harm risk as I have earlier indicated. This is taken into account in fashioning the sentence to be imposed, reducing the period of time required to be in custody. But there are several observations to be made about the self-harm risk of the offender. The Courts, in doing their duty to deter crime and criminals cannot be held hostage or deflected from their task by claims of risk of self-harm even if based upon strong history or strong evidence of the existence of that risk.
116․As I have said before, secondly, the welfare of the offender is a matter for the correctional authorities. Just as the risk of the severe assault of particular inmates because of the character of the offending warranting imprisonment, or the antecedents of the offender, may give rise to that particular risk.
117․The last matter is, that the offender’s fear of going into custody is shared by many who are required to be gaoled. In this particular offender’s case, it is emblematic to me of his unwillingness to properly take responsibility for his conduct. People in our Courts take responsibility for their conduct in a range of ways. Most of the time they take responsibility for their conduct when they plead guilty by accepting the fact that they will go to gaol and have to spend some time in custody. This involves the offender proclaiming that he will bear the consequences of his or her conduct. Offenders do this every day across a range of jurisdictions in Australia. It is hoped that this offender can come to that position where he realises that he must accept the consequences of his conduct and not avoid them. If he does not there is, in my view, a risk that he will offend in a like manner in the future given the furtive character of this offending and the difficulties in detecting it. Whilst there are positive matters in favour of his prospects of rehabilitation, the surreptitious and difficult to detect character of this type of offending offers the risk of similar conduct in the future unless, of course, the offender develops the insight to recognise the circumstances of the offending are solely for him to take responsibility.
118․It must be borne in mind in relation to this matter that the detection of the offender ultimately was solely by happenchance. It is not as if the offender came forward and volunteered himself to the authorities. He was ‘given up’ by his co-accused for reasons I do not know and although he did cooperate when detected. but for the co-accused contacting the police he may never have been detected and probably, I would have thought, would still be in possession of the material that he is being sentenced for at the moment. But, of course, I cannot sentence the offender by reference to that aspect, bearing in mind it amounts to a matter of speculation on my part.
Orders
119․In the circumstances of the matter, I move to making the following orders:
1. Peter Henderson is convicted of possessing child abuse material (CC2022/3204) and sentenced to imprisonment for 1 year and 10 months to commence on 9 November 2023 expiring on 8 September 2024. Had the offender not pleaded guilty, the offender would have been sentenced to 2 years 6 months imprisonment. I direct that the offender be released after 4 months imprisonment on 8 March 2024 on entering a recognizance release order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), permitting his release immediately with security of $500, without surety, and on the condition that he be of good behaviour for a period of two years from that date and to appear to receive sentence if called upon to do so at anytime in respect of any breach within the said period. The conditions of the recognizance release order will be, pursuant to s 20(1B) of the Crimes Act 1914 (Cth):
a.That the offender accept the supervision and guidance of ACT Corrective Services (Community Corrections) for the period of the recognizance release order and obey all reasonable directions of the Director, or the Director’s officers, for the period of the recognizance release order, particularly as to counselling or rehabilitation programs to prevent sexual offending; and
b.Not travel interstate beyond NSW or overseas without the written permission of such officers.
2. Peter Henderson is convicted of transmitting child abuse material (CC2022/3202) and sentenced to imprisonment for 11 months to commence on 9 May 2023 expiring on 8 April 2024. Had the offender not pleaded guilty, the offender would have been sentenced to 15 months imprisonment. I direct that the offender be released after 10 months on entering a recognizance release order on 8 March 2024, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), permitting his release immediately with security of $500, without surety, and on the condition that he be of good behaviour for a period of one year from that date and to appear to receive sentence if called upon to do so at anytime in respect of any breach within the said period. No conditions are required because of the conditions in respect of the possession offence (CC2022/3204).
3. I recommend that officers of ACT Corrections on reception of the offender ensure that he is medically examined on the basis that he is a person at risk of acts of self-harm and may require immediate medical attention, particularly medication to treat his symptoms of depression/anxiety and PTSD.
4. The Court orders that pursuant to s 232ZD of the Crimes Act 1914 (Cth) upon the application of the Director of Public Prosecutions that the following items are forfeited to the Commonwealth, by consent:
a. Black WD Elements HDD – Seizure 3651628/001
b. Black Samsung Mobile Phone – Seizure 3651628/002
c. Asus Laptop – Seizure 3651628/003
| I certify that the preceding one hundred and nineteen [119] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish. Associate: Date: 7 July 2023 |
NOTE: The orders of the Court were amended in Chambers on 11 May 2023 to permit the offender to be released, on agreeing to a release on recognisance, on 8 March 2024 as was intended at the time of pronouncement of the orders.
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Amendments
7 July 2023Replace “Concluded The psychologist this on the basis” Paragraphs: [47]
with “The psychologist concluded this on the basis”
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