R v Horner
[2023] ACTSC 23
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Horner |
Citation: | [2023] ACTSC 23 |
Hearing Date: | 17 February 2023 |
DecisionDate: | 21 February 2023 |
Before: | Baker J |
Decision: | See [51] – [54] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possession of child abuse and child exploitation material – exceptional circumstances – where offender suffered childhood of deprivation and abuse – Post-Traumatic Stress Disorder – Bugmy and Verdins considerations – strong subjective case |
Legislation Cited: | Crimes Act 1914 (Cth), s 16A(2)(f), (g), (h), (2AAA), s 20(1)(b) Criminal Code Act 1995 (Cth), s 7.3(1) Crimes (Child Sex Offenders) Act 2005 (ACT) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 572 Mertell v The King [2022] ACTCA 69 at [29] Minehan v R [2010] NSWCCA 140 R v Hutchinson [2018] NSWCCA 152 R v Porte [2015] NSWCCA 174 at [66] R v Verdins [2007] VSCA 102; 16 VR 269 |
Texts Cited: | The Bugmy Bar Book Project, Childhood Sexual Abuse |
Parties: | Commonwealth Director of Public Prosecutions ( Crown) Mr David Horner ( Offender) |
Representation: | Counsel D Morrison ( Crown) J Sabharwal ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Armstrong Legal ( Offender) | |
File Number: | SCC 233 of 2022 |
BAKER J:
Introduction
The offender has entered pleas of guilty to the following offences:
Count 1 (CC 2022/3418): On 10 November 2021, used a carriage service to possess child abuse material, contrary to s 474.22A(1) of the Criminal Code (Cth).
Count 2 (CC 2022/8812): Between about 1 August 2018 and 29 April 2019, used a carriage service to access child exploitation material, contrary to s 474.19(1) of the Criminal Code (Cth).
Both offences carry a maximum penalty of imprisonment for 15 years.
Background
The offences
On 10 November 2021 the Australian Federal Police (“AFP”) executed a search warrant at the offender’s residence. The offender was present at the time, together with his wife and three children.
Police seized a Dell computer belonging to the offender. Later examination of the computer identified three videos depicting child abuse material (Count 1). The videos depict two child victims aged 3 – 6 years engaged in various penetrative and non-penetrative sexual acts, including cunnilingus and posing with exposed genitals and buttocks. Two of those videos had been accessed on 1 August 2018, and the third was accessed on 29 April 2019 (Count 2). Police also seized the offender’s mobile phone. However, examination of the phone did not reveal any images or videos of child abuse material.
On examination of the computer, police also located a document entitled “complaint”. The document contained 64 reference numbers. 50 of those reference numbers matched the reference numbers of complaints made to the eSafety Commissioner under the Online Content Scheme. The remaining 14 reference numbers did not match any records held by the eSafety Commissioner. The 50 reports were made anonymously between 26 March 2013 and 19 June 2018, and included 247 URL links identified as relating to child abuse material.
During the execution of the search warrant, police cautioned the offender and he participated in a recorded conversation. In that recorded conversation, the offender admitted that he had accessed adult pornography on his phone and his computer. He denied accessing child abuse material, but stated that he had seen images of a person who may have been under 18 in the course of searching for adult pornography on Snapchat. He said that he could not understand why a child pornography file was on his computer.
On 8 April 2022, AFP officers attended the offender’s house and cautioned and arrested him for possessing child abuse material. During the arrest, the offender informed police that the complaint document found on his computer contained a history of his online safety reporting for the occasions on which he had accessed child abuse material.
The offender’s subjective case
At the time of the offences, the offender was between 45 and 48 years old and was married with three teenage children. Prior to these offences, the offender was of good character. He has no previous criminal history in Australia. He has been a member of the Rural Fire Service (“RFS”) for almost 20 years and has received two National Emergency Medals and one ACT Emergency Medal for his service. He has postgraduate qualifications in management, and has worked for various government departments in Queensland, for the Australian Department of Defence, and the Australian Capital Territory (“ACT”). At the time of the offences, the offender was employed by the ACT Government.
The offender’s life has changed significantly since being charged with the offences. The offender and his wife separated. The offender’s bail conditions have prohibited him from living in the family residence or having unsupervised access to his children. He now lives in Brisbane with his father. The offender was initially placed on leave from his employment, before subsequently resigning. Since then, the offender has worked in a number of casual labouring and hospitality jobs, including garbage collection, washing dishes, and supermarket work.
The offender sought psychological treatment a week after the police search of his house, which was prior to when he was charged for the present offences. The offender’s general practitioner referred him to Dr Richard Arthur, Provisional Psychologist.
A report of Dr Arthur, dated 14 October 2022, and a report of Mr Matthew Visser, Clinical Psychologist, dated 11 December 2022, were tendered on behalf of the offender. The Crown did not challenge either report. Both psychologists state that the offender has Post Traumatic Stress Disorder (“PTSD”) arising from abuse that he suffered as a child. In addition, Dr Arthur was of the opinion that the offender also suffered from Major Depressive Disorder and Generalised Anxiety Disorder.
Both reports describe the offender’s history of childhood trauma and neglect. The offender’s parents separated whilst he was in kindergarten and his father relocated from their home in Darwin to Brisbane. As a result, the offender was left in his mother’s care until high school, only visiting his father for holidays. The offender’s mother was alcohol dependent. The offender reported that his mother was often absent, and had a variety of partners who were abusive to both him and his mother. He also witnessed numerous incidents where his mother’s partners were highly violent towards her. The offender’s mother had herself been sexually abused as a child, and she was hospitalised twice for suicide attempts. The offender’s mother is now deceased.
The offender was physically and sexually abused from age four or five. From when he was nine years old, part of that sexual abuse involved the consumption of pornographic material with his mother. He was given a glass of beer to drink after preschool each day, was severely physically abused by more than one of his mother’s partners, and was sexually abused by two of them. On one occasion while his mother was hospitalised, the offender was placed into temporary care at a “boys’ home” where he was repeatedly sexually assaulted by “several” of the other boys.
As an adult, the offender became addicted to adult pornography. He told Mr Visser that he would look at it when he was “sad or not wanting to think.” He said that he would “literally stay up all night just looking through pornography.” He said that he found it “triggering” when he first came across child pornography. He said that seeing the material upset him and that he then “figured out a way to report it.” He said that he became desensitised to it, and that he “wanted to be a vigilante.”
Whilst reiterating that he was only a provisional psychologist, and not a forensic psychologist, Dr Arthur expressed the opinion that, provided the offender continues therapy, the offender is unlikely to reoffend. Mr Visser agreed that the offender has relatively few significant risk factors, and that his overall risk of reoffending is overall low.
When interviewed by Corrective Services Queensland (on an unspecified date sometime after 6 October 2022) for the preparation of a Pre-Sentence Report, the offender accepted the Agreed Facts, but attempted to disassociate from his offending. The offender’s remorse at that time was limited, and was focussed primarily on the impact that the charges had on his wife and children.
It is clear that the offender has developed further insight into his offending since the Pre-Sentence Report was prepared. The offender provided a letter to the Court, which powerfully described his remorse for his offending. In that letter, the offender referred to his own trauma of being the subject of sexual abuse as a child and spoke of his devastation in realising that his actions could have contributed to the harm of children. The offender spoke about his sadness about the loss of his connection with his children, the loss of his public service career, as well as his inability to volunteer. However, the offender accepted that these consequences arose from his offending, which he took complete responsibility for.
The offender has the support of his family. Although they are separated, the offender’s wife provided a character reference. References were also provided by the offender’s father, a close friend, and the Captain of the RFS brigade in which the offender previously served. These references spoke of the offences as being out of character, of the offender’s traumatic childhood, of his remorse, and of his commitment to his rehabilitation.
Sentencing considerations
Objective seriousness
It is well established that the objective seriousness of offences involving child abuse material is ordinarily determined by reference to the following factors:
1. Whether actual children were used in the creation of the material.
2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.
5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.
6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
8. The proximity of the offender’s activities to those responsible for bringing the material into existence.
9. The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.
10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.
11. Whether the offender acted alone or in a collaborative network of like-minded persons.
12. Any risk of the material being seen or acquired by vulnerable persons, particularly children.
13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
14. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act (for State offences) or s 16A of the Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.
See Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243at [94], as summarised in R v Hutchinson [2018] NSWCCA 152 at [45], (noting that in the ACT, the reference at point [14] to the Crimes (Sentencing Procedure) Act should be replaced with s 7 of the Crimes (Sentencing) Act).
In assessing the objective seriousness of an offence of possession of child abuse material, it must also be borne in mind that the possession of child abuse material creates a market for the continued corruption and exploitation of children: R v Porte [2015] NSWCCA 174; 252 A Crim R 294 (at [67]). The absence of sale, distribution or dissemination of material does not mitigate the penalty for the possession offence: Porte at [66]. The possession of child pornography is not a victimless crime. On the contrary, because the material remains in the community, the offence creates significant ongoing harm.
In the present case, the offender possessed and accessed relatively few items of child abuse material in comparison to the quantity of items possessed by offenders frequently charged with this offence; by way of contrast see, for example, Mertell v The King [2022] ACTCA 69 at [8] and [29]. However, as the Crown submitted, the depravity of the material was not at the low end of offences of this nature. There were two real child victims, who were both very young (approximately 3 to 6 years old) and were shown engaging in offensive and degrading penetrative and non-penetrative sexual acts. In respect of the possession charge, the offender possessed one of the videos for over three years, and one was possessed for two years and six months. The computer on which the videos were located was found in the communal kitchen area of the home, where it could have been accessed by the offender’s children. Further, the offences were not isolated: prior to the present offences, the offender had accessed approximately 50 child abuse files, although he had reported a number of those to the eSafety Commissioner.
Taking into account each of these matters, I agree with the Crown’s submission that the objective seriousness in respect of each charge is toward the lower end of the range, but not at the lowest end of the range.
Moral culpability
An offender will be less morally blameworthy for an offence where the offender’s disadvantaged background, or a mental illness, in some way “explains”, is connected with, or otherwise sheds light on the offending: Bugmy v The Queen [2013] HCA 37; 249 CLR 572 at [44]-[45]; R v Verdins [2007] VSCA 102; 16 VR 269.
In his report, Dr Arthur described the offender’s first access to child pornography as being “incidental and accidental” to his consumption of adult pornography.
Mr Visser did not agree. In his opinion, the offender’s mental health was related to the offending in two ways. First, he noted that one of the diagnostic clusters for PTSD is avoidance, particularly of distressing thoughts, which may translate to a compulsion to be distracted by specific activities. Rather than engaging in substance abuse (as is common for victims of child sexual abuse: The Bugmy Bar Book Project, Childhood Sexual Abuse, at p. 1), the offender learned to use pornography as a distraction from negative thought patterns. The offender’s consumption of large volumes of pornography increased his risk of accessing child abuse material.
Second, the offender’s mental illness also affected his reaction to child abuse material when he was first exposed to it. Ms Visser noted that another criterion of PTSD is “reckless and self-destructive behaviour.” As Mr Visser explained, “deciding to go on a ‘vigilante’ mission to seek out and report all the child abuse material that he was able to find was a highly risky activity”, as was “the despondency and failure to report material, and the continued access of sites which [the offender] knew contained child abuse material had incredibly high risk, which he ignored.”
Mr Visser concluded that, as a result of both of these factors, there is a “moderate to high correlation” between the offender’s experience of childhood abuse and resulting mental illness with his offending behaviour.
I accept the opinion of Mr Visser. There is now a “robust body of research evidence” that “clearly demonstrates the link between child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural as well as physical health consequences”: The Bugmy Bar Book Project, Childhood Sexual Abuse, at p. 1. Mr Visser clearly articulates the links between the offending and this offender’s experience of sexual abuse as a child (sexual abuse which was itself intergenerational in nature) and his subsequent mental illnesses.
The offender’s background of childhood abuse has impacted upon his mental health, which in turn explains or sheds light on the offending for the reasons outlined by Mr Visser. In these circumstances, I am satisfied that the offender’s moral culpability for the offences that he committed is reduced to a moderate degree. I note that the Crown’s ultimate submission in this respect accords with this finding.
Plea of guilty (s 16A(2)(g) of the Crimes Act 1914 (Cth))
The offender pleaded guilty in the Magistrates Court. The Crown accepts that the pleas were entered at the first reasonable opportunity. The Crown also accepts that the pleas have resulted in a benefit to the community in avoiding the need for a trial. However, the Crown notes that the pleas were entered in the face of a strong prosecution case.
I will afford a 25% discount for the offender’s early plea of guilty in respect of each charge.
Remorse, rehabilitation and cooperation (s 16A(2)(f),(h), (n); and s 16 (2AAA))
The offender’s remorse is demonstrated by his letter to the Court, together with the reports of Dr Arthur and Mr Visser, and in the testimonials tendered on his behalf.
He has cooperated with authorities, providing them with his passwords for forensic examination. He was not entirely candid with investigating police when first arrested, but since that time he has provided a full explanation of how the offences occurred.
Comparative Sentences
The Crown provided a table of comparative sentences, which included the decisions in Peters v R [2018] NSWCCA 126; Miao v R [2017] NSWCCA 89; Huggett v R [2021] NSWCCA 62; Cluett v R [2019] WASCA 111; and Burton v R [2010] NSWCCA 127.
The full terms imposed in those decisions were sentences of imprisonment ranging from 9 months (Cluett) to 3 years and 10 months (Huggett), and each involved some period of actual imprisonment. However, each concerned offending that was considerably more serious than the present case. For example, the offending in Cluett involved 28 images and one video; Burton involved role play conversations; Huggett involved between 544 and 796 images; Miao involved 361 images and Peters involved 676 files. None concerned an offender with a subjective case that was comparable to the present offender (that is, with mitigation of moral culpability arising from child abuse that had led to mental illness, with demonstrated remorse and good prospects of rehabilitation).
Totality
As the Crown properly accepted, there is a degree of overlap between charges 1 and 2, as the three videos are the same in respect of each charge. However, the charges reflect slightly different criminality, namely the intentional accessing of child abuse and the intentional possession of that material. In these circumstances there should be a small degree of accumulation.
Determination
General deterrence is a primary consideration for offending involving child pornography: Mertell at [29], and the cases cited therein.
An unusual aspect of the present case is the offender’s history of having accessed and reported numerous child pornography sites to the eSafety Commissioner. Although I accept the opinions of Mr Visser and Dr Arthur that the offender was not motivated by a sexual interest in children, the offender’s “vigilante” behaviour must also be discouraged and denounced.
However, as outlined above, I have made a finding that the offender’s moral culpability was reduced by reason of his experience of childhood physical and sexual abuse, and his mental illnesses. Accordingly, the need for general deterrence is reduced to some degree.
The offender has lost his job, his respected position in the community and has been separated from his family as a result of the offending. His letter to the Court and his statements to the psychologists demonstrate his shame, contrition and remorse. Since his arrest, he voluntarily sought treatment.
Taking into account each of these matters, in view of the inherent gravity of the offences, the objective seriousness of the offending and the need for general and specific deterrence, I am satisfied that no sentence other than imprisonment is appropriate in all of the circumstances of the case: s 17F of the Crimes Act 1914 (Cth).
Section 20(1)(b) of the Crimes Act1914 (Cth) relevantly provides that where a person is convicted of federal offences, the Court may, “if it thinks fit”:
(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):
…
(ii) if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances—after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1);
…
In other words, it is only if the Court is satisfied that there are “exceptional circumstances” within the meaning of s 20(1)(b)(ii) of the Crimes Act that the Court may release the offender on a Recognisance Release Order without requiring the offender to serve an actual period of imprisonment. As this provision only applies in respect of offences committed on or after 23 June 2020, the requirement applies to Count 1, but not to Count 2.
The phrase “exceptional circumstances” in s 20(1)(b)(ii) is not defined. This was a deliberate legislative decision: R (Commonwealth) v Nafarette [2022] NSWDC 225 at [90]. Circumstances may exist as a result of facts that are exceptional when considered cumulatively, even though those factors may not be exceptional when considered individually: Nafarette at [80], citing the Explanatory Memorandum for s 20(1)(b)(ii) of the Crimes Act 1914 (Cth).
The Crown accepted that it was open to the Court to find that there are exceptional circumstances in this case.
I find that there are exceptional circumstances. These exceptional circumstances arise from a combination of the following factors:
(i) The limited quantity of the material possessed (3 videos) and the limited occasions on which that material was accessed;
(ii) The offender’s background of childhood sexual and physical abuse, including abuse while in an institution;
(iii) The offender’s mental illness;
(iv) The offender’s genuine remorse and contrition and his demonstrated insight into the harm caused by his offences;
(v) The offender’s strong prospects of rehabilitation and low risk of reoffending; and
(vi) The need for the offender to continue to engage in rehabilitation.
I am satisfied that a Recognisance Release Order will meet the need for general deterrence and denunciation (s. 16A(2)(ja) of the Crimes Act). In view of the offender’s demonstrated insight and remorse, I am also satisfied that a recognisance will be sufficient to meet the need for specific deterrence (s 16A(2)(j) of the Crimes Act).
The sentence for Count 1 (CC2022/3418, possession of child exploitation material), will be 20 months imprisonment, discounted to 15 months imprisonment as a result of the 25% discount for the offender’s early guilty plea. The sentence for Count 2 (CC2022/8812, using a carriage service to access child exploitation material) will be 16 months imprisonment, discounted to 12 months imprisonment as a result of the 25% discount for the offender’s early guilty plea. The sentence for Count 2 will be largely, but not entirely, concurrent with Count 1.
I will make an order under s 20(1)(b)(iii) of the Crimes Act 1914 (Cth) that the offender be immediately released upon a Recognisance Release Order without security on good behaviour for a period of 3 years, with the conditions as required by s 20(1B) of the Crimes Act 1914 (Cth).
I note that the offender will also be required to comply with reporting obligations under the Crimes (Child Sex Offenders) Act 2005 (ACT).
Orders
In respect of Count 2, I impose a sentence of 12 months imprisonment. The sentence will commence today and will expire on 21 February 2024.
In respect of Count 1, I impose a sentence of 15 months imprisonment. The sentence is to commence in 3 months time on 21 May 2023, and will expire on 21 August 2024.
I order under s 20(1)(b)(iii) of the Crimes Act (Cth) that the offender be immediately released upon giving security in the sum of $100 without surety by a recognisance release order subject to the following conditions:
(i)The offender be of good behaviour for a period of 3 years;
(ii)The offender is to be supervised by the Commissioner of ACT Corrective Services or his or her delegate;
(iii)The offender obey all reasonable directions of the probation officer, appointed by ACT Corrective Services Commissioner;
(iv)The offender is not to travel interstate or overseas without the written permission of the probation officer;
(v)The offender is to undertake such treatment or rehabilitation programs that the probation officer reasonably directs, in particular, programs specifically designed for sex offenders;
(vi)The offender is to report to ACT Corrective Services located at Level 1, 249 London Circuit, Canberra City, 2601 by 4pm within five clear working days of today;
(vii)report to, and receive visits from, an ACT Corrective Services officer or officers; and
(viii)notify an officer at the specified ACT Corrective Services office of any change of address or employment within two clear working days after the change.
I order that, pursuant to section 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Director of Public Prosecutions the following item is forfeited to the Commonwealth:
(i)1 x Dell (All-in-One) PC (Exhibit number: 3640714 / 001)
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker Associate: Date: 21 February 2023 |
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