R v Howe
[2018] VCC 1630
•27 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01272
| THE QUEEN |
| v |
| JAMES FRANCES HOWE |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 April 2018 and 16 July 2018 | |
DATE OF SENTENCE: | 27 September 2018 | |
CASE MAY BE CITED AS: | R v Howe | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1630 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Make child pornography material available using a carriage service – Knowingly possess child pornography – Over 1000 email messages sent – Total of 59,389 images and 120 hours, 55 minutes of video – Initial lack of victim empathy – 70 year old offender – Controlled heart condition – Victim of sexually traumatic event in childhood – No direct link with offending – Verdins principle 6 engaged – Early plea of guilty – Cooperative with police – Limited cumulation
Legislation Cited: Crimes Act 1914 (Cth) s 16A(2)(c); Crimes Act 1958 (Vic) ss 51A, 67A, 70(1); Criminal Code 1995 (Cth) ss 473.1, 474.19, 474.21
Cases Cited:Adamson v R (2015) 47 VR 268 – Clarkson v The Queen (2011) 32 VR 361 – DPP (Cth) and DPP v Garside (2016) 50 VR 800 – Fitzgerald v The Queen [2015] NSWCA 266 – R v AWF (2000) 2 VR 1 – R v De Leeuw [2015] NSWCCA 183 – R v Porte (2015) 252 A Crim R 294 – R v Hutchinson [2018] NSWCCA 152 – R v Verdins (2007) 16 VR 269
Sentence: 30 months’ imprisonment with a Recognisance Release Order after 12 months for Commonwealth offence; 12 months’ imprisonment and 24 month Community Correction Order for State offence
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr P Darby | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr A Marshall | James Dowsley & Associates |
HIS HONOUR:
1 James Frances Howe, you have pleaded guilty to a Commonwealth indictment containing two charges, namely, the Commonwealth offence of make child pornography material available using a carriage service[1] and the Victorian state offence of knowingly possess child pornography.[2] The maximum penalties for these offences are 15 years’ imprisonment and 10 years’ imprisonment, respectively.
[1] Contrary to s 474.19(1) Criminal Code 1995 (Cth).
[2] Contrary to s 70(1) Crimes Act 1958 (Vic).
2 The Commonwealth Director tendered a Prosecution Opening for Plea dated 11 October 2017,[3] which I am told by your counsel I can treat as a statement of agreed facts.
The facts
[3] Exhibit P1.
3 Between 19 September 2016 and 7 March 2017 you made child pornography material available to various online contacts using the email client Yandex. This constitutes charge 1.
4 In August 2015 police received information that suggested that you may be in possession of child pornography material. This led to a police investigation into your activities.
5 On 8 March 2017 police executed a search warrant at your home. You admitted to police that you were in possession of child pornography material.
6 Police located and seized several portable hard drives, several CDs and a computer tower. You also provided police with password details to your email account. Analysis of the seized devices revealed that two of the portable hard drives contained a large amount of child pornography material.
7 Analysis of your Yandex email account revealed that it was largely used by you for the purpose of making child pornography material available to online contacts. The sent items folder contained over 1000 messages. Numerous messages in that sent items folder contained links to child pornography material, which could be accessed by the recipient. Often, the messages would also contain your instructions on how to access that material, where the material was protected by security features such as password encryption.
8 You were ultimately found to be in possession of a total of 59,389 images of child pornography and 120 hours, 55 minutes of child pornography videos on two portable hard drives. This constitutes charge 2.
9 The images and videos identified as child pornography were classified according to the categorisation model for child exploitation material of the Australian National Victim Image Library (‘ANVIL’).
10 There were 42,405 images and 34 hours, 35 minutes of video of category 1 material. The files included posed photographs depicting girls as young as one year to girls in the early stages of puberty in sexually suggestive poses. The material included general nudity, with explicit focus on the genitals.
11 There were 9,454 images and 50 hours, 28 minutes of video of category 2 material. The files included video footage of girls and boys masturbating. They were aged in the same range as for category 1. Other images and videos in this category included sexual activity between children of similar ages, predominantly between males and females.
12 There were 1,036 images and 1 hour, 44 minutes of video of category 3 material, including files depicting adult men and women performing sexual acts on children, and masturbation between children and adults of both sexes.
13 There were 2,117 images and 27 hours, 44 minutes of video of category 4 material. This predominantly depicted penile-vaginal penetration of girls. Some files depicted oral penetration of boys and girls.
14 There were 35 images and 33 minutes of video of category 5 material, including a video and a photo series depicting children approaching puberty engaged in various acts of sadism.
15 There were 4,342 images and 5 hours, 33 minutes of video of category 6 material, which predominantly depicts dolls in sexually explicit poses. Files also included animated pictures of girls and boys being sexually penetrated by adults.
16 I viewed a sample of images selected from each of these categories.[4] Your counsel accepted that this was a fair and representative sample. Needless to say, they were very disturbing images.
[4] Cf R v Hutchinson [2018] NSWCCA 152 [47]–[50] (R A Hulme J, Meagher JA agreeing), [90] (Button J).
17 Upon the completion of the search of your home, you were arrested and participated in a record of interview. You made the following admissions:
(a) You possessed pornography material including adult pornography, ‘teenage material’, ‘pre-teenage material’ and ‘younger material’.
(b) The child pornography material was of children ‘getting around in underwear’, ‘parading’, and undressing in front of webcams.
(c) You made contact with a couple of people online in relation to child pornography.
(d) You would encrypt files and then send them by email using Yandex.
(e) You possessed child pornography depicting children aged around 10 to 16 years old.
(f) You knew that distributing child pornography was illegal, but thought that ‘a lot of this is pretty harmless stuff anyway, and how many people are doing it anyway’.
(g) You had been using the relevant email address for about five years.
18 You were initially charged with possessing child pornography and bailed to appear at the Moorabbin Magistrates’ Court. After subsequent analysis disclosed the extent of your offending, the further charge of making child pornography material available using a carriage service was laid, and the matter was uplifted from the summary stream to the committal stream at the Melbourne Magistrates’ Court.
Victim impact
19 There are no known victims of your offending conduct, however, there must be many thousands of sexually abused children depicted in the vile material you were transmitting and which you possessed. Child pornography offences are not victimless crimes; children are abused and exploited in the production of child pornography, and those who make use of the product feed upon and also encourage such exploitation and abuse. The suffering generated by this perverted industry is unimaginable.
20 In making the child pornography material available to others, you increased the number of people who would view that material, and thereby increased the victimisation of the children depicted. It is particularly concerning that you initially appeared to lack any victim empathy. In your record of interview you told police that you knew distributing child pornography was illegal, but you thought ‘a lot of this is pretty harmless stuff anyway, and how many people are doing it anyway’.[5]
[5] ROI Q 104.
21 Lest there be any doubt about it, child pornography material[6] and child pornography[7] is not ‘pretty harmless stuff’; on the contrary, it is extremely harmful to the innocent victims and often has severe and lasting adverse psychological effects on them. This is particularly so where the pornographic material falls in category 4, depicting penis/vagina penetrative conduct by an adult male with a female child.
[6] Defined in Criminal Code 1995 s 473.1.
[7] At the relevant time this term was defined in Crimes Act 1958 (Vic) s 67A. See now the definition of ‘child abuse material’ in Crimes Act 1958 s 51A.
22 In Adamson v R, the Court of Appeal[8] quoted, with approval from the judgment of Baroness Hale in R v G,[9] where Her Ladyship said:
Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do.
[8] (2015) 47 VR 268, 280 [18] (Warren CJ, Redlich and Weinberg JJA)
[9] [2009] 1 AC 92, 108-9 [48]–[49]. See also Clarkson v R; EJA v R (2011) 32 VR 361, 370–1 [32].
23 Moreover, as the Court of Appeal opined in Clarkson v The Queen[10] there is a presumption of harm in cases involving child sex abuse. The court said:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[11]
[10] (2011) 32 VR 361.
[11]Ibid 364 [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
Offence seriousness
24 Child pornography offences are considered especially grave by both the Courts and the legislature. The ‘access’ offending provisions under the Criminal Code 1995 (Cth),[12] now carry a 15 year maximum penalty which was increased by 50 per cent in 2010, despite only having been introduced in 2005. These amendments reflect the legislature’s recognition, as stated in the Explanatory Memorandum to the 2010 amending act, ‘that the Internet is creating ever greater demands for new material of ever greater levels of depravity and corruption’.[13] That is certainly demonstrated by the vile material you were accessing and disseminating using the Internet in charge 1 of this indictment.
[12] Criminal Code 1995 ss 474.19 and 474.21. ‘Access’ is defined in Criminal Code 1995 s 473.1
[13] Explanatory Memorandum, Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, 81. See DPP (Cth) and DPP v Garside (2016) 50 VR 800, 808 [19] (Redlich and Beach JJA) (‘Garside’); DPP (Cth) v Watson (2016) 259 A Crim R 327.
25 Likewise, the courts have made clear that ‘the ready availability of material of this type has warranted substantial penalties with general deterrence and denunciation being paramount considerations’.[14] As in the present case, ‘The ease and relative anonymity of the internet, the use by like-minded people of peer to peer file sharing technology to form networks exchanging such material and the difficulties of detection demonstrate the importance of general deterrence’.[15]
[14] R v Porte (2015) 252 A Crim R 294, 307 [59] (Johnson J, Leeming JA and Beech-Jones J agreeing) (‘Porte’). See also DPP (Cth) v D’Alessandro (2010) 26 VR 477, 483 [21] (Harper JA, Redlich JA and Williams AJA agreeing) (‘D’Alessandro’); Garside 808–809 [19]–[21].
[15] Fitzgerald v The Queen [2015] NSWCA 266 [33]. (Hoeben CJ at CL, Price and Button JJ agreeing).
26 In DPP (Cth) and DPP v Garside (‘Garside’), Redlich and Beach JJA observed:
The objective seriousness of offending by employment of the internet as a tool through which to exploit children, even if the offender is not themselves procuring such exploitation, is grave. It must ordinarily be the subject of substantial punishment.[16]
[16] Garside 809 [22] (citations omitted).
Later their Honours said:
What is clear from all the authorities is that access to child pornography is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of imprisonment will ordinarily be expected for such offending.[17]
[17]Ibid 819 [62].
27 In your case, you not only accessed child pornography material, you disseminated it to a number of depraved individuals through a nefarious Internet network.
28 As the Commonwealth Director submitted, the general sentencing principles applicable to offending of this nature are conveniently summarised by the New South Wales Court of Criminal Appeal in R v De Leeuw,[18] which were quoted with approval in Garside.[19] Johnson J, with whom Ward JA and Garling J agreed, summarised the relevant principles as follows:
[18] [2015] NSWCCA 183.
[19] Garside 810–811 [25]. See also D’Alessandro 483 [21].
(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted.
(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i)the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii)the number of items or images possessed;
(iii)whether the material is for the purpose of sale or further distribution;
(iv)whether the offender will profit from the offence;
(v)in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi)the length of time for which the pornographic material was possessed.
(c) General deterrence is the primary sentencing consideration for offending involving child pornography.
(d) Less or limited weight is given to an offender’s prior good character.
(e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography.
(f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet.
(g) The possession of child pornography material creates a market for the continued corruption and exploitation of children.
(h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime — children are sexually abused in order to supply the market.
(i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.[20]
[20] [2015] NSWCCA 183 [72] (Johnson J, Ward JA and Garling J agreeing) (citations omitted).
29 In Garside the Court further observed that:
The increasing risk that the international child pornography industry poses, that the possession of child pornography material creates a market for the continued corruption and exploitation of children and that those who possess such material, whether for profit or not, are more than mere passive recipients of material but are active participants in the market, must remain at the forefront of the sentencing task in order that general deterrence, in particular, is given its necessary weight.[21]
[21]Garside 821 [71] (citations omitted).
30 In R v Hutchinson,[22] R A Hulme J, with whom Meagher JA and Button J agreed, set out a revision of ‘the list of factors that may bear upon the assessment of the objective seriousness of offences concerning child pornography and child abuse material provided in Minehan v R.[23] This revised list is as follows:
[22] [2018] NSWCCA 152.
[23] (2010) 201 A Crim R 243.
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.[24]
[24] [2018] NSWCCA 152 [45].
31 Your offending in relation to both charges is objectively serious. So far as charge 1 is concerned, the offending continued over a protracted period of some 18 months. Accordingly, it involved a course of conduct, a circumstance I am required to take into account in assessing the objective gravity of your offence.[25]
[25] Crimes Act 1914 (Cth) s 16A(2)(c).
32 Analysis of your email account revealed that the ‘sent’ folder contained over 1000 messages many of which contained links to child pornography material for the recipient of the email to access. Where the material was protected by security features, such as password encryption, these email messages would often contain instructions provided by you to the recipients on how to access the material. You also used a false name to conceal your identity. It is clear that you were an enthusiastic participant in the market for child pornography. However, the Commonwealth Director accepts that you did not profit from your offending.
33 So far as charge 2 is concerned, you knowingly possessed over 59,000 images and over 120 hours of videos, some including infant children and much of it involving images of nude children, with explicit focus on their genitals, as well as children performing sexual acts on themselves, and most concerning of all, thousands of images depicting adult males and females performing sexual acts on children, including penile-vaginal penetration of girls and oral penile penetration of boys and girls. There were also images and video of children approaching puberty engaged in sadistic acts. The number of individual child victims would be in the many thousands. The files also included category 6 material depicting animated pictures of girls and boys being sexually penetrated by adults.
34 I find that the degree of depravity of a significant volume of this material, a sample of which I viewed,[26] is extremely high, particularly the images and video falling into categories 4 and 5 on the ANVIL scale.
[26]Confidential and restricted exhibit D2.
35 You denied to Dr Aaron Cunningham, a forensic psychologist engaged by your legal representatives to assess you and prepare a psychological report, that you derived sexual gratification from viewing the images and videos.[27] I do not accept this statement given the number of images and hours videos you possessed and the period of time over which you engaged in this offending.
[27]‘Confidential Psychological Assessment’ dated 2 April 2018 (exhibit D2) p 4 [5.2] (‘Cunningham Report’).
36 Whist you are charged with about an 18 month period of offending in charge 1, and you will be sentenced on that basis, nonetheless you told Dr Rachael Watson, a clinical and forensic psychologist employed by Forensicare, who prepared a psychological report at my request, you had been ‘using the email address [email protected] for approximately five years’.[28] Moreover, you told Ms Dickie, who prepared an Extended Pre-Sentence Assessment – Outcome Report, dated 27 July 2018, at my request, that the behaviour the subject of charge 1 began ‘six or more years ago’.[29]
Personal circumstances
[28]Psychological Report, dated 6 July 2018 (exhibit C1) p 5 [20] (‘Watson Report’).
[29]Exhibit C2.
37 You were born in April 1946 and are now 72 years old. You were aged between 69 and 70 years at the time of the offending.
38 While your age is a relevant sentencing consideration, it is not determinative of the quantum of the sentences I impose in your case. Just punishment, denunciation, general deterrence and proportionality remain primary sentencing considerations notwithstanding your age, although they may need some moderation. Old age and ill health do not justify my imposing an unacceptably inappropriate sentence. However, I must be careful not to impose a crushing sentence on you. I must impose an overall sentence that does not destroy any reasonable expectation that you could have a useful life after your release from custody, or could provoke a feeling of helplessness in you when released. Moreover, your age may make custody more burdensome on you.[30]
[30] R v Yates [1985] VR 41, 48 (Young CJ, Starke, Crockett and Hampel JJ); R v RLP (2009) 213 A Crim R 461, 476 [39] (Neave, Redlich JJA and Hollingworth J); Burgess v The Queen [2017] VSCA 59 [30]–[33] (Redlich, Santamaria and Ferguson JJA).
39 You were raised in East Malvern, Clayton, Eltham and Moorabbin by your mother and father. You have a younger brother and a younger sister with whom you maintain contact. Your parents are no longer alive.
40 You had a relatively stable upbringing, however, it was fraught with difficulty because your father was away for considerable periods of time. Your father became unwell as a result of a workplace injury, which impacted adversely on your family’s finances. He passed away in 1977. Your mother suffered from schizophrenia and passed away in 2006.
41 You attended three different primary schools. You found primary school difficult owing to a lack of interest, but your grades improved after attending Watsonia Technical School. You completed your secondary education at Oakleigh Technical School and you successfully completed a Diploma in Mechanical Engineering at Caulfield Institute of Technology.
42 You left home when you were 21 years old to live with a friend. You met your current wife, Sharon, in 1963 and moved to live with her when her parents passed away in 1967. You eventually married in 1971 and you have been living together at your current home since the 1970s. You have no children.
43 You have been in a loving and supportive relationship with your wife for over 53 years. Your wife continues to support you and she was present in court during the plea hearing.
44 Your wife apparently enjoys what your counsel described as ‘moderate health although [you are] heavily reliant on her’. I was provided with medical documentation in relation to your wife’s health.[31] She suffers a number of conditions, including possible venous ulceration over the lateral malleolus. She is also on medication for hypertension.
[31]Exhibit D6.
45 You and your wife are self-funded retirees. You manage your joint financial affairs. You own your home and have no debts.
46 You are otherwise somewhat socially isolated, particularly since being charged with the present offences. Moreover, for reasons I won’t elaborate upon, you lack familial support.
47 Other than for periods where your mental health has prevented you from working, you have maintained a good employment history over the years. You obtained a cadetship as a project engineer at Dunlop Rubber for two years and then moved to Toyota working in research and design. You were required to travel frequently. Following your father’s death, you became overwhelmed by your work and you began to suffer panic attacks. You became addicted to anxiolytic medication that had been prescribed for your condition.
48 You later worked in research and design for 11 years or so at an automotive component design company, however due to your mental health issues, you ceased your employment. You were then in receipt of a disability support pension between 1984 and 1989. You regained employment at an electronics company, where you were employed for 11 years. You then worked for another automotive company for four years.
49 In 2006, at the age of 60, you ceased full-time employment because of a heart condition. This caused you to suffer a loss of your sense of identity. Despite this, from 2013 to 2017 you engaged in voluntary work teaching primary school children to read. Additionally, since 2011 you have been teaching elderly people basic computer skills at the University of the Third Age.
50 Your heart arrhythmia remains an ongoing issue for you, as you continue to suffer from irregular heartbeats. However, you are taking medication to manage and prevent these episodes from occurring. At present your condition is controlled and would not cause imprisonment to be more onerous on you than a prisoner of normal health.
51 You began drinking alcohol socially when you were about 20 years old. This consumption increased when you turned 30 and you began drinking on a daily basis. You characterise yourself as a ‘moderate drinker’, consuming five to six glasses of alcohol per day. You have reported that your drinking increases in response to stressful life events and a perceived need to reduce your anxiety levels. Since being charged with the present offences, your alcohol consumption has increased to seven to eight glasses daily. It is clear you use alcohol to alleviate the stress of your present situation. You have never used illicit substances.
Mental and physical health
52 I note the contents of a letter from your general practitioner, Dr Tran, dated 14 March 2018 and the attached ‘GP Mental Health Care Plan’.[32] Apparently, you attended Monash Medical Centre Emergency Department ‘with an episode of confusion after taking valium and alcohol together on 17.05.2017[33] but did not wait for proper assessment’. You were diagnosed as suffering from anxiety, which given you were due to attend court in relation to the present charges three days later and were ‘upset with [your] lawyer’, this episode would appear to be situational. Dr Tran prescribed Zoloft, an anti-depressant and anti-anxiety medication, and referred you for psychological counselling to Ms Ilana Gorovoy.
[32]Exhibit D3. See also the Mental Health Care Plan exhibit D9.
[33] The attached letter from Dr Bradley Dick dated 17 May 2017 places the date Mr Howe’s attendance as being 16 May 2017.
53 As a result of that referral, you have been receiving treatment from Ms Gorovoy, a counselling psychologist, since 24 May 2017, sixteen days after you were charged in relation to the present offending. You attended ten sessions with her, ending on 11 October 2017.[34] According to Ms Gorovoy:
[34]Ilana Gorovoy, counselling psychologist, ‘Report’ dated 22 February 2018 (exhibit D5).
Mr Howe presented to therapy with symptoms of anxiety accompanied by regular panic attacks, low mood, stress, inability to focus and concentrate and sleeping difficulties. Mr Howe was speaking about the shock he experienced when the police raided his house. Mr Howe reported that his greatest pain, grief and loss related to losing his role as an active community member and not being able to volunteer at school where he worked in class with children who had learning and behavioural difficulties.
It is clear this was a reactive disorder and rather self-focused behaviour consequent upon your crimes being discovered.
54 Dr Cunningham conducted psychometric testing which placed you in the average range of nonverbal fluid intelligence. There was no evidence of intellectual disability.
55 Dr Cunningham opined that you meet the DSM-5 criteria for major depressive disorder and panic disorder and you were suffering from these conditions at the time of committing the present offences. He further opined that this condition was ‘chronic’.[35] This diagnosis was based on what he described as a ‘mental health assessment’,[36] which appeared to be based entirely on your self-report of your symptoms. Dr Cunningham did not conduct any rigorous testing to confirm this clinical picture.
[35]Cunningham Report p 5.
[36]Ibid.
56 Moreover, Dr Cunningham concluded your ‘depression and panic do not realistically connect to [your] offence behaviour’. The highest he put it was to state the opinion that: ‘Mr Howe's confusion with regard to his childhood experience of the girl exposing herself contributed in some way to his offending. He has recalled this event as traumatic and confusing.’[37] Later in his report Dr Cunningham said that you would ‘benefit from engaging with treatment to improve [your] insight and manage [your] risk’.[38]
[37]Ibid p 4 (emphasis added).
[38]Ibid p 5.
57 ‘The girl exposing herself’ was an event you disclosed to Ms Gorovoy. She described this as you experiencing ‘a sexually traumatic event’ when you were 10 years old, which in her opinion significantly affected you throughout your life. From Dr Cunningham’s report it would appear this was a fourteen-year-old girl who was a neighbour, who regularly exposed herself to you when you were aged eight to ten years.[39]
[39] Ibid p 1.
58 More detail regarding this event was disclosed to Ms Dickie. She reports that:
Mr. Howe detailed that as a 10 year old child, a "neighbour" or a "babysitter" began "exposing herself" to him. This female was around 14 years of age. Mr. Howe recalled a memory of playing a board game with this female when she removed her clothes and began "opening her legs." Mr. Howe noted that she "never touched me" and that he does not recall ever speaking to his parents or any adults about this behaviour. Mr. Howe described this period of his life as "a seed that has stuck in my brain." Mr. Howe also linked this experience as something that sparked his interest in viewing images of young females online.
59 Ms Gorovoy seems to express the opinion that this event may in some way be explicatory of you present offending. She said:
Mr Howe was showing cincerety [sic] and insight in his recollection [of that event] that involved genuine emotional expression, pain and grief. These deep understandings of himself started to transform into genuine remorse for his choices and behaviours in relation to his sexual obsessions to look at images of sexual content of younger people. … Mr Howe linked these sexual obsessions to earlier sexual abuse he experienced as a child that left him "scared and confused" at the time. James also confessed he never reported this abuse to his parents, therefore did not get the support he needed to heal and integrate such traumatic experience.
Mr Howe reported he found the safe space provided in therapy to be very helpful to explore the emotional pain he experienced in the past that helped him better understand his emotional states, choices and behaviours throughout his life.
…
Mr Howe … said he started to realize only now how damaging his earlier experiences were for his sexual and cognitive development. … Mr Howe reported to start feeling greater empathy for people who experience problems in their life after confronting his own challenges and repressed painful memories.
Mr Howe reported desire to heal from past pain, work through and integrate the trauma from early childhood and heal from the sexual obsessions he has been suffering from.
60 Ms Gorovoy said:
I believe the new realizations, healing and integration he experienced throughout the 10 sessions leave him in a different cognitive and emotional state compared to the one he was before therapy [sic]. I believe Mr Howe is equipped with more insight, greater ability to manage his emotional states and make more conscious choices in his life.
She opined that you:
will benefit from ongoing therapy to continue integrate [sic] the traumatic experiences from childhood and learn manage [sic] any ongoing symptoms associated with past trauma, as well as manage his anxiety and low mood associated with recent adjustment and stress-related symptoms Mr Howe was experiencing.
61 The fact that an offender was abused as a child or suffered a sexually traumatic event is relevant to the appropriate sentencing disposition. In R v AWF[40] Chernov JA, with whom Buchanan JA agreed, said:
[40](2000) 2 VR 1.
That fact bears upon the offender’s personal circumstances and thus, goes to the issues of moral culpability and rehabilitation. Obviously, the childhood experience does not excuse the offending conduct. Moreover, what weight is to be given to it is another matter. But that such a factor is relevant to sentencing consideration is, to my mind, clear.[41]
Accordingly, I have taken this factor into account in your favour in assessing your moral culpability for the offending conduct. It also bears on your capacity for rehabilitation and the weight I give to specific deterrence in your case.[42]
[41] Ibid 10 [34]. See also ibid 3–4 [3]–[7] (Ormiston JA); R v Reynolds, unreported, NSW Court of Criminal Appeal, 7 December 1998, 2–3 (Hulme J, Ireland and Barr JJ agreeing); Beevers v The Queen [2016] VSCA 271 [35] (Priest and Santamaria JJA).
[42]Ibid 3 [3] (Ormiston JA).
62 Referring to the support your wife provides, Dr Cunningham further opined that: ‘Should he be incarcerated, Mr Howe would be disconnected from this support. In my opinion, it is likely that incarceration would aggravate Mr Howe's depression and panic due to increased feelings of shame and guilt.’[43] He also said that your depression and panic would increase in gaol, thus engaging Verdins principle 6.[44]
[43]Cunningham Report p 4.
[44]R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
63 I was also provided with a Monash Health Mental Health Services discharge summary dated 5 April 2018,[45] which related to your presentation at that hospital’s emergency department as a result of a ‘minor overdose [of diazepam tablets] … due to pending court case’. This was diagnosed as a ‘situational crisis’. Dr Cunningham opines that this episode was consistent with his assessment that you suffer from a major depressive disorder and panic disorder and you were distressed regarding your current court matters. He recommended that if you are incarcerated your mental health should be monitored to ensure it does not deteriorate.[46]
[45] Exhibit D4.
[46]Dr Aaron Cunningham, ‘Confidential Psychological Addendum’, dated 8 April 2018 (part exhibit D2).
64 In light of what I consider to be inadequacies in Dr Cunningham’s assessment and report, and your drug overdose, I ordered the preparation of a pre-sentence psychology report pursuant to s 8A of the Sentencing Act 1991. This is the report prepared by Dr Watson, dated 6 July 2018.[47]
[47]Exhibit C1.
65 Dr Watson conducted psychological tests comprising the Paulus Deception Scale (PDS) and the Risk for Sexual Violence Protocol (RSVP). On the PDS impression management scale you fell within the very much above average range. This means you attempt to present yourself as relatively free of social and moral shortcomings. Consequently, in Dr Watson’s opinion ‘his self-report should be interpreted with caution’. This casts some doubt on Dr Cunningham’s assessment which was largely based on your self-report.
66 Dr Watson in administering the RSVP noted that you ‘presented with partial evidence for sexual deviance’.[48] You also presented with:
partial evidence for major mental illness (depressed mood, worsened after life stressors, transient suicidal ideation with no intent), problems with substance use (consuming alcohol on a daily basis, but no self-reported functional impairment), and past suicidal ideation. There was no indication of psychopathic personality.[49]
[48]Watson Report p 7 [31] (emphasis original).
[49]Ibid (emphasis original).
67 Dr Watson opined that you have a history of lowered mood, particularly in response to stressful life events, but she did not diagnose any mental illness or disorder. She further opined that ‘there is unlikely to be a direct link between his anxiety or lowered mood and viewing CEM’. She continued: ‘Although there is no apparent direct link to his offending, his mental health is relevant as it does create vulnerability that would need to be managed should he be incarcerated.’[50]
[50]Ibid p 9 [38].
68 I prefer Dr Watson’s opinion to that of Dr Cunningham because it is based on more rigorous psychological testing and does not depend on your self-report, which as Dr Watson observed, may not be reliable.
69 Your counsel, in his written submissions, submitted that general deterrence should be moderated in your case because of your mental health issues making you ‘less appropriate as a vehicle for deterrence’. He referred to Dr Cunningham’s report at paragraphs 5.1, 5.3 and 5.4. He also initially submitted in writing that in your case the weight I give to denunciation should be ‘reduced’.[51] As the plea proceeded it appeared your counsel shifted ground on this matter and ultimately he relied only on Verdins principle 5. The Commonwealth DPP submitted that no Verdins principles were engaged in your case.[52] Counsel for the Director submitted that depressed mood and anxiety disorder were not mental illnesses of such a nature as to enliven the principles in Verdins.
[51]See exhibit D1 [4.2] and [4.3].
[52]Prosecution Submissions dated 4 April 2018 [26] (exhibit P3).
70 I do not accept that the nature of your offending conduct or any aspect of your personal circumstances justify me moderating the weight I should give to denunciation in your case.
71 Moreover, applying Verdins principles as explicated in DPP v O’Neill[53] and summarised in Charles v The Queen,[54] I am not satisfied that a link has been established between your mental condition and your offending conduct sufficient to engage Verdins principles 1, 2, 3 or 4. Moreover, in my view, there is insufficient evidence to support the application of Verdins principle 5 in your case. However, I am satisfied that Verdins principle 6 is engaged here and I will take that into account in your favour.
[53](2015) 47 VR 395 (Warren CJ, Redlich and Kaye JJA).
[54](2011) 34 VR 41, 69–70 [162] (Robson AJA, Redlich and Harper JJA agreeing).
72 So far as your physical health is concerned, you suffer from a heart arrhythmia which is treated with medication. You have restless leg syndrome and a damaged left shoulder tendon, which conditions also appear to be adequately treated with medication.[55] I did not understand your counsel to submit that these conditions are sufficiently debilitating to render a custodial sentence more onerous on you.
[55] Email dated 14 July 2018 from James Howe to Dowsley Associates headed ‘My Case Medical Conditions & Medications’ (exhibit D8).
Mitigating circumstances
73 You have no prior criminal history and there are no subsequent offences or outstanding criminal matters involving you. However, as I noted earlier, in cases of this nature less or limited weight is given to an offender’s prior good character.
74 You first indicated your intention to plead guilty to these charges at a committal mention in the Magistrates’ Court on 23 June 2017. I accept these are pleas at the earliest reasonable opportunity. Your relatively early pleas of guilty have utilitarian benefit and also indicate an acceptance of responsibility on your part and a willingness to facilitate the course of justice.
75 Initially you failed to demonstrate true contrition and remorse for your offending which was evident from your attitude to your offending as expressed in the record of interview.[56] At that stage you entirely lacked insight into your offending conduct.
[56]See above [17f], [19].
76 However, there is some evidence that you are becoming remorseful and gaining insight into your offending and its likely effect on the innocent victims of your crimes. Ms Gorovoy opines that this is the case. She states that as therapy progressed, you started to report frequent feelings of guilt, shame and regret in relation to your sexual obsessions ‘based on fear of hurting people inadvertently’. She further states that:
Mr Howe reported he did not have the urge or desire to look at any images of inappropriate sexual content since the police raid, and did not believe he will ever want to do it again due to the shame and the negative association he currently has with such actions. Mr Howe reported that he experienced great amounts of shame, guilt, regret and remorse throughout the year long process going through the legal proceedings after the police raid. Mr Howe said this experience left him in great desire to get better, heal, repair his life with his wife and continue being a helpful and productive member of his community.
77 Dr Cunningham also expressed the opinion that you are remorseful and you are developing ‘an understanding of the wrongfulness of engaging with child pornography’ and that ‘the children in the images [are] victims’.[57]
[57]Cunningham Report p 4 (emphasis original).
78 However, Dr Watson administered the Risk for Sexual Violence Protocol (RSVP) and found on the ‘psychological adjustment’ domain as follows:
Mr Howe had partial evidence for extreme minimisation or denial of sexual violence (reporting during his previous assessment that he was not sexually gratified by the CEM), and minimised the impact on victims of his viewing of the materials. He also displayed partial evidence for attitudes that support or condone sexual violence, problems with stress and coping, and problems resulting from child abuse. Mr Howe provided some justification that viewing CEM is not harmful to the victims.[58]
[58]Watson Report p 7 [30].
79 Ms Dickie commented that you ‘expressed high levels of remorse around [your] actions’. She said you are ‘distraught’ at hurting your wife. She also felt you are developing insight into the wrongfulness of your conduct.[59]
[59]Exhibit C2.
80 In light of these matters, I am prepared to find that you are now genuinely remorseful for your criminal conduct[60] and you are starting to gain insight into the wrongfulness of your actions. However, you still have some way to go in developing true victim empathy.
[60]See Barbaro v R (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
81 Dr Watson also opined that you have ‘prosocial attitudes and no offending history, thus the impact of [your] offending on [your] relationship [with your wife] and the legal consequences appear to have had a deterrent effect’.[61] Moreover, you indicated to Dr Watson that you have learned your lesson and will not reoffend in the future and you are concerned at the impact you offending and its discovery has had, and is continuing to have, on your wife.[62] These considerations mean that I need give little weight to specific deterrence and protection of the community in your case.
[61]Ibid 9 [40].
[62]Watson Report p 6 [22].
82 You were previous to this offending a person of good character, you have a good work history, and you enjoy the support of your wife. You were cooperative with police; for example, by supplying them with your passwords, and you made admissions during your record of interview. You also offered to provide assistance to the authorities in detecting and apprehending other like offenders, however, this offer was not acted upon.
83 I accept you have good prospects of rehabilitation. However, the authorities make clear that in offending involving child pornography, an offender’s subjective circumstances, including prospects of rehabilitation and rehabilitative steps already underway, must not be allowed to overshadow the objective seriousness of the offences for the purpose of sentence, nor the need for a sentence to reflect general deterrence and denunciation.[63]
[63] R v Booth [2009] NSWCCA 89 [47] (Simpson J, McClelland CJ at CL and Howie J agreeing); Porte 310, [71]–[72].
84 I accept Dr Cunningham’s opinion that you present as a low risk of sexual reoffending.[64] This is confirmed by Dr Watson’s observation that ‘the available research suggests that CEM offenders typically show low rates of reoffending’.[65] Moreover, Ms Dickie assessed you using the Level of Service Risk/ Need, Responsivity tool as being a low risk of re-offending. Accordingly, as I said earlier, I will give little weight to specific deterrence in this case.
[64] Ibid pp 3 and 5.
[65]Watson Report p 9 [40].
85 I accept there has been some delay in this case. You were first charged in relation to these matters on 8 March 2017. You have had these proceedings hanging over your head for some 18 months. I take that delay into account in your favour.
Application of sentencing principles
86 So far charge 1 is concerned, you must be sentenced in accordance with the relevant provisions of Part 1B of the Crimes Act1914 (Cth) (‘the Commonwealth Act’) and in particular the provisions of s16A. So far as charge 2 is concerned, you are to be sentenced in accordance with Part 2 of the Sentencing Act 1991 (Vic) (‘the State Act’).
87 Pursuant to s16A(1) of the Commonwealth Act, the Court is required to impose a sentence which is of a severity appropriate in all the circumstances of the offence. In determining the appropriate sentence, I am required to take into account the matters listed in s16A(2), and any other matters, insofar as they are relevant and known to me. Similar provisions apply under the State Act.[66]
[66] See Sentencing Act 1991 (Vic) ss 5 and 6.
88 Section 17A(1) of the Commonwealth Act provides that I shall not pass a sentence of imprisonment on you for these offences unless, having considered all of the available sentences, I am satisfied no other sentence is appropriate in the circumstances.[67] The State Act contains provisions to similar effect.
[67] Similarly, see Sentencing Act 1991 (Vic) ss 5(3).
89 The Crown submitted that owing to the nature and seriousness of your offending conduct in relation to each charge, and the need for significant weight to be given particularly to the principles of denunciation and general deterrence, significant terms of imprisonment are the only appropriate sentencing options on each charge. Your counsel submitted that community correction orders on both charges are the appropriate disposition in your case.
90 So far as orders for cumulation between charges 1 and 2 are concerned, although there may be some small degree of overlap between the Commonwealth offence of making child pornography material available using a carriage service and the State offence of knowingly possessing child pornography, they are separate and distinct offences directed at different vices.[68] Moreover, in this case, while some of the images forming part of the material relied upon by the Commonwealth Director to support charge 2 may have been the subject of emails forming the subject matter of charge 1, there is no overlap in the dates of the respective offending and it undoubtedly is the case that there is a great deal of criminality involved in the commission of charge 2 which is not captured by charge 1 and vice versa.
[68]See Garside 819 [65]; Porte 315 [99]–[100].
91 I have had regard to current sentencing practices in relation to the offences before me in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[69] The Commonwealth Director referred me to the cases of Burbridge v The Queen,[70] Heathcote v The Queen,[71] DPP (Cth) v Guest,[72] and Burrell v The Queen[73] as being relatively comparable cases. It is difficult to gauge more than a very general yardstick from so-called ‘comparable’ cases, given the wide range of offending conduct that can constitute the offences for which you fall to be sentenced and the myriad of personal circumstances pertaining to individual offenders. To the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
[69] (2017) 91 ALJR 1063.
[70] [2016] NSWCCA 128.
[71] [2014] VSCA 37.
[72] [2014] VSCA 29.
[73] [2013] VSCA 146.
92 Ultimately, after having considered all other available sentences, I am of the opinion that the only appropriate sentence necessary to achieve the purposes for which these sentences are imposed is a period of immediate imprisonment. My reasons for that conclusion are contained in these reasons for sentence.
93 So far as charge 1 is concerned, I will fix a recognisance release order.
94 So far as charge 2 is concerned, I have had you assessed for suitability for a community correction order and you have been found suitable for such an order. On that charge I intend to impose a sentence of imprisonment combined with a CCO.
Stand up Mr Howe
On charge 1, make child pornography material available using a carriage service, you are convicted and sentenced to a term of imprisonment of 30 months. That sentence is to commence today.
I direct that you are to be released after having served 12 months of the sentence on charge 1, upon your recognisance in the sum of $5000 and on the following conditions:
(1) that you be of good behaviour for a period of 18 months following your release and
(2) that you comply with the conditions of the community correction order I impose on charge 2.
On charge 2, knowingly possess child pornography, you are convicted and sentenced to a term of imprisonment of 12 months. That sentence also commences today.
On charge 2, I further sentence you to a community correction order for a period of 24 months, commencing on the date of your actual release from custody. In addition to the normal requirements of a community correction order I direct that comply with a number of specific conditions. Detail program condition as per CCO order proforma.
I must now explain these orders to you.
The effect of these orders is that you will serve 12 months of imprisonment before you are released to continue your sentence in the community. On charge 1, you are released after 12 months on what is called a recognisance release order. This means that you will be released from prison in 12 months’ time and serve the remainder of your imprisonment sentence (18 months) in the community, provided that you are of good behaviour during that time and that you comply with the conditions of the community correction order I have imposed on charge 2.
If you fail to comply with the recognisance release order, then you will be brought back before the Court to be dealt with for the breach, and you may be required to serve the remainder of your imprisonment sentence.
At the same time as your release on recognisance on the Commonwealth charge, you will also begin your community corrections order on the State charge. Please listen carefully to the terms of the community corrections order, because they are different from the Commonwealth order. Like the Commonwealth order you are to be of good behaviour and not reoffend. As well as that, you must comply with all the core and program condition I have just explained.
Pursuant to the provisions of the Sex Offenders Registration Act 2004 (Vic) I order that you comply with the reporting provisions of that Act for a period of 15 years commencing today.
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