R v Hurt
[2019] ACTSC 148
•6 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hurt |
Citation: | [2019] ACTSC 148 |
Hearing Date: | 6 June 2019 |
DecisionDate: | 6 June 2019 |
Before: | Mossop J |
Decision: | See [55] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – possession of child exploitation material and distribution of child pornography – early guilty pleas – no relevant criminal history –general deterrence – denunciation and specific deterrence – custodial sentence and recognizance release order |
Legislation Cited: | Criminal Code 1995 (Cth), s 474.19 Crimes Act 1900 (ACT), s 65 Crimes Act 1914 (Cth), s 17A |
Cases Cited: | Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 R v BG [2017] ACTSC 382 Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 |
Parties: | The Queen (Crown) Raymond James Choi Hurt (Offender) |
Representation: | Counsel S Janackovic (Crown) S McLaughlin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 61 of 2019 |
MOSSOP J:
Introduction
The offender, Raymond Hurt, has pleaded guilty to the following offences:
(1) intentionally possessing child exploitation material between 11 October 2017 and 1 March 2018 contrary to s 65 of the Crimes Act 1900 (ACT), the maximum penalty being 700 penalty units, imprisonment for seven years or both; and
(2) using a carriage service for child pornography material on 11 February 2018 contrary to s 474.19 of the Criminal Code 1995 (Cth), the maximum penalty being 15 years imprisonment.
The offender pleaded guilty to the charges in the Magistrates Court before they were committed to this Court for sentence.
Facts
The agreed facts in relation to the offending may be summarised as follows.
The offender owned an HTC mobile phone. He used that phone for his own personal use.
On 12 October 2017, the offender’s then partner attended Cash Converters in Tuggeranong. She entered into a loan agreement with Cash Converters in relation to the offender’s HTC mobile phone.
The mobile phone ultimately became the property of Cash Converters and, contrary to the usual Cash Converters’ policy, it was not wiped and de-identified.
Subsequently, in February 2018, a staff member observed a picture of a child in a sexual pose on the phone and another staff member observed some quite serious child pornography on it and reported the matter to police.
That day police attended and took possession of the mobile phone. Police reviewed the mobile phone and observed numerous images in the gallery which were classified as child exploitation material. Police were provided with documents held by Cash Converters relating to the offender’s then partner.
On 27 February 2018, police attended the offender’s residence for the purposes of executing a search warrant. The offender, his then partner and one of their three children were present at the time. The offender and his partner were provided with a copy of the search warrant and were cautioned.
Police provided the offender with the opportunity to produce any items named within the search warrant and the offender produced a number of those items including a black Samsung mobile phone.
When Police asked what was going to be found on the mobile phone, the offender said: “More of the same I suppose.” When asked to clarify what that meant, he said: “Child exploitation material.”
Police then viewed the gallery of the Samsung mobile phone and observed images which were classified as child exploitation material.
The following day, the offender participated in a recorded interview. During that interview, the offender made the following admissions:
(1) The HTC mobile phone and the Samsung mobile phone belonged to him and he was the only user of those phones.
(2) He used his phones “for personal use and accessing those things ... those things being child exploitation material”.
(3) He only ever saved child exploitation material on his HTC and Samsung mobile phones.
(4) He began viewing child exploitation material in his early to mid-twenties.
(5) He would talk to people on a chat service called Moco and would ask if “Anyone into younger?”. In response, these people would then send a private message to him on a different messenger service called Kik. He had a Kik account and communicated with three or four people for the purposes of obtaining child exploitation material.
(6) He used Tor to search for and download child exploitation material as Tor made his location unknown.
(7) He accessed child exploitation material “once a week or a few times a week”.
(8) He would usually do this when he was home alone and would spend a few hours viewing and searching for child exploitation material.
(9) He stated that the HTC mobile phone contains about 1000 to 2000 child exploitation material images and about 100 child exploitation material videos.
(10) He stated that the Samsung mobile phone contains about 1000 child exploitation material images and about 100 child exploitation material videos.
(11) He stated that child exploitation material is “child porn stuff” and “videos of a sexual nature”. He said that “child porn stuff” is performing sexual activities on underage individuals.
(12) He provided an example of child exploitation material which was contained on one of his phones – it is of a girl in the bathroom with a male. The girl performs “oral” on the male and then she spits out something and laughs. The girl is about eight years old. The offender can tell the girl is about eight years old from her height and from her lack of physical development. The offender described the girl performing “oral” as the girl putting her mouth on the male’s genital area or penis.
During the interview, the offender said that he had never contact offended with a young person nor attempted to contact a young person. The offender said his sexual preference was for adults and that children were a twisted fantasy of his. The offender said that he had never taken pictures of his own children for sexual gratification.
The offender was polite and cooperative with police.
Police examined the HTC mobile phone – it contained a total of 18,679 images and 379 video files.
Police examined the Samsung mobile phone – it contained a total of 22,104 images and 576 video files.
Police conducted a cursory review of the images and the videos on both mobile phones. Approximately 50% of the total images and videos on the mobile phones were child exploitation material.
Of the images observed by police, the majority were classified as Category 1 on the ANVIL [Australian National Victim Image Library] scale. The majority of the Category 1 images showed naked, pre-pubescent children depicted in a sexualised manner. As an example, one image located on the HTC mobile phone depicts a pre-pubescent female child lying naked on her back on a royal blue surface. The child was holding her legs apart with one leg in each hand and is exposing her vagina. The remaining images observed fell within Categories 2, 3, 4 and 5.
Of the videos observed by police, the majority are classified as Category 4 and contain pre‑pubescent female children engaged in sexual intercourse with adult men. Police also observed some Category 5 videos. As an example, one video depicted a pre-pubescent female child kneeling on a blanket. The child is naked except for a black choker necklace. The child is kneeling next to a dog and masturbates and performs fellatio on the dog.
Police located the offender’s Kik account on the Samsung mobile phone. Police viewed an exchange between the offender and a username “Londonguy25” which took place on 11 February 2018.
During this exchange, Londonguy25 asked: “Any young teen pics?”
In response, the offender shared an image of a young teenager in knee-high boots, a short skirt and bikini top, and in a provocative stance. The offender then shared two more images of two young pre-pubescent teenagers in bikini swimsuits.
Londonguy25 asked: “Which would you pick left or right?” to which the offender nominated a preference.
The offender then shared an image of a young pre-pubescent teenager wearing a pink “boob-tube” style top and long white thigh-high stockings. The child’s back is facing the camera and she is turning her head towards the camera with her buttocks exposed. She is touching her buttocks with one of her hands. This image is Category 1 child exploitation material. It is the provision of this image that gives rise to the Commonwealth offence.
There was then an explicit text conversation in which activities involving the subject of the photograph were discussed.
The offender was only charged with the offences in January 2019.
Objective seriousness
The objective seriousness of the offending may be determined having regard to those factors identified in R v De Leeuw [2015] NSWCCA 183 at [72] and Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 at [94].
In this case the nature and content of the material is described in the facts set out above. So too is the number of items or images possessed. While the analysis of the material is only put in general terms, those general terms are agreed. It is not possible to say from the agreed facts that each of the images was unique (cf R v Walshe [2016] ACTSC 267 at [15]-[17]). Nor is there any assessment of how many different children were the subject of the child exploitation material (cf R v Major [2016] ACTSC 161 at [11]). Nevertheless, it must be accepted that there was a very significant volume of material and the material included pre-pubescent children (as opposed to infants) and also included material in the higher categories of the ANVIL scale. That was particularly the case with the videos. As the facts make clear, there are some quite extreme acts portrayed in the images and videos and that reflects upon the harm done to the children depicted.
There is no evidence that the material was for the purpose of sale or further distribution save in respect of the one image the subject of the second charge. There is no evidence that the offender’s activities were in any way proximate to those responsible for bringing the material into existence. There was not a great degree of sophistication in the manner in which the offender stored the material (cf Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [22]). The offender acted alone in storing the material. There was no evidence that the offender would profit from the offence. As pointed out above, there is no evidence as to the number of children depicted and thereby victimised.
The material was possessed for a significant period, namely from 11 October 2017 to 1 March 2018.
The evidence did not establish an identifiable risk that the material would be seen or acquired by persons susceptible to act in the manner depicted in the images and videos.
Clearly, there was a risk of the images being seen by other persons as is demonstrated by the circumstances in which the images were discovered as described above.
Notwithstanding that there was some uncertainty about some aspects of the content of the material because of the failure by the Australian Federal Police to fully categorise it, in the light of the facts which are agreed, the offending is above the mid range of objective seriousness for the offence of possession.
So far as the Commonwealth offence of distributing child pornography is concerned, having regard to the nature of the image, the fact that it was a single image, that it was done without a view to financial gain and without an intention that it be further distributed, the offence in the low range of objective seriousness for this offence.
Subjective circumstances
The personal circumstances of the offender are disclosed in a pre-sentence report. The offender is 32 years old. He was 30 at the time of the offending conduct. He was born in South Korea and was adopted at the age of one by an Australian couple. There were two other children in the family. At the age of 16 he moved out of the family home to seek his independence. His mother is deceased, having died of breast cancer. He maintains a positive and supportive relationship with his father and two siblings.
He has three children from a previous relationship, which has now ended. He separated from his ex-partner in March 2019 after being charged with the current offences as well as family violence related offences. He continues to have some telephone contact with his children.
He lives with his father along with his sister and brother.
He completed Year 10 and has qualifications related to meat processing and accounting. He has returned to study and is enrolled in a Bachelor of Business and Accounting but has deferred those studies. He is presently receiving social security benefits, although he has available to him full-time work as a cleaner.
The author of the pre-sentence report assessed his self-reported alcohol consumption as being at a risky or has a hazardous level. He has a history of cannabis use which escalated to 3-5g of cannabis per day. He denied cannabis use since he was charged with the current offences. He reported that his use of alcohol and cannabis was a contributing factor to the commission of the offences.
He has obtained counselling from Directions ACT as well as from a counsellor with the EveryMan organisation.
He accepted full responsibility in relation to the current offences. He claimed that he found that his actions provided a means to escape from reality.
He is assessed as being at a medium risk of general reoffending but the author of the pre-sentence report notes the benefit of strong prosocial factors including a supportive family and stable accommodation.
Criminal history
Whilst the offender has a criminal history, none of it is relevant to the present offending.
Plea of guilty
The offender pleaded guilty to the charges in the Magistrates Court on 22 March 2019. That was an early plea of guilty and I will allow a reduction of 25% on the custodial sentence that I would otherwise have imposed.
Time in custody
The offender has spent no time in custody in relation to these offences.
Sentencing practice
Counsel for the offender provided a helpful summary of comparable cases relating to accessing and possession of child exploitation material. The decisions referred to were R v Forbes [2014] ACTSC 91, R v Simonetti [2018] ACTSC 31, R v Walshe, R v BG [2017] ACTSC 382, R v Major, R v Cooper [2012] ACTCA 9, R v Sutton [2017] ACTSC 95, R v White [2016] ACTSC 237, R v Honeyman [2016] ACTSC 2, R v Harvey [2014] ACTSC 393, R v KJ [2014] ACTSC 353. I have taken those decisions into account as indicative of the sentencing practice of the court. The cases whose circumstances are most comparable are R v Major and R v Walshe. In assessing these cases some care needs to be taken to recognise the distinction between the Commonwealth offence of accessing child pornography material under s 474.19 of the Commonwealth Criminal Code, which carries a penalty of imprisonment of 15 years, and the offence of possessing such material under s 65 of the Crimes Act, which carries a sentence of seven years imprisonment. While those offences will often be charged together, in the present case, it is only the latter which has been charged and the more limited penalty must be taken into account.
Consideration
As I have indicated above, even taking into account the uncertainty surrounding the categorisation of the material, there was a large volume of material and it included very serious examples of child exploitation material. The subjective circumstances of the offender are, not unusually, favourable to him in that his only criminal history is not relevant to the present offending, he has supportive family and some motivation to advance his position through education.
As the decision in De Leeuw makes clear, even in cases where the offender has a limited or no criminal history, a custodial sentence involving an immediate term of imprisonment is ordinarily warranted. So far as sentencing considerations are concerned, the purpose of the offence provisions and the nature of the offending are such that general deterrence must be the most important sentencing consideration. Denunciation and specific deterrence are also relevant considerations. Because of the significance of general deterrence, less weight can be given to the offender’s prior good character.
I take into account the fact that as a result of delays by police in analysing the material the offender has had the potential for charges hanging over him for 10 months prior to being charged in January 2019.
In my view, the objective gravity of the offending is such that only a custodial sentence will be appropriate. The appropriate starting point is a sentence of imprisonment of 20 months reduced to 15 months on account of the early plea of guilty.
Counsel for the offender submitted that it would be appropriate to order an intensive correction assessment with a view to considering whether or not the custodial penalties should be served by way of intensive correction in the community. As Burns J noted in R v Major, an intensive correction order would involve an extension of significant leniency compared to a sentence of full-time imprisonment. Like Burns J, I consider that the objective seriousness of the present offence would make such leniency inappropriate and hence I decline to direct an intensive correction assessment.
Rather, I consider that part of the sentence should be served by way of full-time imprisonment and the balance suspended. The sentence of imprisonment will be suspended after eight months upon entry into a good behaviour order for a period of 18 months.
So far as the Commonwealth offence is concerned, s 17A of the Crimes Act 1914 (Cth) provides that a sentence of imprisonment may not be imposed unless all other available sentences have been considered and the court is satisfied that no other sentence is appropriate. The transmission charge carries a maximum penalty of 15 years and this must be taken into account in considering whether any other sentence is appropriate. However, having regard to the low objective gravity of the offence, I am not satisfied that no sentence other than a sentence of imprisonment would be appropriate. Rather, the matter may be dealt with by a recognizance.
Orders
The orders of the Court are:
1. On the charge of intentionally possessing child exploitation material (CC2019/477), the offender is sentenced to imprisonment for 15 months commencing on 6 June 2019 and ending on 5 September 2020.
2. The sentence is to be suspended after the offender has served eight months imprisonment from 6 June 2019 to 5 February 2020 upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months which shall include the following additional conditions:
a. the offender will be subject to the supervision of the Director-General for the whole of a period or such shorter period that the Director‑General considers appropriate and shall obey all reasonable directions of the Director-General;
b. the offender shall supply samples of blood, breath, hair, saliva or urine for alcohol or drug testing as required by corrections officer; and
c. the offender shall attend such educational, vocational, psychological, psychiatric or other programs or counselling as directed.
3. On the charge of using a carriage service to distribute child pornography material (CC2019/1959), the offender is convicted and released upon giving security in the sum of $1000 without surety by recognizance that he will be of good behaviour for a period of two years.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 26 June 2019 |
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