R v Ian Macgillivary

[2016] NSWDC 312

District Court

New South Wales

Medium Neutral Citation:	R v Ian Macgillivary [2016] NSWDC 312
Hearing dates:	18 August 2016
Date of orders:	18 August 2016
Decision date:	18 August 2016
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	See orders [30]-[31]
Catchwords:	CRIMINAL LAW – sentence – plea of guilty – intentionally importing child exploitation material into Australia – 1 image only – criminal record in UK for indecent assault and the possession of child pornography – offence aggravated by the fact that the offender was on conditional release in the UK – importance of general deterrence
Legislation Cited:	Criminal Code s 233BAB(5) Crimes Act 1914 (Cth) ss 16A, 20(1)(b)
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions Ian Macgillivary (Offender)
Representation:	Ms G Mojtahed (Commonwealth Director of Public Prosecutions) Mr D Randle (Offender)
File Number(s):	2016/47304
Publication restriction:	Nil

Judgment

1. HER HONOUR: The offender is before the Court for sentence following his plea of guilty to an offence of intentionally importing child exploitation material into Australia. This is an offence contrary to s 233BAB(5) of the Criminal Code and as such carries a maximum penalty of ten years imprisonment.

2. The relevant facts are that on 13 February 2016 the offender came into Sydney International Airport on a flight from Manila in the Philippines. He is an Australian citizen but had been living in the UK for 20 years. He had arrived in Melbourne from the UK on 4 February 2016 for a short stay in Australia with the intention of taking a two week visit to the Philippines from 12 February. He had return tickets to the Philippines, which he had bought on 15 December 2015. On his incoming passenger card for the visit on 4 February 2016 he indicated that he was intending to visit friends in Australia and then go for a trip to the Philippines.

3. He left Melbourne on 12 February for Manila but was refused entry into the Philippines, no doubt because of his criminal record for offences of indecent assault and the possession of child pornography from the United Kingdom. After spending five hours apparently at the airport in Manila he was returned to Australia by the authorities there because he was an Australian citizen. He had in fact left Melbourne the previous day for the Philippines but was denied access and returned immediately on the flight which arrived which arrived on 13 February.

4. He presented an incoming passenger card which inter alia denied that he was bringing in any prohibited items, and specifically denied that he was importing any illegal pornography. He was selected for a search and in his luggage there was located a Microsoft Surface Pro 4 tablet which was sent for examination. The offender, as I have said, had a conviction in the United Kingdom from 2012 for indecent assault and numerous charges of possessing child pornography and other pornography, which was no doubt what alerted him to the authorities and gave rise to the search. It would appear to be the reason that he was refused entry to the Philippines.

5. When questioned he told police that in fact he had been refused entry to the Philippines but that absent that, he had intended to stay there for about two weeks and then come to Australia for about five days to meet up with family and friends, to look around, and then return to the United Kingdom.

6. Australian Border Force officers located an item on his tablet. He was cautioned. He told officers that he was the only person who used that tablet. It would appear that from the outset he was cooperative with the authorities. On the tablet officers found two files of the same video entitled “USA 2015” which was a video date stamped 3 January 2016 lasting for 10 minutes 21 seconds. It was a recording of an interaction between the offender and others on an online web chat room called Omegle. This operated by allowing a person like this offender, who is known as an operator, to enter that chat room and various people then became available for a chat, presumably from anywhere throughout the world and also apparently willingly participating because they are transmitting vision of themselves via a webcam. The system allows the operator, in this case the offender, to also have his image and voice transmitted to the person at the other end, but also allows him to turn off the camera and microphone so that his picture and voice are not broadcast to the person at the other end. This is what this offender did. In those circumstances, communication with the other person occurs by text.

7. The video showed the offender accessing the web chat room. The system works by allowing the operator to move quickly from one person to another if he does not wish to have contact with that person. It appears that this offender did that for up to seven minutes and 17 seconds into that interaction, moving through a number of people, both male and female, and not having any interaction with them until at seven minutes and 17 seconds a girl appeared on the screen via her web cam. I accept from the facts that she appears to be between about ten and 12. This analysis of her age is something, I accept, that has been done on closer examination of the video by Commonwealth officers after the offender was charged. Initially the arresting officer who conducted the interview at the airport assessed her age as seen on the video as between 11 and 15.

8. During the record of interview the offender initially denied that the person depicted was a child, but apparently when the interviewing officer suggested that the girl looked to be between about 11 and 15, he agreed and thereby acknowledged that she was a child. The age has been assessed down to between ten and 12 on the facts presented to court on a closer inspection by the officers and, in particular, by an estimate made of her age on the basis of her apparent sexual development and facial appearance. She was however, I accept, whether she be ten or 15 nonetheless obviously a child and that must have been obvious to the offender. He would appear to have acknowledged as such by agreeing that to him she appeared between 11 and 15. The fact that he has from time to time denied that she was a child does not change the fact that when interviewed at the airport he acknowledged that she appeared to be between 11 and 15.

9. She was sitting on a bed in a pink room with cartoon characters appearing on the wall in the background. She is wearing a pink T-shirt with pictures of the cartoon character Bambi on it. She could not see the offender because his camera and microphone were turned off. He engaged in a chat conversation with her by text. After stopping at her image he complemented her and encouraged her to engage in sexual activity. This occurred in these circumstances at about eight minutes and 36 seconds into the video. She revealed her stomach by lifting up her top and then appears to have, by using her thumbs pointing up or down, asked for his view. The offender encourages her by typing “Yes please”. She then revealed her breasts and rubbed and fondled them. The offender then sent a text, “Can I see your pants?” She pulled down her trousers to reveal her underwear and placed her left thumb inside her underwear and pulled them away from her body. She put her right hand into her underwear and appeared to rub her genitals. She imitated that she was moaning whilst doing this. She then placed her middle finger up and ended the transmission. Her involvement with the offender lasted for just a little more than three minutes.

10. The offender recorded the whole of his interaction on this chat room of over ten minutes, including the specific portion involving the girl. He used a program called Game Capture to do that. He informed the police that he had used this program to record it. It is the image of this girl for just over three minutes that is the subject matter of this charge of intentionally importing child exploitation material.

11. I accept that this sexual activity involving the child is capable of being classified on the Oliver Scale. I accept that it is appropriate to classify this as level 2. The agreed facts assert that it is level 3. That on my finding is an error made by both of the parties in this sentence. This child exploitation material does not display sexual activity of any type between an adult and child. The child is displayed alone engaging in solo masturbation which is level 2 on the Oliver Scale as set out in the facts.

12. The offender was arrested when this material was discovered at the airport and engaged in an interview with the officer as I have said. As I have said also, right from his initial stopping, he admitted that the tablet was his and that no one else used it. He admitted that he regularly used this particular chat room.

13. This is a Commonwealth offence and as such I must sentence in accordance with pt 1B of the Crimes Act and in particular s 16A of that Act. The nature and circumstances of this offence are to be determined by the recitation of facts just undertaken. It is an importation offence, not a charge of possessing child pornography. The objective seriousness of this offending must be assessed on that basis.

14. On my finding, this is an offence at the bottom of the range of offences capable of being charged as an offence of importing child exploitation material. The reasons for that are many. The first is that the gravamen of this offence is that this offender intentionally imported the tablet and as such imported the contents of the tablet. There is no evidence that there was any other pornography, legal or otherwise, on that tablet apart from this video. The second file was just a copy of the first. There was one video and one item of just over three minutes involving a child as a part of that video. The fact that the file was there after having been recorded in January 2016 was more probably than not reckless. In his interview with the ABF he admitted that he had recorded it, but I accept that he did not remember doing so in detail. He gave the impression, from the portion of the interview provided to me in the agreed facts, that he had not in fact remembered that the file was still there on his tablet when he intentionally imported the tablet into Australia. His importation of the tablet was clearly intentional, but the fact that the video was on it, it seems to me, was reckless.

15. There is only one piece of child exploitation material, the subject matter of this charge. The Court is regrettably all too familiar with the fact that charges brought under this section involving the importation of child exploitation material generally and more often involve the importation of hundreds, if not thousands, of such images. It is, on my finding, at Oliver Scale level 2. That is not of course to indicate that this is anything other than serious. All child pornography charges, whether it be for importation, possession, creation or the like, are extremely serious offences.

16. General deterrence is an important aspect of sentencing for these offences. The ability to apprehend those involved in child pornography offences, whether in the nature of importing, using, creating or possessing, has become more and more complicated as electronic access to such material has increased. Children who are victims of these offences are frequently from underprivileged backgrounds and third world countries, and are exploited generally as well as being the subject of sexual exploitation. Those who would access, import or use this sort of material add to this exploitation.

17. For those reasons, even though this is an incident of child pornography towards the bottom of the Oliver Scale and overall is an offence of importing child exploitation material towards the bottom of the scale in terms of the seriousness, it is nonetheless an offence sufficiently serious in its own right that only full time custody would suffice to deal with the objective seriousness. As I have said, general deterrence is a matter that must play an important role in sentences for offences like this so that it is obvious that even for relatively minor versions of such offending, those who would use child pornography can expect to be sent to gaol in Australia.

18. Further, the importation in my view is of the most technical type. The offender was not intending to stay in Sydney. He was only back in Sydney on 13 February because he had been sent back from the Philippines. Even his original intention was only to stay in Australia for a very short period of time and then return to live in the United Kingdom. His importation of it was at the most for his own use only. There is no indication or evidence that he intended to disseminate it to others, to obtain any benefit financially from it, or to use it for any other purpose than at most to access it himself. The fact that he recorded it in my view leads inevitably to an assumption that it was likely he would access it at some stage in the future. But that finding is limited to an extent by a matter to which I have already referred, namely that he would appear to have probably forgotten that it was there during the course of his interview with the police.

19. The offender comes to court as a person with a prior criminal history for offences of almost identical type committed in the United Kingdom. He was sentenced in 2012 to a series of sentences for what would appear to be two charges of indecently assaulting a female under 14. That would appear to have been sentenced in 2012, but relating to what in New South Wales would be referred to as an historical offence in a sense, apparently occurring between 1992 and 1994. He was also at the same time sentenced in relation to a number of child pornography offences including creating child pornography and possessing child pornography. Those would appear to be - some of them at least - relatively serious examples of those sorts of offences. He received a term of imprisonment of four years with what would be referred to in New South Wales as a non-parole period and he was released after serving two years and three months in custody.

20. He has been subject to a sexual offences prevention order, the details of which are before the Court. Amongst the conditions involved in that order was one that required him to make available to the authorities in the UK any new electronic equipment that he possesses, and as I understand it, he did in fact advise the authorities in the UK about his purchase of this new tablet which he brought to Australia in February 2016. Whether or not they inspected it is not before the Court. If they had done so I accept that they would have discovered this file, it having been created in January 2016.

21. It has been submitted on behalf of the Commonwealth that I would accept that he was to an extent attempting to avoid detection when interacting with this young girl, because he turned off the video and microphone. At first blush that may well be an available inference but it seems to me that it is not an appropriate inference to draw in this case, in circumstances where there would appear to have been no attempt to hide the fact that this whole interaction was recorded on his tablet, which he admitted to the authorities immediately on his apprehension. He admitted it was his, was used only by him and appeared regularly under a file entitled “USA 2015”, not apparently hidden in any way on the computer, or encrypted, or in any way attempted to be hidden from anyone who might wish to look at it.

22. He pleaded guilty to these offences in the Local Court. It seems to me that that indicates a willingness to assist in the facilitation of justice to an extent. It is true that he is pleading to what is otherwise a relatively strong case against him, namely his admitted possession and ownership of the tablet and all that was on it, however, as I have said, he did appear to cooperate with the authorities very early on at the time of his apprehension and they are matters which I am entitled to take into account in determining the appropriate penalty, and I do.

23. His commission of the offence is aggravated by the fact that he was on this form of conditional release, namely serving the balance of his sentence in the UK and the sexual offences prevention order. However, I do also take the point raised on his behalf that whilst it operates to aggravate the objective seriousness of the offending, that aggravation should not be elevated to an extent that it is likely to give rise to double punishment. It is not clear what, if any, action might be taken on his eventual return to the United Kingdom because of his commission of this offence. Whatever it might be however it does not appear that it is likely to lead to any form of re-incarceration given that his term of imprisonment has now ended.

24. Specific deterrence is important in cases such as this where this offender has committed similar offences in the past. However, it seems to me that this offending is both at the bottom of the range in terms of objective seriousness for an offence capable of being charged under this section, and also significantly apart in date from the offences that gave rise to the four years term of imprisonment in the United Kingdom, in fact some 30 years apart.

25. His prospects of rehabilitation would seem to be fair in the circumstances. I make that guarded comment simply because on the material that is before me he would seem to be a fairly isolated person and something of a loner. The Court is only too aware that they are exactly the sort of people who are likely engage in this sort of behaviour, so that raises some concern on his eventual release from custody. However, he comes to court as a person who, albeit a loner, has engaged in appropriate employment in the past. Apart from the offending that occurred in 1992 or thereabouts, he otherwise was a member of the community in which he lived in the United Kingdom. He has no mental health or substance abuse issues that would be likely to increase the prospect of his reoffending. There is an opinion offered in the psychologist’s report that his prospects of reoffending are low and I accept that opinion in the circumstances that are known to me.

26. It would appear that he has a house to go back to in the United Kingdom when he is able to do so. He is now 67, probably the chances of him engaging in paid employment again are relatively slim, but he does have access to United Kingdom social security benefits.

27. I have been provided with copies of decisions of the New South Wales Court of Criminal Appeal and decisions of a similar court in Western Australia in relation to similar matters. Comparative sentences of course are not determinative necessarily of an appropriate penalty, but it is clear that there is something of a range of sentences for offences of this type. One of the many factors to take into account is the number of images. This is an unusual case in that there is one image only that has been imported.

28. Bearing all of that material in mind I have concluded that the appropriate penalty should be one of 14 months imprisonment . I will be setting a recognisance release order after seven months, so therefore a recognisance release order of seven months. It seems to me, given the circumstances of this offending and the earlier offending, that it is appropriate that there be some conditions attached to that recognisance release. Presumably, as soon as he can, the offender will return to the United Kingdom, but whilst ever he remains living in Australia there should be some conditions placed on him so that the risk of his having access to any child pornography or any reoffending of this type is reduced as close as possible to zero.

29. I have invited the Commonwealth to suggest some conditions.

30. For those reasons I make the following formal orders. The offender is convicted. He is sentenced to a term of imprisonment of 14 months commencing 13 February 2016 and expiring 12 April 2017, with a recognisance release order of seven months commencing 12 September 2016. The recognisance will be formally in the sum of $500 subject to the following conditions:

1. Accept supervision of the New South Wales Community Corrections and obey all reasonable directions of that organisation.

2. Not access the website Omegle.

3. Not access any other websites for the purpose of communication with persons who appear to be under the age of 18 or for the purpose of accessing child pornography material.

31. I make the forfeiture order in terms of the short minutes provided to the Court.

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Decision last updated: 23 November 2016