R v John Freestone
[2010] ACTSC 87
•20 August 2010
R v JOHN FREESTONE
[2010] ACTSC 87 (20 August 2010)
CRIMINAL LAW – child pornography offences – using a carriage service to access child pornography – section 474.19, Criminal Code Act 1995 (Cth).
CRIMINAL LAW – child pornography offences – possession of child pornography – section 65, Crimes Act 1900 (ACT).
SENTENCING - material provided from different reports on the accused – issue as to whether accused expressed remorse for his actions – turns on its own facts.
SENTENCING - psychological report on the accused – prosecution critical of psychological report due to the lack of psychological testing, based on Psychologist opinion, self-reporting from accused and lack of corroboration.
SENTENCING – consideration of mental health of the accused at time of offence and present mental health of the accused – turns on its own facts.
Criminal Code Act 1995 (Cth) s 474.19(1)
Crimes Act 1900 (ACT) s 65
Evidence Act 1995 (Cth) s 4(2)
Crimes Act 1914 (Cth)
R v Haynes (ACTSC, Refshauge J, SCC 448 of 2009, 18 February 2009, unreported)
R v Oliver & Ors [2003] 1 Cr App R 28
R v Qutami (2001) 127 A Crim R 369
R v Niketic [2002] NSWCCA 425
R v Ashman [2010] ACTSC 45
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
Welsh (1996) 90 A Crim R 364
R v McClelland [2010] ACTSC 40
R v Liddington (1997) 18 WAR 394
R v Gent (2005) 162 A Crim R 29
Cameron v The Queen, (2002) 209 CLR 339
R v Fowler [2007] ACTCA 4
EX TEMPORE JUDGMENT
No. SCC 147 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 20 August 2010
IN THE SUPREME COURT OF THE )
) No. SCC 147 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
JOHN FREESTONE
ORDER
Judge: Refshauge J
Date: 20 August 2010
Place: Canberra
THE COURT ORDERS THAT:
Mr Freestone is convicted of the offence of using a carriage service to access child pornography material.
On that charge Mr Freestone is sentenced to 14 months imprisonment to commence today.
On the charge of using a carriage service to access child pornography material, Mr Freestone is to be released on 13 December 2010 upon giving security in the sum of $500 and upon conditions that he be:
(a) of good behaviour for a period of two years; and
(b) subject to the supervision of an officer of ACT Corrective Services appointed by the Chief Executive or her delegate and obey all reasonable directions of the officer appointed to supervise him, particularly in respect to mental health treatment and counselling.
Mr Freestone is convicted of intentionally possessing child pornography.
On that charge Mr Freestone is sentenced to eight months imprisonment to commence today.
I direct that the sentence be concurrent with the sentence for intentionally using a carriage service to access child pornography.
The sentence for the charge of intentionally possessing child pornography is to be suspended from 13 December 2010.
Mr Freestone is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of two years, from 13 December 2010 and include conditions that:
(a) for those two years, he be on probation subject to the supervision of an officer of ACT Corrective Services appointed by the Chief Executive or her delegate and obey all reasonable directions of the officer appointed to supervise him, particularly in respect to mental health treatment or counselling; and
(b) he perform 80 hours of community service work within 12 months of that date.
I direct that four months of each sentence is to be served by periodic detention from today and end on 12 December 2010. The day of the first period of periodic detention is to start on 20 August 2010.
I recommend, as a condition of that periodic detention, that he be subject to supervision of an officer of ACT Corrective Services, delegated by the Chief Executive or her delegate to supervise him and that he obey all reasonable directions of that officer, particularly in respect of mental health treatment and counselling.
I direct that he report forthwith to ACT Corrective Services, Eclipse House, London Circuit, Canberra City to arrange that supervision.
I am satisfied that the black computer tower with LG DVD drive and Thermaltake (Item No VSJF/02, recorded in property seizure record A161268) and Western Digital Hard Drive 40 gigabyte serial No WMA6R3122611, (Item No VSJF/08 recorded on property seizure record A161269) were used in the commission of the first offence and that they have not already become property of the Commonwealth, I order that these items be forfeited to the Commonwealth.
Mr Freestone is a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT), with a reporting period for 15 years from today.
I have said before that cases involving access to and possession of child pornography are troubling because of the significant damage they represent that has been perpetrated on children and which is continued by the ongoing access which creates a demand that puts further children at risk: R v Haynes (ACTSC, Refshauge J, SCC 448 of 2009, 18 February 2009, unreported). Even where, as here, I am satisfied that there was no motive of sexual gratification involved, the act of downloading is involved in creating the demand.
It is also of concern that, in recent times, more and more cases are appearing in this court. Thus, the prosecution referred to five decisions in this court since December 2008. I am personally aware of at least four other decisions of mine and another judge not on that list.
The circumstances in which the offences are committed may mask their seriousness. Often it involves no more than the click of a mouse and payment of some money through a credit card, all common and simple actions. What is then received is an image on a screen which is, to some extent, divorced from the reality of the cruelty, abuse, violation and degradation that is often involved in the creation of those images.
The accused, John Raymond Freestone, has pleaded guilty to one charge of using a carriage service to access child pornography material, contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth) and one charge of intentionally possessing child pornography contrary to s 65 of the Crimes Act 1900 (ACT).
The first charge carries a maximum penalty of 10 years imprisonment and, in addition, a pecuniary penalty of $66,000. The second charge carries a maximum penalty of 500 penalty units at the time $50,000 or 5 years imprisonment or both.
The charges relate to the possession of 946 images and one video file which were found on Mr Freestone’s computer.
The facts
The offences were noticed first apparently when on 14 February 2009, Mr Freestone accessed a total of 11 images from a website which had been classified as containing child pornography.
On 16 October 2009, members of the Australian Federal Police Child Protection Operations Team executed a search warrant at Mr Freestone’s premises and they seized a number of items of computer equipment. Mr Freestone stated that he was the owner and sole user of the computer equipment, making admissions that he may have challenged as they resulted from continued questioning after he said he wished to decline to answer questions.
Mr Freestone was arrested. He declined to participate in a taped interview and was released on bail.
On 15 April 2010 in the ACT Magistrates Court, he entered pleas of guilty to the charges and was committed to this court for sentencing.
The material was viewed by the police informant. It is now common to apply a scale of seriousness that was original propounded by the Court of Appeal of England and Wales in the case of R v Oliver & Ors [2003] 1 Cr App R 28. The scale provides general descriptions which are now widely used to enable courts to understand the nature and seriousness of the offences.
Applying the scale, the informant assessed that:
· 755 (79.8%) of the images depicted erotic posing with no sexual activity;
· 26 (2.75%) of the images depicted sexual activity between children or solo masturbation by a child;
· 59 (6.24%) of the images depicted non‑penetrative sexual activity between adults and children;
· 98 (10.36%) of the images depicted penetrative sexual activity between children and adults; and
· 8 (0.84%) of the images depicted sadism or bestiality.
The video depicted sexual activity between children or solo masturbation by a child. The video lasted for approximately 15 minutes.
The image files were stored in a directory and sub‑directories, showing some degree of organisation of the material.
I viewed a sample of the material. The summary description of the material annexed to the Statement of Facts was expressly accepted as accurate by Mr Freestone through his counsel.
The larger amount of material depicted naked female and male children aged between 12 months to 15 years of age exposing their genital areas and posing erotically. Other images disclosed children of an equally wide range, some as young as six months old.
The most serious images depicted female children aged between 6 months to 10 years being tied up, urinated on and having objects inserted into their genital areas. One image showed a young female child with a knife being held onto her genital areas. There were estimated to be over 1000 children depicted, a large number of victims of the creation and distribution of this disturbing material.
Subjective circumstances
Mr Freestone was born in New South Wales, the only child of his natural parents, though his father had two children from a previous relationship.
Mr Freestone’s parents divorced during his toddler years and he lived with his father. His father, however, led a transient lifestyle and he moved around, the longest time they stayed in any one place being two years.
Mr Freestone described to the author of the Pre‑Sentence Report that his upbringing was “solitary and introspective”. He found this difficult because of the absence of his mother.
Mr Freestone had an enjoyable and productive schooling, excelling in subjects he enjoyed. He graduated with a Year 12 High School Certificate. He enrolled in a diploma at the Canberra Institute of Technology, but left to take up employment.
Mr Freestone has been employed in the IT industry for at least 15 years. I did not have a great deal of information about his employment. His most recent employer terminated his employment when these current offences became public. He was, at the time, on employment probation. His earlier employment at a local school was terminated after allegations of inappropriate behaviour, which left him with a sense of injustice.
Mr Freestone has had periods of substantial consumption of alcohol, but more recently, since these offences, has reduced that to one glass of wine on a Friday and Saturday evening. The relevance of alcohol on these offences is addressed below. He has never used illicit substances.
Mr Freestone stated that he has been diagnosed with Multiple Sclerosis, although there seems to be some uncertainty about the diagnosis. Mr Freestone, however, has stated that he has met all the physical requirements for that diagnosis.
Mr Freestone attempted to commit suicide in December 2009 and was hospitalised for some time. The Pre‑Sentence Report referred to five days, but The Canberra Hospital notes tendered by the prosecution show admission on 18 December 2009 and a discharge on 21 January 2010. Since then he has continued to seek mental health intervention, though it appears he is no longer actively involved with ACT Mental Health.
Mr Freestone has only prior traffic convictions, which do not significantly affect the decision I have to make in this matter.
The author of the Pre‑Sentence Report referred in the following terms to Mr Freestone’s attitude to the current offence:
Mr Freestone then claimed that he was attempting to bring the plight of the victims’ of child pornography to the attention of school staff when he obtained the illegal images. Mr Freestone stated he had hoped the awareness of “real problems” in society when he downloaded the pornographic images. He stated the school should be tackling those bigger issues instead of trying to ruin his life.
When asked why he required so many images to “get his point across” Mr Freestone claimed that he was only trying to obtain the “worst of the worst” images and this required the perusal of so many images.
Mr Freestone appears to have little understanding of the consequences of his offences. In written responses to several questions relating to his offence Mr Freestone was more concerned about the consequences the legal procedures had upon him. He referred to the loss of his job, friends, social life, hobbies and interests. He also referred to how restrictions placed upon him in relation to using the internet would impact on his future employment options. Mr Freestone also stated that although he needed access to the internet for employment reasons, he also conducted most of his social activities on line.
Mr Freestone denied there were any victims of his offence. He stated his motivation was to help those who are being victimised.
Although an apparently laudable motive to prevent further creation of child pornography, the explanation offered by Mr Freestone does not appear to bear on close examination. No method by which his downloading and use of the material would achieve his purpose is disclosed and it is difficult to see why the downloading and organisation of the material as attested to in the agreed Statement of Facts would assist him in the task articulated.
The author of the Pre‑Sentence Report concluded, therefore, that, Mr Freestone has little insight into his offending behaviour and, as recorded in the Pre‑Sentence Report, apparently little remorse. He is, of course, sorry for himself and, indeed, the offending behaviour will have significant effects on him and his future, but that is an inevitable consequence of the offending behaviour.
Mr Freestone has been assessed as suitable to undertake the ACT Corrective Services Adult Sex Offenders Program, that program is offered in the Alexander Maconochie Centre.
I received a report from Mr Leigh Nomchong, Psychologist, who saw Mr Freestone for about two hours for the purpose of preparing the report.
Mr Nomchong’s diagnosis was that Mr Freestone suffered from Dysthymic Disorder Generalised Anxiety with fixations, low self‑esteem and self‑worth and likely alcohol dependency. He opined that Mr Freestone requires psychological and psychiatric treatment for a minimum of 12 months. His view was that Mr Freestone was unlikely to re‑offend.
The latter was in contrast to that of the author of the Pre‑Sentence Report, who stated, “Unfortunately, Mr Freestone’s lack of understanding and remorse in conjunction with his self pity will place him at a moderate to high risk of re‑offending.”
The prosecution, represented by Ms Y Viskovich, was critical of Mr Nomchong’s report. Initially, it was presented without an acknowledgement of the Expert Witness Code of Conduct but that was subsequently rectified. Mr Nomchong has prepared many reports for this court over time and I had little difficulty in accepting that this was an oversight which was appropriately corrected and which I do not accept undermined the worth of the report.
The report was also criticised as being based on self‑report, which Mr Nomchong had not corroborated. Ms Viskovich referred to R v Qutami (2001) 127 A Crim R 369 and R v Niketic [2002] NSWCCA 425, where the New South Wales Court of Criminal Appeal had expressed the need for caution in accepting reliance on statements made by prisoners to psychiatrists and psychologists, especially where no evidence is given by the offender. While that caution is well‑founded, I did point out in R v Ashman [2010] ACTSC 45 (at [27]):
That is a salutary reminder, but I do note that in this jurisdiction, unlike New South Wales, there is a detailed regime for the preparation and contents of [Pre‑Sentence] reports under part 4.2 of the Crimes (Sentencing) Act 2005 (ACT).
Here, the Pre‑Sentence Report, where there had been corroboration sought from a colleague of Mr Freestone, his previous employer and a number of medical agencies as well as ACT Corrective Services and AFP records, was factually in substance the same as the historical material relied upon by Mr Nomchong, thus reinforcing the confidence with which I can rely on Mr Nomchong’s report.
There is much value for a sentencer in seeing and hearing the offender. I accept that some will not be able to give a good account of themselves and may particularly suffer under cross‑examination in ways not always helpful to the sentencing task. The sentence, however, is usually benefited by an opportunity, albeit brief, to assess the offender directly. The direct evidence of the offender can then be used to confirm the basis for such reports.
Nevertheless, in the light of the substantial factual similarity between the history given in the two reports, I was not prepared to reject Mr Nomchong’s report on that account.
Finally, Mr Nomchong’s report was challenged on the basis that he had done no testing, was very much his opinion and he had not inquired of those who had treated Mr Freestone, especially those who disagreed with his diagnosis.
I accept that, strictly, Mr Nomchong’s report may not have complied with the tests enunciated by Heydon JA, as his Honour then was, in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 (at 743 – 744.)It seemed to me that this was largely a matter of form in this case, rather than substance, though there may be a need to pay greater attention to these issues in the future.
In the light of s 4(2) of the Evidence Act 1995 (Cth), in any event, the applicability of such rules in sentencing proceedings such as these is not at all clear. It may be that the effect of this provision is that a sentencing court can inform itself as it thinks fit, as many other courts and tribunals can do from time to time. There is much to commend such an approach, but I have heard no argument on the matter and do not need to make a final finding on it.
That what Mr Nomchong had was merely self‑report does not invalidate the report in itself. The New South Wales Court of Criminal Appeal stated in Welsh (1996) 90 A Crim R 364 (at 369):
Evidence of the history taken by a doctor has always been admissible...as establishing the basis upon which the doctor framed the expert evidence to be given by him or her in evidence, but not (except for statements of the type now admissible by s 72), in order to establish the truth of what was said. As a result of s 60, evidence by a doctor of the history given to him or her by the patient and upon which the doctor bases his or her expert opinion is therefore now evidence of the truth of that history. This is so, whether or not the facts stated in the history were at the time of giving the history fresh in the patient’s mind, whether or not the history was given in circumstances which made it highly probable that it was reliable or which made it unlikely to be a fabrication, and whether or not what was said was within the patient’s personal knowledge - unless an order is made limiting the use which may be made of that evidence, pursuant to s 136. (Footnote omitted).
As to the suggestion that Mr Nomchong should have engaged in an investigation of other opinions on Mr Freestone’s mental health it seemed to me that this was rather overstated. It relied largely on the notes of the admission of Mr Freestone to The Canberra Hospital in December 2009. In those notes, one clinician, apparently a psychiatric registrar, stated, “I found the history rather unconvincing about his Depression.” That clinician, however, did not rely on that for either a final diagnosis or a basis to refuse admission, but called on a Consultant Psychiatrist who admitted Mr Freestone to the Psychiatric Services Unit.
In addition, another clinician found at least an arguable case of chronic Dysthymia and a psychiatrist, asked to give a second opinion, diagnosed him as having had Dysthymic Disorder for some years, becoming more depressed and suicidal with the loss of employment.
I found on reading the hospital notes, which I did, that a number of clinicians referred to depression as the diagnosis or likely diagnosis and the clinician quoted above (at [43]) was the only clinician who expressed doubt about it.
On the whole, then, the clinical notes supported Mr Nomchong’s diagnosis.
Of course, the hospital notes would ordinarily not pass the test set out in Makita (Australia) Pty Limited v Sprowles but, as I have set out in the R v McClelland [2010] ACTSC 40 (at [41]-[55]), these principles may not apply to such statements, at least with the full rigour applied to expert reports tendered to court.
In any event, it seems to me that I could accept Mr Nomchong’s Report and I admitted it. It seemed to me to be relevantly corroborated by the reports of the views of other clinicians reported in the hospital notes. It was factually supported by the Pre‑Sentence Report and the character references that I also accepted. I also had, of course, the extensive and often rigorous cross-examination of Mr Nomchong and to evaluate his response to that cross-examination.
In addition, as I have said, one of the references tendered on Mr Freestone’s behalf also described the battle Mr Freestone has had with suicidal thoughts and depression.
I am, accordingly, prepared to accept Mr Nomchong’s diagnosis.
Where Mr Nomchong differed from the Pre‑Sentence Report was in his assessment of Mr Freestone’s remorse and likelihood of re‑offending and he had a slightly different approach to the question of why the offences were committed.
Mr Nomchong did find remorse expressed by Mr Freestone. It was complicated because, as acknowledged by the author of the Pre‑Sentence Report, Mr Freestone demonstrated an actual understanding of how child pornography affects the lives of many innocent children.
Mr Nomchong explained the offences as a reaction to the sense of injustice Mr Freestone perceived in the way in which a child he had been helping, perhaps inappropriately, appeared then to lose support and receive no further help when his employment was terminated.
He had the idea, irrational to many as Mr Nomchong acknowledged, that by showing how quite disgusting child pornography was created and available he would shock his former employers, giving them insight leading them into helping her. This distorted thinking, he opined, was the result of Mr Freestone’s fixational blinkered thinking, somewhat detached from reality, though not psychotically. Mr Nomchong thought that the distorted thinking may have been exacerbated by the heavy use of alcohol he was using at the time. It is this fixated thinking that creates the problem in resolving the question of remorse.
Mr Freestone, according to Mr Nomchong, is passionate about preventing injustice and saw the use of the child pornography as a way to right the injustice. In a sense, it is the question of whether the means justify the ends. Indeed, it was the very abuse and degradation of the children on which he needed to rely to make his point. He did know about this unacceptable assault on the integrity of the bodies and minds of the children; that was the point. He asserted this and it was accepted by the author of the Pre‑Sentence Report.
Perhaps, as for other people, Mr Freestone took the view that as he was not perpetrating the abuse, nor gaining prurient sexual gratification from the viewing of it, there was no victim. In this, of course, he was wrong. As Ipp J said in R v Liddington (1997) 18 WAR 394 (at 403):
The mere fact that persons are prepared to possess child pornography, albeit for their private purposes, necessarily creates a market for the corruption and exploitation of children. Children are abused, violated and degraded in order to create a market of this kind.
As Johnson J said (with whom McClelland CJ at CL and Adams J agreed) in R v Gent (2005) 162 A Crim R 29 (at 49 [100]) these are not victimless crimes. They take advantage of the sexual exploitation of children, which reflects a substantial level of moral turpitude.
I am prepared, however, to accept that Mr Freestone has some remorse for these crimes in addition to his self‑pity. I accept, too, that they were committed in a misguided way as a means to bring about the justice that he believed the child he was helping had been denied.
I had three detailed references. They attested to Mr Freestone’s good characteristics including his sense of justice and care and concern for others. This makes these offences the more curious and problematic. He has, it appears, many good, kind and caring qualities. He is said to be hard working, a good colleague and trustworthy with children. In particular, I had a lengthy and detailed reference from Mr Freestone’s younger half‑sister which gave a helpful context to Mr Freestone’s personal situation.
Given the circumstances of the offences, which were not seriously challenged by the prosecution, I am satisfied that Mr Freestone did not access the child pornography to gratify any sexual need or interest he had and that it was pursuant to an attempt by him, albeit misguided in a significant way, to redress what he saw as an injustice.
Nevertheless, these are serious offences which the community expects that the courts will treat with penalties that emphasise punishment and deterrence.
An aggravated feature of the offences is the relatively large number of images; it is certainly not the largest number of images seen, even in this court, but it is more than a small sample which might be attributed to mere prurient curiosity. I have already noted (at [17]) that over 1000 children were involved.
The prosecution submitted that, given Mr Freestone’s intention with the images, that it was likely that he was going to distribute them. Distribution is clearly an aggravating feature. I am not convinced, that in the circumstances, it was likely that Mr Freestone was going to distribute them in a way that could be regarded as aggravating the offence.
The age of the children is also an aggravating feature. Many of the children were under 12 months of age and such assaults attract particular repugnance and, indeed, may result in physical injury to the private parts of the victims.
In R v Oliver & Ors, the Court of Appeal in England and Wales indicated that a custodial sentence would generally be appropriate where the offender was in the possession of a large amount of material at level 2 or a small amount of level 3 and inevitable where the offender possessed a small number of images at level 4 or level 5. Mr Freestone possessed images at level 4 and level 5.
I note that Mr Freestone pleaded guilty in the Magistrates Court. As set out in Cameron v The Queen (2002) 209 CLR 339, Mr Freestone is entitled to a reduction in sentence as a result. It was, of course, a relatively strong Crown case, but part of that is attributable to the admissions made by Mr Freestone, admissions he made which may well have been excluded, had he contested the charges. This co‑operation is also a factor to be taken into account.
I take into account Mr Freestone’s good character. While other jurisdictions have expressed reserve about the mitigating effect of good character (see, for example, R v Gent (at [63]-[66]) and the cases there cited). I am bound to follow what was said in R v Fowler [2007] ACTCA 4 and give this factor due weight.
The prosecution mentioned a number of comparable cases on sentence. I do not need to analyse them in detail. It does seem to me that having considered all available sentences, that a sentence of imprisonment must be imposed.
I note that in the Pre‑Sentence Report Mr Freestone has been assessed as suitable for a community service order and for periodic detention.
Mr Freestone,
i. I convict you of the offence of using a carriage service to access child pornography material.
ii. I sentence you to 14 months imprisonment. Had you not pleaded guilty I would have sentenced you to 18 months imprisonment.
iii. I convict you of intentionally possessing child pornography.
iv. I sentence you to eight months imprisonment. Had you not pleaded guilty, I would have sentenced you to 10 months imprisonment. I direct that this sentence be concurrent with the sentence on the first count.
v. I direct that both the sentences date from today.
vi. I further set four months of each sentence to be served by periodic detention from today and end on 12 December 2010. The day of the first period of periodic detention is to start on 20 August 2010.
vii. I recommend, as a condition of that periodic detention, that you be subject to supervision of an officer of ACT Corrective Services, delegated by the Chief Executive or her delegate to supervise you and that you obey all reasonable directions of that officer, particularly in respect of mental health treatment and counselling.
viii. I direct that you report forthwith to ACT Corrective Services, Eclipse House, London Circuit, Canberra City to arrange that supervision.
ix. On the first sentence, I order that you be released on 13 December 2010 upon giving security in the sum of $500 and upon conditions that you be:
(a) of good behaviour for a period of two years; and
(b) for two years be subject to the supervision of an officer of ACT Corrective Services, appointed by the Chief Executive or her delegate and obey all reasonable directions of the officer appointed to supervise you, particularly in respect to mental health treatment and counselling.
x. On the second sentence, I suspend the sentence from 13 December 2010. I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of two years, from 13 December 2010 and include conditions:
(a) that for those two years, you be on probation subject to the supervision of an officer of ACT Corrective Services appointed by the Chief Executive or her delegate and obey all reasonable directions of the officer appointed to supervise you, particularly in respect to mental health treatment or counselling; and
(b) that you perform 80 hours of community service work within 12 months of that date.
xi. I am satisfied that the black computer tower with LG DVD drive and Thermaltake (Item No VSJF/02, recorded in property seizure record A161268) and Western Digital Hard Drive 40 gigabyte serial No WMA6R3122611, (Item No VSJF/08 recorded on property seizure record A161269) were used in the commission of the first offence and that they have not already become property of the Commonwealth, I order that these items be forfeited to the Commonwealth.
xii. I note that as a result of these convictions, you are a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT), with a reporting period for 15 years from today.
After imposing sentence, I explained the sentence to Mr Freestone as follows:
I have sentenced you to a term of imprisonment, but I do not require you to serve any period of time in actual full‑time custody. For the first four months of that sentence, you will be required to serve periodic detention, that is weekend detention, report on Friday afternoon and you are released on Sunday afternoon. If you fail to attend on three occasions, the periodic detention will be cancelled and you will have to serve that period or the remaining period of time in full‑time custody. You will also be obliged to not commit any further offences or the periodic detention can be cancelled.
As a further condition, I have recommended that you be under supervision and, in effect, I have recommended that for two years and four months you be under supervision of an officer of ACT Corrective Services. That will give you an opportunity to have someone to talk to and to raise the issues with, but specifically directed to mental health treatment and counselling. Clearly, you need to see if you can clear your head and get into a good space.
These convictions are a huge burden on your future, but with some difficulty I have no doubt, and my experience is, that you will be able to get back into the community and make some valuable contribution as you clearly have in the past. Some priorities, some context, some perspective is needed and the assistance that continued mental health treatment and the assistance of ACT Corrective Services will give that to you.
Since one sentence is on a Commonwealth offence and the other sentence is on a territory offence, I have made, in effect, two release orders from 13 December 2010. One is a recognizance release order under the Crimes Act 1914 (Cth) and one is a good behaviour order under the Crimes Act 1900 (ACT), but the substance of them is the same. After serving periodic detention you will be released on an order to be of good behaviour and with other conditions for a period of two years thereafter. If you breach that period with obedience to any directions given to you and by committing no further offences then that is the end of the matter. If not, you will be brought back here and I will have to consider re‑sentencing you or imposing a term of imprisonment that I originally imposed.
I have tried to balance the seriousness of the offence and your circumstances and I have probably, as a compromise, not met the expectations of either you or the community, but, in my judgment, that is an appropriate deterrent, punitive and rehabilitative sentence, which I am required by the law to impose.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 20 August 2010
Counsel for the prosecution: Ms Y Viskovich
Solicitor for the prosecution: Commonwealth Director of Public Prosecutions
Counsel for the defendant: Mr J Sabharwal
Solicitor for the defendant: Maurice Blackburn Lawyers
Date of hearing: 13 August 2010
Date of judgment: 20 August 2010
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