R v Kandola
[2017] ACTSC 403
•13 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kandola |
Citation: | [2017] ACTSC 403 |
Hearing Dates: | 23 June 2017, 17 August 2017, 19 October 2017, 13 December 2017 |
DecisionDate: | 13 December 2017 |
Before: | Burns J |
Decision: | See [30]-[33] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three charges of using a carriage service to transmit child pornography material – Forensic Mental Health Report – Pre-Sentence Report – medium risk of general reoffending – criminal history – offender subject to Good Behaviour Orders – background and alcohol and drug use – mental health – pleas of guilty – difficult to determine if pleas evidence real remorse – willingness to facilitate justice – Intensive Correction Order |
Legislation Cited: | Criminal Code Act 1995 (Cth) s 474.19(1) Crimes (Sentencing Act) 2005 (ACT) s 11 |
Parties: | The Queen (Crown) Ashvindardeep Kandola (Offender) |
Representation: | Counsel Mr T Ellison (23 June 2017, 19 October 2017, 13 December 2017) and Ms N Simpson (17 August 2017) (Crown) Mr J Sabharwal (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Gateway Legal Service (Offender) | |
File Number: | SCC 125 of 2016 |
BURNS J:
The offender, Asvindardeep Kandola, has pleaded guilty to three charges of using a carriage service to transmit child pornography material in contravention of s 474.19(1) of the Criminal Code Act 1995 (Cth).
With respect to Count 1, the offence occurred from 7 November 2014 to 9 November 2014, when the offender sent SMS and MMS text messages from his mobile telephone to a mobile telephone of a person by the name of KI. As I understand it, the offender had no previous connection with KI. I will return in a moment to discussing the issue of the contents of that material, but it is quite clear that it is child pornography material. I will refer to categories on the CETS (Child Exploitation Tracking System) scale.
On the CETS scale, a category one image is a depiction of a child with no sexual activity. Category two is non-penetrative sexual activity between children or solo masturbation by a child. Category three is non-penetrative sexual activity between children and adults. Category four is penetrative sexual activity involving children or both children and adults. Category five is an image involving sadism or bestiality. Category six is an animation or cartoon depicting activity in scales one to five.
With respect to Count 1, there was one image that fell within category one, a movie roll of 24 images that fell within category two, one movie roll of 16 images that fell within category four and two images and one passage of text falling within category six.
The second offence occurred on 10 June 2015. On that date, the offender initiated a conversation with another male, using the Grindr mobile phone application. That application is predominantly used by homosexual and bisexual men to meet and make contact. The application has a messaging function, similar to SMS and allows for the transmission of text and images via the Internet. Some 13 messages were sent by the offender, to the other male, between 1.54 am and 3.59 am on 11 June 2015. On this occasion, there were two images that fell within category one, two images that fell within category two, three images that fell within category three and two images that fell within category four. It appears that the male to whom the offender sent these messages was someone who was previously unknown to him.
Police spoke to the offender on 28 June 2015, in relation to the second offence. It would have been clear that from that point onwards, the offender would have known that police were taking an interest in his actions with respect to this type of material.
Count three relates to text messages sent by the offender to a different male, again a person with whom he had no previous acquaintance, in October 2015. On this occasion, there was one image which fell within category three.
Forensic Mental Health Reports
There are some bizarre aspects in terms of the nature of this offending. Firstly, the offender sent this material to persons with whom he had no previous dealings. The offender could not know whether this material was likely to be welcomed by these people. He could not know of course, whether the recipients of this material would report receiving this material to the police as indeed happened. On the Statement of Facts, there does not seem to be any significant follow-up by the offender with respect to transmission of this material. In that regard, as I said, there appears to be some illogical activity by the offender, which in my opinion has some bizarre aspects to it.
It was undoubtedly for this reason that the offender’s counsel sought to have a Forensic Mental Health Report prepared. The first such report is dated 14 August 2017. That report notes a psychiatric history, dating from 2001, characterised by psychosis and involving some 15 to 20 episodes of mania with psychotic symptoms between 2001 and 2017.
It also notes that the offender has a significant and long-standing drug and alcohol abuse tendency, but I must say, based upon the material which is before me, I am not satisfied that his mental health condition is drug-induced. Rather it appears to me that it is an underlying psychiatric condition which is exacerbated from time to time by his use of alcohol and illicit drugs. The report of 14 August 2017 states that the offender has a current diagnosis of Schizoaffective disorder (bipolar type) and is assigned to the Mental Health Dual Diagnosis Team. That diagnosis was consistent with his presentation and reported history at the time of assessment by the author of that report.
The author noted that the offender was currently under a Psychiatric Treatment Order to ensure that he received necessary psychiatric care. Further to that, his treating psychiatrist had recommended that he be placed under financial guardianship and further noted that he had not had significant therapeutic benefit to date for medication treatment. The author of the report noted that it appears that the offender’s psychiatric presentation is negatively influenced by alcohol use and potentially methamphetamine use. He noted that the offender would further meet criteria for substance abuse disorder. The author of the report noted that the offender presented with personality vulnerabilities and appears to have difficulty in sustaining prosocial, interpersonal relationships.
The report further noted that the offender had problems with stress and coping and he would benefit from improving his coping strategies from stress vulnerability. He would also benefit from ongoing intervention regarding his psychiatric presentation and ongoing care under a psychiatrist. The author of the report noted that the offender appeared to have a lack of insight into the factors and processes which place him at risk of further sexual offending. The author also stated that given the information contained in the agreed Statement of Facts, it was likely that the offender would partly meet criteria for sexual deviance.
The author noted that the offender reported experiencing sexual abuse during the onset of puberty, which is an important time in a person’s sexual development and the author expressed the opinion that the offender may benefit from individual intervention with a relevantly qualified psychologist, in relation to healthy sexuality and if deemed required, sexual fantasy reconditioning based work. The author of the report also noted the history of sexual abuse of the offender while he was a child and expressed the opinion that the offender would benefit from exploring the possible internalisation of attitudes that support or condone sexual violence, which may have been influenced by his own experience of child sexual abuse.
The author of the report also stated that the offender would benefit from addressing his substance abuse issues, and also with addressing problems in engaging in healthy interpersonal relationships with others. The author of the report further noted that the offender was currently under a Psychiatric Treatment Order due to previous non-compliance with mental health services, and that he would benefit from offence specific treatment.
In that report, the question of any connection between the mental illness suffered by the offender and his offending behaviour, was not in any real sense addressed. As such, a further report was sought, and an addendum report dated 12 December 2017 has been provided.
The author of that report notes that there is no significant evidence indicating a causative link between the offences committed by the offender and his mental illness. The author does however, go on to say that the offender experienced some fluctuations in his ability to exercise appropriate judgment, to think clearly, and in his general disinhibition at about the time of these offences. The author said, and I quote, “[i]t is therefore the author’s opinion that changes in his capacity to exercise judgment, ability to think clearly and experience of disinhibition, likely fluctuated to some extent, potentially due to his mental illness, substance abuse and other stressors”.
The author of the report indicated that the offender would experience difficulties adjusting to a custodial setting, due to his history of experiencing long-term child sexual abuse and its ongoing consequences in his life. She noted that exposure to increased stress may have an adverse impact on the offender’s general mental health. He may also be more vulnerable in custody than the average person, due to his mental health symptoms. On the other hand, the offender would also be able to access appropriate mental health care in custody, through the Forensic Mental Health Services Team based at the Alexander Maconochie Centre.
Pre-Sentence Report
A Pre-Sentence Report was also prepared for the sentence hearing on 17 August 2017.
I note that the offender is 39 years of age, and he was born in Fiji. He identifies as homosexual and has done apparently for many years. He apparently had difficulty with some members of his family accepting his sexuality. He was subject to significant sexual abuse by a male relative from an early age, until his family relocated to Australia when he was 15 years old. When he relocated, he struggled to adapt to the cultural change. His father’s death in 2003 was a traumatic experience for him, particularly as his father was the parent who had readily accepted his sexuality. The offender has continuing occasional contact with his brother and aunt, who are supportive, but only an intermittently supportive relationship with his mother. He has not informed any of his family members of the current court matters.
The offender reported two significant relationships, the first of which introduced him to methylamphetamine use and the second of which he was forced to keep secret as his partner would not have been able to be public about the relationship. The author of the report noted that the offender was not currently in a relationship.
The report notes a lengthy history of alcohol and drug abuse. The report also notes in very brief form, the mental health issues suffered by the offender. The author of the report stated that the offender did not give an indication whether or not he agreed with the Statement of Facts, and did not appear to have taken responsibility for the offences.
He made statements regarding his use of methylamphetamine, and the people he associated with when doing so. Although he acknowledges his telephone was used to transmit the images, he did not admit to doing so himself. The author of the report assessed the offender as at medium risk of general reoffending. The author stated that it was concerning that the offender failed to take responsibility for the offences to which he had pleaded guilty. The offender has few protective factors at this time, those being his limited support from his family and his stable accommodation. His criminogenic risks include sexual offending, substance abuse, mental health issues, unemployment, a lack of pro-social organised activities and long-standing issues relating to the death of his father. It would be vital to address those issues if his risk of reoffending was to be reduced.
I note that the offender has a criminal history. On 18 July 2014, he was convicted and sentenced in the Magistrates Court with respect to a number of offences of obtaining a financial advantage. He was sentenced to terms of imprisonment, which were suspended forthwith, and he was placed on Good Behaviour Orders for a period of 18 months, so that it is clear that the present offences occurred at a time when the offender was subject to those Good Behaviour Orders. This of course, is an aggravating circumstance with respect to the present offences.
Consideration
It is submitted by the Crown, that sentences of imprisonment must be imposed with respect to these offences. That is accepted by Mr Sabharwal who appears on behalf of the offender. The significant difference between the submissions made by the Crown and by Mr Sabharwal, is in terms of how such a sentence is to be served. The Crown submits that at least part of that sentence must be served by way of full-time imprisonment for three reasons. Firstly, some of the images involved in these offences, were in high categories. Secondly, these offences were transmission offences, which the Crown submitted was more serious than simple possession offences, because in effect, the offender was engaging as a supplier in the market of such material.
I accept that these are all valid circumstances, which I must take into account in determining the appropriate sentence with respect to these offences. I note that the maximum penalty, with respect to each of these offences, is a term of imprisonment of 15 years, or 900 penalty units, or both.
As part of the sentencing process, I directed that the offender be assessed for an Intensive Correction Order. The assessment report, which is dated 16 October 2017, reiterates some of the material to which I have already referred, and in particular, to the offender’s background and also his alcohol and drug use. It also makes some mention in brief form of his mental health issues. The author of the assessment notes that the offender has suffered a number of traumatic events throughout his life, including experiencing sexual abuse as a child, the difficulty expressing his sexual and gender identity, and a significant loss when his father died by suicide. Indeed in that regard, I should note that it was apparently the offender who found his father after he committed suicide.
The assessment noted that the offender had engaged satisfactorily throughout the Intensive Correction Order assessment phase, openly interacting and presenting opportunities for intervention during supervision periods. He was assessed as suitable for an Intensive Correction Order, and signed an undertaking to comply with all the obligations in the Intensive Correction Order. If such an order was made, those responsible for administering the order would target alcohol and substance abuse, mental and emotional health, companions and leisure activity, and also the offender’s attitude.
If I impose a sentence of imprisonment, which is partly suspended, I cannot impose an Intensive Correction Order. As such, the intensive resources that are made available, which are designed to address the criminogenic needs of the offender, and which are made available as part of an Intensive Correction Order, will not be made available if he is simply serving a Good Behaviour Order as part of a suspended sentence. I also take into account that with regard to these offences, there was a relatively small number of images which were involved in these offences. It is also, as I said, a matter of some significance that they were transmitted to others, who the offender did not know, and as such it was not part of some organised arrangement for the transmission of such images between like-minded offenders.
Whilst I acknowledge the significance of the submissions that have been made by the Crown, in my opinion, taking into account all of the circumstances, and in particular the matters relating to the offender’s mental health to which I have referred, it is appropriate that I proceed by way of sentences of imprisonment to be served by way of Intensive Correction Orders. I should note that whilst there were pleas of guilty entered to these charges, they were very late pleas, but I will nevertheless reduce the otherwise appropriate sentences, because the pleas showed a willingness to facilitate the course of justice. It is difficult for me to determine whether the pleas evidence any real remorse on the part of the offender, and it does not appear on the material before me that the offender does accept full responsibility for these offences, but as I have said, his pleas of guilty nevertheless show a willingness to facilitate the course of justice.
Sentence
With regard to the first charge (CC2015/9273), I will record a conviction, and the offender will be sentenced to 18 months imprisonment, commencing 13 December 2017, and expiring on 12 June 2019. I should note that I have reduced that from 20 months to 18 months in order to reflect the plea of guilty.
With respect to the second offence (CC2015/9275), there will be a conviction and a sentence of 14 months imprisonment will be imposed, commencing on 13 September 2018 and expiring on 12 November 2019. I should say, I have reduced those 14 months from 16 months in order to reflect the plea of guilty.
With respect to the third offence (CC2015/11039), there will be a conviction and a sentence of eight months imprisonment, which I have reduced from 10 months, to reflect the plea of guilty, which will commence on 13 June 2019 and expire on 12 February 2020.
That results in an aggregate term of two years and two months imprisonment, commencing on 13 December 2017 and expiring on 12 February 2020. Those sentences are to be served by way of an Intensive Corrections Order. In making that order, I take into account the requirements of s 11 of the Crimes (Sentencing Act) 2005 (ACT), and in particular, I have taken into account those matters in subsection 3, in determining to make such an order.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 14 February 2018 |
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