R v KB
[2019] ACTSC 136
•22 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v KB |
Citation: | [2019] ACTSC 136 |
Hearing Dates: | 6 February, 26 April 2019 |
DecisionDate: | 22 May 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [112]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth offences – use carriage service to access and transmit child pornography – pleas of guilty – prospects of rehabilitation – intensive corrections order |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A, 20AB, 23ZD |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 |
Parties: | The Queen (Crown) KB (Offender) |
Representation: | Counsel N Simpson (Crown) M Kukulies-Smith (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Kamy Saeedi Layers (Offender) | |
File Number: | SCC 305 of 2018 |
LOUKAS-KARLSSON J
Introduction
On 6 December 2018, the offender (KB) pleaded guilty to one offence of using a carriage service to access child pornography contrary to section 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) (Criminal Code) (CC2018/2288) (Count 1), and one offence of using a carriage service to transmit child pornography contrary to section 474.19(1)(a)(iii) of the Criminal Code (CC2018/14444) (Count 2).
The maximum penalty for each of these offences is 15 years imprisonment.
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle, and are briefly summarised below.
In January 2018, the Australian Federal Police (AFP) received information from the Royal Canadian Mounted Police (RCMP) that a person, identified by the username ‘brodyboy1234’ was using the mobile application ‘KIK’ from an address in Australia to access and transmit child pornography material.
On 3 February 2018, the AFP executed a search warrant on the residential address of the offender. There, the offender advised police he been accessing child pornography material since he was 13 years of age and described his behaviour as an addiction, for which he was seeking counselling. He also advised that he used the username and mobile application identified by RCMP. He had deleted all the images to prevent himself offending and had scrambled the password for the application.
Regarding Count 1, the offender accessed 490 images between 10 September 2013 and 10 February 2017 that included images identified in all six CETS (The Australian National Victim Image Library Child Exploitation Tracking System) categories of child pornography.
Regarding Count 2, the offender communicated with other users of the application KIK to trade child pornography material. Particularly, the offender sent images of child pornography to another individual user ‘wedgie23’, or a group of which that user was a part, on 16 occasions between 2 January 2016 and 29 March 2016.
Objective Seriousness
Cases in this jurisdiction have adopted the principles set out in R v De Leeuw [2015] NSWCCA 183 at [72] (De Leeuw) that are to be applied when considering the objective seriousness of child pornography offences (R v Ferguson [2015] ACTSC 363 (Ferguson) at [48]; R v Arthur [2017] ACTSC 23 at [17]; R v Major [2016] ACTSC 161 at [25]).
In De Leeuw at [72] it is stated in respect of child pornography offences that:
(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:
i. the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
ii. the number of items or images possessed;
iii. whether the material is for the purpose of sale or further distribution;
iv. whether the offender will profit from the offence;
v. in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
vi. the length of time for which the pornographic material was possessed.
The nature and content of the material
10. Counsel for the prosecution submitted that the type of material and degree of its depravity is the primary focus, and the quantity, in particular the number of different children depicted and thereby victimised, is an additional focus. The prosecution also submitted that the age of children depicted is also relevant to assessing the seriousness of the offending, as is the degree of physical harm, fear, or distress to the victim.
11. Counsel for the prosecution emphasised that the offender accessed a total of 490 images that were of a high level of depravity, including 84 images in Categories 4 and 5 which depicted real children engaged in sexual acts with adults and in bondage. Counsel for the prosecution submitted that though the majority of the images were Category 1, some included close-ups of children exposing their genitals, and children as young as toddlers and infants up to approximately 15 years old. The prosecution submitted that given the quantity of the material and the limited duplication of images, it could be inferred that there were a significant number of different children who were depicted and thereby victimised.
12. In relation to Count 1, counsel for the offender submitted that the total number of images was low in comparison to other cases such as R v Dummett (Unreported, Burns J, 30 October 2013) (Dummett) where 12,879 images were located. It was also submitted that the majority (401 of 490 images) fall within a class of “less serious examples of child pornography”.
13. In relation to Count 2, counsel for the offender submitted that there were only 16 instances where the offender transmitted child pornography. The samples provided in the agreed statement of facts indicated that the majority of the transmitted images were Category 1 images and only one image was Category 4. Counsel for the offender further submitted that the prosecution’s submission regarding the inference that a significant number of children were depicted would need to be proven beyond reasonable doubt (R v Bartlett [2016] ACTSC 390).
Duration
14. Counsel for the prosecution submitted that the offender’s Count 1 offending was committed over approximately 3 years and 5 months; a duration which could not be considered “spontaneous or impulsive”. The prosecution noted that the duration of the Count 2 offending was 3 months.
15. Counsel for the offender conceded the duration of the offending in respect of Count 1 was “lengthy”, but submitted that the offending was “intermittent” and that the amount of material accessed was low relative to the period of offending. In respect of Count 2, counsel for the offender submitted it was a “significantly shorter” period than Count 1.
Purpose and Motivation of the Offending
16. The prosecution submitted that there was no evidence that the offending was done for financial advantage or commercial distribution. However, it was submitted this is not a mitigating factor, although its presence may be an aggravating factor. It was put that by accessing and transmitting the child exploitation material online, the offender “actively contributed to sustaining a market for child pornography material”.
17. In relation to considerations of sale and distribution, counsel for the offender submitted that there was no evidence to suggest the offender profited from the offending but it was conceded that the transmission charge was nevertheless more serious than mere possession (Ferguson at [49]).
18. In respect of Count 1, the prosecution submitted that this was “serious” given the number of images. In respect of Count 2, prosecution submitted the material was of the “highest level of depravity” and noted it was transmitted to up to 57 people, which should be seen as an aggravating factor.
19. Counsel for the offender submitted that in respect of both counts, the objective seriousness “falls towards the mid-range”, but still less than the mid-point. The prosecution did not provide specific submissions in relation to ‘low’, ‘mid’ or ‘high’ ranges for the offences. It must be stated that references to low range, middle range and high range objective seriousness are unlikely to be helpful. As has previously been expressed in this jurisdiction, “it is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]).
20. Count 1, in my assessment, is an objectively very serious matter involving 490 images, including 84 images in Categories 4 and 5. It is significant that there are a number of different children and this offence was committed over a period of more than three years. Accessing such material online contributes to sustaining a market for this appalling material.
21. Count 2, in my assessment, is an objectively very serious matter involving transmission over a period of three months. The material contained images of a high level of depravity and relevantly involved transmission to up to 57 people.
Subjective Circumstances
22. In evidence before me was a pre-sentence report (PSR) prepared for the sentence proceedings. The author of the report made the following observations.
23. The offender is now 31 years old and was born in Campbelltown, NSW before moving to Canberra at a young age. The offender had a positive childhood and reports always having positive relationships with his family. He has been in a relationship with his wife for 11 years and they have two young children. He reported that since he was charged with these offences he has had limited contact with his children. He has been residing with his parents since his release from custody.
24. The offender completed Year 12 and a certification in hotel management. Since then, he has been continuously employed. He worked for 9 years as a travel consultant until he was terminated due to the current offences. He found new employment at a consulting company in July 2018. He reported no financial difficulties, and is paying off a mortgage.
25. The offender reported no problems with drug or alcohol consumption and that all his friends and acquaintances are pro-social. He has been involved with his local soccer club for 25 years, but ceased this engagement since being charged with the current offences.
26. The offender reports no health issues. He engaged with a psychologist in 2011 for 5 sessions to address his sexual attraction to children. He re-engaged with the psychologist in early January 2018 and, at the time of the authoring of the PSR, was attending triweekly counselling sessions.
27. In oral submissions, counsel for the offender submitted that the offender is motivated to change as evidenced by prior and current engagement for treatment. It was submitted that his decision to maintain his marriage and family was a motivating factor for rehabilitation and that his partner was supportive of efforts to change his behaviour.
Psychological Report
28. In evidence before me was a psychological report in relation to the offender prepared by Dr Torres on 24 January 2019. Counsel for the offender drew the Court’s attention to a number of aspects of the report to support the submission that the offender has good prospects for rehabilitation and a motivation to change. The report included the following extracts:
It will be critical that [the offender] engages with a suitably qualified practitioner … with specific expertise in the evidence-based treatment of sex offenders.
[The offender] has expressed a desire to rectify some of the damage his offending has caused the community …
… it is clear that the interventions undertaken to date have not had a remedial effect … this failure to benefit from treatment represents, importantly, a failure of the system in relation to the treatment.
Importantly, it is imperative that [the offender] engages with a clinician with specific expertise in the treatment of criminogenic need. The sex offending behaviour is rather merely being offered treatment for any associated clinical distress that is comorbid.
29. Counsel for the prosecution submitted that “steps taken by the offender towards rehabilitation should be taken into account on sentence, but only as one amongst a number of important sentencing considerations”.
30. I take this report into account on sentencing, in particular, the important need for evidence-based sex-offender treatment for the offender.
Intensive Corrections Order Report
31. An Intensive Corrections Order (ICO) is an available sentencing option by virtue of s 20AB of the Crimes Act 1914 (Cth) (Crimes Act). When this matter originally came before me on 9 February 2019, I determined that I should give serious consideration to the sentence being served by way of ICO. To that end I referred the offender for assessment.
32. The ICO Assessment Report dated 23 April 2019 comprised information from:
(a)nine interviews with the offender, and interviews with his father and his mother;
(b)perusal of court documents, ACT Corrective Services files and records, correspondence with ACT Child and Youth Protection Services, and an information letter from ACT Health dated 11 January 2019; and
(c)use of a revised Level of Service Inventory and Corrections Victoria Treatment Readiness Questionnaire.
33. The report confirmed much of the information contained in the PSR. In addition, the report stated that the offender willingly and consistently complied with Corrective Services throughout his assessment. The report’s recommendation was that the offender is suitable for an ICO, with the conditions that he submit to the Adult Sex Offender Program (ASOP) delivered by Corrective Services and continues offence-specific counselling. The report also found the offender suitable for a Community Service work condition and noted that Child and Youth Protection Services advise he does not return to reside with his wife and children.
34. I note in relation to the offender’s attitude to the offences, the ICO report concludes:
As noted in the abovementioned PSR, [the offender] said he agreed with the Statement of Facts for his current offences and claimed to take full responsibility for his actions. He stated his offending behaviour began at 13 years of age and while he knew his actions were illegal they were driven by his own sexual urges and curiosity. He stated he had previously not understood the factors that contributed to this behaviour, however through his recent engagement with the psychologist he has started to have insight into his offending behaviour. [The offender] provided some insight into the impact of his actions on child victims of sexual abuse and exploitation, by reflecting on their trauma and long term mental health issues. He also reflected on the consequences of his actions on his family. [The offender] noted his current work with the psychologist is targeting behaviour change in relation to sexual offending.
Treatment Review Report
35. A brief treatment review report by Dr Torres dated 18 April 2019 was also before the Court. This report noted that the offender has engaged in the process of treatment and presents a genuine desire to overcome his offending behaviour.
36. This report discussed the nature of the offender’s treatment, and stated:
[The offender] is undertaking an evidence based, cognitive and behavioural therapy sex offender treatment program on an individual basis. He has to date worked on a number of elements of this program, including: developing an interim safety plan to reduce his risk of re-offending sexually; reviewing the CBT model of human experience and offending; [his] offence cycle; cognitive distortions involved in offending; and, victim empathy. Despite finding some elements of the treatment challenging, [the offender] has remained participative and engaged in the process. He demonstrates what presents as a genuine desire to overcome his offending behaviour and move forward in his relationships with his family.
37. The offender has attended eleven 1-hour sessions since January and is “committed to working through his treatment for as long as is necessary”. Dr Torres confirms the offender is well-supported by his family and workplace to attend treatment and notes:
A further formal risk assessment has not been undertaken at this time. [The offender] reports that he continues to remain abstinent from accessing any form of inappropriate material. We have had a number of discussions outlining how an offender’s risk of offending tends to increase as they become more distal to the offence, being caught for the offence, and the consequences being applied. [The offender] understands this and reports that he remains committed to working through his treatment for as long as is necessary. [The offender] has, at all times, engaged fruitfully in the process of treatment, and he presents as genuinely engaged in the process.
…
[The offender] is still working through various elements of the CBT treatment for sexual offending. It is likely that he will be continuing to work on the various elements mentioned above for the foreseeable future – it is not possible to provide an accurate number of sessions that any individual may require to successfully navigate the elements of the intervention. Cognitive therapy and challenging, as an example, is an intervention that takes place over time, as psychologically processing takes place and leads to a change in attitudes and beliefs, and hence, emotion and behaviours. I would expect that [the offender] also commence a group intervention to supplement his individual sessions at some point. This could be achieved via the ASOP program run by ACT corrective Services or alternatively, in a program such as that run by LSC Psychology in Sydney.
38. Counsel for the offender submitted that the offender’s continued participation as well as active engagement in the ICO report process were positive indicators of rehabilitation. I take this into account on sentence.
Letter from the offender and references
39. In evidence before me were seven references in support of the offender and a letter from the offender. These are as follows.
40. A letter from the offender, dated 29 January 2019, which included the following:
I am writing this letter to express my sincere remorse for my offending behaviour.
There is no excuse for my behaviour and I accept full responsibility for my actions. This behaviour goes completely against my morals and I feel incredibly ashamed for having supported the child sex industry.
…
The strict bail conditions I have been on since February 2018 have affected me in more ways than I can explain.
…
My wife was five weeks pregnant when the charges were laid and the bail conditions began, which meant I was unable to help her and be there to support her throughout her pregnancy.
The conditions made what should be a very exciting and happy time in our lives, the birth of our second daughter, extremely difficult and near impossible to manage. I feel a huge amount of guilt and regret for how this situation took away the excitement of pregnancy and birth for my wife.
Since the birth, the conditions have really impacted on my bond with my newborn daughter. I can’t be there at night to help comfort her, I can’t be there to help my sleep deprived wife with wake ups, nappy changes and all the other difficult and rewarding times of being parents of a newborn. These are moments I will never be able to get back, and will never forget how my behaviour has caused this.
…
Most of all, the impact my behaviour has had on my wife, not only since the charges were laid, but throughout our relationship can’t be put into words. I am in awe of her strength, and the amount of support and love she has shown me throughout all this, and I am so privileged to be married to her. There is no way I would have been able to get through what I have, and seek the help that I needed if it wasn’t for her. She has helped make me a better person, and I hope moving forward I am able to give her the love and support she deserves.
…
It is difficult to say in these circumstances, but I am very happy and proud of the work I have done and where I am right now as a person. I now have a much better understanding of myself, my feelings, and my actions. After my arrest, I made it my duty to make sure that everyone I was closest to, both friends and family, were aware of my situation before any of the charges were finalised. Having them all know about it means moving forward, I always have a network of people I can talk to about my mental health, not just my psychologist.
As unbearable as the last year has been for me, it nowhere near compares to the emotional and physical pain that children around the world have suffered for this industry to exist. These children will continue to be impacted by the abuse they have suffered for the rest of their lives, and I don’t have enough words to express the enormous amount of remorse I have for my actions in supporting the child sex industry. The impact that my offending behaviour has had on this industry and the community as a whole, I will hold onto for the rest of my life.
I accept full responsibility for my actions and will take every future opportunity to give back to the community where I can.
41. A letter from the offender’s wife, dated 30 January 2019, which included the following:
[The offender’s] offending has, and continues to deeply disappoint me. Prior to his arrest, I was impressed by [his] personal drive to cease this behaviour and address the underlying cause. I have witnessed a great deal of personal growth in [him] over the past year. He has expressed deep remorse for his behaviour, and as such his contribution to the industry. He is visibly shaken and disgusted when acknowledging how the lives of these innocent children have been significantly impacted. He has also expressed his remorse for the wide-reaching pain that he has caused his family, friends and loved ones. He has committed to making a lifelong change, and with the level of support he has around him, I only wish he reached out for help sooner.
42. A letter from the offender’s employer, dated 30 January 2019, which included the following:
I have been made aware by [the offender] that he has pleaded guilty to accessing and transmitting child pornography. At the time I offered [the offender] employment, he advised me that he was likely to face criminal charges and subsequently he kept me up to date as he went to court, as he pleaded guilty and as he is now to be sentenced.
When [the offender] explained the nature of the charges, he elaborated to me that he understood the gravity of the offence, that he commenced this activity whilst an adolescent, that he was seeking counselling to redress this behaviour and that he was remorseful for his actions. He deeply regrets the adverse impact his offence may have on innocent young people.
43. A letter from the offender’s parents, dated 25 January 2019, which included the following:
Over the past 12 months, we have questioned what we missed and done wrong and how we could’ve helped to prevent [the offender] committing these crimes. As part of his bail conditions, [he] has resided with us. We have had a number of conversations whilst sitting on the kitchen benches where we have openly discussed and wept over the impact of what [he] has done on himself, his wife, his children, his immediate and extended family and the children in the images he has viewed and shared.
We have always considered that we have had open communication with both our sons but over the past 12 months we have come to see a higher level of openness and frankness in our discussions with [the offender]. No subject has been considered taboo. He has on numerous occasions expressed remorse for his actions and an understanding of how his actions have contributed to a disgusting industry.
44. A letter from the offender’s aunt and uncle, dated 3 January 2019, which included the following:
We are aware that [the offender] has pleaded guilty to the charges of accessing and transmitting child pornography. On hearing of these charges we were shocked. We have been most impressed, however, with the mature and realistic manner in which [he] has reacted. He immediately accepted responsibility and expressed remorse for his actions, particularly for their effect on others. He has acknowledged the seriousness of the material for the children involved.
45. A letter from a family friend of the offender, undated, which included the following:
In recent meetings with [the offender], since the charges were made, [he] expressed to me his deep remorse for these past actions and for the extent of trouble he has caused everyone. He realises that his behaviour is not accepted by anyone and is extremely sorry and shameful. Under his bail conditions [he] was not permitted to live with his young family this year and he strictly adhered to these rulings. We visited his parents’ home where [he] was living and observed him preparing meals to take to his wife after his working day. He is a loving father and a supportive husband who is living with much regret. His young family is the most important thing to him.
46. A letter from a former colleague of the offender, dated 18 January 2019, which included the following:
I understand that [the offender] has to face court charged with accessing and transmitting Child Pornography of which he has already plead guilty to.
When [he] first informed me of the offense it became very apparent how remorseful he was of his actions. It was a difficult conversation to have and it left him visibly upset. I believe he is sorry for his actions. He also informed me at the time that he has been seeking professional ongoing help from a psychologist.
47. A letter from a close long-term friend of the offender, dated 14 January 2019, which included the following:
I am aware that [the offender] has plead guilty to accessing and transmitting child pornography. When [he] told me about these charges I was extremely shocked and very disappointed. I was also quite taken aback as this was completely out of character for [him] in my opinion. [He] is a caring, social, outgoing and warm person and when I was told about the charges I could barely believe it. Whilst I do not at all condone what [he] has done in any way, over the course of last year he has appeared to show much remorse for his actions and has been taking appropriate steps to work through this. At no point has he downplayed the seriousness of the charge and continues to emphasise how sorry and ashamed he is of his actions.
48. Counsel for the prosecution submitted that comments on the offending being “out of character” and statements to a similar effect be given limited weight given they represent the referees’ perspective on the offences.
49. I take these references into account on sentence and I take into account the prosecution’s ‘out of character’ submissions.
Criminal History
50. The offender does not have a relevant criminal history. The prosecution submitted that in child pornography cases, less or limited weight is given to an offender’s prior good character, as the objective seriousness of the offences and the paramount consideration of general deterrence are of greater significance.
51. I take the lack of relevant criminal history into account on sentence. I take this into account on a limited basis as submitted by the prosecution.
Remorse
52. The offender agreed with the statement of facts for the current offences and claimed full responsibility for his actions to the author of the PSR. In this respect, the PSR notes:
[The offender] stated he had never understood the factors that contributed to this behaviour as he always committed to community values, however through his recent engagement with the psychologist he has started to understand his behaviour. [The offender] provided some insight into the impact of his actions on child victims of sexual abuse and exploitation, by reflecting on their trauma and long term mental health issues. He also reflected on the consequences of his actions on his family.
53. Counsel for the offender submitted that the offender’s remorse is evident in the material before me, in particular at pages 27-28 of the psychological report by Dr Torres. It was also submitted that he regards his own behaviour as “errant” and “struggles” with this. The offender also wrote a letter expressing “sincere remorse” for his offending behaviour.
54. The prosecution accepted that the character references in evidence before the Court speak to the remorse of the offender (T 5.20). Counsel for the offender submitted that the offender was clearly remorseful and the prosecution did not cavil with that submission nor submit to the contrary. On the material before me the offender is clearly remorseful.
Plea of Guilty
55. The offender entered pleas of guilty at the earliest opportunity. Pursuant to s 16A(2)(g) of the Crimes Act, a sentencing court must take into account the fact that a federal offender has entered a guilty plea.
56. In this case, counsel for the prosecution submitted that the offender should be entitled to some discount on account of his plea of guilty, but that the offender will only be entitled to a discount if their plea is evidence of their remorse, acceptance of responsibility and willingness to facilitate justice (Cameron v The Queen [2002] HCA 6; 209 CLR 339 at [11]-[15]). The prosecution also submitted that the Court is not permitted to reduce a sentence for Commonwealth offences on account of the utilitarian value of any plea (R v Harrington [2016] ACTCA 10; 11 ACTLR 215 (Harrington) at [38], [132]).
57. There is some conflict between the decision of Harrington and decisions in Victoria and New South Wales (DPP (Cth) v Thomas [2016] VSCA 237; 53 VR 546 (Thomas) and Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 (Xiao) respectively), see: R v Simonetti [2018] ACTSC 31 at [3].
58. In Xiao at [269]–[278], a five-judge bench of the NSWCCA held that s 16A(2)(g) of the Crimes Act requires a court to take into account the utilitarian value of a guilty plea when considering the fact that an offender has pleaded guilty. See also: Huang aka Liu v R [2018] NSWCCA 70; 332 FLR 158; Naizmand v R [2018] NSWCCA 25; Singh v R [2018] NSWCCA 60).
59. Counsel for the offender submitted that the offender’s conduct towards rehabilitation and the comments he made in his letter to the Court demonstrate that his plea evidences remorse, acceptance of responsibility, and a willingness to facilitate the course of justice. Counsel for the offender submitted that the offender should receive the maximum discount.
60. I am bound by the decision in Harrington. This conflict in the authorities will need to be resolved by the Court of Appeal of the ACT.
61. In this case I will allow a 25% discount for the pleas of guilty taking into account the offender’s remorse, his acceptance of responsibility and willingness to facilitate the course of justice.
Delay
62. Counsel for the offender noted that the case was delayed for a period of 9 months and 21 days due to the Crown collecting foreign evidence. In this respect, the prosecution submitted that the delay was not the kind which itself warranted a mitigating impact on sentence, not being undue, unwarranted or inordinate and the impact of the offender’s rehabilitation is minimal. I accept the prosecution submission in relation to delay as it accords with my view.
Time in Custody
63. The offender has spent one day in custody referable to these offences.
Statistics and Cases
64. In the case of federal offences, it is implicit in Part IB of the Crimes Act that I must have regard to current sentencing practices throughout the Commonwealth: see R v Pham [2015] HCA 39; 256 CLR 550 (Pham) at [18]; [23]-[24]. Regard must be had to sentencing decisions of intermediate appellate courts in comparable cases as “yardsticks” that may serve to illustrate but not define the possible range of sentences available: see Pham at [29]; Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [53]-[54].
65. Bare sentencing statistics provide limited assistance: Pham. Statistics do not provide information about why sentences were fixed as they were in each case: Hili. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:
“considerations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent”
Cases Referred to by the Prosecution
66. De Leeuw: the offender was charged with three Commonwealth charges of use of a carriage service to access child pornography and one charge of possessing child abuse material contrary to the Crimes Act 1900 (NSW). The offending occurred over a period of 7 years, and the offender was 62 years old at the time of sentence. The offender was found to possess tens of thousands of images across all CETS categories. He experienced a sexually abusive childhood and ongoing mental health issues. On appeal, offender was resentenced to a 3 year sentence of imprisonment, to be released after serving 1 year and 9 months.
67. Fedele v The Queen [2015] NSWCCA 286; 257 A Crim R 78: the offender was charged with using a carriage service to access child pornography and possession of child pornography under the Criminal Code and Crimes Act 1900 (NSW) respectively to which he pleaded guilty. He possessed five videos in Categories 2 to 4 and five images. He was between 19 and 22 years old at the times of the offences and used the images for personal use only. He was found to be remorseful and had good prospects of rehabilitation. He had no criminal history and pleaded guilty. He was sentenced on appeal to 10 months imprisonment by ICO for each offence (wholly concurrent).
68. DPP (Cth) v Zarb [2014] VSCA 347; 46 VR 832 (Zarb): the offender was charged with use of a carriage service to access child pornography, and two charges of using a carriage service to transmit child pornography. He possessed 415 images and one movie related to the offences. He was sentenced to community correction order for a period of 3 years and 3 months, incorporating 150 hours’ unpaid community work, drug and alcohol rehabilitation, a mental health assessment, a program to directly address the offending, and relevant supervision. On appeal, the offender was resentenced to a term of 3 months imprisonment upon release to enter a 2 year community corrections order.
69. Counsel for the prosecution submitted that Zarb was the most relevant comparative case available, given the similar nature of the offending. It was also submitted that the transmission to two persons in Zarb is less serious than the current offences that involves transmission to up to 57 persons.
70. Burbidge v R [2016] NSWCCA 128: the offender was charged with use of a carriage service to access and transmit child pornography contrary to the Criminal Code and production of child abuse material and two counts of possessing child abuse material contrary to the Crimes Act. The primary sentencing judge found the offender “produced, assessed and transmitted or possessed 1,854 files of child pornography or child abuse material” depicting “approximately 300 different children aged … 18 months to 14 years” (at [2]). The offender suffered abusive childhood and was found to have sound prospects of rehabilitation. He received a sentence of 4 years’ cumulative imprisonment, with a mandatory period of imprisonment of 2 years and 3 months.
71. Lyons v R [2017] NSWCCA 204: the offender ultimately pleaded guilty to six charges related to child abuse material, including two counts of using a carriage service to transmit and two counts of make available child pornography material under the Criminal Code. The offender was found to have been undertaking existing treatment and had moderate prospects of rehabilitation. On appeal, the offender was resentenced to a period of 6 years, 3 months imprisonment with a non-parole period of 4 years and 6 months.
72. Heathcote (a pseudonym) v The Queen [2014] VSCA 37; 41 VR 548: the offender pleaded guilty to a number of offences including the use of a carriage service to access and transmit child pornography. He pleaded guilty at an early stage, cooperated with police, was remorseful and had good prospects for rehabilitation. He received a term of 18 months imprisonment, released after 5 months upon the entry into a good behaviour order.
Cases Referred to by Counsel for the Offender
73. The following cases were referred to by counsel for the offender that were not referred to by the prosecution.
74. R v Kanawaza (Unreported, Murrell CJ, 2 December 2013) (Kanawaza): the offender pleaded guilty to an offence of offensive use of a carriage service (charge 1), using a carriage service to transmit child pornography (charge 2), and intentionally possessing child pornography (charge 3). He possessed 225 images, most towards the lower end of the CETS categories. He had no criminal history and pleaded guilty at the earliest opportunity, receiving a 25% discount. He was sentenced to 7 months’ imprisonment for charge 1, to a 22 month fully suspended sentence with recognisance release order for 25 months and security of $50 for charge 2, and to 7 months fully suspended with a good behaviour order for 7 months for charge 3.
75. Counsel for the prosecution submitted that in distinguishing the cases that the charge in Kanawaza was for transmission to sell, and that the images in the present case were of higher depravity and larger volume.
76. Dummett: the offender was charged with intentionally possessing child pornography, and use of a carriage service to access child pornography. He had approximately 13,000 images, 99% in the lowest CETS category. His remorse was established, and he assisted investigations. He was sentenced to 16 months’ imprisonment for the first charge, and 12 months for the second charge. Both were reduced by 20% for his plea. His sentence was wholly suspended with a good behaviour order for 2 years, on the condition of psychological treatment and $500 security.
77. Counsel for the prosecution submitted that although there were substantially more images located on the offender’s computer in Dummett, the offender in Dummett had very different subjective circumstances to the offender in the present case. The prosecution also noted that offender in Dummett was not subject to a transmission charge.
Statutory and other Considerations
78. When sentencing offenders for offences against the laws of the Commonwealth, I am bound to apply the provisions of Part IB of the Crimes Act, as well as some common law principles of sentencing, including proportionality: see Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638.
79. State and Territory sentencing laws operate only so far as they are applicable and the laws of the Commonwealth do not otherwise provide. They are excluded where applicable Commonwealth sentencing laws leave no room for their application: see Pham.
80. The court sentences in the context of section 16A of the Crimes Act, which pertains to matters which the court is to have regard when passing a sentence.
81. The Court is required to impose a sentence of appropriate severity in all the circumstances of the offence under s 16A(1) of the Crimes Act.
82. Section 16A(2) provides a number of mandatory considerations on sentence, which include the consideration of general and specific deterrence, adequate punishment, and rehabilitation. I have taken into account those matters under s 16A(2) that are relevant to the offender’s sentence.
83. When sentencing for multiple offences, I must set an appropriate sentence for each offence, then consider questions of accumulation, concurrence and totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
84. Appellate courts throughout Australia have stated that unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted for child pornography offences. As with every sentencing exercise, careful attention must be paid to the maximum penalty which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
85. In Ferguson it was observed at [55]:
The maximum available penalty is always a critical sentencing parameter. It reflects the objective seriousness of offences of that type. In 2010, the maximum penalty for an offence against s 474.19(1) was increased from 10 years to 15 years’ imprisonment. The associated Explanatory Memorandum referred to the fact that the distribution of child pornography had become a global problem, involving “pervasive and widespread” offending, which was “becoming increasingly destructive”.
86. In R v Porte [2015] NSWCCA 174 (Porte) at [57] quoted the Explanatory Memorandum with respect to the 2010 amendments to the relevant Commonwealth offences.
The Internet is being used to access and distribute child pornography on a massive global scale and offending has become pervasive and widespread. As a result, offending behaviour is becoming increasingly destructive. Children, in addition to being victims of the initial abuse required for the production of the material, are exploited on a massive scale through the repeated distribution of the image, or images, throughout international networks.
87. In that case Johnson J stated at [59] that:
At the same time as maximum penalties for these offences have been increased, the courts have made clear that the ready availability of material of this type has warranted substantial penalties with general deterrence and denunciation being paramount considerations.
88. In De Leeuw, the NSW Court of Criminal Appeal stated at [72] that:
(a) General deterrence is the primary sentencing consideration for offending involving child pornography.
…
(d) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography.
(e) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet.
(f) The possession of child pornography material creates a market for the continued corruption and exploitation of children [and]
(g) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime — children are sexually abused in order to supply the market.
89. It is important to underline in sentencing the offender that child pornography offences are not victimless crimes. Accessing and transmitting child pornography creates a market for the continued exploitation of children. Children are sexually abused to supply the market for this depraved material.
90. I note the offender first came across this material on the internet when he was only 13 years of age. This should serve as a warning to all parents to supervise their children’s internet access. The internet is not a benign educative tool as once thought. Child pornography is a depraved black hole of the internet.
Treatment Options
91. Rehabilitation is an important consideration having regard to the offender’s engagement with psychologists on issues related to the current offences and Dr Torres’ evidence regarding specialist rehabilitation in the community. In this respect, it was submitted by counsel for the prosecution that targeted “sexual offender treatment is available to the offender in the custodial environment, which can be continued when released into the community.”
92. Counsel for the prosecution submitted that the court consider the following factors regarding the offender’s motivation for rehabilitation:
(a) … Compliance with counselling must be seen in the context of a pending criminal prosecution, which has incarceration as a possible result.
(b) The [offender’s] attempts at counselling on both occasions were a result of his wife locating the child exploitation material and the Offender’s wish to maintain their marriage, rather than a result of self-motivation to address his deviance.
(c) Despite the effect on the defendant’s wife the first time she located the material, and the attempt to receive appropriate counselling on that occasion, the [offender] re-offended.
93. Further, counsel for the prosecution submitted that any assessment of the offender’s prospects of rehabilitation must have regard to his diagnosis of paedophilic disorder, the persistence of his interest in child exploitation material since the age of 13, the lengthy duration of the offending, and the fact that his previous attempts at counselling and abstinence have been unsuccessful in addressing his deviance.
94. Counsel for the prosecution emphasised that the effect of incarceration on the offender’s mental health was only relevant compared to the burden on people without the mental health condition, not whether his burden would be less without custody. It was also submitted that Dr Torres’ report does not establish that the offender’s mental health would be severely adversely affected so far as to present a serious risk (see: R v Verdins [2007] VSCA 102; 16 VR 269).
95. Counsel for the offender relied on Dr Torres’ report and the PSR which both indicated the offender would respond well to offence-specific treatment. In particular, counsel for the offender drew the Court’s attention to the opinion of Dr Torres that the offender would benefit more from treatment in the community.
96. Accordingly, it was submitted by counsel for the offender that the present case warrants a departure from the expected sentencing outcome of fulltime imprisonment given the attempts in 2011 and 2017/2018 by the offender to engage in treatment to stop his offending behaviour.
97. It was submitted by counsel for the offender that an ICO with a rehabilitation program condition would be appropriate in light of the evidence.
Sentence
98. Both the prosecution and the offender accept that the offender must receive a sentence of imprisonment. The issue is the length of the sentence and whether it is essential that it be served by way of fulltime imprisonment or whether it can be served by way of ICO.
99. The prosecution submitted that a period of fulltime imprisonment is called for and that general deterrence is the paramount consideration. The offender’s pleas of guilty, his remorse, his suitability for an ICO, the evidence-based therapy he is currently undertaking successfully and his consequent significant prospects for rehabilitation, point in a direction other than a term of imprisonment served by way of fulltime custody.
In Veen v R (No 2) (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions. The following paragraph is often quoted because it so eloquently summarises the nature of the sentencing discretion:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
Also referred to in the context of the nature of the sentencing discretion is the following statement by Mahoney ACJ in R v Lattouf (Unreported, NSW Court of Criminal Appeal, Mahoney ACJ, Sully J and Adams AJ, 12 December 1996) (Lattouf) emphasising individual justice in every case:
There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it … But there are other interests to which the sentencing process must have regard; these are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case.
Sentencing must always deliver individualised justice. An approach that would dictate gaol to be served by way of fulltime custody in every case of child pornography is anathema to individualised justice. There will be exceptions to the necessity for fulltime custody where individual justice demands it. As Mahoney ACJ stated in Lattouf “if justice is not individual, it is nothing.”
In coming to a conclusion, by way of instinctive synthesis, I have taken into account all the matters discussed above including the objective seriousness of the offences involving both access and transmission, the offender’s early plea of guilty, the evidence based treatment the offender is currently undertaking and his good prospects for rehabilitation.
Section 11(3) of the Sentencing Act requires that where imprisonment is for more than 2 years, but not more than 4 years, regard is to be had to the level of harm to the victim and the community caused by the offence, whether the offender poses a risk to people in the community and the offender’s culpability in all the circumstances. I have had regard to these matters in detail, as set out above.
In my view, the recommendation in the ICO assessment report should be taken up. An ICO ought to be imposed. It must be emphasised that although the imposition of an ICO involves a degree of leniency, it is not a lenient sentence and is considered to be “a significant punishment, coming second only to a term of fulltime imprisonment”: R v Srna [2018] ACTSC 337 at [13]. Its content will require strict adherence and if this is not followed could result in a period of fulltime custody.
As stated by Murrell CJ in R v Hill [2016] ACTSC 310 where a person has good prospects of rehabilitation, the court, by supporting those prospects in the sentence imposed, thereby also addresses likely future harm to the community and protection of the community.
General deterrence is important in this case, as for all cases of child pornography. In this case, the specific or personal deterrence associated with a sentence of imprisonment is of less significance. The public shaming and humiliation of the offender that has already occurred has had, in my view, a highly deterrent personal effect, and the offender’s relationship with family and friends who now know of the offences will provide ongoing specific deterrence (see Ferguson at [61]).
The appropriate sentence for the offence of use of carriage service to access child pornography material is 24 months reduced to 18 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of use of carriage service to transmit child pornography material is 28 months reduced to 21 months on account of the discount for the plea of guilty.
Overall there will be a sentence of 3 years imprisonment, taking into account appropriate accumulation and concurrence.
The prosecution seeks a forfeiture order in relation to the electronic devices used in connection with the commission of the offences, pursuant to s 23ZD of the Crimes Act. I am satisfied the offender has committed a Commonwealth child sex offence, as defined in the Crimes Act, and pursuant to s 23ZD, I make the requested forfeiture order.
Order
I make the following orders:
(a)I record convictions for each of the offences.
(b)In respect of the offence of use of carriage service to access child pornography material (CC2018/2288), the offender is sentenced to a term of 18 months of imprisonment, commencing on 21 May 2019 and ending on 20 November 2020.
(c)In respect of the offence of use of carriage service to transmit child pornography material (CC2018/14444), the offender is sentenced to a term of 21 months of imprisonment, commencing on 21 August 2020 and ending on 20 May 2022.
(d)The sentence is to be served by way of an intensive corrections order pursuant to s 11 of the Sentencing Act, by way of s 20AB(1AA)(a)(ix) of the Crimes Act. I impose the following additional conditions:
(i)The offender perform 200 hours of community service within 3 years;
(ii)The offender be assessed for and attend the Adult Sex Offender Program or such other program as directed by the Director-General;
(iii)The offender continue with the offence-specific counselling as directed by the Director-General.
(e)Pursuant to s 23ZD of the Crimes Act, I make a forfeiture order in relation to the offender’s electronic devices used in connection with the offences, being:
(i)Apple iPhone 8 (IMEI #35707081333411) (Property seizure record #3523829 item 001)
(ii)Apple iPhone 5 (IMEI #013327004790707) (Property seizure record #3523829 item 002)
| I certify that the preceding one hundred and twelve [112] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson. Associate: Date: 22 May 2019 |
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