R v Lau
[2014] VCC 1013
•27 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 14-00452
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
CHEK PIN LAU
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2014 | |
DATE OF SENTENCE: | 27 June 2014 | |
CASE MAY BE CITED AS: | R v Lau | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1013 | |
REASONS FOR SENTENCE
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Subject:Using a carriageway to access child pornography; possess child pornography
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 12 months imprisonment with immediate release on a RRO to be of good behaviour for 2 years together with a good behaviour bond for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Kerlin | Commonwealth OPP |
| For the Accused | Mr L. Gwynn | David Laschko |
HIS HONOUR:
1 Chek Pin Lau, you have pleaded guilty to one charge of accessing child pornography using a carriage service and one charge of possessing child pornography.
2 The prosecutor, Mr Kerlin, opened the circumstances of the offending by reading from a 'Summary of Prosecution Opening', which was tendered.
3 In short, a search warrant was executed at your home on 3 December 2013. Child pornography was found on your laptop computer, as well as an external hard drive. Later forensic analysis identified 626 images and 164 video files classified as child pornography.
4 Charge 1, accessing child pornography, consists of you downloading 611 images and 164 videos between 21 February 2012 and 26 November 2013.
5 Charge 2, possession of child pornography, concerns the total images and video files, 626 and 164 respectively, the difference in the former due to the presence of 15 images predating your arrival in Australia on 15 February 2012.
6 You were interviewed by police and made partial admissions.
7 Written submission from your counsel, Mr Gwynn and written submissions from the prosecutor were tendered.
8 A file of material was also tendered by your counsel. It consisted of personal references, material concerning awards and community involvement, a resume together with psychological reports from Matthew Barth and Patrick Newton.
9 The prosecutor referred me to a number cases concerning relevant sentencing principles and comparative sentences.
10 It was accepted on your behalf that your offending is serious and that general deterrence plays a dominant role.
11 You pleaded guilty at the first reasonable opportunity and must benefit from this. Your pleas save time, expense and the need for witnesses to give evidence. I also accept that they reflect remorse.
12 You have no prior criminal history. You have complied with bail conditions, remaining in Australia since completing your studies last year to meet your obligations concerning the current charges. You have undertaken considerable rehabilitative steps during that time.
13 You are still young, having turned 22 last October, and the principles concerning youthful offenders have application.
14 You were brought up in Malaysia. You come from a family with strong Christian values. You promptly informed family and friends of your offending after you were arrested.
15 You are most fortunate to have considerable family support as demonstrated by the references that were tendered. Your sister, her husband and your girlfriend travelled from Malaysia to support you and attended the court hearing last Friday. Your mother attended the committal mention, but poor health prevents her attendance at the moment. Your girlfriend is here again today.
16 You are intelligent and have performed very well as a student.
17 You came to Australia in February 2012 to complete a Bachelor of Engineering at Swinburne University. That was completed in December 2013. Your hope was undertake a PhD here in Australia, apply for residency or citizenship, obtain employment and settle here. You accept that your offending will not permit this course and you intend to return home as soon as you can, where you will pursue further education.
18 Mr Newton thought your emotional and social maturity were still at a formative stage. He thought you shy, socially distant and introverted with a limited capacity to develop and maintain intimacy. You have had three girlfriends, all age appropriate, but your intimacy with each has been superficial. Your sexual outlet has been masturbation and to facilitate this you utilised internet pornography from late secondary school. You became habituated to this, leading you to search for novel forms of stimulation. Through chat lines you were introduced to child pornography. You told Mr Newton you pursued this because you had become curious and wanted to see more; however, you denied sexual arousal in response to child pornography.
19 Mr Newton said you expressed significant guilt and regret. You recognised that you had breached the trust your family placed in you. Overall Mr Newton thought you were in the moderate-low risk for recidivism. He thought the sooner you could complete a sex-offender treatment program the better. This would further reduce the risk of recidivism which, to the extent it exists, would almost certainly relate to your use of the internet or other 'virtual' offending.
20 You have participated in a number of counselling sessions with Mr Barth, making some positive progress; however, Mr Barth also thought participation in a comprehensive sex-offender program was unequivocally warranted.
21 As noted earlier, Mr Kerlin provided written submissions. These were very helpful. He emphasised the importance of general deterrence. He made submissions directed to each of the relevant matters identified in s.16A Crimes Act 1914.
22 Of course the offending is serious by its very nature. The maximum penalty for Charge 1 was increased in 2010 to reflect the growing prevalence and destructive nature of accessing and other conduct concerning child pornography.
23 Mr Kerlin made a detailed analysis of the nature and content of the material you had by reference to the established categories concerning such material. It is clear that the material you possessed, the overwhelming part of which you had downloaded, resulted from the abuse of a significant number of children. Their ages were between about three and 16. Every category was represented by either pictures or videos. The bulk of the pictures were in Category Level 1 and the bulk of the videos were in Category Levels 2 and 4.
24 Your accessed the material for a period covering most of 2012 and 2013; that is from the time of your arrival until your arrest. Although no allegation of sale or further distribution was made and there was no suggestion of financial benefit, you did store downloaded material, hence Charge 2.
25 Most cases concerning child pornography will result in immediate imprisonment. Your good character must be seen in the context that offending such as yours is frequently committed by people of good character.
26 Your age, particularly given your immaturity, is important. The benefits of encouraging your rehabilitation are considerable. I think your prospects of rehabilitation are very good, if not excellent.
27 You have expressed a desire to continue sex offender treatment. With this in mind, your legal representative contacted Dr Danny Sullivan, a well known forensic psychiatrist, to obtain a suitable referral in Malaysia. I was informed just before commencing these remarks that this has been done and Dr Emmanuel Pereira has been recommended.
28 In the particular circumstances of your case I consider the appropriate penalty on Charge 1 is a conviction and imprisonment with immediate release on a recognisance release order.
29 As I follow, the prosecution did not argue against this outcome, which was somewhat reluctantly conceded by your counsel.
30 However, the prosecution submits that you should be convicted and released on a community correction order on Charge 2. This is because of the seriousness of the charge in all the circumstances. Such an order should require you to undergo a sex offender program, argued Mr Kerlin. Mr Gwynn submitted that a good behaviour bond or fine would be appropriate.
31 A community correction order, noted Mr Gwynn, would require you to remain in Victoria. It was highly desirable, argued Mr Gwynn, to allow you to return home to an environment where family and friends could assist with your rehabilitation with the considerable benefit of scrutiny from a supportive and close community of people with high moral values. In Victoria, the very condition which fostered your offending, namely isolation, would remain.
32 In my view, release on a good behaviour bond does not necessarily mean the offending is not serious. It used to be that people were released on such orders for very serious offending. In your case the imposition of such a penalty needs to be seen in the setting of the penalty imposed for the associated offending in Charge 1. In my view, this would be proper even if the offending in each charge was not related, but here it is. I recognise that the conduct constituting each charge is different, but they are connected and the imagery is largely the same.
33 Release on a good behaviour bond is not a soft option. It merely holds in suspension the imposition of penalty. If you breach this bond, you can expect imprisonment.
34 On Charge 1 you will be convicted and sentenced to 12 months' imprisonment. This sentence is to commence today. On entering a recognisance in the sum of $2000 that you be of good behaviour for two years, I order that you be released forthwith.
35 As a part of that order, I order that you comply with the following conditions: (1) that you attend for treatment and obey all lawful instructions of Dr Emmanuel Pereira or his nominee or a suitably qualified practitioner; (2) that you consent to the informant contacting this practitioner at any time during the period of the order to ensure compliance.
36 On Charge 2 you will be convicted and released on an undertaking to be of good behaviour for two years. You are to appear if required.
37 You will be subject to any conditions of the Sex Offender Registration Act 2004 for a period of 15 years.
38 Had you not pleaded guilty, I expect I would have sentenced you on Charge 1 to about 16 months' imprisonment and it is likely you would not have been subject to release for a period less than six months. I would also have imposed imprisonment on Charge 2.
39 Did the expression concerning the 6A matter make sense? I was intending to make it clear that the likelihood is that I would have imposed 16 months' imprisonment and made an order that Mr Lau be released on recognisance after six months.
40 MR KERLIN: It makes sense, Your Honour.
41 HIS HONOUR: Very well. We will have that document completed, I think. I will hand that down.
42 My associate has asked me a nice, tricky question that I haven't thought about. Would registration prevent him going home?
43 MR GWYNN: We were discussing that. I think that he'll get the paperwork and then his obligations are to then report.
44 HIS HONOUR: That's what I would have thought.
45 MR GWYNN: We've looked into this.
46 HIS HONOUR: The reporting obligations will remain.
47 MR GWYNN: That's right.
48 HIS HONOUR: I did think of this when - Mr Anderson has just jogged my memory. I did think of it when I was writing the reasons, but it went out of my mind when I was delivering them and I thought if he's moving all over the place in Malaysia he'd have to make contact with the authorities here and tell them where he is, so that would be part of the requirements under the Act, wouldn't it?
49 MR GWYNN: That's correct.
50 HIS HONOUR: Very well.
51 MR GWYNN: They may - they have the discretion, sorry.
52 HIS HONOUR: Well, I can't do anything about the Sex Offender Registration Act anyway.
53 MR GWYNN: No. They have some discretion, as I understand it, if someone's out of the jurisdiction.
54 HIS HONOUR: Yes.
55 MR GWYNN: There are some provisions in the legislation in relation to that.
56 HIS HONOUR: It would be hopeless if they didn't.
57 MR GWYNN: Yes.
58 HIS HONOUR: All right.
59 MR GWYNN: Funnier things have happened, though.
60 MR KERLIN: There's just one final matter, Your Honour, which is to comply with s.16F of the Crimes Act (Cth) where a court imposes a recognisance release order in respect of its sentence. It must explain or cause to be explained to the offender in language likely to be readily understood by that person the purpose and consequences of making the order and the consequences of breaching the order, Your Honour. But my friend can explain that to the offender.
61 HIS HONOUR: I'm sure he will. But you'll explain to him that if he breaches either order, he will - certainly if he's back here the expectation is that he'd go to gaol.
62 MR GWYNN: He's aware of that. I can indicate that.
63 HIS HONOUR: The purpose behind the order is to facilitate his rehabilitation.
64 MR GWYNN: Absolutely. Thank you, Your Honour.
65 HIS HONOUR: Are you going to do it or the Crown going to do it - make the order?
66 MR KERLIN: I can assist Your Honour, if you'd prefer.
67 HIS HONOUR: Normally the Crown would do it, wouldn't they?
68 MR KERLIN: Certainly, Your Honour.
HIS HONOUR: You need to do that as well? Yes, all right. I'll leave the Bench while Mr Anderson puts that document together.
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