R v Logue
[2020] ACTSC 115
•8 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Logue |
Citation: | [2020] ACTSC 115 |
Hearing Date: | 8 May 2020 |
DecisionDate: | 8 May 2020 |
Before: | Elkaim J |
Decision: | See [33] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – prepare for or plan to engage in sexual intercourse with a child outside Australia – use carriage service to access child abuse material – possess or control child abuse material |
Legislation Cited: | Crimes Act 1914 (Cth) s 16A(2) |
Cases Cited: | Fedele v R [2015] NSWCCA 286; 257 A Crim R 78 |
Parties: | The Queen (Crown) James Stuart Logue (Offender) |
Representation: | Counsel H Snobar (Crown) P Edmonds (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Paul Edmonds & Associate (Offender) | |
File Numbers: | SCC 40 of 2020 |
ELKAIM J:
On 27 February 2020 the offender pleaded guilty to three charges in the ACT Magistrates Court. The charges were then committed to the Supreme Court for sentencing under
s 90A of the Magistrates Court Act 1930 (ACT). The pleas of guilty entitle the offender to a discount on his sentence. In the circumstances of this case the discount arises from the offender taking responsibility for his actions, a degree of consequential remorse and the facilitation of the course of justice.
The three offences and their maximum penalties are:
(a)One charge of preparing for, or planning to have, sexual intercourse with a child outside of Australia (CAN2019/10998), contrary to ss 272.8 and 272.20(1) of the Criminal Code Act 1995 (Cth). The maximum penalty is 10 years’ imprisonment, a fine of $126,000 or both;
(b)One charge of using a carriage service to access child abuse material (CAN2019/11226), contrary to s 474.22 of the Criminal Code. The maximum penalty is 15 years’ imprisonment, a fine of $189,000 or both; and
(c)One charge of possessing or controlling child abuse material obtained or accessed using a carriage service (CAN2019/11225), contrary to s 474.22A of the Criminal Code. The maximum penalty is 15 years’ imprisonment, a fine of $189,000 or both.
The facts are set out in some detail in the Statement of Facts. The following is a summary. In 2019 the offender was a user of the Tinder dating service. Also during 2019 the offender made four overseas trips, three of which included some time in Thailand.
In April 2019 the offender, using Tinder, exchanged a number of messages with an unknown person which might be summarised as an attempt to arrange sexual activity with a girl between the age of 8 and 16. It is clear from the messages that he was most interested in a girl at the younger end of this age range. For example he wrote: “The younger she is the more money I pay”. The other party responded “You get horny with lil girl?”. The offender replied “Yes”.
In August and September 2019 the offender, through a phone application, tried to make arrangements for a young girl to be provided to him for sexual services. The unknown correspondent, apparently located in Kenya, was clearly wary of the provision of an underage girl but seems to have succumbed to greed by asking what his fee would be for the provision of a 15-year-old girl. The answer was $USD 2,000. In subsequent messages the offender offered to pay $USD 4,500 for a 10-year-old girl.
On yet another exchange through the Internet, but this time with the unknown correspondent apparently being in Colombia, the offender offered up to $USD 5,000 for a 10-year-old girl.
The above three ‘negotiations’ make up Count 1. I accept the circumstances surrounding the messaging suggest the offender would not, and probably could not, have acted on any positive response to his requests.
The police were “tipped-off” about the above exchanges and on 9 October 2019 executed a search warrant at the offender’s residence in Canberra. The police followed links on the offender’s phone which led them to a number of videos depicting child abuse material. These videos make up Count 2.
Count 3 relates to 30 videos found in the possession of the offender all of them containing child abuse material. One of the videos depicts bestiality placing it in the highest category of seriousness. There are 7 videos in Category 4.
The offender was born in 1990 in England. He came to Australia with his family in 2006 after living in a number of countries in Europe. The offender left school after completing Year 11 and then finished a Diploma of Business Administration. He has had a number of jobs. He had been working as a kitchen hand in a café for three years prior to his arrest. He now lives with his parents with whom he maintains a close relationship, although they have expressed upset and disappointment at his offending.
The offender generally does not drink very much and he does not take illegal drugs. The offender is said in the Pre-Sentence Report to be suffering from depression, but it is not clear if this is a product of the current issues or is more long-standing. There is a report from a forensic psychologist, Mr Van Meurs.
The psychologist delves deeper into the question of mental disorders. According to Mr Van Meurs the offender is suffering from a major depressive disorder, currently in remission, an adjustment disorder with anxiety and depressed mood and a paedophilic disorder. In relation to the last of these disorders Mr Van Meurs identifies an addiction to online pornography. He distinguishes between a “true” paedophilic disorder and the disorder as defined in DSM-5 of the American Psychiatric Association manual of psychiatric disorders (the standard diagnostic tool). The difference is that the offender does not appear to be attracted to children “in the real world”.
Mr Van Meurs recommends treatment for both the deviant disorder and the anxiety and depressive disorders. The psychologist said this about the offender’s insight into his behaviour:
Mr Logue appears to have been aware to a degree of the seriousness of his offending behaviour, and intermittently wiped his devices of the material, and tried unsuccessfully to cease the behaviour. While the sophistication of his awareness of the wrongness of the behaviour has increased since his arrest, I believe he was fully aware of the seriousness at the time of offending. There was, to a degree, a false dichotomy in his mind about the online world and the “real” world, however I believe that this pertained more to justifications for his deviant behaviour than a lack of capacity to appreciate the seriousness of it.
In respect of the future, Mr Van Meurs thought there were some “positive indications” if the offender “readily and wholeheartedly engages in treatment”. In relation to re‑offending Mr Van Meurs says: “I do believe that he is likely to respond well to treatment and subsequently do not envisage his chance of re-offending any higher than 3-5%”.
The offender apparently now realises the harm being suffered by the children that were exploited. He says that he never intended to pursue his requests. He said this to Mr Van Meurs:
I didn’t view the children as real when I was doing this, but now I see that someone has hurt them in the process of making this pornography. At the time I wasn’t thinking, but I have come to realise that there is an innocent child in each of those images or videos.
Thus he is a youngish man of previously good character who has engaged in very serious criminal conduct. Viewing videos of the type that were in his possession may at one level seem like a harmless voyeuristic enterprise. But that could not be further from the truth. Every child in every video was exploited. Not one of those children was capable of expressing proper consent to what was occurring to them. Every one of them will be damaged, sometimes physically, and always mentally, probably for the rest of their lives.
I cannot over emphasise my abhorrence at this type of conduct.
The Crown has provided me with, to the extent the phrase might be used, comparable cases. Of course, no two cases are alike, and each case must be treated on its own particular facts and merits. Nevertheless, it is possible to gain some guidance from the authorities.
In R v Sykes [2009] QCA 267 the offender was found in possession of a number of child pornography images. He was about the same age as this offender and also had no criminal record. There were 2 charges for which he received 15 months’ imprisonment, suspended after 6 months. He appealed on the basis of manifest excess. The appeal was dismissed. The judgment includes this passage, at [30]:
On the material that was before the sentencing judge, it was open to the sentencing judge to require the applicant to serve some of his sentences of imprisonment in actual custody. The sentences that were imposed were not beyond the sound exercise of the sentencing discretion.
In Peters v R [2018] NSWCCA 126 a slightly older offender, but also with no criminal record, was charged with possessing child abuse material and using a carriage service to access child pornography. His total sentence was 2 years and 9 months, but with a release date after 18 months. His appeal succeeded but only to the extent of reducing the overall sentence to 2 years and 4 months with a release date of 15 months.
In Fedele v R [2015] NSWCCA 286; 257 A Crim R 78 the offender was charged with the possession of child abuse material and the use of a carriage service to access the material. He received a sentence of 12 months’ imprisonment, to be released on a recognizance after 6 months. There were very strong subjective features to the case. On a successful appeal the unserved portion (10 months) of the sentence was ordered to be served by way of an Intensive Correction Order (ICO). The Court found that he had good prospects of rehabilitation, his offending had not been driven by a sexual interest in children and he was unlikely to re-offend.
The offender relied on two decisions both from this Court. In R v Johnston [2020] ACTSC 46 the offender pleaded guilty to three charges, two of using a carriage service to transmit an indecent communication to a person under the age of 16 and one of possessing child abuse material. In respect of the child abuse material charge, one image was in Category 5 and the rest were spread over the other categories. The offender received a total term of imprisonment of about 15 months but was to be released after 4 months on a recognizance to be of good behaviour for 12 months.
In R v Sertori [2017] ACTSC 300 the offender pleaded guilty to an act of preparing for planning to have sexual intercourse with a child outside Australia and the use of a carriage service to transmit child pornography. This offender received a total term of imprisonment of 2 years and 9 months, to be served by way of an ICO. The offender, at the time of sentencing, was 36 years of age and had no prior convictions. He had been assessed as suitable for an ICO.
Because of my conclusion about the facts behind Count 1 probably being incapable of being put into effect, I think the offence is below medium objective seriousness. As to Counts 2 and 3 it is an unfortunate conclusion that the offences in this case should probably be seen as being of medium objective seriousness. I say unfortunate because any offence of this type is serious. The fiction of assessing seriousness has its place in a comparison between the most trivial and the most serious. However as to the very large space in between I am not sure that any particular assessment is very relevant.
The Crown asked me to look at some of the material involved. The offender objected, relying on the decision of Mossop J in Johnston, at [21]. It was submitted that there were adequate descriptions of the material in the agreed statement of facts so that I did not need to look at the material. Adopting the ‘test’ posed by Mossop J, I asked the Crown if there were “aspects of the gravity which cannot properly be appreciated from a written description of the material”. The Crown replied that there were such aspects. Accordingly, I viewed the material. Suffice to say the Crown was correct.
The burden, and it is a burden, of the submissions of Mr Edmonds, who appears for the offender, is for me to consider an ICO. In R v Mitchener [2019] ACTSC 351 I reluctantly referred the offender for an ICO assessment. The offender was facing similar child access material charges. He was much older than this offender but he also had no criminal record and he had a distinguished career both in public service and private enterprise. The ICO assessment said he was suitable for an order, but I did not act on it. I thought that the facts of the case (the nature of the material) and the need for general deterrence demanded that the offender spend at least some time in full-time custody. He ultimately received a total period of imprisonment of 12 months but suspended after 3 months.
The applicable legislation says a person should not be sent to prison except as a last resort. I have taken into account the relevant factors set out in s 16A(2) of the Crimes Act 1914 (Cth).
However, what is important here is the balance between, on the one hand, the offender’s previous good character, his apparent remorse and insight, the limited likelihood of re‑offending and his prospects of rehabilitation against, and on the other hand, the overwhelming wrongfulness of child exploitation and the need for public deterrence. Potential viewers and collectors of material of this sort must be left in no doubt that, if caught, they are almost certainly facing a prison sentence.
Both the Crown and Mr Edmonds have provided me with some material relating to the COVID-19 pandemic. The Crown’s material emphasises the efforts being taken at the AMC to ensure the protection of the inmates from the virus. The defence material is a Notice to Visitors setting out the restrictions currently in place.
I accept that COVID-19 is a relevant factor. I understand that visits to prison are an important element in ensuring the welfare of the inmates. It is important for me to take into account the effects of the virus, both potential and existing, upon the offender. The result cannot however divert me from my conclusion that he must serve a period of time in full-time custody, but it is relevant to the length of that time.
A combination of the discount for the pleas of guilty and the relevance of the pandemic result in a discount of 25%. Although there are elements of the bail conditions which are stricter than usual (such as the curfew and only going out in the presence of a parent) I do not consider that they amount to a period of quasi-custody.
The Crown submitted that, subject to the principles of totality, the sentences should otherwise be accumulated. The offender submitted that there should be a significant amount of concurrency. I am not sure there is much difference ultimately in the position adopted by the respective parties. I will allow for some accumulation and some concurrency.
I make the following orders:
(a)For preparing for, or planning to have, sexual intercourse with a child outside of Australia (CAN2019/10998), the offender is sentenced to 6 months’ imprisonment to commence on 1 May 2020 and end on 31 October 2020.
(b)For using a carriage service to access child abuse material (CAN2019/11226), the offender is sentenced to 12 months’ imprisonment to commence on 30 August 2020 and end on 29 August 2021.
(c)For possessing or controlling child abuse material obtained or accessed using a carriage service (CAN2019/11225), the offender is sentenced to 12 months’ imprisonment to commence on 29 November 2020 and end on 28 November 2021.
(d)The total period of imprisonment is 18 months and 28 days.
(e)The imprisonment is to be served by way of full-time custody for 3 months (that is, to 31 July 2020) when the term of imprisonment is suspended on condition the offender enter into a Recognizance Release Order in the sum of $1,000 for a period of 18 months. During this period the offender is subject to the supervision of the Director-General of the ACT Corrective Services or their delegate and is to obey all reasonable directions of that person for the period of 18 months, or such lesser period as deemed appropriate by the supervisor.
(f)I make a forfeiture order in the form signed by me.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 8 May 2020 |
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