R v Marshall

[2010] NSWDC 299

CITATION:	R v MARSHALL [2010] NSWDC 299
HEARING DATE(S):	17 December 2010
EX TEMPORE JUDGMENT DATE:	17 December 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The overall sentence consists of a non parole period of three years with a head sentence of five years
CATCHWORDS:	CRIMINAL LAW - Sentence - Commonwealth and State offences - Immediate admissions to police - Remorse - Access child pornography - Transmit child pornography - Make child pornography available - Possess child pornography - Unauthorised possession of a firearm - Improper storage of ammunition - Possession of ammunition
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:	R v Oliver, Hartley and Baldwin 1 [2003] Cr App R 28
PARTIES:	The Crown David Francis Marshall
FILE NUMBER(S):	2009/015760; 2009/025510; 2009/030881; 2009/030883; 2009/030894; 2009/077290; 2009/089064; 2009/092068; 2009/092069; 2009/097568; 2009/104216; 2009/108754; 2009/109595; 2009/112186; 2009/114342; 2009/116153; 2009/116798; 2009/117764; 2009/118738; 2009/167036; 2009/172432; 2009/179486; 2009/182857
SOLICITORS:	Director of Public Prosecutions (Cth) Andrew Hartcher - Offender

SENTENCE

1 HIS HONOUR: David Francis Marshall appears for sentence today after having pleaded guilty at a very early stage to a large number of offences, dealing with both child pornography and firearms. When I sentence him for one of the firearms matters, he asks that I take into account a large number of other firearms matters on a Form 1. In total there are following offences which Mr Marshall is to be sentenced; an offence of using a carriage service to access child pornography material for which the maximum penalty is ten years imprisonment; an offence of using a carriage service to transmit child pornography material, also carrying a maximum penalty of ten years imprisonment; an offence of using carriage service to make child pornography material available, an offence carrying with it a maximum penalty of ten years imprisonment. They are all Commonwealth offences. There is also a State offence, possession of child pornography, carrying, at the time this offence was committed, a maximum penalty of five years imprisonment although the penalty has increased of more recent times. Of course it is the maximum penalty at the time the offence was committed which is relevant. And finally five offences under s.7A of the Firearms Act, unauthorised possession of a firearm. It is one of those, the offence relating to a twelve gauge shotgun, which has attached to it seventeen other offences relating to possession, improper storage and the possession of ammunition.

2 This is an unusual case because the offender is an unusual man. The matters came to the attention of the authorities in mid-2008. They discovered that child pornography was being uploaded onto an internet site. Investigations revealed that an account subscribed to by the offender appeared to be responsible for the uploading of the child pornography images. So it came to be that on 11 February 2009 police went to the premises where the offender lived with his wife and one of his four children. He was cautioned and asked whether there was any child pornography on the premises, the offender said there was. He was also asked whether there were any firearms on the premises and the offender replied affirmatively to that question as well. A search then revealed child pornography images located in various areas, two lap tops, two personal computers, two hard drives and one USB drive; firearms and ammunition were found as well. The offender told police that he chatted on line with people who would describe sexual conduct with their children, doing this for fantasy. He said that he had downloaded child pornography, that he knew that the possession of child pornography was illegal, that the firearms were his and he knew he was supposed to have a licence to keep them. He told police also that he knew that he was supposed to keep those firearms secured. In other words the offender admitted, as soon as he was confronted by police, that he had committed all of the offences for which he is to be sentenced. Various hard drives and personal computers were later examined. There were a total of seven hard drives seized from the offender’s premises and each was found to contain child pornography on it. Technical investigation revealed that the child pornography images had been accessed via the internet. The total number of child pornography images found on the hard drives was more than four thousand, the vast majority consisting of the less serious forms of child pornography. Using the scale developed in the English guideline judgement of R v Oliver, Hartley and Baldwin1 [2003] Cr App R 28, most of the images were at level 1, consisting of erotic posing. However, there were other more serious examples of child pornography discovered, some even at level 5, which consists of sadism and bestiality. The offender maintains that he had not been able to view the level 5 video but no similar suggestion was made in relation to the photographs and videos of levels 2, 3 and 4. Thus the offender’s collection included a video of a girl aged approximately three years performing oral sex on an adult male who ejaculates into her mouth.

3 The forensic investigations revealed that child pornography material was accessed between the period of 1 March 2005 and 20 January 2009. That was, as is obvious, a considerable period of time and the last occasion on which child pornography material was accessed was only very shortly before police arrested the offender. During that period 3,682 images and nine videos were accessed. That of course relates to the first offence, the one of using a carriage service to access child pornography material.

4 The next offence of using a carriage service to transmit child pornography material, relates to chat logs discovered on the offender’s hard drive. Those logs were made available to me and I read the on-line conversation between the offender and anonymous people who are purported to be overseas. In that material the offender discusses disgusting and disturbing sexual acts involving children. He not only describes and asks to have described to him sexual acts involving children but tells the people to whom he is conversing what he would like to do to children and what he enjoys. It is to be noted that there is no real evidence that the offender ever intended to carry out these desires, nor is there any evidence that these chat logs involved any direct harm to any human being. They appear to have been, as the offender told police on the day of his arrest, fantasy. I should at this stage refer to one particular aspect of the chat logs. On one occasion the person to whom the offender is chatting tells the offender that he has been molesting his daughter and invites the offender to communicate on the computer with that daughter. There is no evidence for me to decide whether this was the product of a perverted mind or whether there really was a young girl who was being molested involved. I will sentence the offender on the basis that I cannot be satisfied that there was a real human being harmed at any time through the offender’s chats on line.

5 The next offence concerns the offender making child pornography available. The evidence revealed that the offender had uploaded files and made available twenty-four images, all in the latter part of 2007. As is clear, there is a substantial overlap between these four offences involving child pornography, for example the offence of possessing child pornography, a State offence, relate to child pornography material that had been accessed using a carriage service and the pornographic images made available by the offender appear also to have first come into his possession when he used a carriage service to access them. I bear that substantial overlap in mind when I sentence the offender.

6 We now move to offences of a different kind, they are firearm offences, all relating to the offender’s possession of firearms and ammunition. The offender was in possession of a large number of firearms set out in both the indictment and the Form 1. Some were inoperable, for example one did not have a bolt or trigger, and another one was bent, according to the offender, but others were very capable of being fired and in many cases suitable ammunition was possessed by the offender as well. As is clear from the offences to which the offender has admitted his guilt, they were not properly secured either, being kept either under his bed or in a cupboard. Some weapons appear to have been almost antiques, others are of more recent times. There was no challenge to the offender’s evidence that he had last fired them on his honeymoon, some considerable time ago.

7 These offences are very serious matters indeed. It is not for me to speak at length about the gravity of child pornography matters, I have done so on other occasions as have courts throughout the world. I will content myself with saying however, that offences such as those involving child pornography, apart of course from the one involving chat logs, all involve significant harm to young people, to children, not only when they are directly photographed or videoed, being forced to perform sexual acts as they pose for the camera, but also because of the wider implications involving the sexualisation of children generally. It is disturbing indeed to realise that there are many people in the community who obtain sexual gratification through watching images and videos of the type described here. The thought that a human being with an ounce of compassion could watch and then keep possession of a video involving a three year old girl having a man ejaculate in her mouth is difficult to understand. The offender says he did not do it for sexual gratification, but simply because he was curious. I will return to that question later.

8 The offender is now sixty-one years of age. He is married with four children. He has in his past much of which he is entitled to be proud, for example he was for many years a volunteer with the bushfire service and as part of that voluntary work he was awarded medals and commendations. He served in the army reserve and he was also acknowledged for his service in that regard. He was employed with the Rural Fire Service until early this year when he retired. There is nothing to suggest any other criminal activity apart from those that I have described. On the other hand it has to be recognised that there is a multiplicity of offending, even if it only relates to aspects of the offender’s misconduct and that the offending occurred over a significant period of time.

9 The offender has a substantial bank of good character on which he is entitled to rely when I sentence him for these matters.

10 I note that the offender pleaded guilty to these matters at an early stage. There was an indictment presented today for technical reasons, but the early pleas mean that I should discount the sentence I would impose for the Commonwealth matters by twenty-five percent to recognise the offender’s assistance in the administration of justice and by twenty-five percent in the State matters, to recognise the utilitarian value of his pleas.

11 At around the time that he began committing these offences the offender was suffering from depression, part of that followed the death of his parents and the recognition of his mortality. He has also suffered from what has been suggested in the various reports, to be Asperger’s syndrome. Related to that is his diagnosis of OCD, obsessive, compulsion disorder, which manifests itself in various ways including most relevantly to these offences, in collecting and hoarding things such as model tanks, coins and possibly firearms and child pornography. Physically the offender is not well either, suffering from hypertension and diabetes and having been treated in 2005 for heart disease.

12 Those physical and mental conditions of course have multiple relevance. Obviously they will make his time in custody harder than would otherwise be the case. The fact that he was suffering from depression and OCD at the time of this offending means that his moral culpability is lower than it would otherwise have been although not significantly so, given the clear nature of the offender’s recognition the wrongfulness of his misconduct. It also of course means that general deterrence plays less of a part than it would otherwise. That of course is not to say that general deterrence is to be ignored. Despite the matters that I have referred to, it remains as an important aspect in the sentence to be imposed upon this offender.

13 Some time was spent today, including having evidence called, regarding what motivated the offender. For example he has at times said that he began to download child pornography because he was curious. That is somewhat inconsistent with what he has said at other times, including that he found full frontal girls attractive, something he said to Mr Borenstein, psychologist, and it scarcely explains the ongoing nature of the offender’s wrongdoing. One might have thought that for a person to commence in March 2005, looking at child pornography out of curiosity that curiosity might have been well satisfied by late January 2009. So I do not accept for one moment really that the offender’s motivation in downloading, looking at and making available child pornography was mere curiosity, but even if I am wrong, what does it matter? People who produce child pornography, abusing children in a most violent, disgusting way as they do so, do not care if the motivation of someone accessing that material is curiosity or gratification. Certainly the child who is harmed through the production of that material does not care one way or the other. All the child knows is that he or she has been harmed.

14 Another aspect in dispute concerned the nature of what motivated the offender to chat to others, those chats being count 2 on the indictment. The offender said that he was doing so to catch or trap child abusers and child pornographers. He recognised of course that he had no training to do so but maintained that that was why he was doing it. He recognised also that he had never done anything to draw to the attention of police in Australia, or overseas for that matter, to what he was doing and what he had found. The nature of the chats themselves does not suggest that the offender was trying to catch others. It is often the case that whilst chatting to someone about nudism the offender introduces subtly at first of course, sexual topics involving children, progressing to the stage where he speaks in a disgusting manner about what he would like to do and what he has seen and what he has done. Ordinarily it would be easy to dismiss the offender’s claim as to what motivated him to chat. As I mentioned this is not an ordinary case because the offender is an unusual man. I have therefore made allowances in the offender’s favour, but despite that, I remain of the view that the offender was not chatting in a disgusting way to trap people, but was doing it for his own pleasure. I take into account in particular that there is not the slightest hint in any of the chats put before me to suggest that the offender made any inquiry at all of any kind in an effort to obtain information which could be used to identify the person to whom he was chatting. And nor did he obtain the forensic computer assistance with the police at anytime despite his career being related to IT. I should also mention at this stage that there is no evidence that the offender sold any material or profited in a monetary term through making available the images which he did make available in late 2007. The evidence suggests that he swapped material which benefited him in some way.

15 It is easy of course when confronted with a person who has committed both child pornography and firearm offences to focus on the child pornography offence, they are more capable of creating an emotional response, something of course a judge must avoid, but the firearms offences are of course serious in their own way. There is no evidence that the offender was going to use these firearms to commit a further crime but given the way they were stored, given the number of them, given the fact that there was ammunition suitable for a number of the firearms stored in a dangerous way as well, the risk of both accident and the firearms falling into the wrong hands was significant. The offender seemed to regard it as important that the firearms not be destroyed. Even he recognised that one option available to him would be to donate the firearms to a museum or RSL Club for example. Of course as I mentioned earlier, the offender’s OCD probably had a fair bit to do with his decision to retain possession of the firearms despite him knowing that he should not have.

16 The offender has expressed his remorse and I accept that as genuine. He said that at the time he committed these offences he was in effect leading two different lives. He now appears to be relieved in one sense that he is able to put these offences behind him. The offender’s remorse, again early, not only through immediate admissions to police on the day they came to his home but also through assisting them with the provision of passwords and the like as they investigated both his wrongdoing and also attempted to discover the identity of others over the internet. I am reminded of course that some of the offences can be dealt with summarily although many others cannot, but I do take into account, as the law requires me to, that some of the offences could have been dealt with in the Local Court. I have to say that I am not quite sure why that is a matter which would benefit an offender. He has after all committed offences which are so serious that it is appropriate that they be dealt with in this Court. The law is otherwise, and I will follow the law and do what the appellate courts tell me I must.

17 Mr Hartcher helpfully summarises also some matters which reduce the seriousness of the child pornography offences, below that which is commonly before the Court. Some I mentioned and some I did not. I will take into account, as Mr Hartcher asked me to, that the vast majority of the imagines fall within the lowest category of child pornography offences, and in comparison to many other offenders who come before the court, the offender possessed a relatively small number of images and videos. He was not motivated by profit, he did not produce any of the child pornography, apart of course from the conversations which I said were fantasy over the chat box.

18 There is no evidence that the offender was part of some ring of child pornographers; no evidence that apart from the number of images he made available, he shared the material with anyone, disclosed to people, especially vulnerable people.

19 I turn now to the question of special circumstances regarding the State offences, as I will impose fixed terms on those matters, it is not necessary for me to consider that matter further. The ratio of the non-parole period to head sentence to Commonwealth offences used to be thought of as being a norm of sixty to sixty-six percent, the High Court has recently disabused judges of the notion, that is a norm as previously understood. As it turns out however the ratio of non-parole period to overall head sentence in this case will be sixty per cent. It enables an adequate period for the offender to be on parole so that he can be supervised in the community in order to ensure that offences such as these cannot be repeated.

20 The offender is sentenced as follows:

21 For counts 5, 6, 8 and 9 a fixed term of imprisonment of twelve months to date from 20 October 2010.

22 Count 7 a fixed term of eighteen months imprisonment to date from 20 October 2010.

23 Counts 2 and 3 a fixed term of imprisonment of twelve months to date from 20 April 2011.

24 Counts 1 and 4 a non parole period of twelve months to date from 20 October 2012 with a head sentence of three years, that means that the overall sentence which consists of a non parole period of three years, head sentence of five years when the offender is eligible to be released to parole on 19 October 2013.

NB: The sentences for counts 2 and 3 were later amended to commence on 20 October 2011, but this did not effect the overall term

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