R v Maruskanic
[2019] ACTSC 337
•16 September 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Maruskanic |
Citation: | [2019] ACTSC 337 |
Hearing Dates: | 15 April 2019; 5 July 2019 |
DecisionDate: | 16 September 2019 |
Before: | Burns J |
Decision: | See [35]–[45] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit child pornography material – possession of child abuse material – using a carriage service to access child pornography material – very good prospects of rehabilitation – whether immediate term of imprisonment ordinarily warranted for child pornography offences |
Legislation Cited: | Criminal Code 1995 (Cth) ss 473.1, 474.19 Crimes Act 1900 (ACT) ss 64(5), 65 Crimes (Sentence Administration) Act 2005 (ACT) s 42 |
Cases Cited: | DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 R v De Leeuw [2015] NSWCCA 183 R v Porte [2015] NSWCCA 174; 252 A Crim R 294 |
Parties: | The Queen (Crown) Andrew James Maruskanic (Offender) |
Representation: | Counsel H Snobar (Crown) C Harris (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Aulich Law (Offender) | |
File Number(s): | SCC 316 of 2018 |
BURNS J:
Andrew James Maruskanic, on 14 December 2018, you entered pleas of guilty to the following charges:
· Charge 1 (CC18/11480), using a carriage service to transmit child pornography material contrary to s 474.19(1)(a)(iii) of the Criminal Code 1995 (Cth) (the Commonwealth Criminal Code), carrying a maximum penalty of 15 years' imprisonment, or a fine of $189,000, or both.
· Charge 2 (CC18/11481), possession of child abuse material contrary to s 65 of the Crimes Act 1900 (ACT) (the Crimes Act), carrying a maximum penalty of seven years' imprisonment, or a fine of $105,000, or both.
· Charge 3 (CC18/11480), using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code, carrying a maximum penalty of 15 years' imprisonment, or a fine of $189,000, or both.
With regard to Charge 1 (CC18/11480), between 22 and 24 August 2018, members of the Australian Federal Police connected to your computer and successfully downloaded several files with names strongly suggestive that they contained child pornography. The three downloaded files were determined to constitute child pornography material as defined by the Commonwealth Criminal Code.
Due to the nature of the software used by you to download and store this material, it was available to other users who search for this material, to locate it on your computer and download it. This is referred to as ‘seeding’. Your computer was seeding this material to other users. On 13 September 2018, Police executed a search warrant at your residential premises in the ACT and seized a wireless modem-router, a black desktop computer, an external hard drive, a Samsung Galaxy phone, and an Apple iPad.
With regard to Charge 2 (CC18/11481), examination of the desktop computer identified image and video files that constituted child exploitation material as defined by s 64(5) of the Crimes Act, and also constituted child pornography material as defined by s 473.1 of the Commonwealth Criminal Code.
These files were located on an internal storage device with the folder location configured to be hidden from the view of a person who did not have administrator access to the system. The way in which the folder was located indicated that the file had been moved after being downloaded.
Child pornography material is classified into categories as per the Child Exploitation Trafficking System, or CETS, which contains six categories. The following five categories are relevant in this case. Category 1 consists of sexually suggestive posing with no sexual activity. Category 2 consists of non-penetrative sexual activity between children, or solo masturbation by a child. Category 3 consists of non-penetrative sexual activity between adult(s) and child(ren). Category 4 consists of penetrative sexual activity between children, or adult(s) and child(ren). Category 5 consists of sadism, humiliation, or bestiality.
A total of 73 offending files were located. Some of the files were images, but most were videos. In Category 1 there were six videos. In Category 2 there were nine videos. In Category 3 there were six videos. In Category 4 there were 48 videos and three images. In Category 5 there was one video. In total there were 70 videos and three images. The material depicted a total of 93 unique child victims. The victims were both male and female and ranged from eight to 16 years of age. You participated in a record of interview during the execution of the search warrant. You made certain admissions to the Police in the course of the interview.
With regard to Charge 3 (CC18/11480), examination of the offending files confirmed that at least a small number had been downloaded from the internet through the use of a Peer to Peer (P2P) Program. The origin of the remainder of the files could not be confirmed. Between 23 January 2018 and 4 February 2018, you used the P2P Program to access child pornography material on the internet.
In order to do so, you would have searched for material accessible for download through torrent files by using keyword searches through an ordinary search engine. After downloading the torrent file, you used the P2P Program to open the torrent files and download the material to your computer. The downloaded files were moved to a designated folder on the internal storage of the desktop computer to an area which was configured to be hidden from the view of people without administrator access.
Subjective Features
A Pre-Sentence Report was prepared for the sentence hearing. You are 52 years old and you reported a generally positive childhood, although your parents separated when you were aged 12 years old. You have been in a positive and supportive marriage for 24 years and you have a teenage daughter with whom you have a positive relationship. You live in stable accommodation, although you have been required to reside outside of the family home for a period after September 2018 because of these charges.
You completed your education to the end of Year 12, and you have a commendable work history. You have been employed in the Information Technology industry for more than 20 years, but you had to resign from your position as an Information Technology manager due to these offences. You have volunteered with the Rural Fire Service in the past, but a conviction with regard to these charges will preclude you from obtaining a Working With Vulnerable People Clearance so that you will be unable to continue in that role. This is a matter of some significance, as it appears that it is one of your few social outlets. You are currently relying on your wife's income, and your combined savings pending sentencing.
The author of the Report noted that you agreed with the Statement of Facts and expressed the opinion that you took full responsibility for these offences. You were assessed as at low risk of general reoffending primarily because you have a number of strong protective factors.
A Report from Dr Danielle Clout dated 29 March 2019 was tendered. Dr Clout diagnosed you with a major depressive disorder, being in the severe range, stemming from your arrest on the present charges. She was of the opinion that you were not suffering from any mental impairment, mental illness, or mental condition at the time you committed these offences. She believed that you were suffering stress and pressure at work, resulting in symptoms such as poor motivation, avoidance behaviours, loss of interest and sleep disturbance, but in a sub-clinical range.
You expressed remorse to Dr Clout, which she considered to be sincere. It was Dr Clout's opinion that a sentence of full-time imprisonment would have a significant adverse impact on your mental health, with a likely escalation in your major depressive disorder, increasing your overall level of symptomology and risk of self-harm.
Dr Clout prepared an addendum report dated 11 April 2019, which was prepared after she had read a Report from another clinical psychologist, Mr Marshall O'Brien. I will come to Mr O'Brien's Report in a moment. Dr Clout noted that in Mr O'Brien's Report, he stated that you were suffering from Dysthymic Disorder at the time of offending. Dr Clout did not agree with this opinion, although she acknowledged that you had reported symptoms at a sub-clinical level during the relevant period. Dr Clout also disagreed with Mr O'Brien's diagnosis of an Adjustment Disorder. Despite these differences in diagnosis, Dr Clout agreed with Mr O'Brien that you are at low risk of reoffending and that you would benefit from ongoing psychological treatment.
Mr O'Brien provided a Report dated 9 April 2019. He noted that you had a history of increasing dissatisfaction with your work in information technology in the years leading up to the present offences. In his report, Mr O'Brien expressed the opinion that you did not evidence the characteristic behaviours of a person exhibiting a paraphilic disorder and considered that you had attempted to seek stimulation through downloading the subject material from the internet in circumstances where you were particularly unhappy with your work and your life. Mr O'Brien administered a number of tests. While he acknowledged that no assessment tool can reliably diagnose paedophilia, the tools which he used point to characteristics of the personality which could contribute to the likelihood of various behaviours. In your case, he considered that there is strong evidence of a stable person whose psychological distress is related to either his current context, or longer term unresolved depression.
Mr O'Brien noted that you have attended regularly for treatment on your own initiative and you have expressed distress about the effect of your crimes on the victims. You told him that you were seeking images of mid-aged girls around 15 years of age, and that these were sexually arousing to you. Mr O'Brien considered you to be a continuing risk of self-harm and he believed that you required ongoing psychotherapy.
He expressed the opinion that if you were sentenced to full-time imprisonment, you would suffer more intense symptoms of distress and could well pose a risk of self-harm. It was his opinion that an Intensive Correction Order would be preferable to incarceration. This could include attendance at a Sexual Offenders Course in the community.
Your wife gave evidence at the sentence hearing that you have demonstrated significant remorse for these offences. She stated that you were suicidal after being arrested and charged. The subsequent prosecution, and in particular, the bail conditions to which you were subject, have had a very detrimental effect upon the family. She described you as being shattered as a person and stated that you had been very concerned for her and your daughter as a consequence of these matters. She stated that she knew you were unhappy at work, but she did not know how unhappy. She confirmed that you have been with the Rural Fire Service for approximately 16 years, but you will now have to cease your connection with that organisation. She has seen some improvement with your understanding of your behaviour.
Objective Seriousness
In assessing the objective seriousness of each of these offences, it is necessary to bear in mind the maximum penalty prescribed by the legislature. The maximum penalty is to be reserved for cases that fall within the worst category of offending, which is not the situation with regard to the present offences. The maximum penalty, nevertheless, provides a yardstick by which the Court can assess the appropriate penalty for lesser offences. It is clear from the maximum penalty as prescribed with respect to each of these offences, that they are considered by the legislature to be serious offences.
As I understand it, Charge 1 (CC18/11480) relates to the three items, being videos containing child pornography material. The longest such video was five minutes and 39 seconds, and of the other two, one was one minute and 43 seconds, and the other was one minute and 34 seconds. The material was undoubtedly explicit.
I accept that offences involving videos are objectively more serious than those involving photographs because of the longer period that the victim was subject to abuse and humiliation. Nevertheless, I am satisfied that whilst still a serious offence, this offence falls towards the lower end of the range of such offences.
With regard to Charge 2 (CC18/11481), I take into account that there were 73 offending files located, of which 70 were videos. I take into account the number of the victims, being 93 unique child victims. I also take into account that a majority of the material fell within CETS level 4, with most of the remainder of the material falling into lower levels. I accept that the CETS level is not determinative of the objective seriousness of the offence, but it is a matter to be taken into consideration. In my opinion, this charge falls at the lower end of the mid-range of such offences.
With regard to Charge 3 (CC18/11480), the Statement of Facts only asserts that a small number of the 73 files that were located had been downloaded from the internet using the P2P Program. The period of time over which you used the program to access child pornography was approximately two weeks. I consider this charge to fall within the lower end of the range of such offences.
From the evidence of Dr Clout and Mr O'Brien, I accept that at the time of these offences you were subject to stress and you exhibited symptoms consistent with depression, but at a sub-clinical level. I do not accept that your moral responsibility for these offences is significantly diminished thereby, but the medical evidence does put in context what would otherwise appear to be conduct completely out of character.
Other Considerations
It has been said that evidence of prior good character may not carry as much weight when determining an appropriate sentence for offences of this kind as might otherwise be the case. However, that does not mean that prior good character is to be ignored. In the present case, the evidence of your prior good character supports what I understand to be the medical opinion that these offences occurred within a particular situational context and are not likely to be repeated.
I am satisfied that you have very good prospects for rehabilitation, and that the sentences which I impose do not need to have a significant personal deterrent aspect. It is well recognised that in sentencing for child pornography offences, the Court is primarily required to impose sentences that will both deter others in the community from committing similar offences, and which will punish and denounce the conduct of the offender. General deterrence has been described as the predominant sentencing consideration.
The Crown submitted that an immediate term of imprisonment is ordinarily warranted for offences involving child pornography unless exceptional circumstances can be demonstrated. I do not accept this to be an accurate statement of the law. In the case of the DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800, it was conceded by the then Commonwealth Director of Public Prosecutions, Mr Bromwich SC, who now sits as an additional judge of this Court, that it is inappropriate to suggest that something less than an immediate term of imprisonment can only be imposed where exceptional circumstances are demonstrated as the Courts must be careful not to impose a standard to a sentencing task that is not prescribed by statute.
What does arise from the authorities is that child pornography offences are always serious offences. This Court should approach the sentencing of child pornography offences in the same way that it approaches sentencing for other serious offences and as prescribed by the various statutes governing sentencing for Commonwealth and/or Territory offences as appropriate. It will very frequently be the case that the application of ordinary sentencing principles to the facts in individual child pornography offences will result in the imposition of an immediate terms of imprisonment, but that will not always be the case.
The Crown also drew my attention to two previously decided cases, R v De Leeuw [2015] NSWCCA 183 and R v Porte [2015] NSWCCA 174; 252 A Crim R 294, as authority for the proposition that Courts need to take care in avoiding the inappropriate use of Intensive Correction Orders for serious child pornography offences where the appropriate form of punishment should involve immediate incarceration. So much may be accepted, but the decisions do not stand for the proposition that an Intensive Correction Order will always be an inappropriate form of punishment for offences involving child pornography.
In the two cases to which the Crown referred, the first involved offending over a period of seven years in which over 32,000 items of child pornography were involved. The second involved more than 34,000 items. Those cases can hardly be compared with the present.
A frequent complaint regarding the imposition of suspended sentences is that they lack any significant punitive aspect. In providing the option of an Intensive Correction Order, the legislature has provided a number of options to sentencing judges and magistrates which enable them to devise a sentence with significant punitive characteristics. The Court is entitled to impose a Community Service Condition as part of an Intensive Correction Order and can, in effect, devise a system of periodic detention within the offender's own home.
I take into account your early pleas of guilty. I will reduce by approximately 25 percent the sentences which I would otherwise have imposed in order to reflect your pleas of guilty. I accept that your pleas indicate sincere remorse and a willingness to facilitate the administration of justice.
With the regard to the Territory charge, I also take into account the utilitarian value of your plea. I also take into account the fact that you have been subject to fairly onerous bail conditions, including conditions that effectively prohibited you from residing in your family home for a period of time. In my opinion, the punitive and deterrent requirements of sentencing in this case can be adequately addressed through an Intensive Correction Order.
Sentence
On Charge 1 (CC18/11480), I record a conviction and you are sentenced to 12 months' imprisonment which I have reduced from 16 months by reason of your plea of guilty, which will commence today, 16 September 2019 and expire on 15 September 2020.
On Charge 3 (CC18/11480), I record a conviction and you are sentenced to 12 months' imprisonment which I have reduced from 16 months by reason of your plea of guilty, commencing on 16 February 2020 and expiring on 15 February 2021.
On Charge 2 (CC18/11481), I record a conviction and you are sentenced to 9 months' imprisonment which I have reduced from 12 months by reason of your plea of guilty, commencing on 16 August 2020 and expiring on 15 May 2021.
The aggregate sentence which I have imposed is therefore one of 20 months' imprisonment, commencing 16 September 2019 and expiring 15 May 2021.
I order that the aggregate sentence be served by way of Intensive Correction Order. One of the core conditions of an Intensive Correction Order, as found in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT), entitles the Director General to give you directions as to where you must live.
I will impose a further condition that you are to remain at your residence continuously from 9 pm each Friday, until 5 am the following Monday during the period from 20 September 2019 until 23 December 2019 inclusive, unless you have the written permission of the Director General, or that person's delegate, to be absent from the residence. I will refer to this as the curfew condition.
You are further to present yourself to the front door of your residence at any time that the Director General, or that person's delegate, requests during the curfew period.
It will be a further condition that you are to undertake such assessments, counselling, or programs as directed by the Director General, or that person's delegate, particularly in relation to sexual offending.
Finally, there will be a Community Service Condition requiring you to undertake 249 hours of community service within a period of 12 months from today, as directed by the Director General, or that person's delegate.
You are to report forthwith to the office of the ACT Community Corrections at Level 1, 249 London Circuit.
I will further make a confiscation order with regard to the items to which I referred, being a wireless modem router, a black desktop computer, and external hard drive, a Samsung Galaxy phone and an Apple iPad.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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