R v Mertell
[2022] ACTSC 37
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Mertell |
Citation: | [2022] ACTSC 37 |
Hearing Dates: | 16 December 2021, 9 February 2022 |
DecisionDate: | 4 March 2022 |
ReasonsPublished: | 9 March 2022 |
Before: | McWilliam AJ |
Decision: | See [69] – [70] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – possess child abuse material accessed via a carriage service – use a carriage service to access child abuse material – where offender exhibits symptoms consistent with autism spectrum disorder and attention-deficit hyperactivity disorder – whether there is a causal link between offending and diagnoses – whether coexistence of diagnoses constitutes exceptional circumstances |
Legislation Cited: | Criminal Code Act 1995 (Cth) ss 474.22, 474.22A Crimes Act 1914 (Cth) ss 16A, 17A, 19, 20 Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 |
Cases Cited: | Adamson v The Queen [2015] VSCA 194; 47 VR 268 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Cluett v The Queen [2019] WASCA 111 DPP (Cth) & DPP v Garside [2016] VSCA 74; 50 VR 800 DPP (Cth) v Watson [2016] VSCA 73; 259 A Crim R 327 DPP (Cth) v Zarb [2014] VSCA 347 DPP v D’Alessandro [2010] VSCA 60; 26 VR 477 Fedele v The Queen [2015] NSWCCA 286; 257 A Crim R 78 Ibrahim v The Queen [2016] NSWCCA 6 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 Peters v R [2018] NSWCCA 126 R v Bednikov (1997) 95 A Crim R 200 R v Currie [2015] ACTSC 404 R v Cusack [2021] ACTSC 75 R v Davison [2020] ACTSC 272 R v De Leeuw [2015] NSWCCA 183 R v Donald [2019] ACTSC 129 R v Freestone [2010] ACTSC 87 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Lanham [2014] ACTSC 128 R v Morosi (Supreme Court of the ACT, Burns J, 28 August 2013) R v Oliver & Ors [2002] EWCA Crim 2766 R v Sykes [2009] QCA 267 R v Tootell ex parte AG [2012] QCA 273 R v Walker [2019] ACTSC 172 R v Wicks [2005] NSWCCA 409 The Queen v De Simoni [1981] HCA 31; 147 CLR 383 |
Parties: | The Queen (Crown) Philip Fletcher Mertell (Offender) |
Representation: | Counsel D Bloomfield (Crown) F J Purnell SC (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions(Crown) JDR Law (Offender) | |
File Number: | SCC 225 of 2021 |
McWilliam AJ:
On 15 December 2021, Phillip Fletcher Mertell (the offender) pleaded guilty to the following offences:
(a)Count 1 (CC2021/7245): Between 23 June 2020 and 13 January 2021, possess child abuse material in the form of data held in a computer or contained in a data storage device and use a carriage service to obtain the material, contrary to s 474.22A(1) of the Criminal Code Act 1995 (Cth) (Criminal Code). The particulars of the offence are that the offender used a Seagate External Hard Disc Drive to possess 125 child abuse material files.
(b)Count 2 (CC2021/7246): Between 23 June 2020 and 13 January 2021, possess child abuse material in the form of data held in a computer or contained in a data storage device and use a carriage service to obtain the material, contrary to s 474.22A(1) of the Criminal Code. The particulars of this offence are that the offender used a Seagate External Hard Disc Drive to possess 74 child abuse material files.
(c)Count 3 (CC2021/7247): Between 8 October 2020 and 13 January 2021, possess child abuse material in the form of data held in a computer or contained in a data storage device and use a carriage service to obtain the material, contrary to s 474.22A(1) of the Criminal Code. The particulars of this offence are that the offender used a black USB to possess 3 child abuse material files.
(d)Count 4 (CC2021/814): Between 23 June 2020 and 13 January 2021, possess child abuse material in the form of data held in a computer or contained in a data storage device and use a carriage service to obtain the material, contrary to s 474.22A(1) of the Criminal Code. The particulars of this offence are that the offender used a Seagate External Hard Disc Drive to possess 59 child abuse material files.
(e)Count 5 (CC2021/7250): Between 23 June 2020 and 13 January 2021, possess child abuse material in the form of data held in a computer or contained in a data storage device and use a carriage service to obtain the material, contrary to s 474.22A(1) of the Criminal Code. The particulars of this offence are that the offender used a Maxtor Hard Disc Drive to possess 135 child abuse material files.
(f)Count 6 (CC2021/7248): Between 23 August 2020 and 13 January 2021, possess child abuse material in the form of data held in a computer or contained in a data storage device and used a carriage service to obtain the material, contrary to s 474.22A(1) of the Criminal Code. The particulars of this offence are that offender used a Samsung Hard Disc Drive to possess 7 child abuse material files.
(g)Count 7 (CC2021/7249): Between 23 August 2020 and 13 January 2021, use a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code. The particulars of this offence are that the offender used a Samsung Hard Disc Drive to access 7 child abuse material files.
(h)Count 8 (CC2021/815): Between 23 June 2020 and 13 January 2021, possess child abuse material in the form of data held in a computer or contained in a data storage device and used a carriage service to obtain the material, contrary to s 474.22A(1) of the Criminal Code. The particulars of this offence are that the offender used a Deep Cool PC to possess 110 child abuse material files.
(i)Count 9 (CC2021/816): Between 23 June 2020 and 13 January 2021, use a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code. The particulars of this offence are that the offender used a Deep Cool PC to access 64 child abuse material files.
The material that is the subject of the possession charges listed as counts 6 and 8 above is the same material which is the subject of the access charges listed as counts 7 and 9. The material the subject of all other charges is distinct to each charge.
The maximum penalty for each offence is 15 years’ imprisonment.
Facts
The facts have been agreed as between the Crown and the offender. On Wednesday 13 January 2021, police executed a search warrant at the offender’s residence after learning the offender’s IP address was being used to access digital material on a peer-to-peer file sharing network.
During the execution of the search warrant, the offender relevantly informed police that he:
(a)lives alone;
(b)no one else accesses his computer, phone, laptop, or storage devices;
(c)he is “addicted to downloading things”, downloads “lots of stuff he never gets around to looking at”, and has “no idea” what was on the storage devices;
(d)when searching for material online, he uses general search terms such as “young” or “nude girls” but does not look for child pornography and has no sexual interest in children;
(e)he had opened some files with references to children in the title because he assumes they are mislabelled, and he is curious; and
(f)he does not collect child abuse material and does not want to, although there may be some material he has accidentally downloaded.
Analysis revealed that between 23 June 2020 and 13 January 2021, the offender possessed a total of 513 child abuse material files (including 56 duplicate files) (the material). The material was located across 7 of the offender’s devices.
Under the INTERPOL 4 Tier Categorisation System, twenty-five per cent of the material
(128 files) have been categorised as “category 1”, meaning the files depicted pre-pubescent children either involved in or witnessing a sexual act, or the material was focussed on the child’s anal or genital region. Seventy-five percent of the material (385 files) were “category 2”, meaning it depicted pubescent child victims.
During the hearing, there was some discussion as to whether the Court should view a sample of the child pornography or child abuse material so as to fully appreciate the nature of the material possessed and accessed by the offender. I did so out of abundant caution. However, it must be stressed that the categories referred to above are in part a means of alleviating the necessity to view such material and thus widening the circle of people viewing the child victims. In R v Hutchinson [2018] NSWCCA 152 (Hutchinson) at [47]-[49], R A Hulme J (with whom Meagher JA and Button J agreed) stated:
[47] During the course of the hearing the Crown handed up a booklet containing samples of the material the subject of the offences. The Court received the booklet, indicating that the members of the Court would consider later whether it was necessary for it to be viewed.
[48] I appreciate that it has been said in the past that viewing a sample of the material is necessary for a judicial officer to obtain a full appreciation of its nature which is a significant factor in the assessment of the objective seriousness of the offence(s): see, for example, R v Porte [2015] NSWCCA 174; 252 A Crim R 294 at [76] (Johnson J).
[49] I do not understand there to be binding authority that viewing a sample of such material is essential in every such case. I take the view that it is incumbent upon the prosecuting authorities to provide an adequate written description of the material. In the vast majority of cases that should suffice for there to be a sufficient appreciation of the "relative perversion and debauchery of the pornographic material" (as it has been put in one of the cases to which Johnson J referred). I do not see the need to view an image or a video of, for example, an adult committing some dreadfully depraved act towards a child when it is possible to understand how terrible such a thing is by reading a description of it. Moreover, I would doubt there would be any comfort for the child victim to know that in addition to offenders poring over such images there will be lawyers and judges examining them as well.
I respectfully adopt the view there expressed. Whether it is necessary to view a sample of the material in question does depend upon the case, and in particular whether the description of the material contained in the facts is sufficiently detailed.
Objective seriousness
Factors relevant to the objective seriousness of offences of this kind are discussed in R v De Leeuw [2015] NSWCCA 183 (De Leeuw) at [72](b), Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 (Minehan) at [94] and more recently in Hutchinson at [45]. They are set out below with slight rephrasing:
(a)The nature and content of the material, including the age of the children and the gravity of the sexual activity depicted or portrayed.
(b)Whether actual children were used in the creation of the material.
(c)The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
(d)The number of items or images possessed — in a case of possession, the significance lying more in the number of different children depicted and thereby victimised.
(e)The length of time for which the pornographic material was possessed.
(f)In a case of possession, the offender’s purpose; that is, whether the material is for the offender’s own use or for the purpose of sale or further distribution. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni [1981] HCA 31; 147 CLR 383.
(g)In a case of dissemination/transmission, where the material was being distributed and how widely it was distributed.
(h)Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
(i)The proximity of the offender’s activities to those responsible for bringing the material into existence, and whether the offender acted alone or in a collaborative network of like-minded persons.
(j)The degree of planning, organisation or sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material.
(k)The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.
(l)Whether the offender acted alone or in a collaborative network of like-minded persons.
(m)Any risk of the material being seen or acquired by vulnerable persons, particularly children.
(n)Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
(o)Any other matter in s 16A Crimes Act 1914 (Cth) (Crimes Act), bearing upon the objective seriousness of the offence.
While not binding on this Court, I consider the above list of factors nevertheless to be relevant to assessing the objective seriousness of the offence in this jurisdiction. The above list of factors is not exhaustive, and individual cases may produce further matters relevant to that assessment: see Minehan at [95].
There is an assumption that children are harmed when they are the victims of sexual offences and that extends to cybersex offences. See the detailed discussion in Adamson v The Queen [2015] VSCA 194; 47 VR 268 (Adamson) at [13]-[27] and the underlying rationale which I consider is equally applicable to the offences under consideration here. Adamson was among the authorities cited more recently in cases such as Kannis v R [2020] NSWCCA 79 at [126]-[128] and again in Small v R [2020] NSWCCA 216 at [55].
Actual children were used in the creation of the material. With particular regard to the age of the victims depicted in this case, it is also reasonable to infer the victims would have suffered physical harm: see R v Oliver & Ors [2002] EWCA Crim 2766; [2003] 1 Cr App R 28 (469) at [20] and R v Clarkson [2011] VSCA 157; 32 VR 361 at [3].
The representative sample of material handed up to the Court shows images that are highly offensive and degrading. The material shows prepubescent and pubescent male and female victims depicted in various sexual acts. There are an estimated 50 to 75 separate child victims in the material.
It is not suggested that the material was collected for the purpose of sale or further distribution. Further, there is no evidence the offender paid for the material. However, it is important to record that the possession of child abuse material in and of itself creates a market for the continued exploitation of children to support the market: see De Leeuw at [72] and R v Porte [2015] NSWCCA 174; 252 A Crim R 294 (R v Porte) at [67]. The absence of sale, distribution or dissemination of material does not mitigate the penalty for a possession offence: see R v Porte at [66].
The duration of the offender’s possession of the material falls between 3 and 6 and a half months. The Crown submits this period was substantial and I accept that submission.
The Crown further submitted this combination of factors put each of the offences between the low and mid-range of objective seriousness. Given the uncertainty about what those relative terms might mean, I am minded not to make any specific finding by reference to a range. The factors that have been set out above are those that I consider bear upon the objective seriousness, and are sufficient to indicate that the conduct here is objectively serious, without being of the worst kind for the offences in question.
Moral culpability
An offender’s moral culpability may be reduced if their mental condition contributes to the commission of the offence in a material way and/or in circumstances where the offender is unable to understand that what they are doing is wrong: see R v Wright (1997) 93 A Crim R 48 at 50-51; R v Pham [2005] NSWCCA 314 at [35] (Hall J, Scully and Hidden JJ agreeing).
In the present case, there was evidence in the form of a psychological assessment report and supplementary report of Dr Danielle Clout (the reports), a clinical psychologist. Dr Clout considered that the offender presented moderate to severe symptoms consistent with DSM-5 diagnoses of Autism Spectrum Disorder (ASD) (with a qualification that further assessment should be undertaken to appropriately classify the severity of the condition) and Attention-Deficit Hyperactivity Disorder (ADHD). Dr Clout expressed the opinion that the offender’s conditions make him “highly vulnerable to fixated and obsessive interests and behaviours”, leading to reduced behavioural control. Dr Clout considered the offender’s obsessive collecting of pornography would have desensitised him to more extreme content and concluded the disorders would likely have had an “indirect contribution to his offending”.
The parties were at odds as to whether the association between the diagnoses and the offending reduced the offender’s moral culpability. Both parties agreed there is no direct causal link between the offending and the diagnoses of ADHD and ASD. However, the offender’s position focused on the indirect link as being sufficient to establish a causal connection and further, to make the offender an inappropriate vehicle for general deterrence. In Ibrahim v The Queen [2016] NSWCCA 6, Bellew J (MacFarlan JA and Rothman J agreeing) held at [36] that:
[The psychologist] did not suggest that the applicant’s mental state was causally connected to her offending. Accordingly, the applicant’s mental state did not provide any basis for a lessening of her moral culpability.
In Cluett v The Queen [2019] WASCA 111 (Cluett), Buss P, Mazza JA, and Mitchell JA accepted (at [74]) evidence that the offender’s ASD was a contributing factor to his offending and endorsed the sentencing judge’s finding that the offending was not sexually motivated (emphasis added):
[T]he appellant’s autism spectrum disorder was a contributing factor to his offending. On the sentencing judge’s unchallenged findings, the appellant’s fixation on his ‘research’ led him to obtain or access the images. While there was no rational basis for thinking that viewing the images was required for that purpose, the lack of rationality in the appellant’s thought processes was a product of his autism spectrum disorder. In our view, although the appellant appreciated the illegality of his conduct, his autism spectrum disorder reduces both his moral culpability and the significance of general deterrence as a sentencing consideration.
It was further recorded in Cluett (at [23]-[36]) that there was significant and consistent expert evidence from psychiatric, neuropsychological and psychological reports indicating the offence was not sexually motivated, and there were indicators that the offender was asexual.
I have taken into account that the offender’s conditions manifested in behaviours that influenced the commission of the offences as a matter to which the Court must have regard when passing sentence: see 16A(2)(m) of the Crimes Act. However, I also accept the Crown’s submission, supported by Dr Clout’s clinical opinion, that there is no indication the offender did not understand the illegality or immorality of his offending.
In the present case, the offender did know the wrongfulness of the conduct, as is clear from what he said to police during the search. While it was accepted that the offender’s general “obsessive downloading of pornography” was motivated by sexual gratification, the offender refuted any inference that his offending behaviour was driven by a sexual attraction to children. The offender sought to minimise his culpability in stating that the downloading of the material the subject of the offences was accidental or inadvertent and the product of hoarding tendencies, and further, that his access of the material was due to curiosity.
The Crown drew attention to the fact that the possession was across seven devices and then subsequent access during the respective offending periods, which strongly supported the inference that the offending was not accidental. Rather, the offender obtained sexual gratification from the material. Accidental download and curiosity may have explained the first file the offender accessed; however, it does not explain the further 70 files that the offender accessed. In any event, in my view, curiosity demonstrates an interest in viewing the child abuse material. Satisfying such an interest or “curiosity” in relation to the sexual material is part of how a person may achieve sexual gratification. It is an incentive to access unknown or taboo material. Curiosity is an element that feeds the market for the production of this material.
The offender next submitted there was an inability to anticipate the contents of the files from the preview of the file name, many of which had over 200 characters. The offender’s overarching narrative of inadvertence, even as to access, in this instance through technological incapacity obscuring file titles, is difficult to reconcile with his lengthy career in the IT industry and repeated assertion that he knows more than 98.9% of the general population about computers. The content of the material and age of victims was clear from the first few characters in the file names provided to the Court as a representative sample. The file description leaves the viewer in no doubt as to what the file contains.
In light of the evidence of Dr Clout and the offender’s own comments to police and in the witness box at the sentencing hearing, I accept that the offender’s diagnoses may have contributed to the volume of material downloaded, but I am not satisfied that the principles in R v Verdins [2007] VSCA 102; 16 VR 269 or Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 are engaged in relation to the length of time the material was possessed or that it affected the accessing of the material such that the offender’s conditions materially reduce his moral culpability or displace the primacy of general deterrence for this type of offending.
Subjective circumstances
The subjective circumstances are largely contained in a Pre-Sentence Report (PSR) that was before the Court.
Personal circumstances
The offender was born in Sydney and has one brother with whom he previously had enjoyed a close bond, although they were estranged at the time of the offending. He recalled being provided with food and shelter, however, he claimed he and his brother were not provided with any luxuries. The offender reported having no contact with other family members.
The offender’s mother and father died in 2000 and 1986 respectively. He claimed he witnessed a specific sexual event at approximately 5 years of age, which led him to conclude that memory must have been instilled as a result of being sexually abused by his father. I have taken that into account.
The offender has never been in a romantic relationship, has no dependents and has a limited social network.
Age
The offender is 68 years old. He was aged between 66 and 67 years old at the time of the offending. I have taken into account that the age of the offender is a consideration in determining the length of a sentence and may warrant some moderation of an otherwise justified non-parole period: see R v Hunter (1984) SASR 101 at 103 (cited in this jurisdiction in R v King [2013] ACTSC 279 at [33] and R v Bednikov (1997) 95 A Crim R 200 at 226). Counsel for the offender submitted that his “physical health and functioning is likely to deteriorate more rapidly over time than someone in a younger cohort”.
Mental health
The offender has been receiving psychological treatment for his conditions and in relation to the offending behaviour. In addition to Dr Clout’s opinion that the offender’s diagnoses of ADHD and ASD manifested in behaviours that influenced the commission of the offences, the offender also informed the PSR author that he has had two “mental breakdowns” over his life and has taken unspecified medication on a sporadic basis.
Senior Counsel for the offender submitted, supported by Dr Clout’s report (at [65] – [66]), that the offender is likely to be particularly vulnerable within a custodial setting. Particularly, he is likely to have difficulty negotiating relationships and conflict in the prison setting, placing him at increased risk of harm. Dr Clout commented that “prison is likely to weigh more heavily on Mr Mertell”.
Although I have found the offender’s conditions do not significantly reduce his moral culpability in the offending behaviour, I accept (and the Crown concedes) these conditions do have a bearing on the kind of sentence that is imposed: see Verdins at [32]. The existence of a condition at the date of sentencing might mean that a given sentence will weigh more heavily on a particular offender or have a significant adverse effect on the offender’s mental health.
Criminal history and character of the offender
The offender has no prior criminal record and there is nothing to suggest that he has any attitude of a disrespect for the law. He is currently subject to an unsupervised bail order in relation to the offences before this Court, without incident, and his engagement with the PSR author for the preparation of the PSR was considered satisfactory.
I have also had regard to the offender’s character reference. Mr White, a person who has known the offender both socially and on a professional basis for 36 years, considered him to be an honourable and reliable person and of the highest moral character. Mr White considered the offending to be “totally out of character”. However, it must also be acknowledged that prior good character may be of less weight when sentencing for offences of this type, because of the high importance of general deterrence in this class of offending: see R v Cobcroft (No 2) [2022] ACTSC 15 (Cobcroft) at [20]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at [66]; DPP v D’Alessandro [2010] VSCA 60; 26 VR 477 at [21]; Mouscas v R [2008] NSWCCA 181 at [37].
Living circumstances
The offender lives alone. He has an intention to retire overseas and has paid a 40% down payment on a condo in Thailand. He noted he would be unable to fulfill this intention should he be convicted for the current offences before the Court.
Education, employment, and financial circumstances
The offender completed Year 12 and studied at university for two years before entering the information technology (IT) industry. He had consistent employment in the IT industry for approximately 5 years before commencing IT contract work, reporting intermittent periods of unemployment between contracts (although noting he was not financially challenged during those periods). The offender retired in March 2021 and is currently in the process of organising his pension. He described his financial circumstances as stable.
Alcohol and drug use
The offender did not report any issues with drugs or alcohol.
Attitude to offences and prospects of rehabilitation
The Offender offered limited cooperation to the authorities in the investigation of the offending. During the search warrant, he confirmed that he was the owner and sole user and accessor of the devices containing the material. His responses in relation to the possession and access of the material were sometimes equivocal and reflect minimisation and a lack of remorse and insight into the offending.
Senior Counsel for the offender, supported by Dr Clout’s report, submitted that Mr Mertell has accepted responsibility for the offending and expressed regret. He reported an understanding of the harms associated with child abuse material, “although this understanding is more recent”. Counsel for the offender further submitted that the offender’s “rigidity around rule following… suggests a generally low risk of recidivism”. In circumstances where the offender was aware of the illegality of the offending at the time, I find this conclusion on recidivism risk difficult to accept.
The view of the author of the PSR, which I accept, was that the offender consistently minimised his offending behaviour and failed to acknowledge the seriousness of his offending behaviour, inferring he was naïve and unaware of the child abuse material in his possession. The author assessed the offender was at risk of reoffending, particularly due to his inability to acknowledge his offending behaviour, accept responsibility for his action, and his lack of remorse and empathy for the victims.
Given the above, I accept the Crown’s submission that the offender’s current prospects of rehabilitation are guarded. Notwithstanding the fact that he has been engaging in psychological treatment designed to address the offending, he appears to be at a very early stage of his journey into gaining some insight into the gravity of his offending, the harm it causes and how to prevent himself from engaging in such conduct in the future. He would benefit from further intervention programs targeting this issue.
Time in custody
The offender has not spent time in custody in relation to this offence.
Plea of guilty
The offender pleaded guilty to all charges on 23 September 2021 in ACT Magistrates Court. I accept the early plea occurred in the face of a strong Crown case. However, the Crown accepted that the plea was entered at the earliest reasonable opportunity and had utilitarian value. As such, a discount of 25 per cent is appropriate.
Applicable sentencing provisions
The Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence: see s 16A of the Crimes Act. In offences such as the present, general deterrence is a paramount sentencing consideration: see Cobcroft, R v Wicks [2005] NSWCCA 409 at [39]; DPP (Cth) v Watson [2016] VSCA 73; 259 A Crim R 327 at [47]. The Court may only impose a sentence of imprisonment if satisfied that imprisonment is the only appropriate sentence: see s 17A Crimes Act.
Under the new sentencing regime for Commonwealth child sex offences, there is a presumption that child sex offenders serve a term of actual imprisonment unless there are exceptional circumstances that justify release immediately or after a non-parole period: see s 20(1)(b)(ii) of the Crimes Act. The amendment was specifically introduced to “ensure that all offenders convicted of Commonwealth child sex offences serve a period of imprisonment that is not suspended”: see [292] of the of the Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Explanatory Memorandum).
Relying on the presumption in s 20(1)(b)(ii), the objective seriousness of the matter and the need for general deterrence, the Crown submitted that only a full-time custodial sentence was appropriate.
Senior Counsel for the offender submitted that there are exceptional circumstances in this case, which should operate to rebut the presumption of actual imprisonment, these being the offender’s dual diagnoses of ASD and ADHD. It was submitted that the co-existence of these conditions was an exceptional circumstance and as such, the Court should order a sentence of imprisonment served by way of an Intensive Corrections Order (ICO). The offender was found suitable for an ICO.
What constitutes “exceptional circumstances” is not defined in the Crimes Act. Having regard to [45] and [295] of the Explanatory Memorandum, this appears to have been deliberate to provide “significant judicial discretion”. The Explanatory Memorandum goes on to state (at [295]) that, “the phrase is not easily subject to general definition as circumstances may exist as a result of the interaction of a variety of factors which, of themselves, may not be special or exceptional, but taken cumulatively, may meet this threshold”.
That has led other judicial officers to state that the term is “not without controversy in this context”: see R v Payne-Moore [2021] ACTSC 125 at [107] per Loukas-Karlsson J. Both parties contended that the construction of “exceptional” in R v Kelly (Edward) [2000] 1 QB 198, quoted in R v Tootell ex parte AG [2012] QCA 273 at [18] (Tootell), while not binding, was helpful:
We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
In Tootell, their Honours went on at [24] to explain that:
[w]hat emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.
The Crown submitted (broadly relying on the reasoning in Tootell at [18]–[27]) that the reasoning process required to determine whether circumstances are so exceptional as to warrant imposing a non-custodial sentence is relative to the objective seriousness of the offence. In other words, the more serious the offence, the more exceptional the circumstances required to rebut the presumption.
Cases where the application of the presumption has been considered in this jurisdiction include: R v Burch [2020] ACTSC 192 at [70]-[77]; R v Cusack [2021] ACTSC 75 (Cusack); and Cobcroft at [51]-[52]. There is also the decision of R v Hartley-Kennett [2021] ACTSC 88 but unlike the present case, the offender had spent some time in custody prior to sentencing and therefore Burns J considered (at [35]) that the provisions of s 20(1)(b) did not apply.
In Cusack, Elkaim J stated at [8]:
I acknowledge that there have been cases in which an ICO has been imposed (for example R v Burch [2020] ACTSC 192 and R v KB [2019] ACTSC 136), however with respect I am firmly of the view that cases of this type demand a period of full-time custody. I also note that in Burch the Chief Justice said that she would normally impose full-time imprisonment but the circumstances were affected by the COVID-19 pandemic.
In the present case, although the offender’s diagnoses certainly inform the appropriate sentence, I am not prepared to classify the offender’s circumstances as “exceptional”, such that the presumption is rebutted. On the contrary, I consider that the presumption applies and as such, no sentence other than a term of full-time imprisonment is appropriate. I would have separately formed the same view even absent the statutory presumption, having regard to the seriousness of the offences and my concerns about the lack of insight demonstrated by the offender. Notwithstanding the force of the submissions made by Senior Counsel for the offender, I do not consider an ICO to be appropriate in this case.
Comparable cases and current sentencing practices
Where a court is sentencing for a federal offence, the Court must have regard to current sentencing practices throughout the Commonwealth: R v Pham [2015] HCA 39; 256 CLR 550 at [23] per French CJ, Keane and Nettle JJ.
In additional to the sentencing decisions in Tootell, to which I have already referred, both parties provided guidance on comparable cases. The Crown referred to Peters v R [2018] NSWCCA 126; DPP (Cth) & DPP v Garside [2016] VSCA 74; 50 VR 800; R v Porte; DPP (Cth) v Zarb [2014] VSCA 347; and R v Sykes [2009] QCA 267.
The utility of these authorities is somewhat limited by the fact that they were decided before the new sentencing regime. Consistency of sentencing refers to consistency in the application of relevant legal principles rather than in numerical equivalence: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41]. Similarly, the Crown relied on the unifying principles apparent in the comparable cases cited in their submissions, accepting the comparatives are often of “limited value”.
Counsel for the offender referred to a number of sentences for similar offences where an ICO was ordered: see R v Walker [2019] ACTSC 172; Fedele v The Queen [2015] NSWCCA 286. Alternatively, cases where the sentence was suspended on the condition the offender enter a good behaviour order include R v Morosi (Supreme Court of the ACT, Burns J, 28 August 2013); R v Currie [2015] ACTSC 404; R v Donald [2019] ACTSC 129; R v Freestone [2010] ACTSC 87; and R v Lanham [2014] ACTSC 128.
The Crown submitted that a number of those cases had no comparative value. In Walker, the quantum of material was small, the offender was 22 years old and had spent 2 months in custody. In Morosi the maximum penalty was different. There have been significant legislative amendments since Morosi was decided. The decision of Currie relates to an ACT offence carrying a 7-year penalty.
For what it is worth (and it is well appreciated that sentencing statistics may be of limited assistance) the Commonwealth Sentencing Database shows that for offences against s 474.22(1)(a)(i), between 1 May 2014 and 30 April 2019, approximately two thirds of offenders received a sentence of full-time imprisonment, and those sentences were often two to three years. For offences against s 474.22A(1), no statistics are available.
The maximum penalty for offences provides a yardstick for the sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. In that context, recent relevant cases, decided in the context of the new legislative regime, provide more useful guidance. An examination of the more recent sentencing decisions in in this jurisdiction was conducted in Cobcroft where Murrell CJ referred to R v Davison [2020] ACTSC 272 and Cusack at [59]–[60]:
[59] In Davison, the offender was sentenced for an offence involving 827 files of which 496 were ANVIL Category 1 (offensive but no actual sexual activity), and 280 were Category 6 (no actual child). After allowing a discount of 25 per cent, his Honour imposed a sentence of nine months’ imprisonment, suspended after three months on the offender entering into a recognizance release order for a period of 12 months.
[60] In Cusack, the offender was sentenced under ss 474.22A(1), 474.19(1) and 474.22(1). The factual scenario was somewhat similar to that in the present case. There were 2,517 child abuse files that were common to offences. They were accessed over a period of five years. The decision does not refer to the categorisation of the child abuse files, but I infer that they involved real children. There were some similarities between the offender’s personal circumstances and that of the current offender. In each case, after applying a sentencing discount of 25 per cent, Elkaim J sentenced the offender to nine months’ imprisonment, accumulated to a total of 12 months’ imprisonment. Noting a risk of suicide in custody, his Honour directed that the period of imprisonment be suspended after two months on the offender entering into a recognizance to be of good behaviour for a period of 18 months.
Her Honour noted at [61] that “[c]onsidering the maximum available penalties that may be imposed for the offences, I consider this to be a relatively lenient sentence.”
Structure of the sentence
In accordance with the presumption in favour of cumulative sentences set out in s 19(5) of the Crimes Act, the Crown submitted that:
· the sentences imposed in relation to counts 1 to 5 should be cumulative;
· the sentences imposed in relation to count 7 should be partly cumulative on count 6 (and conversely, partly concurrent), because the same material was involved; and
· the sentence imposed in respect of count 9 should be partly cumulative on count 8 (and conversely, partly concurrent), again because the same material was involved.
I agree with the Crown’s submissions as to the structure of the sentence. In order to address potential concerns about the totality of the sentence not being crushing for the offender, given his age and condition, to the extent that a sentencing pattern emerges from the recent cases to which I have referred, the individual sentences may perhaps be towards the lower end of the range and reflect a degree of “leniency” (recalling Cobcroft at [61]. However, this reflects in part the quantity of files the subject of each individual offence and more particularly, the approach urged upon the Court by Senior Counsel for the offender in closing written submissions.
In addition, having reflected on how best to deal with the offender’s conditions, having regard also to his age and the effect of a lengthy prison sentence on him, I consider that a subsequent recognizance release order would then be appropriate. Section 20(1B) of the Crimes Act requires the Court to place certain conditions on release under s 20(1)(a)(iv). These are that the offender:
a) be subject to the supervision of a probation officer;
b) obey all reasonable directions of the probation officer;
c) not travel interstate or overseas without the written permission of the probation officer; and
d) undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
Orders
Accordingly, I make the following orders:
1. In respect of count 1, possession of child abuse material (CC2021/7245), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months on account of his plea of guilty), to commence on 4 March 2022 and end on 3 December 2022.
2. In respect of count 2, possession of child abuse material (CC2021/7246), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months on account of his plea of guilty), to commence on 4 December 2022 and end on 3 September 2023.
3. In respect of count 3, possession of child abuse material (CC2021/7247), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months on account of his plea of guilty), to commence on 4 September 2023 and end on 3 June 2024.
4. In respect of count 4, possession of child abuse material (CC2021/814), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months on account of his plea of guilty), to commence on 4 June 2024 and end on 3 March 2025.
5. In respect of count 5, possession of child abuse material (CC2021/7250), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months on account of his plea of guilty), to commence on 4 March 2025 and end on 3 December 2025.
6. In respect of count 6, possession of child abuse material (CC2021/7248), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months on account of his plea of guilty), to commence on 4 December 2025 and end on 3 September 2026.
7. In respect of count 7, access child abuse material (CC2021/7249) the offender is sentenced to 9 months’ imprisonment (reduced from 12 months on account of his plea of guilty), to commence on 4 June 2026 and end on 3 March 2027.
8. In respect of count 8, possession of child abuse material (CC2021/815), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months on account of his plea of guilty), to commence on 4 March 2027 and end on 3 December 2027.
9. In respect of count 9, access child abuse material (CC2021/816), the offender is sentenced to 9 months’ imprisonment (reduced from 12 months on account of his plea of guilty), to commence on 4 September 2027 and end on 3 June 2028.
10. The total sentence is 6 years and 3 months.
11. The period of imprisonment is to be suspended after 24 months on condition that the offender enter into a recognizance release order in the sum of $1000 to be of good behaviour for a period of 4 years and 3 months from 4 March 2024. In addition, the following conditions apply to the recognizance release order:
a) The offender is subject to the supervision of a probation officer appointed by ACT Corrections.
b) The offender must obey all reasonable directions of the probation officer.
c) The offender must not travel interstate or overseas without the written permission of the probation officer.
d) The offender must undertake such treatment or rehabilitation programs as the probation officer reasonably directs.
e) The offender must report to ACT Corrections within two working days of release.
Addendum
Following the making of the above orders, the Crown immediately drew attention to s 19AC(1)(b) of the Crimes Act, which provides that a recognizance release order is not available for a sentence exceeding 3 years. Accordingly, order 11 above has been vacated and in lieu thereof, the following order is made:
11. The non-parole period is 24 months, to commence on 4 March 2022 and end on 3 March 2024.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice McWilliam. Associate: Date: 9 March 2022 |
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