R v Minson
[2022] ACTSC 46
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Minson |
Citation: | [2022] ACTSC 46 |
Hearing Date: | 2 February 2022 |
DecisionDate: | 7 February 2022 |
Before: | Mossop J |
Decision: | See [47] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – possessing child abuse material obtained or accessed using a carriage service – using a carriage service to access child abuse material – possession in the nature of a library of child abuse material – offending above the mid-range of objective seriousness – prior conviction for possessing child abuse material – utilitarian value of pleas of guilty – strong prosecution case – application of the Commonwealth mandatory minimum sentence regime in relation to the possession charges – sentences of imprisonment imposed – significant degree of concurrency recognises the closely related nature of the offences |
Legislation Cited: | Criminal Code (Cth), ss 473.1, 474.22, 474.22A Crimes Act 1914 (Cth), ss 3, 16AAB, 19 Child Protection (Offenders Registration) Act 2000 (NSW) |
Cases Cited: | Bahar v The Queen [2011] WASCA 249; 45 WAR 100 Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4 R v Hutchinson [2018] NSWCCA 152 |
Parties: | The Queen ( Crown) Matthew Minson ( Offender) |
Representation: | Counsel D Jordan ( Crown) B Rutzou ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 267 of 2021 |
MOSSOP J:
Introduction
The offender, Matthew Minson, has pleaded guilty in the Magistrates Court to five counts of possessing child abuse material obtained or accessed using a carriage service, contrary to s 474.22A of the Criminal Code (Cth) (CC2021/6826, CC2021/9975, CC2021/9976, CC2021/9977 and CC2021/9978). The maximum penalty for each offence is 15 years’ imprisonment. The offender has also pleaded guilty to one count of using a carriage service to access child abuse material, contrary to s 474.22 of the Criminal Code (CC2021/9979). The maximum penalty is 15 years’ imprisonment. The applicability of the mandatory minimum sentence regime in s 16AAB of the Crimes Act 1914 (Cth) will be addressed later in these reasons.
Facts
The facts are agreed and are, in summary, as follows.
In June 2021, the Australian Capital Territory (ACT) Joint Anti Child Exploitation Team detected that child abuse material files were being accessed on a BitTorrent peer-to‑peer (P2P) computer software program. The user was linked by an Internet Protocol (IP) address resolving to the Internet Service Provider known as TPG. The IP address subscriber was then identified as the offender.
On 1 July 2021, the Australian Federal Police (AFP) executed a search warrant at the offender’s residence at an address in Greenway. The offender and his wife were present at the time.
The following five devices belonging to the offender were seized by police during the execution of the search warrant:
(a)a Samsung one terabyte solid state drive;
(b)a Samsung solid state drive;
(c)a Western Digital My Passport hard disc drive;
(d)a computer tower; and
(e)a Dell laptop computer.
The five charges of possession of child abuse material obtained using a carriage service contrary to s 474.22A of the Criminal Code each relate to the images and videos found on one of these devices:
(a)The Samsung one terabyte solid state drive contained five video files and 36 image files classified as child abuse material (count 1).
(b)The Samsung solid state drive contained seven video files and 15 image files classified as child abuse material (count 2).
(c)The Western Digital My Passport hard disc drive contained 1,834 video files and 13,138 image files classified as child abuse material (count 3).
(d)The computer tower contained 254 video files and 592 image files classified as child abuse material (count 4).
(e)The Dell laptop contained seven video files and 520 image files classified as child abuse material (count 5).
In total, the devices contained 15,958 files classified as child abuse material. 2107 of these were video files and 14,301 of these were image files.
A program known as ‘qBittorrent’ was installed on the offender’s computer tower. qBittorrent is a P2P computer program for file sharing that computer users can download to access the BitTorrent network. Between 30 April 2021 and 17 May 2021, the offender used qBitTorrent to access 24 files which involved child abuse material (count 6). The names of those files made clear the nature of the material.
The content of the material was described in the Agreed Statement of Facts as follows:
The child abuse material depicted both male and female victims, ranging in age from newborn infants to 15 years of age.
The child abuse material depicted the child victim’s breasts, genitals and anuses. The child abuse material depicted the vaginal, oral, and anal penetrative rape of both male and female child victims.
The child abuse material included files which depicted child victims and bestiality.
The child abuse material included files which depicted the torture of child victims, including physical beatings, whippings, and simulated crucifixions. The child abuse material also included files depicting child victims being urinated on, defecated on, and ejaculated on by adult offenders.
10. The Statement of Facts also included, in relation to each of counts 1-5, a written description of the content of one of the video files found on the relevant device. Those descriptions were as follows:
(a)Count 1: “One of the video files depicted an adult male masturbating over a pre‑pubescent female child victim and ejaculating on her face and mouth.”
(b)Count 2: “One of the video files depicted a compilation of an adult male orally, anally, and vaginally raping female child victims.”
(c)Count 3: “One of the video files depicted an adult male orally, anally and vaginally raping a toddler female child victim. The toddler was subject to bondage and the adult male ejaculated on the toddler.”
(d)Count 4: “One of the video files depicted an adult male orally and vaginally raping an infant female child victim.”
(e)Count 5: “One of the video files depicted an adult male anally raping a pre‑pubescent female child.”
11. Consistent with the approach identified in R v Porte [2015] NSWCCA 174; 252 A Crim R 294 at [76] (but accepting that such a course is not necessarily essential: R v Hutchinson [2018] NSWCCA 152 at [49], [50], [90]), the Court viewed a sample of 36 images from the files that were possessed and that selection of images was consistent with the description set out above.
The Statement of Facts also disclosed in relation to the video files that approximately 60 percent depicted pre-pubescent child victims and approximately 40 percent depicted pubescent child victims. The shortest video was 46 seconds in duration and the longest video was three hours, one minute and 24 seconds in duration. The 2107 video files had an aggregate duration of 293 hours, eight minutes and 24 seconds.
13. So far as the image files are concerned, approximately 80 percent depicted pre‑pubescent child victims and approximately 20 percent depicted pubescent child victims.
14. Following the seizure by police of the various pieces of hardware but prior to his arrest or the examination of the content of the material, the offender participated in a recorded interview with police in which he admitted being in possession of several thousand files involving child abuse material across the devices, described how he searched for such material, described his use of a virtual private network (VPN) and admitted that he had “accessed child abuse material via the internet intermittently for approximately 20 years”.
Objective seriousness
15. The objective seriousness of offences involving access to or possession of child abuse material may be assessed by reference to the following factors:
(a)the nature and content of the material, particularly the age of the children and the gravity of the sexual activity depicted, including the extent of any cruelty or physical harm to the children that may be discernible from the material;
(b)the number of items or images possessed, accessed or transmitted;
(c)whether the material is for the purposes of sale or further distribution;
(d)where there is distribution or transmission, the number of persons to whom the material was transmitted;
(e)whether any payment or other material benefit (including the exchange of child abuse material) was made or received for the acquisition or transmission of the child abuse material;
(f)whether actual children were involved in the creation of the material, and the number of children depicted and therefore victimised;
(g)the length of time over which the offending occurred; and
(h)the degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.
See Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4 (CCQ) at [9].
16. In the present case:
(a)The nature and content of the material is described earlier. While quite extreme, it is not at the level of extremity addressed in CCQ (see in particular [92](a), [105](c) and [169] of that decision).
(b)The number of videos or images possessed or accessed varies as between the offences. There are obviously significant volumes of material, including thousands of images and hundreds of hours of video. The collection is in the nature of a library of child abuse material.
(c)There is no evidence that the material was accessed or possessed for the purposes of sale or further distribution.
(d)There is no evidence of any payment or other material benefit being made or received for the acquisition or possession of the material.
(e)While there was no proof or agreement as to the precise number of actual children involved in the creation of the material, it is clear that there were a large number of such children who were involved and thereby victimised.
(f)The nature of the acts portrayed in the material are such that the children would have been significantly harmed by their involvement in its creation. That would include significant, long-term psychological harm.
(g)In the case of each of the possession offences, that is particularised as only having occurred on 1 July 2021. However, other material referred to below discloses that the child abuse material had been possessed for significantly longer periods. Having regard to the particularised date of possession, the offender is to be sentenced on the basis of possession on that date only, but having regard to the other information about when that material was accessed, he should be sentenced on the basis that his interest in possession of such material was not a transitory one.
(h)In relation to the accessing charge, that occurred over a two‑and-a-half-week period in April and May 2021. A moderate level of sophistication was involved in the acquisition and possession of the material. It involved the use of BitTorrent software. It involved the use of a VPN in order to make identification of the offender more difficult. It involved an active search for child abuse material.
17. Overall, the Crown submitted and the offender accepted that the offending was above the mid-range of objective seriousness for each of the offences. I agree with this characterisation.
Subjective circumstances
18. The offender’s subjective circumstances are set out in a pre-sentence report dated 27 January 2022.
19. The offender described a stable childhood until his mother left the family home when he was 11 years old. Following this, the offender relocated to South Australia with his father and brother. He described a transient childhood from this point, regularly moving and living with his aunt for a year at one stage. His father focused on his business, which left the offender feeling neglected. The offender maintains contact with his father but does not feel close to him. He stated that as an adult he has established regular contact with his mother who now resides in Yass, New South Wales (NSW).
20. The offender disclosed that he was previously married for about three years. He has three adult children from this marriage. He has had no contact with these children since 2002. The offender has a seven-year-old son from a separate relationship and has no contact with this child. The offender described a supportive relationship with his current partner, to whom he has been married for about 13 months. He stated that his wife was “shocked” by his offending behaviour but remains supportive of him. His wife indicated that she relies on the offender for support and assistance because she has several health issues.
21. The offender has been residing in private rental accommodation with his wife for the past 18 months and would return to this home upon release from custody.
22. The offender completed his Year 12 certificate after taking a year off between Years 11 and 12. He travelled to Japan as a Rotary youth scheme participant. He was then employed as a cleaner and cabin services attendant in the aviation industry for 32 years. The offender was transferred to Canberra Airport in 1993 and worked in a similar position until being made redundant in March 2021. Whilst he received a payout, he remains motivated to continue employment. He commenced a hospitality course but has not been able to complete it due to being incarcerated.
23. The offender stated that his only financial burden is paying rent for his accommodation and indicated that he does not currently receive Centrelink payments.
24. The offender did not identify any antisocial peers. He indicated that while he consumed alcohol socially, he does not consider his consumption to be problematic. In relation to leisure and recreation, the pre-sentence report describes his activities as follows “being involved in International “simulated racing” building cars, flying, motorbike racing online games and science fiction. Most of these activities are online.”
25. The offender indicated that aside from asthma, he is generally physically well. Between 2018 and 2019, the offender was referred to a clinical psychologist after threatening to take his own life. His wife disclosed that this happened after she had indicated to the offender that she intended to end their relationship. His wife indicated that following the offender’s release from a mental health facility, he was in a better frame of mind and they recommenced their relationship. The offender has not made suicidal threats since this time. The pre-sentence report indicates that a letter dated 18 January 2022 from Canberra Health Services does not make reference to this episode.
26. The offender agreed with the Statement of Facts and was very emotional during his interview for the preparation of the pre-sentence report. The offender stated he would never engage in this type of offending again. He could not explain why he had viewed and stored child pornographic material.
27. The author of the report assessed the offender as having a low risk of general reoffending. However, the author noted that if the offender cannot secure employment or loses his wife’s support, he may be at an increased risk of reoffending. The offender’s specific risk of sexual reoffending was not assessed. The author expressed concern that the offender could not provide an explanation for his offending, despite having been convicted of a similar offence in 2002. Treatment in relation to sexual offending was recommended.
28. The offender was assessed as suitable for a good behaviour order with a medium-low level of intervention by ACT Corrective Services and suitable for a community service work condition. The offender was also assessed as suitable for an intensive correction order with a recommended condition of engaging in assessment for a sex offender program and completing the program if found suitable.
29. The offender tendered a letter that he wrote to the court. The contents of that letter must be treated with some caution having regard to the fact that it was not evidence given on oath or affirmation and the contents could not be tested. However, the letter is consistent with the offender having a sense of abandonment as a child, most particularly by his father. The letter also describes how he came to search out child pornography. He describes both the searching for it and being revolted at himself as a result. He describes his current marriage in positive terms but also the significance of being made redundant in mid‑2020 after 32 years of continual service. The offender refers to his admissions to police and the hate for himself and feeling of guilt that he has as a result of his behaviour. The letter refers to his motivation to support his wife who has health issues and a son born to a previous partner in 2014. He asserts that he will never repeat his offending.
Criminal history
30. In 2002, the offender was convicted in NSW of possessing child pornography. This offending occurred in April 2002 when 15 images of males having sex with children aged under 10 were found in his computer. He was given a bond involving two years of supervision. The timing of this incident correlated with the breakdown of his first marriage.
Plea of guilty
31. The offender entered pleas of guilty at the first reasonable opportunity. Notwithstanding the strength of the prosecution case, the pleas of guilty have significant utilitarian value: s 16A(2)(g) of the Crimes Act and also reflect the offender’s acceptance of responsibility and willingness to facilitate the course of justice. It is not, however, a case in which victims or lay witnesses would have been required to have given evidence at a trial. Because of the strength of the prosecution case, a reduction of approximately 20 percent on the sentences that would otherwise have been imposed rather than a reduction of 25 percent is appropriate.
Time in custody
32. The offender was arrested on 1 July 2021 and has been in custody since that date. The sentences imposed will be backdated to take that period into account.
The Hurt issues
33. In R v Hurt (No 2) [2021] ACTSC 241 (Hurt), I was required to address certain aspects of the revised regime for sentencing of persons for possessing or accessing child abuse material. The changes were brought about by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) (the 2020 Amendment Act). These changes included the insertion of s 16AAB of the Crimes Act, which provides mandatory minimum sentences for repeat child sexual abuse offenders. In Hurt, I found that an approach consistent with the decision in Bahar v The Queen [2011] WASCA 249; 45 WAR 100 (Bahar) should be adopted in relation to the operation of the mandatory minimum sentence regime. This involved accepting the approach to the provision contended for by the Crown. Further, contrary to the submissions made by the Crown in that case, I found that, for the purposes of the transitional provisions in item 3 of Sch 6 of the 2020 Amendment Act, the “relevant conduct” included all of the conduct referred to in s 474.22A of the Criminal Code and was not limited to the actual possession. The section referred to both the possession of the material: s 474.22A(1)(a) and the fact that it had been accessed using a carriage service: s 474.22A(1)(c). My conclusion was that in order for item 3 of Sch 6 to apply to s 16AAB in its amended form, both the possession and the access needed to occur on or after the commencement of the part on 23 June 2020.
34. As I understand it, the offender in Hurt has appealed against the first aspect of my decision relating to the application of Bahar and the Crown has appealed against the second aspect of my decision relating to the operation of the transitional provisions. Those appeals have not yet been heard. Neither party submitted that I should defer sentencing pending the determination of the appeals.
35. Notwithstanding the detailed submissions of the Crown in the present case that my decision in Hurt in relation to the application of the transitional provision was wrong, I consider that the approach I adopted in Hurt was correct and that I should follow the same approach in this case. In relation to the operation of the transitional provision for the purposes of the possession charges, that means that the date upon which the material was obtained using a carriage service became of significance for the purposes of deciding whether s 16AAB applied to the sentencing exercise. The position in relation to each of the possession offences is summarised in the following table. Although the dates of access were not proved by evidence, the offender accepted the accuracy of the information in the table for the purposes of deciding the issue arising under item 3 of Sch 6 of the 2020 Amendment Act.
Count Access date 1 11 July 2011-12 November 2016 2 18 September 2019-1 April 2020 3 16 September 2020-10 May 2021 4 15 August 2020-24 June 2021 5 11 July 2011-12 November 2016 6 30 April 2021-17 May 2021
36. As will be observed, counts 3, 4 and 6 each involved obtaining or accessing the material after 23 June 2020. As a consequence, the whole of the conduct needed to establish the charge occurred after that date. Adopting the approach in Hurt, this means that the mandatory minimum sentencing regime applies in relation to counts 3, 4 and 6. On the other hand it does not apply to counts 1, 2 and 5 where the obtaining of the material using a carriage service occurred prior to 23 June 2020.
37. For a second or subsequent offence, s 16AAB of the Crimes Act requires that a minimum sentence of four years be imposed for offences against s 474.22(1) and s 474.22A(1) of the Criminal Code. The present offences are within the scope of this provision because the offender has “been convicted previously of a child sexual abuse offence” within the meaning of s 16AAB(1)(b). That is because the definition of “child sexual abuse offence” in s 3 of the Crimes Act includes “a State or Territory registrable child sex offence” and that in turn is defined as including an offence that resulted in the offender’s name being “entered on a child protection offender register (however described) of a State or Territory” where the offending involved “child abuse material” as defined in s 473.1 of the Criminal Code. The Crown submitted that this requirement was met because the offending in 2002 against s 578B(2) of the Crimes Act 1900 (NSW) would have resulted in him being registrable under the Child Protection (Offenders Registration) Act 2000 (NSW). The offender made no submission to the contrary. I accept the Crown submission that the offender has a previous conviction for the purposes of s 16AAB of the Crimes Act.
Consideration
38. The offending in the present case was serious. The factors relevant to the objective seriousness are outlined earlier. The possession offences were in the nature of a library of child abuse material. There was, however, no evidence of the offender being more than a consumer of such material: cf CCQ. The offender did cooperate with law enforcement agencies at the time of the execution of the search warrant. The offender’s previous conviction and admissions as to accessing child abuse material via the internet intermittently for approximately 20 years indicates that the prospects of rehabilitation must be considered to be guarded. That assessment is reinforced by the offender’s inability to explain his desire to access the material and what he reports as a sense of guilt at doing so. While there will be plenty of time for any available rehabilitation programs to be completed in custody and/or during a period in the community on parole (s 16A(2AAA)), rehabilitation is only likely be successful if there are programs available within the prison targeted at sexual offending involving child abuse material as opposed to sexual offending involving physical interactions with other humans. Plainly enough, having regard to the offender’s history and the nature of child abuse offending involving the use of the internet, both general and specific deterrence must be significant sentencing considerations notwithstanding that, except in relation to access and possession of child abuse material, he does not have a criminal history and is assessed as being at a low risk of general reoffending. A substantial sentence of imprisonment will have significant consequences for the offender’s wife who is recorded as having a number of health issues and relying on a husband for support and assistance. She is likely to struggle during the offender’s incarceration.
39. The mandatory minimum sentence provisions clearly preclude a sentence other than one involving full-time detention. In relation to the other counts, having considered the circumstances of the case including, in particular, the nature of the offending and the maximum penalty specified by the legislature, I am satisfied that no sentence other than one of full-time imprisonment would be appropriate.
40. Counts 3, 4 and 6 each involved statutory minimum terms. Adopting the approach to such minimum term provisions as I did in Hurt at [94] means that the minimum term must be treated in the same way as the maximum term. It therefore provides the guideposts within which the appropriate sentence must be assessed rather than simply an arbitrary minimum term which must be applied if the sentence would otherwise have been less than that period.
41. In the present case, the agreed facts and the sample of the material do not differentiate between the seriousness of the material in relation to the individual charges. Therefore, the principal differentiating factors between the charges are the volume of material and whether or not a mandatory minimum term applies. The significant volume of material in count 3 warrants a higher starting point for count 3 as opposed to counts 4 and 6. Similarly, count 5 involves a greater quantity of material than counts 1 and 2.
42. The sentences that I will impose a summarised in the following table. That table identifies the charge, the starting point for the sentence, the sentence of imprisonment to be imposed following a reduction on account of the plea of guilty and the degree of cumulation upon the previous sentence. The charges are dealt with other than in numerical order in order to achieve what I consider to be an appropriate sentence structure having regard to the degree of cumulation between the sentences. I have dealt with the statutory provisions relating to and reasons for cumulation and concurrency later in the next section of these reasons.
Count Starting point Sentence Cumulation 3 7 years 5 years 7 months - 4 5 years 6 months 4 years 5 months 6 months 6 5 years 6 months 4 years 5 months 6 months 1 2 years 6 months 2 years 3 months 2 2 years 6 months 2 years 3 months 5 3 years 2 years 5 months 4 months TOTAL 7 years 5 months
Cumulation
43. Section 19(5) of the Crimes Act prohibits any degree of concurrency with an uncompleted term of imprisonment that is imposed on the person for another Commonwealth child sex offence or a State or Territory registrable child sex offence. That, however, is qualified by s 19(6) which provides that s 19(5) does not apply “if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances”. Section 19(7) requires reasons to be given for any wholly or partially concurrent sentence and that they be “entered in the records of the court”.
Sections 19(5)-(7) were introduced by the 2020 Amendment Act. The amendments were made by Sch 10 of that Act which came into effect on 23 June 2020. Item 3 in Sch 10 identified the circumstances in which the amendments in ss 19(5)-(7) applied. It provided: “The amendments made by this Schedule apply in relation to an order made, on or after the commencement of this Schedule, directing when sentences commence, where the offences to which the sentences relate were committed on or after that commencement.” Notably the language is different to that used in relation to the amendments made in Sch 6 of the 2020 Amendment Act: compare Hurt at [47], [95]‑[107]. Because the application provision in Sch 10 focuses on when the offences were committed, it is clear that ss 19(5)‑(7) apply in relation to each of the offences in the present case because counts 1-5 were committed on 1 July 2021 and count 6 was committed between 30 April 2021 and 17 May 2021.
45. I am satisfied, for the purposes of s 19(6) of the Crimes Act, that imposing the sentences in a manner which incorporates a significant degree of concurrency will result in sentences that are of a severity appropriate in all the circumstances. I am also satisfied that it is appropriate to impose sentences which involve a significant degree of concurrency because in the absence of a significant degree of concurrency, the sentence would fail to recognise the closely related nature of the offences and would be a crushing one.
Non-Parole Period
46. The non-parole period will be set in the middle of the usual range of between 50 percent and 70 percent, namely, 60 percent. As a minimum term is required to be served, that appropriately reflects the purposes of sentencing. This gives a period of four years and five months’ imprisonment.
Orders
47. The orders of the Court are as follows:
1. On count 3 (CC2021/9977: possess child abuse material obtained using a carriage service) the offender is convicted and sentenced to imprisonment for five years and seven months commencing on 1 July 2021 and ending on 31 January 2027.
2. On count 4 (CC2021/6826: possess child abuse material obtained using a carriage service) the offender is convicted and sentenced to imprisonment for four years and five months commencing on 1 March 2023 and ending on 31 July 2027.
3. On count 6 (CC2021/9979: use a carriage service to access child abuse material) the offender is convicted and sentenced to imprisonment for four years and five months commencing on 1 September 2023 and ending on 31 January 2028.
4. On count 1 (CC2021/9975: possess child abuse material obtained using a carriage service) the offender is convicted and sentenced to imprisonment for two years commencing on 1 May 2026 and ending on 30 April 2028.
5. On count 2 (CC2021/9976: possess child abuse material obtained using a carriage service) the offender is convicted and sentenced to imprisonment for two years commencing on 1 August 2026 and ending on 31 July 2028.
6. On count 5 (CC2021/9978: possessing child abuse material obtained using a carriage service) the offender is convicted and sentenced to imprisonment for two years and five months commencing on 1 July 2026 and ending on 30 November 2028.
7. The non-parole period commences on 1 July 2021 and ends on 30 November 2025.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 31 March 2022 |