R v Monaghan
[2014] ACTSC 278
•19 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Monaghan |
Citation: | [2014] ACTSC 278 |
Hearing Date(s): | 19 September 2014 |
DecisionDate: | 19 September 2014 |
Before: | Murrell CJ |
Decision: | Effective sentence of 4 years and 6 months, suspended after 3 years. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – guilty plea – possession of child pornography – use a carriage service to access child pornography – use a child aged over 12 for the production of child pornography – use a child aged under 12 for the production of child pornography – Commonwealth and ACT matters |
Legislation Cited: | Crimes (Sentencing Act) 2005 (ACT) ss 7, 12, 33, 35 Crimes Act 1914 (Cth) ss 16A, 19, 23ZD |
Cases Cited: | Fasciale v The Queen (2010) 30 VR 643 Minehan v The Queen (2010) 201 A Crim R 243 R v TW (2011) 6 ACTLR 18 |
Parties: | The Queen (Crown) Edward Francis Monaghan (Offender) |
Representation: | Counsel Mr A Williamson (Crown) Mr R Davies (Offender) |
| Solicitors Director of Public Prosecutions (ACT) (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 20 of 2014; SCC 21 of 2014 |
MURRELL CJ:
Introduction
The offender adheres to pleas of guilty entered at an early stage. The offences and associated maximum available penalties are as follows:
1.Between 25 June 2006 and the 12 November 2006, use a child under 12 for the production of child pornography. Maximum penalty of 15 years’ imprisonment.
2.Between 24 December 2008 and 12 April 2010, use a carriage service to access child pornography. Maximum penalty of 10 years’ imprisonment.
3.Between 23 April 2010 and 23 September 2013, use a carriage service to access child pornography on at least 100 occasions. Maximum penalty of 15 years’ imprisonment.
4.Between 24 December 2008 and 6 July 2011, intentionally possess child pornography. Maximum penalty of 5 years’ imprisonment.
5.Between 9 March 2012 and 17 September 2013, use a child aged over 12 for the production of child pornography. Maximum penalty of 10 years’ imprisonment.
6.Between 7 July 2011 and 27 September 2013, possess child pornography. Maximum penalty of 7 years’ imprisonment.
The appropriate discount in respect of count 1 is 15 to 20 per cent as the plea of guilty was entered shortly after committal for trial. In relation to the remaining counts, the pleas of guilty were entered at an early stage in the Magistrates Court, although perhaps not at the earliest possible stage. The appropriate discount is 20 to 25 per cent.
The offender has been in custody since his arrest on the 25 September 2013 and the sentences will date from that time.
The facts are set out in full in Exhibit 1. I will summarise them briefly.
Count 1
Count 1 is the offence of using a child, O, for the production of child pornography. From 2003, the offender worked as a drug and alcohol worker at the Canberra Institute of Technology, assisting and counselling boys suffering from alcohol and drug abuse. At times, some of these boys resided with him. The offender became close friends with one of the boys and later befriended that boy’s son, O. O’s father had supervised access to O and the offender acted as supervisor. Occasionally, O’s father cancelled or was unable to attend the access to O, and in such cases the offender often cared for O by himself.
In 2006, there were two occasions when the caring for O and he used O to produce child pornography. The incidents occurred on 25 June 2006 and 12 November 2006. On each occasion, the offender spent the day alone with O.
On the first occasion, the offender took a photograph of O while he was standing naked in the shower with his penis exposed. Later, the offender took another photograph of O lying on the floor of the shower.
On 12 November 2006, the offender took two photographs of O while he was lying naked on a bed asleep. The first photograph depicted O’s back and buttocks and the second photograph showed his exposed penis.
Each of the four photographs has a categorisation of 1 on the Child Exploitation Tracking System (CETS) scale. The CETS scale is also known as the Australian National Victim Image Library (ANVIL) scheme.
In December 2006, the offender downloaded the images of O to an external hard disc drive and saved them, later copying them to other personal computers.
The following aspects bear upon the objective seriousness of the matter. First, the offender was in a parental/caring relationship to O, and there was a very serious breach of the trust associated with that relationship. Second, the offence relates to children under 12, and O was only six years old. O’s age is important to an assessment of the seriousness of the matter. On the other hand, there were only four photographs and each falls within the lowest CETS classification, CETS 1, i.e. sexually suggestive posing with no sexual activity.
Count 2
Count 2 is a Commonwealth offence of using a carriage service to access child pornography. The period of the offence ends in April 2010, when the period of offence 3 commences. The reason for this division into two periods, one ending in April 2010 and the next commencing in April 2010 is that, on 15 April 2010, the maximum penalty was increased from 10 years’ imprisonment to 15 years’ imprisonment.
Over the 16 month period from December 2008 to April 2010, the offender used the website azovfilms.com, browsing the online category for child pornography. He was able to view trailers and then decide whether to add items to an online shopping basket, choosing to either download the film from the website, or have a DVD of the film mailed to his postal address. By these means, the offender ordered child pornography on 43 occasions. He obtained 58 DVDs and 32 zip file downloads at a cost of $2,201.70 AUD. Each of the purchased items fell in the CETS 1 category. The Crown has made a conservative estimate that 50 boys were involved.
Count 2 was a matter of significant objective seriousness. A substantial quantity of material was purchased during a substantial number of purchases over a period of 16 months. The total cost exceeded $2,000.
Count 3
Count 3 is the offence of using a carriage service to access child pornography between 23 April 2010 and 23 September 2013. That is a period of almost three and a half years.
Between April 2010 and September 2013, through azovfilms.com the offender ordered material on 15 occasions. He ordered 3 DVDs and 11 zip file downloads at a cost of $166.50. All products were CETS 1. In addition, on seven occasions, between May and September 2010, he made purchases. On the first occasion, he purchased a zip file download with two files containing, in total, about 900 images of pre-pubescent and teenage boys. On another occasion, he purchased a movie with a duration of 1 hour 40 minutes, showing children playing and massaging each other, focussing on the genital area. On another occasion he bought 518 images of teenage boys playing on a quad bike and undertaking other activities while naked. On a further occasion, he purchased 390 images. On another occasion he purchased 418 images and three movie discs that ran for a total of three and a half hours. In August and September 2010, he purchased about 2,700 pictures of boys in Speedos.
In January 2012, the offender obtained software that enabled him to join 23 internet newsgroups and download picture and video files through these newsgroups. Over the 21 month period from January 2012 to September 2013, he downloaded child pornography by this means on 85 days, yielding more than 1,000 images.
Count 3 is a matter of considerable objective seriousness because of the volume of material and the number of occasions involved. The offender accessed material at least 100 times and the quantity of material was substantial, including at least 5,000 images (at a quick calculation) plus a number of DVDs, albeit that the subject matter of the images was towards the lower end of seriousness (sexual posing and the like rather than sexual activity).
Count 4
Count 4 relates to possession of child pornography from December 2008 to July 2011 and involves the possession of the material referred to above (concerning O and the material purchased through the internet). Count 4 concerns the possession of a large quantity of material, but the subject matter repeats the subject matter of other counts.
Count 5
Count 5 is the most serious matter before the Court, although it is not the offence that carries the highest maximum penalty. Between 9 March 2012 and 17 September 2013, the offender used a child, P, for the production of child pornography, P being over 12 years of age.
In 2010 the offender met P, who was then 11 years of age. P was visiting Australia from his home in the US. Later in the same year, P travelled to Australia and stayed with the offender for some weeks. In 2011, P, who was by then 12 years of age, again travelled to Australia and stayed with the offender for a couple of weeks. A further visit occurred in December 2011, when P again stayed with the offender.
In February 2012, P, who was by then 13 years old, travelled to Australia and lived with the offender for about eight months. It was during the period from about March 2012 to October 2012 that the offender used P to produce child pornography on 29 occasions. Generally, this involved taking photographs of P when he was asleep in bed and photographing his penis when it was visible through the fly area of his boxer shorts. In some of the images, P’s penis was erect or semi-erect. One episode involved taking 61 photographs showing the progress of the penis becoming erect and also showing P’s buttocks and anal area. That was the worst of the 29 incidents, but the others generally involved taking photographs of a similar nature, generally focussing on the penis. The number of photographs that was taken on the other occasions was considerably less than 61, often three, four, five or six photographs on an occasion. However, the total number of photographs taken during this period was very substantial. The photographs were saved to a hard drive.
The second part of count 5 concerns a second visit by P to Australia when P stayed with the offender for about six months from about March to September 2013. Over the five month period from May to September 2013, the offender used P to produce child pornography on 12 occasions.
The content of the pornography is similar to that of the previous visit. In other words, the offender took photographs of P while he was asleep and his penis was exposed, photographs which were categorised as CETS 1. The photographs were saved to a hard drive.
Count 5 is a very serious matter indeed. P was not in his home country; at the relevant times, he was living with the offender on a semi-permanent basis and the offender had his sole care. P was only just over 12, so the matter was towards the more serious end of the spectrum in terms of the victim’s age. A large number of images were taken in a way that was a gross violation of the boy’s personal privacy and the images were then saved to a hard drive. Many hundreds of photographs were taken. The offences occurred on at least 41 separate occasions over two separate periods, the first period spanning seven months and the second spanning five months.
Count 6
Count 6 is a charge of possessing child pornography between 7 July 2011 and 27 September 2013. It involves possession of the images of P and a large quantity of other material that had been downloaded from the internet. The total number of images exceeds 100,000. More than 90 per cent of the images have been categorised as CETS 1. Generally, the images depict boys aged between 5 and 17 years who are posing nude or in sexually suggestive positions.
Count 6 is a charge of substantial objective seriousness. It covers a period of more than two years and involves the possession of a very large quantity of child pornography, more than 100,000 images, albeit that the vast majority are categorised as CETS 1. That is, the content of the material is towards the lower end of the range. Although I do not know the number of victims depicted, given the volume of material, I can only assume that there are very many victims.
Investigation of offences
The offender’s criminality came to light as a consequence of an investigation by Toronto Police into three Canadian websites, including azovfilms.com. The AFP received details of Australian customers and, by that means, were able to identify the offender, whom they arrested on the 25 September 2013.
When the police executed a search warrant on that day, P was present. Initially, the offender declined to provide police with the password to the hard drive. However, when served with an order requiring him to do so, he complied. The offender admitted taking photographs of P using his mobile telephone and later downloading the images to the hard drive. He admitted that he should not have taken them and said that he took them because of a perverse curiosity. The offender made partial admissions to using the internet to download images. He conceded that there was a sexual element to his conduct and that he was aware that his conduct was illegal.
Subjective circumstances
The offender is 68 years of age. He has no relevant prior convictions. There were two matters of dishonesty, which occurred more than 10 years ago. They are of no moment whatsoever. In relation to relevant matters, the offender is a person of prior good character. Of course, in relation to offences of this type, while good character is always relevant, lesser weight may be attached because this type of offence is easy to commit and hard to detect and therefore considerations of general deterrence are central to the sentencing exercise.
When he was about 12 years old, the offender first realised that he was sexually interested in young men. At that stage, he began sexual experimentation. For many decades, he has been interested in older boys. There is no evidence and no suggestion that, as an adult, he acted on his interest in the sense of having direct sexual contact with children. Indeed, he does not appear to have been sexually active to any significant extent. However, he has a well entrenched and permanent attraction to boys and, as Dr Nielssen sensibly said in evidence:
It is unlikely that any amount of counselling will alter that underlying sexual interest. The real issue is whether in the future, the offender will act on that interest by accessing the internet or in other ways becoming involved with child pornography.
The author of the pre-sentence report said in evidence that, in her assessment, the offender did not appreciate the seriousness of his actions and did not express appropriate empathy for the victims, or understanding of the effects of his conduct upon them. He did not appear to appreciate the seriousness of his conduct when he was in the role of a surrogate parent. The offender had denied to the author of the pre-sentence report that he was motivated by sexual desire.
On the other hand, Dr Nielsen gave evidence to the effect that the offender had shown considerable insight in to his condition, had undertaken some counselling and appreciated (by way of analogy with the drug and alcohol work that he had undertaken in the past) that accessing pornographic material was an addiction and should be addressed as one would address an addiction. It seems to me that, by approaching the problem in that way, the offender was showing considerable insight. I accept that the offender failed to articulate to the author of the pre-sentence report appropriate sentiments in relation to his conduct, but I consider that is responses may have been due to embarrassment at his conduct.
Dr Nielsen identified some factors which, he said, mean that the offender is at low risk of reoffending. First, he has never been a contact offender. Second, he has no psychiatric disorder. Finally, his age tells against it both because he is suffering from relatively poor physical health and because, as he ages, his sexual drive will continue to diminish.
The author of the pre-sentence report (who was assisted in the preparation of her report by the administration of a risk assessment by a qualified psychologist) considered that, while the offender’s risk of general reoffending is low, he is at moderate to high risk of sexual reoffending. That assessment appears to have been largely based on the author’s assessment of the offender’s insight, and his attempts to minimise behaviour and to justify it.
I have some sympathy with that approach. On the other hand, as I have said, there are factors that may have caused the offender to express sentiments that were not truly reflective of his underlying understanding.
It is my view that, coming as the offender does from a background of drug and alcohol work, and having been confronted with these charges, he may be able to develop appropriate insight into his conduct and develop behavioural strategies to ensure that he does not repeat it. The assessment of the risk of reoffending by sexual offenders is notoriously difficult and I would not attempt to formulate a firm view in the context of the conflicting information and opinions with which I have been provided. However, insofar as I am prepared to venture into that arena, I am not persuaded that the offender is at more than a low risk of reoffending.
Appropriate sentences and other circumstances
The offender accepts that, given the number of offences and their nature, the only appropriate sentence is one of full time imprisonment.
In determining appropriate sentences, the Court gains considerable guidance from a number of decisions. In R v Cooper [2012] ACTCA 9 (Cooper), at [38]-[40] the Court of Appeal gathered many of the relevant principles and referred to the leading New South Wales decisions of R v Gent (2005) 162 A Crim R 29 and Minehan v The Queen (2010) 201 A Crim R 243. Those New South Wales decisions concern child pornography matters, as does the matter of Cooper. They make it clear that, in assessing the objective seriousness of such matters, the sentencing court must take in to account the nature and content of the pornographic material including the age of the children in question, whether they are real children, the gravity of the activities (that is, relevantly for these purposes, the CETS categorisation) and the nature of the material in the sense of whether it is still photographs, videos, or other material. The number of images is very important, or, more accurately, the number of victims is very important. The purpose of the possession is also important; whether for personal use or for distribution. In this case, the material was only for personal use. Another consideration is whether the offender intended to profit, either in a monetary sense or through the sharing of material. In this case, there is no evidence of profiting.
Two general points that should be remembered in relation to internet child pornography matters; first the mere accessing of child pornography supports a huge and nefarious global industry. While persons who access pornography may see themselves as lacking culpability, they are supporting a very large and damaging industry. The second matter is that the victims who are the subject of child pornography images can never lose their status as victim. Once their images are on the worldwide web, the victims will be repeatedly abused and their images can never be removed.
In sentencing the offender, the Court has regard to the sentencing purposes in s 7 of the Crimes (Sentencing Act) 2005 (ACT) (Sentencing Act). I have already referred to the importance of general deterrence and the reasons why that consideration is of a critical importance, particularly in relation to offences of accessing child pornography. The other important sentencing purposes are punishment, accountability, denunciation and, to a limited extent, specific deterrence. It is important to recognise the harm that must have been done to the many victims of these offences.
The Court must also consider the relevant matters that are set out in s 33 of the Sentencing Act and, in respect of Commonwealth matters, are set out in s 16A of the Crimes Act 1914 (Cth). The Court has considered, among other things, the nature and the circumstances of the offences, various subjective circumstances pertaining to the offender, including his age and physical health, and the degree of responsibility that he has taken for the offences. He has accepted a reasonable degree of responsibility for the offences, making limited admissions and entering early pleas of guilty. Other relevant sentencing purposes are the abuse of trust and authority that occurred in respect of the victims O and P and the lack of remorse (as opposed to acceptance of responsibility).
In relation to the ACT offences, the pleas of guilty are to be taken in to account under s 35 of the Sentencing Act and, in assessing an appropriate discount, a range of factors is to be considered, as set out in s 35(2). However, the dominant purpose of allowing a discount is to recognise the utilitarian value of a plea, and the timing of the plea is critical to the assessment of the appropriate discount.
The Court sentences in accordance with current sentencing practice, but takes into account the patterns of sentencing that prevailed at the time that the offences were committed. Some of the offences were committed some time ago, in particular Count 1. In that regard, I have received a schedule of some sentences imposed in the ACT (Exhibit 2). It indicates a reasonably lenient approach to sentencing in the period 2008 to 2010. The more recent decisions of Cooper and R v TW (2011) 6 ACTLR 18, show a stricter approach to sentencing than that which formerly prevailed.
I have had regard to the ACT Sentencing Database and, in respect of the Commonwealth matters, to the Commonwealth Sentencing Database and the New South Wales JIRS statistics for the purpose of understanding general sentencing patterns and whether the sentences that I would otherwise propose to impose are consistent with those patterns.
Sentences
I record a conviction for each offence. I impose the following sentences:
1.For Count 1, using the child O for the production of child pornography, I would have imposed a sentence of 12 months’ imprisonment but I have reduced this period by 2 months to 10 months’ imprisonment. The period of imprisonment will be from 25 September 2013 to 24 July 2014.
2.For Count 2, the Commonwealth offence of using a carriage service to access child pornography between 2008 and April 2010, I would have imposed a sentence of 18 months’ imprisonment but I have reduced this period by 4 months to 14 months’ imprisonment. The sentence will run from 25 December 2013 to 24 February 2015.
3.For Count 3, using a carriage service to access child pornography between April 2010 and September 2013, I would have imposed a sentence of 3 years’ imprisonment, but I have reduced that period by 8 months to 28 months’ imprisonment. The sentence will run from 25 March 2014 to 24 July 2016.
4.For Count 4, possession of child pornography, I would have sentenced the offender to 18 months’ imprisonment but I have reduced that period by 4 months to 14 months’ imprisonment. The sentence will run from 25 March 2014 to 24 May 2015.
5.For Count 5, using P, a child older than 12 years, for the production of child pornography, I would have sentenced the offender to four years’ imprisonment but I have reduced that period by 12 months to 3 years’ imprisonment. The sentence will run from the 25 March 2015 to 24 March 2018.
6.For Count 6, possession of child pornography between July 2011 and September 2013, I would have sentenced the offender to 2 and a half years’ imprisonment but I have reduced that period by 7 months to 23 months’ imprisonment. The sentence will run from 25 March 2016 to 24 February 2018.
The offender will be imprisoned for a total period of four years and six months. He should serve a minimum period of three years in custody, until 25 September 2016. The only sentences that the offender will be serving as at September 2016 are the last two sentences, which are sentences for ACT offences. In relation to those two sentences (for Counts 5 and 6), I make an order under s 12 of the Sentencing Act suspending each of the sentences from 25 September 2016. The offender is to enter into a good behaviour order for a period of one year and six months from 25 September 2016 on the following conditions:
1.To be subject to the supervision of the Director General of Corrective Services for as long as he or she deems necessary;
2.Not to be knowingly in the close and immediate company of a male child under 16 years unless also in the company of a person or class of persons approved by the Director General;
3.To participate in counselling or other treatment as recommended by the Director General;
4.Not to access or use a computer or other device capable of accessing the internet unless approved by the Director General.
My attention has been drawn to s 19(1) of the Crimes Act 1914 (Cth) and I have been told that that provision was introduced to prevent a conflict between paroling authorities in two jurisdictions. I was referred to the decision of Fasciale v The Queen (2010) 30 VR 643 per Weinberg JA at [36].
Pursuant to s 23ZD of the Crimes Act 1914 (Cth), I make a forfeiture order in accordance with the document that I have signed and dated.
| I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 19 November 2014 |
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