R v Monday (a pseudonym)
[2021] ACTSC 99
•25 May 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Monday (a pseudonym) |
Citation: | [2021] ACTSC 99 |
Hearing Date(s): | 24 and 25 May 2021 |
DecisionDate: | 25 May 2021 |
Before: | Murrell CJ |
Decision: | Offender released on entering a recognizance in the sum of $100 to be of good behaviour for two years with further conditions |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Posses or control child abuse material obtained or accessed using a carriage service – Commonwealth offence |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A, 20(1)(a), 23ZD Criminal Code Act 1995 (Cth) ss s 474.19(1), 474.22A |
Cases Cited: | R v Barany [2018] QCA 137 R v Fedele [2015] NSWCCA 286; 257 A Crim R 78 R v Pham [2015] HCA 39; 256 CLR 550 |
Parties: | The Queen ( Crown) Raynard Monday (a pseudonym) ( Offender) |
Representation: | Counsel H Snobar ( Crown) J Purnell SC ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Paul Edmonds & Associates ( Offender) | |
File Number(s): | SCC 295 of 2020 |
MURRELL CJ:
Introduction
The offender pleaded guilty to the offence that, on about 29 April 2020, he possessed child abuse material, contrary to section 474.22A of the Criminal Code Act 1995 (Cth) (Criminal Code).
The maximum penalty is 15 years' imprisonment, 900 penalty units, or both.
The offender pleaded guilty in the Magistrates Court. The plea occurred early, albeit in the face of moderately strong Crown case.
Ordinarily, I would discount the sentence that I would otherwise have imposed by 25 per cent. However, as I do not intend to impose a sentence of imprisonment, there will not be a strict 25 per cent deduction. The early plea is taken into account as a significant matter affecting penalty.
The offender spent one night in custody.
Facts
On about 29 April 2020, the offender drafted an email using a Gmail address in his own name and attached two images depicting child abuse material. He proposed to send the email to a woman who was located in the United Kingdom.
Soon after the offender uploaded the images, his email account was suspended. It is not known whether the email was transmitted before the account was suspended.
On 20 May 2020, police seized the offender's laptop and located the two images. They were categorised in Category 6 under the Australian National Victim Identification Library (ANVIL) classification. The images were fully described in the statement of facts. They were computer-generated but had a natural appearance.
The offender participated in a record of interview, in which he made numerous admissions against interest. He said that he had exchanged sexual fantasy emails with the woman in question for the purpose of sexual gratification but, generally, they did not involve children.
Objective seriousness
While all offences involving the possession of child abuse material are serious, relative to other offences of this type, this offence is of very low objective seriousness.
The following factors are relevant to an assessment of objective seriousness:
(a)The offence involved only two images.
(b)The offence related to only one day. However, it was not an isolated incident; the offender told police that, on occasion, he had downloaded images of children when searching for other material.
(c)The content of the images was serious, although the images were computer-generated, which means that they did not directly involve real victims. However, computer-generated material does tend to fuel interest in such subject matter, including subject matter involving real children. For this reason, offences involving computer-generated material are far from harmless.
(d)The purpose of possession was personal sexual gratification.
(e)The offender intended to distribute the images to one other person, albeit that the recipient could have further distributed the images.
Subjective circumstances
At the time of the offence, the offender was 59 years old.
He has no prior criminal history. However, for offences of this type, less weight may be given to an offender’s lack of prior criminal history, as such offences are often committed by persons with no prior criminal history.
The offender received a conventional upbringing by adoptive parents, but one that lacked affection and validation. His father was withdrawn and prone to angry outbursts. The offender had a difficult relationship with his mother, whom he perceived to be very critical. She now resides interstate but maintains telephone contact. Dr Bannister, the offender’s treating psychologist, said that the offender “grew up in an invalidating, critical, unaffectionate and detached environment”. The offender’s attempts to contact his biological parents ended in disappointment and rejection.
The offender’s former wife continues to support him. The couple has children, who have medical difficulties. The offender has a limited social network.
After completing Year 12, the offender worked as a labourer and then obtained a cadetship with a local newspaper. He worked as a journalist until 1998, when he began to work as a public servant. From 2003, he was employed by a Commonwealth department, reaching a senior position. He has now resigned from that employment and is unemployed. He hopes to work in the outdoor and adventure industry as he has enjoyed outdoor activities throughout his adult life.
The offender has a history of serious mental health issues. He also suffers chronic back pain from an accident in 1994.
In 2011, the offender’s wife referred him to Dr Bannister, a clinical psychologist, as the offender was severely depressed and had lost interest in all activities. From 2011 to 2014, he attended many sessions with Dr Bannister. In 2013, he took long service leave, as he was not coping at work. Thereafter, his feelings of depression lessened for a period.
However, in 2018, the offender separated from his wife. He returned to see Dr Bannister, suffering from major depressive disorder. He reported ongoing crippling anxiety associated with a remote relationship with a woman whom he had met on Facebook. He presented to Dr Bannister as “emotionally out of control”. He commenced taking anti-depressant medication.
Eventually, the offender broke off the problematic relationship, and commenced a relationship involving sexual fantasy with the woman associated with the offence before the Court.
Currently, his mental health is unstable. He sees Dr Bannister regularly. She said that he will need long-term therapy.
Dr Bannister said that the offender was not a paedophile. At the time of the offence, he had a major depressive disorder and borderline personality disorder (resulting from his early childhood experiences), which manifest in fear of abandonment, identity disturbance, and unstable self-image. Both conditions are longstanding and have been active over the last two years, including at the time of the offence. The offender tends to try to soothe his feelings by using sleeping tablets, alcohol, and by impulsively accessing pornography.
The offender reported to Dr Bannister that, just prior to the incident, he could not focus on basic organisational skills and was completely lacking in motivation. Dr Bannister stated:
In my opinion, his attachment template would have been heightened, and he would have engaged willingly in the fantasy without realising what he was doing. His need for connection and fear of abandonment, would have been dominating his thinking and he would have impulsively engaged and fulfilled the fantastic fantasy to keep [the woman] attached.
There are several ways in which a mental health condition may be relevant to sentence. Importantly, it may inform moral culpability. In this case, it is clear from the evidence of Dr Bannister that there was a causative link between the offender’s mental health conditions and the commission of the offence. The Crown accepted that it is likely that the illness was causatively linked to the offending.
The offender told the author of the pre-sentence report that he felt ashamed and remorseful for his actions. He realised that, although the child abuse material images were computer-generated, viewing such material was wrong as it could lead to normalisation of such behaviour.
The offender was assessed to be at low risk of general re-offending. The risk of sexual re-offending was not assessed by the author of the pre-sentence report. However, as it is clear from Dr Bannister’s evidence that the offender does not suffer from a paedophilic disorder, and as he has good insight and remorse, I am satisfied that the risk of any sort of reoffending (including sexual reoffending) is extremely low, and possibly only no more than speculative.
Nevertheless, to fully address any risk, however small, it is important that the offender continue with psychological treatment. The offender himself recognises the importance of such treatment and has voluntarily pursued it over a period of years.
The author of the pre-sentence report stated that the offender may benefit from interventions, including interventions to address mental health issues.
Other considerations
The Court must impose the sentence that is appropriate in all the circumstances, including the mandated considerations in s 16A of the Crimes Act 1914 (Cth) (Crimes Act).
The Court must have regard to national sentencing patterns: R v Pham [2015] HCA 39; 256 CLR 550.
The Crown provided a table of comparative cases under s 474.19(1) of the Criminal Code (maximum penalty of 10 years’ imprisonment). All involved the possession of more than two images; in most cases, there were significantly more images.
In R v Barany [2018] QCA 137, an offender pleaded guilty, had no prior criminal history and was in possession of 15 child pornography images (Category 1). He was sentenced to nine months’ imprisonment and was released forthwith on a recognizance to be of good behaviour for two years.
R v Fedele [2015] NSWCCA 286; 257 A Crim R 78 was a case involving a young offender with no prior criminal history who, on two occasions, had accessed relatively few images. The Court of Criminal Appeal found that the sentencing judge had failed to properly consider the manner in which the sentence should be served, allowed the appeal, and imposed concurrent terms of imprisonment of 10 months’ imprisonment to be served by way of an intensive correction order.
The limitations of bare statistics are well-known. However, for what it is worth, the Commonwealth Sentencing Database shows that, for offences under the former provision (s 474.19 (1)), accessing or possessing child pornography material more often than not resulted in a sentence of full-time imprisonment, often in the range of one to two years’ imprisonment.
The Crown conceded that, in this case, having regard to the low objective seriousness of the offence, a term of imprisonment was not the only appropriate sentence, and available sentences included a sentence under s 20(1)(a) of the Crimes Act.
Sentence
The Crown and the offender agreed on conditions that would be appropriate to a recognizance, and I agree that those conditions are appropriate.
The offender is convicted. I order the release of the offender under s 20(1)(a) of the Crimes Act, upon him entering a recognizance in the sum of $100 that he will comply with the following conditions:
(a)To be of good behaviour for a period of two years.
(b)To be subject to the supervision of ACT Corrective Services for at least six months and thereafter at the discretion of ACT Corrective Services.
(c)To obey all reasonable directions of ACT Corrective Services.
(d)To not travel interstate or overseas without the written permission of ACT Corrective Services.
(e)To undertake such treatment or rehabilitation programs as ACT Corrective Services reasonably directs, including programs concerning treatment for mental health conditions and sex offending.
(f)To report to ACT Corrective Services by 4 PM on Wednesday, 26 May 2021.
I make a forfeiture order pursuant to s 23ZD of the Crimes Act, and upon application of the DPP and by consent, that there is forfeiture to the Commonwealth of the offender’s Apple MacBook Pro.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: |
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