R v Orvad

[2023] NSWDC 495

District Court

New South Wales

Medium Neutral Citation:

R v Orvad [2023] NSWDC 495

Hearing dates:

24 August 2023

Date of orders:

24 August 2023

Decision date:

24 August 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Imprisonment sentence of 3 years and 4 months with a non-parole period of 2 years

Catchwords:

CRIME — Child sex offences — Child abuse material — Possession — Using carriage service for child pornography or child abuse material ­— Images of real children — Cartoon images

SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law

SENTENCING — Mitigating factors — Plea of guilty — Prosocial factors — Rehabilitation — Remorse — Unlikely to re-offend — Previously person of good character

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Objective seriousness

SENTENCING — Sentencing procedure — Instinctive synthesis — Psychological reports — Matter taken into account on schedule

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Cases Cited:

Barbaro v The Queen [2014] HCA 2;(2014) 253 CLR 58

Dennis v The Queen [2017] VSCA 251

DPP v Smith [2010] VSCA 215

Hili v The Queen (2010) 242 CLR 520

Holland v R (2005) 154 A Crim R 396

Hutchinson v R [2022] VSCA 217

R v Booth [2009] NSWCCA 89

R v De Leeuw [2015] NSWCCA 183

R v Hutchison [2018] NSWCCA 152

R vMartin [2014] NSWCCA 283

The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Totaan v R [2022] NSWCCA 75

Category:

Sentence

Parties:

Adam Orvad (the offender)
Director of Public Prosecutions (Commonwealth)

Representation:

Counsel:
S Howell (for the offender)

Solicitors:
J Healy (for Commonwealth Director of Public Prosecutions)
Morrisons Law (for the offender)

File Number(s):

2022/203663

JUDGMENT – Ex tempore revised

Introduction

1. When he was before the Local Court Adam Orvad said that he would plead guilty to an offence of Possessing or Controlling Child Abuse Material Obtained or Accessed using a Carriage Service: s 474.22A(1) Criminal Code (Cth). That offence carries a maximum penalty of 15 years’ imprisonment. That maximum penalty is one important guide to the exercise of my sentencing discretion.

2. The offence relates to possession of child abuse material across three different devices between June 2020 and March 2022. Orvad obtained the material using the internet.

3. He also asks that, pursuant to a s 16BA Crimes Act 1914 (Cth) schedule, I take into account a further offence of Transmitting and Causing to Transmit Child Abuse Material using a Carriage Service: s 474.22(1)(a)(iii). It is appropriate that I do so. That matter relates to what are called iChat conversations with others, where he transmitted and received child abuse material in April 2017 and another transmission or transmissions in February 2020. I do not sentence him for that matter. I take it into account when I come to formulate the appropriate sentence for the principal offence.

4. In March 2022 police executed a search warrant on the offender’s home and seized three devices. They were examined. Following the examination, the offender was arrested on 12 July 2022. He has been in custody since that date.

Agreed Facts

5. There are detailed Agreed Facts before the Court. They include summaries of samples of the child abuse material. It is not my practice to further publish child abuse material by going into those summaries in detail. Nevertheless, they need to be described in some limited way so that the public can properly understand the seriousness of the offending.

6. There were two hard disk drives. The first, contained three folders which contained child abuse material located in numerous subfolders, including one with over 81,000 files under the heading “Trade”. The documents consisted mostly of child abuse material, but also contained adult pornography and images that were not child abuse material. Samples are described. It is sufficient to say that they involve young females being penetrated with objects or male genitalia. One image is of a baby about one year old. Other images involve children in various states of undress or partly naked.

7. A further folder headed “Cartoons” contained 11,000 files, mostly of child abuse material. The cartoon material included animated videos involving penetration of children suggesting they were aged six, four, three. I accept the estimates in the Agreed Facts.

8. Another folder under the heading “Cosplay” also involved animated images of apparently prepubescent children engaged in sexual acts.

9. On an iMac computer there was found child abuse material. It included images involving the penetration of young children, both real and animated.

10. On another hard drive were a total of 282 files of child abuse material, including images of real children, animated images depicting children, videos of real children and videos of animated children. Some involved graphic sexual acts, including penile/vaginal intercourse.

11. Some of the material found was duplicated across the devices. Some of the images reviewed were in folders. Some was not child abuse material. Other files included photographs as part of a series, but not technically child abuse material.

12. The matter on the schedule involved transmission in February 2020 of images of prepubescent females engaged in sexual acts, including penetration. The communications in 2017 related to transmission of child abuse material to another person; Orvad received child abuse material in return.

Objective seriousness

13. In any sentencing exercise a court must assess the objective seriousness or gravity of the offending. It is a critical component of the sentencing process. My main focus is on the number and type of images possessed by the offender. It requires no lecture from me for the community to understand how seriously courts deal with matters such as this.

14. Speaking generally, and by reference to the guidance offered by Simpson J (as her Honour then was) in R vBooth [2009] NSWCCA 89 at [39] to [44], possession of child pornography is regarded by the community as a callous and predatory crime. The images of real children would not come into existence without the exploitation and abuse of those children. The damage that can be done to those children may be, in fact, undoubtedly would be, profound. Those who use the product feed that exploitation and abuse. It is also “a callous crime because each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.” Every occasion on which internet child pornography is accessed, whether on a site or on material stored, provides further encouragement to those who produce this pernicious material. The guidance offered by the maximum penalty reflects these attitudes.

15. Some of the images were cartoon images. The policy behind criminalising acts involving fantasy images is the need to shield the community from injury and children from exploitation and, ultimately, the prevention of harm: Holland v R (2005) 154 A Crim R 396. While cartoons do not involve the exploitation of real children, they do cater to a distorted view of reality in which sex with children is somehow seen as appropriate.

16. Here, crucially by reference to the helpful checklist in R v Hutchison [2018] NSWCCA 152, I note that for many of the images actual children were used in the creation of some of the child abuse material. Some of the material involved graphic images, including penetrative sex with very young children. While the offender told his psychologist that his interest was not in very young children, he had such material available to him on his devices. It is a real but very fine distinction when one defines their interest as children “over the age of six”.

17. It is discernible from the summaries that some of those acts must have involved cruelty and some form of physical harm to the child, but I accept that restricted samples were provided to the Court. It is clear from the Agreed Facts that the images covered the entire spectrum from the lawful to the most despicable.

18. There were, however, a large number of files and images, systematically organised, contained over the three devices. Over 90,000 files involved child abuse material of some sort. I am prepared to accept that the offender did not individually download every single image on every single file and may have downloaded in bulk to peruse at his leisure, as he undoubtedly did.

19. The checklist of possible matters to be considered includes:

• Whether there were transmissions of the material to others? I have taken that into account when I considered the s 16 BA certificate. I will not double count it.

• There is no proximity of any of the offender’s activities to those responsible for bringing the material into existence.

• There is no evidence of any significant or sophisticated planning or deception employed by the offender in acquiring, storing or disseminating the material.

• There is no evidence that there was any appreciable risk of the material being seen or acquired by vulnerable persons.

20. All these hose matters are important to my assessment of the seriousness of these matters.

21. My conclusion is that so serious was the offending that a custodial sentence of some length must be imposed. The number and nature of the images, the period of time in possession, considered objectively, require a significant sentence.

Submissions

22. I have the benefit of both written and oral submissions from Mr Howell for the offender and Mr Healy for the Commonwealth Director of Public Prosecutions. We have had an opportunity this morning to discuss those submissions and they have informed this judgment.

23. During that discussion it became clear that the severity inherent in a full-time gaol sentence is the only penalty appropriate in the circumstances when both ss 17 and 16A of the Crimes Act are considered. To do otherwise would be to determine, or render nugatory, the principles of sentencing requiring appropriate punishment, and the many and varied principles of punishment, including deterrence of this offender and others. The need to make him accountable for his crimes is critical.

Guilty plea

24. Orvad did, however, co-operate with the course of justice and he entered the guilty plea at an early opportunity. I will, as I believe it is appropriate, indicate that I reduce the otherwise appropriate sentence by 25% to reflect the utilitarian value of the plea. There are other values inherent in the plea, they go particularly to remorse and prospects of rehabilitation. They will be synthesised along with all other relevant factors.

Criminal history

25. Mr Orvad comes before the Court as a person who, but for his commission of this offence over the period indicated, is otherwise a person of good and outstanding character. He has no prior criminal history.

26. It has been said that in some cases limited weight should be given to that fact. The principle, as I understand it, that has to be considered by the Court, is that the seriousness of an offence and the requirement for significant punishment can outweigh personal circumstances, even in the case of a first offender, and that is so here: DPP v Smith [2010] VSCA 215.

27. Good character gives no one a licence to commit offences. Sometimes people such as Orvad commit serious offences. But his prior good character and standing, notwithstanding the period over which this offence occurred, is one indicator of his prospects for the future, particularly if he continues with the assistance he has been getting from his treating psychologist. And, importantly, whether he continues to get the support of family and friends who have prosocial values.

COVID-19

28. Orvad has been on remand for over a year. He has utilised his time in custody well. A submission was made that I should take into account that he had been subject to COVID-19 restrictions.

29. I accept and take into account that prisoners who have no control over their lives were subject to strict restrictions, including regular lockdowns. No evidence of any significant detrimental impact of the COVID-19 restrictions on him was put before the Court. Nevertheless, the sense of helplessness in the face of the pandemic that we all felt is exacerbated for those who can have no control over where they are, or who they share cells with. The community should not underestimate the impact of being locked in a cell for extended periods with people who one would not like to spend time with and having to eat in a room with a toilet.

Subjective case

30. The offender’s subjective case is not controversial. It is set out in two psychological reports and the many references put before the Court from family and friends.

31. Orvad was born in 1972. He is now 51. He was raised locally. He reports a positive and supportive childhood. He received good schooling. He is university educated and worked in one business for 25 years. Redundancy led to him taking on another high-pressure job. He also set up a small business of his own. He reports, and all the material indicates, that he had a good social and family life, with prosocial friends, including through his church. He is described as intellectually sophisticated.

32. He was married for many years. He has a family, but understandably this offence and his arrest have strained his marriage, which is now uncertain. His family has suffered because of his notoriety and disgrace and the removal of him as a family breadwinner.

33. He suffers from haemochromatosis, an inherited condition that causes the body to absorb and store too much iron. It requires monitoring, but there is no indication before me that he has not received the treatment that he requires from Justice Health.

34. He is engaged in the daily routine of gaol, exercise, and religious practice. That is obvious from his appearance in Court today, which I can contrast with the image in his custodial photograph. He has used his time in custody as best he could and to his advantage, as is indicated by the material before me, including the various certificates tendered.

Psychological report

35. I am assisted by the forensic report of Ms Bennett, psychologist. She describes Orvad’s background, and his psychosexual history. It appears that a high sex drive led him to taking up the viewing of pornography at a very young age. He described it to her as “an addiction”, which would occupy hours of his day. He engaged in online fantasy activity to satisfy that addiction. But his viewing of adult pornography came to include images of children. And while he claims to have deleted files involving graphic violence of very young children, he still admits to an interest in viewing children aged from six and up.

36. Ms Bennett and the treating psychologist, Mr Randall, indicated Orvad had underlying depressive symptoms. It is also clear that there may have been some longstanding problems not subject to formal diagnosis.

37. It would appear that most of his current anxiety and depression reflect the understandable approach of any thinking, rational person would have to the revelation of their crimes, the nature of those crimes, the public and personal humiliation inherent in it; and anxiety and depression at the potential consequences of committing this offence and being found out.

38. Ms Bennett noted that, in terms of risk, the base rate of sexual offending recidivism is low, so prediction of such uncommon behaviour reoccurring is difficult.

39. She considered both static and dynamic risk assessments. Her preference, as is mine, appears to be for a detailed consideration of protective factors balanced against those that elevate Orvad’s risk of offending. She lists them carefully in her report.

40. She notes his interest in excessive viewing of pornography and his sexual preoccupation. She notes a number of what she describes as, “cognitive distortions” in relation to sexual offending and the use of pornography, such as the images and videos involved this crime, as a stress and coping mechanism. All these matters should be further explored in treatment. Treatment, in her opinion, can reduce Orvad’s risk of reoffending. A copy of her report should go with the warrant to the gaol authorities. It may assist when it comes to possible treatment and parole.

41. Once the offending was discovered, the offender immediately sought out and received treatment from a psychologist and he has stuck to a rigorous series of sessions that have continued using AVL links following his charge and gaoling.

42. His treating Psychologist, Mr Randall, notes depression associated with shame and anxiety. His treatment program is, so far as is possible, similar to those run by Community Corrections, either in gaol or in the community. But these programs, which, given the time on remand and the balance of the sentence I will impose, are unlikely to be afforded to him.

43. Mr Randall notes that Orvad’s engagement in treatment has been thorough and not in any way cursory. He notes a high level of remorse and shame.

44. The references provided from friends and family set out their shock and his shame as expressed to them. They note the impact of custody on him, but also his acceptance that his actions require punishment. He has supportive siblings and friends who have obviously, as has his close family, been devastated by the revelations of his activity. The references note the impact of the death of his father on him, but how in other aspects of his life he has been a supportive friend and family member. They promise their continuing support.

Remorse

45. Orvad experiences understandable shame at being in prison. He has declined personal visits because of that shame. It is clear that he is committed to his rehabilitation. He accepts he must be punished. He has, from the reports and material before me, apparently reflected on the evil of what he was doing, and the harm caused by the production and viewing of child abuse material; matters to which I have already referred: see Bennett’s report pars [59] to [50]. His high level of engagement in treatment reflect well upon him and also must be taken into account.

Rehabilitation

46. I am required to take into account his prospects of rehabilitation and I will do so: s 16A(2)(2AAA) Crimes Act. That objective is very important in matters such as this. Ultimately, community protection must be the aim of any sentencing exercise and the community is protected if a person does not offend again. Community protection has within it a broader concept, often referred to as general deterrence; that is, by the severity of the sentence imposed, others in the community come to an understanding that they cannot behave as this offender did, and if they do so, they will be punished severely.

47. There is, however, considerable importance in the offender maintaining his treatment to prevent relapse. Mr Randall at par [26] of his report notes that, “the impact of continued incarceration [may] solidify his maladaptive perception of himself and could become an increased risk factor for future offending.” It is well recognised that if offenders lose hope, so far as their future is concerned, because of the length of the term of imprisonment or because they are unable to continue to engage in treatment while in prison, that can have the counterproductive effect of making them more at risk after imprisonment rather than, before. It is imperative that prisoners come out of gaol better equipped to prevent reoffending than when they went into custody.

Other cases

48. The Director’s submissions contained a table of cases: Hutchinson v R; R vMartin [2014] NSWCCA 283; R v De Leeuw [2015] NSWCCA 183; Dennis v The Queen [2017] VSCA 251. I have considered them. Other cases can guide but they cannot dictate a judge’s sentencing discretion. The consistent application of principle is important. The guidance offered by appellate courts and decisions of other courts is also welcome. But every case and every offender is individual. Sentencing involves a discretionary judgment and the mix of factors that must be weighed are never precisely the same: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Barbaro v The Queen (2014) 253 CLR 58 at [74]; Hili v The Queen (2010) 242 CLR 520.

Required considerations

49. I am required to consider, as I have sought to do, the general provisions that apply to any sentencing exercise, but here specifically, those set out in s 16A. I have to consider whether no sentence other than custody is required. Those matters must and will be considered. Regard must be had to s 16A factors, but they are not determinative: Totaan v R [2022] NSWCCA 75 at [99] to [101].

50. But even where there are positive personal antecedents, and an offender has shown remorse and engaged in treatment those other important principles must be weighed together with the need for appropriate punishment and to signal to the community the seriousness of the matter and show others the consequences of engaging in a crime such as this.

Synthesis

51. A court has to synthesise all relevant features. My duty as a judge is to attempt to translate here the criminal behaviour of a complex human who committed a serious offence into units of punishment; here, time in custody.

52. The sentence I impose will be structured to allow some period for supervision on parole. The non-parole period reflects the minimum time that must be spent in custody. Both the sentence and its non-parole period take into account the seriousness of his offending and the principles which I have discussed and have attempted to synthesise.

Orders

53. An application was made for forfeiture of the devices upon which the material was held: 23ZD of the Crimes Act. That order was not opposed. That order will lie in the Court for 28 days. So that the offender an, through a representative, retrieve from that material matters which are not the subject of criminal proceedings.

54. I make an order pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW). I can only make that order if, having reviewed all the material before me, there is a possible risk to the sexual safety of children generally. Given the facts of the matter, that order was not opposed.

55. I advise you, Mr Orvad, that you will be subject to a child prohibition order. Such orders are rigidly enforced and if you breach them that might relate to a criminal offence which could breach your parole.

56. The sentence I impose takes into account the matter on the schedule and the noted reduction for the utilitarian value of the guilty plea.

57. Mr Orvad you are convicted. You are sentenced to a term of imprisonment of 3 years and 4 months. Your sentence is to commence on 12 July 2022. I fix a non-parole period of 2 years to date from 12 July 2022 to expire on 11 July 2024 on which date, subject to s 19AL Crimes Act you are to be released to parole. The sentence concludes on 25 November 2025.

58. A copy of Ms Bennett’s report is to go with the warrant to the gaol.

59. In the ordinary course, Mr Orvad, you will be released on 11 July next year.

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Decision last updated: 16 November 2023