R v P

[2015] NSWDC 262

District Court

New South Wales

Medium Neutral Citation:	R v P [2015] NSWDC 262
Hearing dates:	15 May 2015
Date of orders:	15 May 2015
Decision date:	15 May 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Impose an aggregate sentence consisting of a head sentence of 9 years and a non-parole period of 6 years 9 months.
Catchwords:	CRIMINAL LAW – Sentence – Commonwealth and State offences – Use carriage service to access child pornography – Possess child abuse material – Aggravated sexual intercourse with a child under 10 – Produce child abuse material
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	The Crown P
Representation:	Solicitors: Director of Public Prosecutions Legal Aid Commission (offender)
File Number(s):	2014/39109
Publication restriction:	There is to be no publication of the name of the offender or any material which may tend to identify the offender.

sentence

1. HIS HONOUR: All offences involving child pornography are serious but some are clearly more serious than others. I have before me today a very grave example of the horrors which are associated with those who gain sexual gratification out of viewing images and videos which all right-thinking people would properly categorise as abhorrent.

2. In this case the offender, P, downloaded and possessed child pornography involving approximately 1,000 children. Some of those children were subject to indignities, sadistic behaviour, torture, bestiality and abuse of the vilest kind. It is beyond comprehension as to how anybody could regard viewing that material as an attractive proposition.

3. Even reading the descriptions of what was contained in the material that the offender possessed is disturbing. That anyone could view that material and not be revolted is difficult to understand but to obtain sexual gratification from it is, as I have just said, beyond comprehension. However the harm that arises from offences of this kind is not to be determined by looking at how revolting certain behaviours are, it is to be determined by considering the harm that offences such as these create and that harm is incalculable. Many children were harmed in the production of the material that the offender possessed. He, amongst others, creates a market for such material which is satisfied by others. Necessarily satisfying the demand of people like P involves grave harm upon many children. The sentence that I will ultimately impose upon P reflects this harm.

4. P’s criminality extends beyond simply viewing child pornography as I will shortly explain. Matters came to the attention of the police when Australian Federal Police received a referral from police in another country alerting them to an investigation which they were carrying out which had revealed that an internet address in Australia had been used to access child pornography. Enquiries began. This was in February 2013. In September 2013 two further referrals were made from the foreign police force, thus the offender was discovered as being the person who had on three occasions used a carriage service to access child pornography. He now faces two charges relating to that activity and asks that I take into account a third when I sentence him for one of them.

5. More importantly than explaining how it was that P came to the attention of police is an examination of what followed thereafter. Police went to P’s home. They were armed with a search warrant. P told police there was pornography on his computer and a USB storage device. He told police that there was child pornography which he had obtained from a peer to peer network. Police then began the laborious task of examining the various storage devices. They discovered something in the order of 7,000 images and videos containing child abuse material which the offender had downloaded over a period of about 18 months. Some of the material was worse than others. I have given anxious consideration as to whether I should, as I have done in the past, give examples of what was found on the storage devices. I find it necessary to do so despite the obvious distress which is involved in performing such an activity and the obvious possibility that my very descriptions will provide sexual pleasures to someone else. I will be as brief as I can.

6. Let us begin with some of the file names. There is no question but that these file names are on occasions designed to attract people such as P. Words as “pre-teen”, ”rape”, “pre-teen licked by her dog”, “fucked by dad”, “spermed inside by her dog” are enough to indicate the sort of material at its worst which P downloaded.

7. Then we have descriptions of what happened to these poor unfortunate children. Various sexual things were done to them. At times the children were clearly in distress, crying and screaming. One picture showed a female toddler, and I emphasise the word toddler, who was tied, gagged and hanging upside down with her legs spread and an object inserted in her vagina. Another video this time depicted a young female between 13 and 15 years of age with her hands tied behind her back being forced to perform oral sex on an adult male. The video continues with the adult male taking the girl’s clothes off, having penile/vaginal intercourse with her while physically holding her down. He forces her to perform oral sex on him, then puts her on the floor with her hands still tied behind her back and gags her before leaving the room. I think I have said enough.

8. Sometimes those who would promote sexual activity involving children suggest that children are capable of enjoying sexual activity. Of course such thoughts are wrong in the extreme but many of the videos and images which P possessed were such that no one could suggest that there was anything enjoyable going on. Instead many of the children were tortured and subject to brutal sexual depravity. Many were harmed in the production of this material.

9. I mentioned before that the offender went beyond simply possessing child abuse material. One of the storage devices discovered by police depicted a particular sexual act performed by P on his niece. There were four video files found on the offender’s iPhone. They ranged in duration from 53 minutes to one minute and 42 seconds. What they depicted was the offender sexually assaulting his niece who was asleep. It turns out that he was babysitting her and took advantage of her presence in his home to do what I am about to describe. He pulled down the back of her shorts and underpants, used the index finger of his right hand to rub her external genitals and then inserted his finger into them moving his finger in an up and down motion. This continued for about one minute. His niece was nine years old at the time. He of course was given the care of his niece on the assumption that he would protect her. He failed to protect her and instead breached the position of trust that he was placed in in an awful way.

10. It is some comfort I suppose to learn that the offender’s niece did not wake up. I gather that to this day she remains unaware of what occurred to her. There remains however the possibility that in the future through some mischance she may learn of what the offender did. In order to do what I can to reduce that possibility I will order that when these remarks are published on the internet, as they will be, the offender will not be referred to by name. This is not done I emphasise as any favour to him. It is done so that as far as I can I can protect the innocent victim of his awful crime from any further harm.

11. The charges that the offender now faces are numerous. I have already mentioned those of using a carriage service to access child pornography. He faces a charge of producing child abuse material, that relating to his use of his iPhone to video his abuse of his niece. He faces a charge of aggravated sexual intercourse with a child under ten years of age, that of course relating to the offender’s sexual abuse of his niece and he faces four charges of possessing child abuse material, they relating to four separate storage devices. One of those storage devices had only a single image of what is in the grand scheme of things a relatively less serious form of child abuse material but another contained an enormous proportion of images and videos in the worst possible category. Fully 95% of the images and videos found on the storage device covered by sequence 12, a particular laptop computer, contained images and videos at level 5 of the child exploitation tracking scheme categories.

12. The offender pleaded guilty to these offences at the earliest opportunity. There is thus the utilitarian benefit to his pleas and he has assisted the course of justice by pleading guilty. For both the State and Federal offences I will impose a sentence of 25% less than it would otherwise have been. One of the offences carries with it a standard non-parole period. The offence of aggravated sexual intercourse with a child under ten carries a maximum penalty of imprisonment for life and a standard non-parole period of 15 years. I have taken into account the maximum penalties for all offences and the standard non-parole period where appropriate in determining the appropriate sentence to impose upon this offender. My reasons for not imposing a standard non-parole period for the aggravated sexual assault matter are to be found in these remarks on sentence.

13. Let me just say a few words about the objective gravity of that offence. Serious though it was that offence has to be considered in determining the appropriate penalty in the light of all other offences covered by s 66A(2) of the Crimes Act. It may be difficult for the victim’s parents to accept but it remains the case that there are more serious examples of offending covered by that section and of course the maximum penalty is reserved for the worst type of offending. In this case the penetration was limited, the child did not wake and the offender did not use any force or threat to do what he wanted to, instead he took advantage of her being asleep. The sentence that I will ultimately impose for the aggravated sexual intercourse matter has to be looked at with those circumstances in mind.

14. The offender is now 40 years of age. He grew up in Young. He has siblings with whom he has had little to do in the past and clearly after this offence he will have less to do in the future. He told a psychologist that his father was very abusive and violent when intoxicated. His parents separated when he was about 15. He was cared for by his mother after that and had nothing to do with his father which did not distress him because of his father’s earlier violent behaviour.

15. As he reached adulthood he saw less and less of his family. He describes one brother as being a bully, one sister lived in New Zealand and the remaining sister was his main support. It is of note that he has repaid the fact that his sister supported him by abusing her daughter. He left school at year 11. He was not subject to any sexual abuse as a child nor misconducted himself sexually during his schooling. He was an apprentice chef for a while. He lost work sometimes when he relocated and he was supported by Centrelink but in his mid- twenties he gained employment in child care. He was employed in a baby room for a few years and then became a room leader and finally was a pre-school teacher for ten years. There is no suggestion in the material before me that he has abused any of the children with whom he worked.

16. A psychologist goes through the offender’s psycho/sexual history. The offender said that he was bisexual for a time but realised that he was homosexual after a failed relationship with a woman in his early thirties. After that he came out to his mother and siblings who were accepting of his sexual orientation. Unfortunately sexual problems which he had experienced from time to time recurred, apparently because things were less exciting in his homosexual encounters now that everyone knew that he was a homosexual. He began looking at what he described to the psychologist as weird porn including things which involved sadism and masochism. He then viewed child abuse material for the first time at around 35 years of age. He said that he began to look at deviant child abuse material “maybe for the shock factor”. This lack of empathy is very disturbing. He spent a great deal of his day viewing pornography, both adult and child abuse material. His deviant attractions were reinforced because he found he was able to orgasm more often when viewing deviant pornography. He told the psychologist that he was able to distance himself from an acknowledgment of the harm that the victims were experiencing because “they were pictures on a screen”. He was thus able to rationalise his behaviour that way.

17. The psychologist said that P does not seem to have experienced mental illness in his life, however he is a solitary and isolated individual who has little interest in personal relationships. As is common in such cases, the psychologist attempted to predict the risk of P’s future offending. Of course while such predictions may say something when populations of offenders are considered they have less to say about the likelihood that a particular individual will offend in the future. In this case I regard his prospects of rehabilitation as being guarded . His solicitor, in suggesting the unlikelihood of further offending, relied primarily on the consequences for him of having been detected as having offended in the way he has. His life has fallen apart said Ms Key and, he faces significant punishment for what he did which hopefully will act as a deterrent to him.

18. The offender is entitled to have his otherwise good character taken into account. The Crown in her written submissions suggested that s 21A(5A) of the Crimes (Sentencing Procedure) Act 1999 applied but withdrew that submission after considering a recent decision of the Court of Criminal Appeal in which a judge who applied that section, admittedly in a dissimilar situation, was found to be in error.

19. These are the offender’s first offences, I will take that into account in his favour.

20. It is possible that the offender will serve at least some of his sentence on protection and it is possible that as part of that his conditions of custody will be more onerous than they would be in the general prison population. I have taken both of those possibilities into account as well.

21. There has to be a substantial component of general deterrence built into the sentence that I will shortly announce. The internet has brought many wonderful advances, that it has allowed people like P to demand child abuse material be produced, which in turn has led to evil people creating such material. The statement of facts suggests that it is not terribly hard to gain access to such material, and to store it, to view it, and as in this case, on one particular occasion, to act upon it. That offences such as this are easy to commit and there are apparently a significant number of people willing to commit them, requires a sentence where general deterrence is given significant weight.

22. There is a degree of overlap in some of the offences.. For example the three offences of using carriage service to access child pornography relate to material which was presumably then stored by the offender and is covered by the offences of possessing child abuse material. For that reason I will impose sentences upon the Commonwealth offences which are concurrent with sentences upon the State offence. The child abuse material which the offender produced of course relates to another offence committed by him that of aggravated sexual intercourse on his niece. I have taken into account that overlap in determining the overall sentence to impose upon the offender. I have also applied principles of totality.

23. The sentence that I impose is as follows:

24. For the Commonwealth offences of using a carriage service to access child pornography I impose concurrent sentences of one year fixed term of imprisonment to date from 8 April 2014. For the offence of possess child abuse material, sequence 18, I deal with the matter under s 10A of the Crime (Sentencing Procedure) Act, that is he is convicted with no further penalty. For the remaining offences I will impose an aggregate sentence. For the offence of possessing child abuse material, sequence 12, I would have imposed a sentence of imprisonment of five years. For the offence of aggravated sexual intercourse with a child, I would have imposed a sentence of imprisonment of three years with a non-parole period of two years. For the offence of producing child abuse material sequence 5 I would have imposed a sentence of one year and on each of sequences 11, 15 and 10 possessing child abuse material I would have imposed sentences of four years.

25. I will impose an aggregate sentence of nine years with a non-parole period of six years nine months to date from 8 April 2014, thus the non-parole period expires on 7 January 2021. I have not made a finding of special circumstances in the offender’s favour for two reasons, I consider that the non-parole period is the minimum period which he should spend in custody, given his offending and the period of eligibility for parole will be sufficient in any case.

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Decision last updated: 10 November 2015