R v Payne-Moore
[2021] ACTSC 125
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Payne-Moore |
Citation: | [2021] ACTSC 125 |
Hearing Date(s): | 22 April 2021, 4 June 2021 |
DecisionDate: | 25 June 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [113] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth offences – Possessing child abuse material –Using carriage service to access child pornography material – Consideration of extra-judicial punishment |
Legislation Cited: | Criminal Code 1995 (Cth) ss 272.8, 272.20, 474.19, 474.22, 474.22A Crimes Act 1914 (Cth) ss 16A, 16A(2AAA) Criminal Code 1899 (Qld) s 228D |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) Bradley Davyd Payne-Moore (Offender) |
Representation: | Counsel D Bloomfield (Crown) A Fraser (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Number(s): | SCC 234 of 2020 |
LOUKAS-KARLSSON J
Introduction
Bradley Payne-Moore (the offender) has pleaded guilty to the following offences:
(a)Using a carriage service to possess or control child abuse material, contrary to s 474.22A(1) of the Criminal Code 1995 (Cth) (Commonwealth Criminal Code). The maximum penalty for this offence is 15 years’ imprisonment.
(b)Using a carriage service to access child abuse material, contrary to s 474.22(1) of the Commonwealth Criminal Code. The maximum penalty for this offence is 15 years’ imprisonment.
Agreed Facts
The offending is set out in a statement of agreed facts which forms part of the prosecution’s tender bundle. A brief summary follows.
In relation to the first charge, between 28 October 2019 and 5 February 2020, the offender used a mobile phone and two computers to possess 137 child abuse material files.
In relation to the second charge, between 28 October 2019 and 15 December 2019, the offender used two computers to access 7 child abuse material files. These files are co-extensive with those which are the subject of the possession charge.
On 5 February 2020 police executed a search warrant at the defendant’s residence. Police initially conducted a cursory search of the offender’s computer, and observed on the desktop images of two female children between 8 to 10 years of age. These files fell into Categories 1 and 2 of the ANVIL classification schema.
The offender made substantial admissions during the search warrant in relation to the computer and the images contained therein. These admissions included that he owned and had sole access to the computer, that he had a masturbation problem which had been ongoing for 15 years, that he would use Facebook messenger to send the material to himself, and that he had deleted a lot of the images and videos 6 months prior because he was in a better headspace.
Police subsequently conducted digital forensics on the seized items and determined that the offender possessed the 137 child abuse material files, and accessed the 7 child abuse material files over the relevant periods.
Categorisation of the material
Material classified under the ANVIL schema is described as follows:
Category Type Guide 1 Depictions of children with no sexual activity Nudity, surreptitious images showing underwear / nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination 2 Non-penetrative sexual activity between children or solo masturbation by a child Explicit sexual activity not involving an adult 3 Non-penetrative sexual activity between child(ren) and adult(s) Mutual masturbation and other non-penetrative sexual activity 4 Penetrative sexual activity involving child(ren) or both child(ren) and adult(s) Including, but not limited to, intercourse, cunnilingus, and fellatio 5 Sadism or bestiality Sexual imagery involving pain, humiliation, or animals 6 Animation/Cartoon/CGI depicting CETS scales 1 – 5 Any animations, cartoons, drawings or computer generated imagery depicting any of the CETS scales (1 – 5)
The 137 items of material detected on the offender’s devices, and form the possession offence, were categorised as follows:
(a) 82 files in Category 1
(b) 7 files in Category 2
(c) 15 files in Category 3
(d) 26 files in Category 4
(e) 7 files in Category 5
Originally it was stated that eight items accessed which were referred to in the statement of facts were categorised as follows:
(a) 5 files in Category 1
(b) 2 files in Category 2
(c) 1 file in Category 4
After review by the prosecution this was changed to seven items, see below at [15]-[17]. It was not stated by the prosecution whether the file omitted was in Category 1 or Category 2.
Descriptions of the content of these files associated with each of the ANVIL Categories, are contained, by way of example, within the agreed statement of facts. Twenty-six of the files possessed by the offender depict penetrative activity between an adult and a child. One Category 5 video possessed by the offender depicts the graphic torture and murder of a pre-pubescent female child.
Unfortunately, the prosecution submitted that it was important for the Court to look at the material. I undertook that review in Court: see R v Porte [2015] NSWCCA 174; 252 A Crim R 277 (R v Porte) at [76]; R v Hutchinson [2018] NSWCCA 152 (Hutchinson) at [47]-[50]. I note for the record that in Hutchinson, R A Hulme J underlined that there is no binding authority that viewing a sample of such material is essential in every such case, taking the view that that it is incumbent upon the prosecuting authorities to provide an adequate written description of the material. His Honour stated further at [49]:
I do not see the need to view an image or a video of, for example, an adult committing some dreadfully depraved act towards a child when it is possible to understand how terrible such a thing is by reading a description of it. Moreover, I would doubt there would be any comfort for the child victim to know that in addition to offenders poring over such images there will be lawyers and judges examining them as well.
I have reviewed the material. No further description is necessary for the purposes of these sentencing remarks.
Additional Digital Forensics Evidence
On 4 June further evidence was tendered in the form of a supplementary statement, dated 20 May 2021, following a digital forensics analysis of the offender’s computer. This evidence threw additional light on the agreed facts outlined above.
The statement of agreed facts states that there were eight items of material which form the access offence, however at the sentence hearing on 4 June 2021, further information had been received following digital forensic analysis and this was revised to seven items (T38.30-35).
The digital forensic analysis conducted following the hearing on 27 April 2021 and 4 June 2021 also revealed that the Category 4 file, labelled ‘St Petersburg’, had been accessed by the offender on six occasions throughout the month of October 2019 (T39.1-20). This video depicts an adult male engaging in penetrative activity with a female child between 10 and 12 years of age.
There was therefore a discrepancy between the evidence of the offender and the digital forensic evidence: see (T39.5-10; 42.25-30).
Objective Seriousness
The objective seriousness of the offences are addressed by the relevant factors as set out in R v De Leeuw [2015] NSWCCA 183 (De Leeuw) at [72].
Prosecution submissions
Nature, content, and quality of material
The prosecution correctly submitted that whilst the volume of material is one indicator of objective seriousness with respect to offences of this type, the type of material and degree of its depravity is the primary focus: Director of Public Prosecutions v Latham [2009] TASSC 101; 19 Tas R 281 at [35].
Further, it was submitted that the content of the child abuse material possessed by the offender is graphic, violent, and reflects a very high level of depravity, and depicts real child victims as opposed to cartoons or animation. It was submitted while 82 of the files have been assessed as Category 1, Courts have emphasised that this material is capable of possessing significant gravity: Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 at [67]-[69] (DPP v Garside).
The prosecution submitted that the moral depravity of the material possessed and accessed detracts from any submission that the offending is less serious because it involved a relatively small amount of material. It was submitted that the repeated use of the Category 4 file was relevant to the assessment of objective seriousness, cast doubt on the offender’s affirmed evidence, and led to his culpability in respect of the full range of material that he accessed and possessed (T39.5-36).
Number of children victimised
The prosecution submitted that there is a presumption of harm when children are the victims of sexual offences, and that this is a significant factor in the assessment of the seriousness of the offending. It was submitted that it is reasonable to infer that many of the pre-pubescent children depicted would have suffered physical harm as a result of the penetration: R v Oliver & Ors [2002] EWCA Crim 2766; [2003] 1 Cr App R 28 (469) at [20]; Colburn v R [2009] TASSC 108 at [34]; R v Clarkson [2011] VSCA; 32 VR 361, 364, at [3].
The prosecution submitted that there are an estimated 75 to 100 victims depicted in the material. It was submitted that the age of the victims depicted is relevant to the gravity and the depravity of the offending: R v Gent [2005] NSWCCA 370; 162 A Crim R 29 (R v Gent). It was submitted that each child is re-victimised each time a video is shared or received.
Duration
It was submitted that accessing or possessing child abuse material over a lengthy period of time may support the inference that the offender obtained sexual gratification from the material, and that was the reason for the offending: R v Gent, referred to with approval in Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477 (D’Alessandro) at [3].
The prosecution submitted that in the present case, the offender possessed the material over three and a half months, and accessed the material over one and a half months. The prosecution submitted that was not a “lengthy” period, but it was “substantial”. It was submitted that the offender’s conduct indicates that he obtained sexual gratification from the material and he had a sexual interest in children.
General deterrence and the need for adequate punishment
The prosecution submitted that general deterrence is a highly relevant factor, due to the paramount public interest in promoting the protection of children. It was submitted that a term of imprisonment is warranted in these circumstances.
Defence submissions
Counsel for the offender accepted that ordinarily an immediate term of imprisonment is warranted for offences of this type.
It was submitted that the neither the possession or access offences were for the purpose of sale, further distribution, or profit. It was further submitted that “the absence of the aggravating feature of further transmission places [the offending] in a less serious category” than the offending in R v Burch [2020] ACTSC 192, but accepted that the number and level of images were less serious in that matter.
It was accepted by counsel that the length of time that the material was possessed and accessed by the offender was determined by the agreed statement of facts. It was submitted that the offender had decided to cease viewing the material at some point which could not be determined with precision, however it was accepted that this was counter-balanced by the evidence establishing repeated viewing (T42.30-46).
Conclusion on objective seriousness
An assessment of the objective gravity of an offence has always been an essential part of the sentencing process. However, it is not necessary for a judge to indicate where the offence falls in a scale of low, mid-range, or high criminality, nor were submissions made by the prosecution or defence in this respect. What is required is for a court to “fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I accept the features identified by the prosecution and defence as set out above. The submissions are broadly aligned and accord with my view of the objective seriousness.
Subjective Circumstances
In evidence before me is a Pre-Sentence Report (PSR) prepared for the offender. Additionally, the following documents were prepared and tendered in relation to the offender:
(a)A letter dated 28 January 2021 under the hand of Ms Stefanie Marris, a psychological counsellor.
(b)Four character references, discussed below.
(c)An online newspaper article relating to the offender’s pleas of guilty in the Magistrates Court.
(d)A text message, received by the offender via social media.
Pre-Sentence Report
The offender was born in Canberra, and stated that his parents separated when he was two years of age. He was raised solely by his mother until she re-partnered when he was seven years of age. The offender recalled being the victim of physical, sexual and emotional abuse as a child.
The offender left the family home at the age of 16 and subsequently experienced periods of homelessness, before find employment and housing at the age of 21.
The offender described his current relationships with his parents and immediate relatives as being positive. The offender reported a positive current romantic relationship. The offender currently resides with this partner and currently relies upon her financial support. The offender disclosed debts of approximately $3000 in fines, and $3000 for his car.
The offender denied any issues with alcohol, reporting that he would drink every weekend, although denied drinking to intoxication.
The offender disagreed with some aspects of the statement of facts, stating that he had not viewed all of the images involving child abuse material which were in his possession. The offender agreed that his behaviour was unlawful, but denied being aware that the offending files contained child abuse material at the time it was accessed. The offender stated that when he became aware of the presence of the material, he initially moved past it to search for the material that he was interested in.
The PSR author assessed the offender as a medium risk of general reoffending. He was assessed as suitable for an Intensive Corrections Order (ICO) in conjunction with conditions such as assessment for relevant mental health and sexual offending counselling services.
Letter of the offender’s psychologist Ms Marris
Ms Marris’ letter stated that the offender commenced psychological counselling with her in February 2020, reporting a similar history to Ms Marris as was disclosed to the PSR author. Ms Marris states that the offender was “upfront about the nature of the material found in his possession”, and that “he is aware of the seriousness of his actions and the potential consequences”. The letter indicates that the offender has not yet achieved the in-depth examination or therapeutic intervention required.
Media and Social Media
Counsel for the offender tendered media reports on the offender’s committal for sentence, and his prior business ventures and public presence in the ACT business community. The social media message, from a former acquaintance of the offender, expresses disgust and disappointment with the offender.
Defence Submissions
Counsel for the offender submitted that the offender had been open and cooperative with the PSR author, and that the report had confirmed physical, sexual, and emotional abuse from a young age (T23.1-10). It was submitted that thorough rehabilitation is the community’s best protection against any reoffending (T24.29-31). It was submitted that the offender had been assessed as suitable for community service, and that a community service element to a sentence would be a constant reminder of his offending and the need for him to never again find himself in this situation (T24.30-40).
Counsel for the offender submitted that these offences have been ‘a mighty fall’ for the offender, due to the considerable element of respect that he had had in the community which has now been largely lost by the fact of his behaviour (T14.10-20).
Counsel for the offender submitted that in the 18 months since the offending began that the offender had taken significant steps at rehabilitation (T14.23-25) Counsel for the offender submitted that the offender’s desire to continue engaging in sessions with Ms Marris constitutes a safeguard against the possibility of future offending.
Counsel submitted that the fact of the offender’s business being reported in conjunction with the course of court proceedings is “a significant element of extra-curial punishment”. It was submitted that the publication of the offender’s name in the press adds “a significant element to the denunciation of his offending that he expects to receive from the [Court].” It was submitted that the social media message represents an example of the level of vilification to which the offender has been subject since his offending was reported in the media.
Counsel submitted that the offender has been a productive member of the ACT community for a considerable period of time, having worked as a chef, a baker’s apprentice, and with other government employers, including as a mental illness educator. It was submitted that more recently the offender has run a business assisting other men with style, grooming, communication skills, and emotional support.
It was submitted that the offender’s lack of any relevant criminal history, and significant psychological history are both relevant to the sentencing exercise.
I take these matters into account on sentence.
Prosecution submissions
The prosecution made submissions in relation to the offender’s pleas of guilty at [60]-[62], lack of criminal history at [45]-[46], remorse and cooperation with authorities at [47]-[48], outlined below.
Criminal History
The offender is 32 years of age and has no relevant criminal history.
The prosecution submitted that while this was a factor in the offender’s favour, it should be considered in the context of offending of this type, where less or limited weight is typically given to prior good character, citing R v Gent, D’Alessandro [at [21], and Mouscas v R [2008] NSWCCA 181 at [37] (Written submissions at [30]).
Remorse and Rehabilitation
The offender gave evidence on 22 April 2021. The offender stated that he had dealt with a number of difficulties with his mental health throughout his life, and in particular difficulties with depression, anxiety, sex, and sexuality (T17.5-12). The offender stated that he had downloaded approximately 6000 “legal, but obscure” pornographic images, of which the offending images had formed at part (T17.19-22). The offender acknowledged that possession of the material creates a market for its production (T17.44-46). The offender stated that he was willing to take responsibility and accountability for his actions, and had engaged in counselling with his psychologist Ms Marris following the charges being brought against him (T18.15-27). The offender acknowledged that he had had considerable difficulties utilising the strategies that his psychologist had provided to maintain a healthy frame of mind (T18.30-47). The offender also revealed that he had been the victim of physical, mental, and sexual abuse in his past (T19.5-15). In cross-examination, the offender accepted that he had pleaded guilty to both the possession and the access offences described in the statement of facts (T19.24-40).
The prosecution accepted that the offender offered some cooperation with authorities in the investigation of the offending, making admissions in relation to the ownership of the devices and the way in which the material had been accessed and possessed. Counsel for the prosecution submitted that there was very little insight or remorse shown in relation to the evidence, and that the tenor of the evidence “bordering on the fact that [the offending] was an accident”, which it was submitted was clearly not the case. It was submitted that there was direct evidence to the contrary of the offender’s claim that the offender ceased viewing the material as it increased in depravity (T39.38-45).
Counsel for the prosecution submitted that in light of the assessment of the offender as being at a medium risk of re-offending in the ICO assessment report, there was considerable concern in respect of prospects of rehabilitation (T40.1-5).
Extra-curial Punishment
Counsel for the prosecution and counsel for the offender provided supplementary written submissions on the principles applicable to extra-curial punishment. Counsel for the prosecution correctly submitted that, at common law, a sentencing court may have regard to extra-curial punishment, being loss or detriment imposed upon an offender by persons other than the sentencing court for the purpose of punishing the offender for the offence, or at least by reason of the offender having committed the offence: Silvano v R [2008] NSWCCA 118 at [29]. See also R v Daetz [2003] NSWCCA 216.
Counsel for the offender and the prosecution both submitted that retributive assault is the paradigm example of extra-curial punishment: Silvano v R [2008] NSWCCA 118; Waterstone v R [2020] NSWCCA 117 at [124]; Einfeld v R [2010] NSWCCA 87 at [8]. Both counsel were similarly in agreement that the broader issue of public opprobrium or stigma being a mitigating factor at sentence remains to be authoritatively resolved: Ryan v The Queen [2001] HCA 21; 206 CLR 267 at [52]-[55] per McHugh J, at [123] per Kirby J, at [157] per Hayne J, and at [177] per Callinan J.
Counsel for the prosecution made reference to Sabel v R [2014] NSWCCA 101; 242 A Crim R 49 (Sabel) in which the NSW Court of Criminal Appeal held that adverse social consequences that an offender may suffer from being convicted of accessing and possessing child pornography was not a mitigating factor; it is a direct result of the offending conduct, the underlying nature of which is exploitative of children.
Counsel for the prosecution submitted that Sabel aligns with authoritative cases for child sex offences De Leeuw and R v Porte. It was submitted that it follows from the requirement that such offences attract significant community denunciation and general deterrence that the ordinary opprobrium flowing from detection, charging and conviction cannot warrant mitigation. It was submitted that a reasonable degree of community disgust and denunciation accords with the Court’s primary sentencing purposes and it would be erroneous to offset this natural consequence by diminishing the sentence appropriate in accordance with s 16A(1) of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act).
Counsel for the offender submitted that the media in reporting the offender’s case had “made particular play of his former business”. It was submitted that this may allow the Court to see some mitigation. In addition, it was submitted that the directed and personal abuse contained within a text message, included in written submissions, went beyond publication in mainstream media, and had the potential to engender a “one-on-one fear” in the offender.
At sentence hearing on 4 June 2021 CCTV footage was played depicting what was submitted to be an assault on the offender involving an unknown woman throwing hot wax over the offender in a public bar. It was submitted that the person who through the wax had been speaking about the offences when she did so, and that the wax had left some blisters on the upper part of the offender’s hand and wrist (T42.15-20). It was submitted that the offender had also received anonymous telephone calls from people threatening to run his motorcycle off the road, and that the offender had not reported the matters due to the shame associated with having to tell police of the likely reason for those telephone calls.
Counsel for the prosecution noted that it was difficult to determine whether the substance thrown at the offender was wax, however submitted that if the Court were to accept these facts as presented, that the prosecution would not be heard against submissions to the effect that this constituted a significant form of extra-curial punishment (T41.1-25).
Conclusion
I take into account the extra-curial punishment on the basis of the concession by the prosecution and in accordance with the authorities discussed above.
References
In evidence before me were four character references written in support of the offender, which included the following:
(a) A letter from the mother of a former long-term partner of the offender, dated 18 January 2021, which included:
Despite the significant challenges in his early life, my experience of [the offender] is as a very kind and caring young man… [The offender] has paid very dearly for his mistake… his reputation is in ruins, which has very serious implications for a young man wanting to contribute to the community, and he also lost his public service job – only recently gained… I have been very impressed at [the offender’s] maturity and strength of character in dealing with the many months of uncertainty and unemployment waiting for the court process, and the very public shaming that he has endured.
(b) A letter from the offender’s former partner, dated 18 January 2021, which included:
Once [the offender] started his journey of recovery, he realised that there are limited resources for men in his position and wanted to help others who were in pain and struggling. [The offender] cares about other people and wants to help, in my opinion he would never make or support another person suffering the way he did in his childhood. [The offender] is the sort of person who wants to make this world a better place for all and has done so with his work both for the Government and through volunteering and setting up his own business… I have known [the offender] for almost half his life. He has committed his life to working on himself and helping others do the same.
(c) A letter from a close friend of the offender, dated 10 January 2021, which included:
I am a mother of two young boys, when [the offender] was kicked out of the unit by his girlfriend, I offered him a room to stay in my home that my children live in until he could get back on his feet. I have never and will never be concerned with leaving my children in his care. He is a genuinely nice and caring person.
(d) A letter from the offender’s younger brother, dated 18 January 2021, which included:
[The offender] taught me styling, grooming, presentation and manners. He taught me how to drive, gave me my first car and helped me get my first job. He is the father figure I deserve and the one he never had.
[The offender] has always been the person that pushed me to be the best version of myself, while struggling with his own issues. He has helped me through social anxiety, body image issues and there is no one I feel safer around.
…
[The offender] is one of the most giving, caring and kindest individuals I know, if it were not for his generosity and willingness to take me in as a teenager and help me through my own life, I would never have become the person I am today.
Each of the authors have known the offender for a considerable period in various capacities. The referees attest to the offender’s disclosure of childhood abuse, and the offender’s efforts to assist other males in relation to mental health and body image issues. The references confirm the offender’s disclosure of a difficult upbringing, and continuing respect and support.
I take these references into account on sentence.
Plea of Guilty
The Court must take into account the fact that a federal offender has entered a guilty plea, as well as the timing of the plea and whether it was entered as the first reasonable opportunity and the degree to which these factors resulted in any benefit to the community of, or witness to, the offence.
In sentencing for Commonwealth matters, the Court is not required to specify a discount, although it may be desirable to do so in the interests of transparency.
Section 16A of the Commonwealth Crimes Act has recently been amended with effect for any sentence imposed on or after 20 July 2020. As a result of this amendment, the Court is now required to take into account, if an offender has pleaded guilty to a charge, the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g)(iii). Previously, ACT authority in R v Harrington [2016] ACTCA 10; 11 ACTLR 215 prohibited a court from taking into account the utilitarian value of a plea.
Prosecution
The prosecution submitted that the utilitarian benefit of the offender’s early guilty plea must be taken into account, insofar as it has saved the community the expense of trial: s 16A(2)(g) Commonwealth Crimes Act.
The offender may obtain a discount where it is established that the plea (and any associated evidence) demonstrates genuine remorse, acceptance of responsibility, and/or a willingness to facilitate the course of justice: Cameron v The Queen (2002) 209 CLR 339, 346 at [22]. The prosecution submitted that in timeliness of the plea and the strength of the prosecution case are relevant to the subjective value of the plea.
The prosecution accepted that the plea was entered at the earliest reasonable opportunity, and that this was indicative of a willingness to facilitate the course of justice. In contrast, it was submitted that the weight of the plea should be reduced due to the strength of the prosecution case.
Counsel for the offender did not make submissions on the appropriate quantum for the offender’s pleas of guilty.
I will allow a discount of approximately 20 per cent for the pleas of guilty.
Time in Custody
The offender has spent no time in custody in relation to these offences.
Comparable Cases
In the case of federal offences, it is implicit in Part IB of the Commonwealth Crimes Act that I must have regard to current sentencing practices throughout the Commonwealth: see R v Pham [2015] HCA 39; 256 CLR 550 (Pham) at [18]; [23]- [24]. Regard must be had to sentencing decisions of intermediate appellate courts in comparable cases as “yardsticks” that may serve to illustrate but not define the possible range of sentences available: see Pham at [29]; Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [53]-[54].
Bare sentencing statistics provide limited assistance: Pham. Statistics do not provide information about why sentences were fixed as they were in each case: Hili. There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
I was referred to the following comparable cases by the prosecution and counsel for the offender.
Prosecution Cases
In Peters v R [2018] NSWCCA 126 the offender pleaded guilty to one offence of possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence was 10 years imprisonment. The offender pleaded guilty to a further offence of using a carriage service to access child pornography material, contrary to s 474.19(1) of the Commonwealth Criminal Code. The maximum penalty for this offence was 15 years imprisonment. Analysis of the offender’s seized devices revealed 676 image and video files, many of which were duplicated across the devices. The offender was 39 years of age at the time of the offences, and had a stable and supportive upbringing. He was assessed as having a low risk of recidivism. For the possession offence, the offender was sentenced to 18 months’ imprisonment, to be released after 9 months. For the transmission offence, the offender was sentenced to 2 years’ imprisonment, to be released after 9 months. The total effective sentence was 2 years and 9 months’ imprisonment, to be released after 18 months upon entering into a recognizance. On appeal, the offender was re-sentenced to a total effective sentence of 2 years and 4 months, to be released after 15 months upon entering into a recognizance.
In R v Fedele [2015] NSWCCA 286 the offender pleaded guilty to one offence of using a carriage service to access child pornography, contrary to s 474.19(1) of the Commonwealth Criminal Code. The maximum penalty for this offence was 15 years’ imprisonment. The offender pleaded guilty to a further offence of possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence was 10 years’ imprisonment. The access offence related to five images and five videos, eight of which were assessed in ANVIL Categories 1 – 3, and the remaining two in Category 4. The possession offence related to one image and five videos, four of which were in Categories 1 – 3, and the remaining two in Category 4. The offender was between 19 and 22 years of age at the time of the offending, had a stable upbringing and prosocial relationships. The offender was initially sentenced to 12 months’ imprisonment, to be released after six months on a recognizance. The second offence was fixed at 6 months to be served concurrently. The sentence was reduced on appeal on the basis of manifest excess, and reduced to 10 months’ to be served by way of Intensive Corrections Order, the offender having already served 2 months’ imprisonment.
In Director of Public Prosecutions (Cth) v Zarb [2014] VSCA 347; 46 VR 832 the offender pleaded guilty to one offence of using a carriage service to access child pornography, contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code. The offender pleaded guilty to two further offences of using a carriage service to transmit child pornography, contrary to s 474.19(1)(a)(iii). Each offence carried a maximum penalty of 15 years’ imprisonment. The access offence related to 415 images and 1 video. 310 of the images were assessed in ANVIL Category 1, 15 in Category 2, 20 in Category 3, 57 in Category 4, 11 in Category 5, and 2 in Category 6. The video was assessed as Category 4. The transmission offences involved the transmission of 12 images to three individuals, one of whom was a covert investigator. The offender was a 47 year old man, with no prior criminal convictions. The offender had experienced a disrupted and distressing childhood, and had begun drinking alcohol at 10 years of age. The offender was a habitual user of alcohol and amphetamines at the time of the offending. The sentencing judge assessed the offender’s culpability as below the median for these offences, finding that the offender exhibited deep remorse and an exceptional commitment to rehabilitation, with a general low risk of reoffending. The offender was initially sentenced to a 2 year and 6 month Community Correction Order (CCO) for the first access offence, in conjunction with concurrent 3 year CCO for the transmission offences. The prosecution’s appeal on the basis of manifest inadequacy was allowed, and the offender resentenced to 3 months’ imprisonment for the access offence, followed by a 2 year CCO for the remaining offences commencing after the 3 month period of imprisonment.
In R v Sykes [2009] QCA 267 (Sykes) the offender pleaded guilty to one offence of using a carriage service to access child pornography, contrary to s 474.19(1) of the Commonwealth Criminal Code. The maximum penalty for this offence at this time was 10 years’ imprisonment. The offender pleaded guilty to a further offence of knowingly possessing child exploitation material, contrary to s 228D of the Criminal Code 1899 (Qld). The maximum penalty for this offence was 5 years’ imprisonment. The access offence related to the detection of 120 files, 42 of which were assessed in Category 1, 11 in Category 2, 16 in Category 3, and 20 in Category 4 of the ANVIL schema. 31 files were unable to be categorised. The offender was 28 years old, with no prior criminal history. As a result of the charges, the offender lost his marriage, employment, suffered public humiliation and had to relocate. The offender engaged in full cooperation with authorities. For the access offence, the offender was sentenced to 15 months’ imprisonment, to be released after 6 months. For the possession offence, the offender was sentenced to 12 months’ imprisonment, to be released after 4 months. The offender’s appeal on the basis of manifest excess was dismissed.
Counsel for the prosecution submitted that Sykes was the most referrable given the “almost identical” limited number of files detected (T40.29-35).
Defence Cases
In R v Armstrong [2020] ACTSC 298 (Armstrong) the offender pleaded guilty to one offence of using a carriage service to possess or control child abuse material, contrary to s 474.22A of the Commonwealth Criminal Code, and two further offences of accessing child abuse material contrary to ss 474.19(1) and 474.22(1) of the Commonwealth Criminal Code. The maximum penalty for each of the offences was 15 years’ imprisonment. The possession offence related to the detection of 66 videos containing child abuse material. The further transmission offences related to the transmission of 29 videos, and 37 videos respectively. Of the 66 videos, 22 were assessed in Category 1, 11 in Category 2, 1 in Category 3, 31 in Category 4, and 1 in Category 5. The prosecution estimated that a total of 75 victims were depicted in the material. The offender was 43 years of age, had no prior criminal record, and was diagnosed with a Social Anxiety Disorder. The offender did not present with any problems relating to alcohol or drugs, and began engaging regularly with a psychologist after having been charged with the offences. For the possession offence, the offender was sentenced to 13 months’ imprisonment, reduced from 16 months’ due to his plea of guilty. For each of the access offences, the offender was sentenced to 6 months’ imprisonment, reduced from 8 months due to his plea of guilty. The period of imprisonment was suspended after 6 months upon the offender entering a recognizance release order.
In R v Burch [2020] ACTSC 192 (Burch) the offender pleaded guilty to one offence of possessing child abuse material contrary to s 474.22A of the Commonwealth Criminal Code, and a further offence of using a carriage service to transmit child pornography material, contrary to s 474.19(1) of the Commonwealth Criminal Code. The maximum penalty for each offence was 15 years’ imprisonment. The possession offence was limited to five images detected on a hard drive belonging to the offender due to a subsequent hard drive failure. Of the 5 images, 1 was assessed in Category 1, 3 were assessed in Category 3, and one was assessed in Category 4. The further offences related to sexualised communications relating to child sexual abuse between the offender and four other persons. These communications were assessed in Category 6 of the ANVIL Schema. The offender was 34 years of age, with no prior criminal record. The offender reported a tense and abusive upbringing related to his father’s alcohol consumption. The offender had been engaging with psychologists prior to his convictions due to anxiety and depression. For the possession offence, the offender was sentenced to a 2 year good behaviour order, including a 100 hour community service condition. For the transmission offence, the offender was sentenced 12 months’ imprisonment to be served by way of an ICO, including a 200 hour community service condition. Murrell CJ expressed reservations about the imposition of an ICO, noting that ordinarily it would not have been considered to be an adequate punishment, due to the objective seriousness of the offence and the offender’s lack of insight. The ICO was imposed due to considerations relating to the COVID-19 pandemic.
In R v Johnston [2020] ACTSC 46 (Johnston) the offender pleaded guilty to two offences of using a carriage service to transmit an indecent communication to a person under 16 years of age, contrary to s 474.27A(1) of the Commonwealth Criminal Code. The maximum penalty for this offence was seven years’ imprisonment. The offender pleaded to a further offence of possessing child abuse material, contrary to s 474.22A(1) of the Commonwealth Criminal Code. The maximum penalty for this offence was 15 years’ imprisonment. The possession offending related to 291 images contained on three devices belonging to the offender. A sample comprising 33 of those images were reviewed, 9 being classified as Category 1, 5 as Category 2, 9 as Category 4, and 1 as Category 5. The offender was 44 years of age, and had no prior criminal history. The offender accepted responsibility for his actions, although was unwilling or unable to explain his motivations behind his offending behaviour. The offender expressed willingness to engage in treatment and was assessed as a medium risk of reoffending. The offender was sentenced to 6 months’ and 15 days imprisonment for the transmission offences, and 11 months’ imprisonment for the possession offence, to be released after serving four months’ imprisonment on a recognizance.
In R v Logue [2020] ACTSC 115 (Logue) the offender pleaded guilty to one offence of preparing for, or planning to have, sexual intercourse with a child outside of Australia, contrary to ss 272.8 and 272.20(1) of the Commonwealth Criminal Code. The maximum penalty for this offence was 10 years’ imprisonment. The offender pleaded guilty to two further offences of accessing and possessing child abuse material, contrary to ss 424.22 and 474.22A respectively. The maximum penalty for these offences was 15 years’ imprisonment. The second offence related to a number of links on the offender’s phone which led to offending material. The third offence related to 30 videos containing child abuse material. Of those videos, 7 were assessed in Category 4, and 1 in Category 5. The offender was of prior good character, displayed apparent remorse and insight, and showed limited likelihood of reoffending. The offender was sentenced to 6 months’ imprisonment for the first offence, and 12 months’ imprisonment for each of the access and possession offences. The total effective sentence was 18 months and 28 days. The offender was to be released on a recognisance after serving 3 months of imprisonment.
In R v Arnould [2020] ACTSC 345 (Arnould) the offender pleaded guilty to an offence of possessing child abuse material, contrary to s 474.22A of the Commonwealth Criminal Code, and a further offence of using a carriage service for child abuse material, contrary to s 474.22 of the Commonwealth Criminal Code. Both offences carried a maximum penalty of 15 years’ imprisonment. The offending related to 370 images and videos. Most of the videos were assessed in Category 1, however a not insignificant portion was assessed as Category 4 material. The offender was 50 years of age and had no prior offending. Elkaim J determined that the offender had taken positive rehabilitative steps by seeking and continuing with treatment to address his offending, by attending a psychologist on a weekly basis and completing a sex offender program. The offender was sentenced to concurrent sentences of 9 months’ imprisonment, reduced from 12 months on account of the pleas of guilty. The period of imprisonment was suspended after 3 months’ upon entering a recognizance.
Defence Submissions
Counsel for the offender submitted that the nature and content of the offending material bears some similarity to the material disclosed in Armstrong, being grossly pornographic, graphic, degrading, violent, and reflecting a high level of depravity. It was further submitted that the number of items or images possessed in Armstrong was similar to the instant case, as was the number of child victims depicted in the material. Counsel submitted that the offender in Armstrong faced a further charge pursuant to s 474.19(1) of the Commonwealth Criminal Code which is absent in this matter.
It was submitted that there are significant similarities between the present matter and the offending in Arnould. Counsel submitted that the offender’s anticipated evidence, particularly with respect to his immediate disgust as to the depravity and the worst of the possessed material, and his then desisting from further viewing, may allow for a conclusion more favourable to the offender than the outcome of 3 months’ full-time imprisonment in Arnould. This submission was made prior to the evidence of repeated access to the Category 4 file.
Commonwealth Sentencing Principles and Statutory Considerations
When sentencing offenders for offences against the laws of the Commonwealth, I am bound to apply the provisions of Pt IB of the Commonwealth Crimes Act, as well as some common law principles of sentencing, including proportionality: see Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638.
State and Territory sentencing laws operate only so far as they are applicable and the laws of the Commonwealth do not otherwise provide. They are excluded where applicable Commonwealth sentencing laws leave no room for their application: see Pham.
As with every sentencing exercise, careful attention must be paid to the maximum penalties, which provide a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357 (Markarian).
The Court sentences in the context of s 16A of the Commonwealth Crimes Act, which pertains to matters which the court is to have regard when passing a sentence.
The Court is required to impose a sentence of appropriate severity in all the circumstances of the offence under s 16A(1) of the Commonwealth Crimes Act.
Section 16A(2) provides a number of mandatory considerations on sentence, which include the consideration of general and specific deterrence, adequate punishment, and rehabilitation. I have taken into account those matters under s 16A(2) that are relevant to the offender’s sentence.
In De Leeuw, the NSW Court of Criminal Appeal stated with respect to offences involving child abuse material at [72], that:
(a)General deterrence is the primary sentencing consideration for offending involving child pornography;
(b)Less or limited weight is given to an offender’s prior good character;
(c)Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography;
(d)Offending involving child pornography is difficult to detect given the anonymity provided by the Internet;
(e)The possession of child pornography material creates a market for the continued corruption and exploitation of children;
(f)There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime — children are sexually abused in order to supply the market; [and]
(g)The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.
It is important to underline in sentencing the offender that child pornography offences are not victimless crimes. Accessing child pornography creates a market for the continued exploitation of children. Children are sexually abused to supply the market for this depraved material. The distribution of child pornography is a global problem. Child pornography is a depraved black hole of the internet: see R v KB [2019] ACTSC 136 at [90]. It is destructive of young lives. General deterrence is a paramount consideration.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
I note s 16A(2AAA) of the Commonwealth Crimes Act, which provides that when sentencing an offender for a Commonwealth child sex offence, the Court must take into account the objective of rehabilitation.
I take these principles and legislation into account on sentence.
Cumulation and Totality
The prosecution submitted that a term of immediate imprisonment is the only appropriate sentence in this matter.
The prosecution referred to De Leeuw at [142], in which the NSW Court of Criminal Appeal considered the extent to which offending involving both access and possession of child abuse material ought to be accumulated.
The prosecution submitted that in the present case, the sentence imposed in relation to the possession offence should be partially cumulative on the access offence.
Counsel for the offender submitted that it would be appropriate for the offender’s sentences to be wholly concurrent. Counsel referred to the matter of Arnould, discussed above at [86], submitting that the charges in that matter were the same as those to which the offender has pleaded guilty, and the offender Arnould had a similar absence of a relevant prior criminal history. The offender Arnould’s sentences were wholly concurrent.
I will allow for substantial concurrency but not complete concurrency.
Intensive Corrections Order
Counsel for the offender submitted that the purposes of sentencing can be adequately addressed through the imposition of an ICO in the present case. It was submitted that the imposition of an ICO would allow the offender to continue the rehabilitation he has already begun, with a supervising structure, and in conjunction with the knowledge that any failure could see a custodial component enlivened (T43.25-40). I have formed the view that an ICO would not be appropriate in this case, taking into account objective seriousness and the need for general deterrence.
General deterrence is a highly relevant factor in sentencing these kinds of offences because of the paramount public interest in promoting the protection of children: see De Leeuw at [72(h)]. In DPP v Garside, the Victorian Court of Appeal stated the following after a review of the authorities dealing with disposition in child pornography cases at [61]-[62]:
During the course of the hearing the Director accepted that courts must be careful not to impose a standard to a sentencing task that is not prescribed by the statute. They conceded that the use of the term ‘exceptional circumstances’ in Guest and thence in Zarb was ‘problematic.’ The Directors thereafter no longer pressed the argument that there must be ‘exceptional’ circumstances before a non custodial disposition will be appropriate.
What is clear from all of the authorities is that access to child pornography is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending.
I underline that the term “exceptional circumstances” as referred to by both prosecution and defence is not without controversy in this context. De Leeuw at [72] refers to exceptional circumstances. That phrase was not accepted in DPP v Garside. For present purposes this issue is not settled. Nevertheless, suffice it to say that in the offender’s case an ICO is not appropriate adopting either test. It must be said the DPP v Garside approach is consistent with proper sentencing principle.
Sentence
In coming to a sentence by way of instinctive synthesis, I have taken into account the matters discussed above, including the objective seriousness of the offences, and the subjective matters.
The appropriate sentence for the offence of using a carriage service to access child abuse material is 15 months, reduced to 12 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of using a carriage service to possess child abuse material is 15 months, reduced to 12 months on account of the discount for the plea of guilty.
I will accumulate by 3 months.
The prosecution seeks a forfeiture order in relation to the electronic devices used in connection with the commission of the offences, pursuant to s 23ZD of the Commonwealth Crimes Act. The offender has consented to this order being made. I am satisfied the offender has committed a Commonwealth child sex offence, as defined in the Commonwealth Crimes Act, and pursuant to s 23ZD, I make the forfeiture order.
Orders
I make the following orders:
(a) I record convictions for each of the offences.
(b) For the offence of using a carriage service to possess or control child abuse material (CC2020/1838), the offender is sentenced to 12 months’ imprisonment to commence on 25 June 2021 and end on 24 June 2022.
(c) For the offence of using a carriage service to access child abuse material (CC2020/12204), the offender is sentenced to 12 months’ imprisonment to commence on 25 September 2021 and end on 24 September 2022.
(d) I set a recognizance release order, commencing on 24 October 2021 with a recognizance self in the sum of $500 for a period of 2 years, commencing on 24 October 2021 and expiring on 23 October 2023, with conditions that:
i. The offender accepts the supervision of ACT Corrective Services and obey all reasonable directions of officers of that service or their delegates;
ii. The offender undertake such assessments, counselling or treatment for sex offending as directed; and
iii. The offender be assessed for and, if found suitable, directed to attend the adult sex offender program.
iv.The offender is not to travel interstate or overseas without the written permission of his probation officer.
(e) I make a forfeiture order pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Director of Public Prosecutions that the following items are forfeited to the Commonwealth:
i. Black Samsung S8 Mobile Phone (R58J42ZQWJB)
ii. Antec PC Associated Hard Drive HDD1 (5WS37WXY)
iii. Antec PC Associated Hard Drive HDD2 (S1E2CY0A)
| I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: |
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