R v Peter Francis Statham

[2011] NSWDC 128

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Peter Francis STATHAM [2011] NSWDC 128
Decision date:	19 August 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	In respect of each of the three offences, a sentence of imprisonment of 2 years. Sentences to be served by way of intensive correction in the community.
Catchwords:	CRIMINAL LAW - sentence - use carriage service to access child pornography - use carriage service to make child pornography material available - possess child pornography - 2600 images, most in lowest Oliver category - good character and employment history - genuine remorse - voluntary commitment to sex offenders program - imprisonment necessary but whether to order an Intensive Correction Order
Legislation Cited:	Crimes Act 1900 s 91H(2) Crimes (Administration of Sentences) Act 1999 ss 88 - 91 Crimes (Administration of Sentences) Regulation 2008 r 175(b) Crimes (Sentencing Procedure) Act 1999 s 7, s 71(1) Criminal Code Act 1995 s 474.19(1)(a)(i), s 474.19(1)(a)(iv)
Category:	Sentence
Parties:	Regina Peter Francis Statham
Representation:	Mr PJ Gow for the offender Ms M Grimes for the Commonwealth Director of Public Prosecutions
File Number(s):	2009/236862

SENTENCE

1. On 29 October 2008, the Australian Federal Police received information linking Peter Francis Statham with the use of child pornography. A search warrant was issued and executed at his house at North Manly. Computers were confiscated and information was received about images depicting child pornography.

1. Mr Statham was charged with three offences: two of them were Commonwealth offences and one a State offence. The two Commonwealth offences were using a carriage service, namely the internet, to access child pornography. That is a crime against s 474.19(1)(a)(i) of the Criminal Code Act 1995 of the Commonwealth. The other Commonwealth offence was using a carriage service to make child pornography material available. That is an offence against the same provision, but subclause (iv). The State offence was possession of child pornography, which is a crime against s 91H(2) of the Crimes Act 1900. The maximum penalty for each of the offences is ten years imprisonment.

1. Mr Statham was arrested on 7 October 2009 and has not spent any time in custody.

1. It is important for a judge to make some reference to the material involved in a case. It disclosed that Mr Statham had forwarded via his email images of child pornography and had images of child pornography on his computer which he accessed. The computers were analysed and there were a total number of almost 2,600 images and video files which could be classified as child pornography material. They depicted children aged between six months and fifteen years.

1. There is a scale called the Oliver Scale, by reference to which child pornography can be classified. Most of the material comprised images in the lowest category, which involved erotic posing; there were some 1,500 of those images. Over 600 of the images were in the second lowest category and involved solo masturbation or sexual activity between children. Just over 120 of the images were in the middle category and involved nonpenetrative sexual activity between children and adults. Three hundred of the images were in the second highest category, involving penetrative sexual activity between children and adults. Nearly twenty of the images were in the worst category, depicting sadism and bestiality. Examples of the images were described in the facts which were part of exhibit A. It is not necessary to cite those examples.

1. Mr Statham was interviewed by the police and then charged with the offences which I have referred to. There was a presentence report prepared by the Probation and Parole Office about Mr Statham. Mr Statham is now fiftyfive and lives in a steady relationship in a suburb of Sydney. He presented as cooperative to the Service, and had a stable background and a very stable employment history, including twentyone years working in a responsible position for a major airline. Those contacted, according to the Probation and Parole officer, " expressed their shock and disbelief when Mr Statham informed them of the reason for his arrest, as in their presence he has never exhibited any signs of aberrant behaviour."

1. His partner continues to offer him emotional support. The report noted that after his arrest he sought counselling to address his offending behaviour. The author of the report was unable to gain a clear understanding of his motivation for the offending. She thought that Mr Statham would be suitable for a high to medium level of intervention by the Service. He was assessed as suitable for a community service order.

1. Mr P J Gow of counsel, who appeared for Mr Statham, made available as exhibit 1 a number of character references. The referees all knew Mr Statham well and knew about the offences. Mr Statham is highly regarded as a person, as an employee and as a mentor. He has evidently acted out of character so far as these offences are concerned.

1. Mr Statham has himself written a letter to the presiding judge who would sentence him, indicating his deep remorse and the impact which his access and use of child pornography must have had on the children who were depicted.

1. Mr Gow called his client to give evidence when he first appeared before me on 14 July 2007. He was an impressive witness. He is currently employed as a duty manager at a hotel, and has been seeing his GP, Dr Reid, and a psychologist, Dr Seidler. He commenced a sex offenders program in January this year and, at the date that he gave evidence, had completed some twentythree of the sessions and was continuing to engage in that course. He said that he had a much better understanding of the destructive nature of child pornography and how his own behaviour had contributed to the market for child pornography. He was keen to address his behaviour and found that the course he was undertaking enabled him to honestly confront why he was engaged in that sort of behaviour. He said that he would never engage in such behaviour again.

1. There are reports from Dr Seidler and Dr Reid. Dr Reid indicates that Mr Statham has a number of health issues, including things such as hypertension and diabetes. Dr Seidler has provided a series of very helpful reports which have monitored Mr Statham's progress in the sex offender program which he is engaged in. In her report of 11 July 2010, Dr Seidler confirmed " Mr Statham's positive engagement and participation in treatmen t". She said that he is " a positive group member, who is well engaged and demonstrates a high motivation for change. He is supportive and challenging of other group members appropriately, and impresses as highly committed to the treatment process and other group members ." He was at that date about halfway through the treatment and she thought that he " will require a further nine months or so to complete the program requirements ". She confirmed that he is " a committed, motivated, insightful and participatory group member, who appears to have gained considerably from treatment ". In one of her first reports she had expressed a view that it would be " likely that Mr Statham would be quite vulnerable in gaol, in addition to which, this would necessarily expose him to the highly antisocial environment of gaol, whereby he would probably also be forced to associate with more deviant and paedophilic offenders ". He has various certificates from his employment which demonstrate his qualifications and value as an employee. He cooperated with the police so far as their enquiries were concerned.

1. On 14 July 2007, I referred Mr Statham for an assessment for his suitability for an Intensive Correction Order. The assessment was returned, marked exhibit C, and indicated that he was suitable in all categories except a category described as the availability of suitable work and programs. Mr Gow made further enquiries about the negative result from that, and it seems that there was some innocent failure to consider the availability of some form of work. A fresh report was issued which indicated that suitable work and programs were available for Mr Statham. The problem seems to have been where that might have been available. It noted that " to his credit, Mr Statham continues to participate in therapeutic interventions aimed at addressing his offending behaviour ". It indicated that the Probation and Parole Service " holds little concern regarding the offender's ability to successfully complete an Intensive Correction Order ". He was assessed as suitable, and a factor which would be targeted was his inappropriate use of carriage services.

1. I have been assisted by both Mr Gow and Ms M Grimes - who appeared for the Commonwealth Director of Public Prosecutions and also on behalf of the New South Wales Director - in their written and oral submissions. Ms Grimes made her position clear, that the only appropriate penalty in this case would be a term of full-time imprisonment. She referred to the nature of the images which were involved and the number and highlighted that the offending included the transmission of images to other people. She pointed out that hundreds of different children were probably the subject of abuse so far as the images which Mr Statham had access to.

1. Mr Gow pointed out that the images in the higher category were fewer in number and the majority of the images were in the lowest category; indeed, almost ninety per cent appeared in categories 1 to 3. He argued that his client had taken steps to rehabilitate himself beyond those which the Court usually sees and his client had taken the initiative to undertake that program himself. (The later assessment report which was favourable became exhibit D in the proceedings.)

1. Ms Grimes also emphasised the significance of general deterrence and the importance of members of the community who would be thinking of engaging in child pornography offences to know that they are at risk of going to gaol full time. The offending behaviour is obviously becoming more prevalent, with more people having access to online services. She reminded me of the age range, which commenced as low as six months for some of the children involved. She conceded that he would be entitled to some discount for his plea of guilty, but that the case against him was a strong one. She correctly reminded me that I had to reach the view that, having considered all other available sentences, no other sentence than imprisonment would be appropriate and she submitted that I could reach that conclusion. She helpfully provided a document, which became MFI 1, which indicated the range of sentences which have been imposed in cases such as this.

1. The parties also provided me with statistics from the Judicial Commission regarding these kinds of offences.

1. I would regard an appropriate sentence, initially, as two and a half years imprisonment, but I propose to discount that to two years imprisonment, given that Mr Statham has pleaded guilty. Mr Gow submits that I should direct that that prison sentence be served by way of an Intensive Correction Order in accordance with s 7 of the Crimes (Sentencing Procedure) Act 1999. Ms Grimes resists that, pointing out that the only appropriate sentence is one of full-time imprisonment.

1. I have determined that the sentence is appropriate for Mr Statham to serve it by way of Intensive Correction Order. My reasons for that are fourfold.

1. The first is that it appears from the statistics that not all offenders convicted of these sorts of offences serve fulltime prison sentences; just under fifty per cent are penalised in ways that do not involve fulltime sentences.

1. The second reason is that I accept Mr Gow's submission that his client has taken steps towards his rehabilitation beyond that which a Court usually sees. In particular I am impressed by Dr Seidler's reports in this regard. Mr Statham was arrested in October 2009 and commenced his rehabilitation course in January 2011. It is a substantial course. I accept Mr Gow's submission that in this case it would not be in the public interest to interfere with that rehabilitation program.

1. The third reason is that I am impressed by Mr Statham's genuine remorse and his insight and the steps he has taken to deal with what was obviously a personal problem producing serious criminal behaviour. When he gave evidence before me in July he had completed, as I said, some twentythree sessions. I was impressed by him as a witness and by his letter to the Court.

1. Finally, I have regard to Dr Seidler's opinion about the impact which prison may have on Mr Statham. I think this is a case, exceptionally so, where a fulltime prison sentence is not warranted at this stage, but the sentence can be performed by an Intensive Correction Order. I say " at this stage " in case, of course, there is any breach of the Intensive Correction Order. I propose to impose sentences of two years to be served by Intensive Correction Order.

HIS HONOUR: Mr Gow and Ms Guillen, that's the result. I have to sentence him for each of the three offences, is that right?

GUILLEN: Yes, your Honour.

GOW: Yes, your Honour.

HIS HONOUR: I don't have the Criminal Code in front of me, Ms Guillen. Do I just impose sentences of two years in respect of each of the Commonwealth offences and then direct that they be served by Intensive Correction Order?

GUILLEN: Yes, your Honour.

HIS HONOUR: Mr Statham, if you would stand up.

1. In respect of each of the three offences you are convicted. I sentence you to imprisonment for two years in respect of each of the three crimes. Under s 7 of the Crimes (Sentencing Procedure) Act 1999. I make an Intensive Correction Order, directing that the sentences be served by way of intensive correction in the community.

HIS HONOUR: Have a seat, Mr Statham. Now I have to look at Part 5.

1. Under section 71(1) of the Crimes (Sentencing Procedure) Act , the date of commencement of the sentence will be next Friday, 26 August 2011. Under regulation 175(b) of the Crimes (Administration of Sentences) Regulation 2008, Mr Statham is to report to Corrective Services on 26 August 2011 or such later date as may be advised by the Commissioner, to such local office or other location as may be advised by the Commissioner for Corrective Services.

HIS HONOUR: Do I have to set an end date?

GUILLEN: Yes, your Honour, you do.

HIS HONOUR: I don't think I specify--

GUILLEN: No, you haven't as yet.

HIS HONOUR: And I don't think I do

GUILLEN: I think, your Honour, for Commonwealth offences you do need to specify the expiry date.

1. The sentence starts on 26 August 2011 and expires on 25 August 2013.

HIS HONOUR: Now I have to go through regulation 175. What I'm going to do is explain the sentence to your client, Mr Gow, as I'm obliged to, which involves me going through regulation 175. Whilst I'm doing that I'll just ask you and Ms Guillen to look up what are the consequences of failure to comply - because I'll need to explain that to your client. Stand up, Mr Statham.

1. The Intensive Correction Order which I have imposed has a lot of conditions. You have got to be of good behaviour, you have got to stay out of trouble and not be convicted of anything, so no drink driving or things like that. You have got to report next Friday or, if the Commissioner for Corrective Services gives you a later date, then that date you report at whatever office he directs you to. You have got to live only at premises approved by a supervisor. Hopefully that will be your home, but it has got to be approved by the supervisor.

1. There will be a condition which prohibits you from leaving or remaining outside New South Wales without the Commissioner's permission. There is a condition which prohibits you from leaving or remaining out of Australia without the permission of the Parole Authority; you cannot leave Australia without the Parole Authority's permission. There is a condition which requires you to receive visits by your supervisor at your home at any time, for any purpose connected with the administration of the order. So I assume what they can do in a case like yours is turn up and check that the computer has not got any child pornography images. In a drug case they would check and do urinalysis and things like that, but yours is different.

1. A condition requires you to authorise your medical practitioner, therapist or counsellor to provide the supervisor information about you that is relevant to the administration of the order. So if they want a report from Dr Seidler you authorise her to give it, as you have done already. A condition requires you to submit to searches of places or things under your control, as directed by your supervisor. So they are able to check your computer, for example. A condition prohibits you using prohibited drugs, obtaining drugs or using them or abusing them; that goes without saying. A condition requires you to submit to breath testing, urinalysis, other medically approved procedures. That would seem to be unlikely, but in your case, a condition prohibits you from possessing or having in your control any firearm or other offensive weapon. A condition requires you to such surveillance or monitoring, including electronic surveillance or monitoring, as a supervisor may direct, and complying with your supervisor's instructions in relation to operating the system. A condition prohibits you tampering with, damaging or disabling any surveillance or monitoring equipment. A condition requires you to comply with any direction given by a supervisor that requires you to remain in specified place during particular hours or which otherwise restrict your movements. So it may be that they say, look, there is a curfew overnight, you cannot go out, or you can go to work on that particular day, but no other days. They will work that out with you. A condition requires you to undertake a minimum of thirty-two hours of community service work a month as directed. You know about that and that has been sorted out, you are doing it on a Thursday. A condition requires you to engage in activities to address the factors associated with your offending as identified in your assessment report or that become apparent during the term or as directed by your supervisor when you are doing your course. A condition requires you to comply with all reasonable directions of the supervisor. So the supervisor's in charge of you.

1. Now, the idea is you have got a two-year gaol term. You must not forget that. You have got a two-year gaol term. You are serving it by way of Intensive Correction Order, so that means you are monitored closely and your freedom is significantly restricted. You may have to stay at home, just be able to go to work, either your paid employment or your voluntary work, which they will direct you about, but that is the idea. Your freedom has to be significantly restricted over the next two years, that is the punishment. The alternative is it is severely restricted by you being in Long Bay or Lithgow or somewhere like that, so it has got to be a punishment; that is why it is called an Intensive Correction Order. But the idea at the same time is that your offending behaviour is addressed, as you have already started to do yourself, to your credit.

HIS HONOUR: Now, I'll just ask Mr Gow and Ms Guillen, what's the consequence of him breaching the orders?

GUILLEN: Your Honour, I've got a copy of the Sentencing Bench Book and it states that in breaches of ICO dealt with by the Commissioner of Corrective Service and the Parole Authority pursuant to sections 88 to 91 of the Crimes (Administration of Sentences) Act 1999.

HIS HONOUR: What paragraph are you looking at?

GUILLEN: 3.670(?) and that the courts do not deal with the breaches, and then I can hand up this document that tells you what those breaches would be.

HIS HONOUR: 3.670?

GUILLEN: Yes, that's correct.

HIS HONOUR: All right.

1. Now, Mr Statham, in the unlikely event that you breach what is called an ICO, Intensive Corrections Order, the breach is dealt with not by me, by the Court, but by the Commissioner of Corrective Services, or the Parole Authority. If you breached it, the Commissioner of Corrective Services could just warn you. It could more stringently apply the conditions. It could decide to refer a serious breach to the Parole Authority and that body, the Parole Authority, could give you seven days home detention, or revoke the order. The consequence of the revocation would be that you would have to serve the sentence full time in gaol.

HIS HONOUR: I think that covers it, Ms Guillen and Mr Gow.

GOW: Yes, your Honour.

GUILLEN: Yes, your Honour.

HIS HONOUR: I don't think there are any other orders I need to make, or explanations I need to give to Mr Statham.

GOW: Just a couple of matters. I think it's implicit in your Honour's remarks that the sentences for the three offences will be concurrent.

HIS HONOUR: Correct, yes.

1. The sentences are concurrent, yes.

GOW: Yes, thank you, your Honour. I think my client will have to perhaps visit the Registry at the Downing Centre after.

HIS HONOUR: Yes, you both will because there's no facility up here, and, as happened with one of the previous cases, you'll be given custody of the order which I'm about to sign, and the file, which has to go with you back to the Downing Centre where you present it to the Registry, which can then have whatever steps are taken in the Registry.

GOW: Yes, I'll certainly do that, your Honour. The other matter is my friend has got a consent order to hand up to your Honour.

GUILLEN: It's in relation to the forfeiture of the computers, your Honour.

GOW: That's consented to, your Honour.

1. By consent I make the orders and the notations referred to in the short minutes of orders signed and sealed, and dated by me today.

HIS HONOUR: Thanks for your assistance, Mr Gow; and if you'd convey my thanks to Ms Grimes as well please, Ms Guillen. Good luck, Mr Statham.

ADJOURNED

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Amendments

13 April 2012 - re-ordered paragraph numbers

Amended paragraphs: 4-32

Decision last updated: 13 April 2012