R v Phoumthipphavong

[2021] ACTSC 97

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Phoumthipphavong
Citation:	[2021] ACTSC 97
Hearing Date:	24 May 2021
Decision Date:	24 May 2021
Before:	Burns J
Decision:	See [20]–[22]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child exploitation material – plea of guilty – whether
underlying condition of ADHD influenced commission of the
offence – consideration of offender’s young age at time of offence and at time of first accessing child abuse material – good prospects of rehabilitation – limited prospects of
re-offending in circumstances of this case
Legislation Cited:	Crimes Act 1900 (ACT) ss 64(5), 65
Parties:	The Queen (Crown) Dion Leck Phoumthipphavong (Offender)
Representation:	Counsel
S Jerome (Crown) J Purnell SC (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Aulich Law (Offender)
File Number:	SCC 293 of 2020
BURNS J:

1. Dion Phoumthipphavong, you have entered a plea of guilty to one charge of possession of child exploitation material contrary to s 65 of the Crimes Act 1900 (ACT) (Crimes Act) (CC 3520/2020). The maximum penalty for that offence is seven years' imprisonment, or 700 penalty units, or both.

2.       You entered your plea of guilty at an early opportunity, being on the third mention date in the ACT Magistrates Court but after a plea of not guilty and the provision of a Brief of Evidence. Nevertheless, I am satisfied that your plea of guilty has significant utilitarian value and also is indicative of remorse. I propose to treat the matter as an early plea of guilty and to reduce the otherwise appropriate sentence by 25 per cent in order to reflect your plea of guilty.

The facts

3.       A full Statement of Facts has been tendered without objection. I do not propose to recite the Statement of Facts. It is sufficient to note that on 15 November 2018, police received information which suggested that you had been uploading Child Abuse Material. For some reason, it was not until 28 January 2020 that a search warrant was issued and on 30 January 2020, the search warrant was executed at your home address. During the execution of that search warrant, police located a Samsung Galaxy S8 mobile phone. You told police that it was your mobile phone and you provided them with the necessary information to enable the police to access the contents of the mobile phone. That, of course, is a matter which is in your favour, in that you co-operated with police in the investigation of this offence.

4. You were also subject to a Record of Interview in which you made very substantial admissions to your involvement in this offence. It is of some significance that you told police that you were 14 years of age when you first accessed underage sexual abuse material. You told police that the mobile phone was the mechanism by which you obtained access to the material and I note that subsequently, the police conducted a forensic examination of the mobile phone and identified 28 non-duplicate image files and 15 non-duplicate video files which meet the definition of child exploitation material as set out in s 64(5) of the Crimes Act.

5.       The files depict erotically posed male and female child victims ranging in age from about 4 years to 14 years of age. About 65 per cent of the files in Categories 1 to 4 on the Australian National Victim Image Library (ANVIL) scale depict children who are aged four to eight years of age. The files contain 24 unique child victims depicted in the material.

6.       The files clearly show the children's breasts, vaginas and penises. Some of the material depicts penetrative sexual activity involving children. There were 7 files within Category 1, 2 files in Category 2, 3 files in Category 3, 16 files in Category 4 and 15 files in Category 6. That totals 43 files.

7.       It was accepted by the Crown that in determining the objective seriousness of this particular offence, I should accept that the quantity of files was relatively low compared to other cases of similar offending which come before this Court but I do observe that a number of the files which have been referred to contain material of particular heinousness.

Moral culpability

8.       Material has been put before me in the form of a report from Professor Douglas Boer, a clinical psychologist, that you suffer from Attention-Deficit/Hyperactivity Disorder (ADHD) to some extent, which he describes as being to a moderately severe extent. Professor Boer expressed the opinion that this condition makes you more impulsive than normal and was likely of greater severity when you were younger than it is at the present time, although it continues to affect you.

9.       The Crown has submitted that I should not accept Professor Boer's conclusion or opinion that the present offending was causally connected to your underlying condition of ADHD. I should observe at the outset that the question of causal connection is something of a continuum, that something may causally affect the commission of an offence to a slight, moderate or a high degree or anywhere in between those descriptors.

10.     Professor Boer's opinion was clearly based upon the proposition that your underlying condition makes you more impulsive than a person who does not suffer from such a condition and I accept that conclusion. I note that to the extent that the author of the other psychologist's report, Ms Bollinger, says that she did not see any significant indicators of ADHD when she interviewed you. I am satisfied that Professor Boer's opinion should be given greater weight because of his greater familiarity with you. Certainly, I do not accept the proposition that Ms Bollinger's report is inconsistent with that of Professor Boer.

11.     In assessing your moral culpability, I take into account not only the number of files and also the nature of the material contained therein but also the fact that to some extent, which I think is probably relatively minor, your underlying condition of ADHD influenced the commission of the offence. I also take into account your age at the time of the offence. You were 18 years old at the time that you possessed this material but that is still very young. I also take into account the age at which you commenced access to child abuse material which, on the material before me, suggests that you were quite young.

Objective seriousness

12.    Any offence involving possession of child abuse material is a serious offence. Offences of this nature quite commonly attract periods of imprisonment. It has not been suggested in the present case that a period of imprisonment is not appropriate.

13.    It is, however, your submission made by your counsel that the requirements of sentencing in this matter will be satisfied by a sentence of imprisonment to be served by way of an Intensive Correction Order. Before I consider that submission any further, I will make some observations about the subjective material which is before me.

Subjective circumstances

14.     I note that you are currently 20 years of age and you were raised in a supportive and pro-social family. You are not the subject of any deprivation as a child and your family continues to provide support to you. That is a very significant matter in considering your prospects for rehabilitation.

15.     In addition to which, I am satisfied that you have, leaving aside the present offence, been a person who has not only been law abiding but also has demonstrated an ability to assist members of your family during difficult times. In that regard, I note that you have been in recent times acting as your grandfather's carer and the evidence which has been put before me demonstrates that you have done so in a very willing fashion.

16.    I note that you have completed Year 12 and you are currently undertaking a Certificate IV in Visual Arts. You have also been employed for two years on a part-time basis at a local retail store. You have no alcohol or drug issues that need to be addressed.

17.     Since this offence came to light, you have participated in specific treatment aimed at dealing with sexual offending. You have attended many sessions with Professor Boer. Your willingness to participate in programs and counselling directed towards your rehabilitation is a very strong protective factor. I note that you have expressed shame and remorse to a number of people, including the authors of the various reports which have been put before me. I accept that you are ashamed of what you did and you are remorseful for what you did. You have also expressed a degree of understanding about how your conduct may impact upon victims and how it may create a market for child exploitation material. Taken all together, I am satisfied that you have good prospects for rehabilitation.

18.     Bearing in mind the limited number of files involved in this offence, your age at the time of the offending and your age at the time that you first became involved in viewing child exploitation material and the limited extent to which ADHD, which at that time was undiagnosed, has contributed to your offending, I am satisfied that the requirements of sentencing do not call for a term of full-time imprisonment.

19.     I accept that general deterrence and denunciation of the offending are very significant factors in determining appropriate sentences for this type of offending but that does not mean that all people who commit such offences must serve a term of full-time imprisonment. Each case must depend upon its own circumstances.

Sentence

20.     On the charge of possessing child exploitation material (CC 3520/2020) I record a conviction. You will be sentenced to 12 months' imprisonment commencing today, 24 May 2021, and expiring on 23 May 2022. I have reduced that from 16 months in order to reflect your plea of guilty.

21.     That sentence will be served by way of an Intensive Correction Order. I note that the Pre-Sentence Report indicates that sexual offending will be targeted if you are subject to an Intensive Correction Order and that is certainly something with which I agree, although I note that I think that there are limited prospects of you re-offending in the circumstances of this case.

22.     I do not think there is anything I need to do other than to impose the Intensive Correction Order. I do not think there is any requirement for an indication of the period because it is simply as long as the sentence of imprisonment.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: 21 June 2021