R v Ramsay-Feeney
[2022] ACTSC 82
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ramsay-Feeney |
Citation: | [2022] ACTSC 82 |
Hearing Date(s): | 20 April 2022 |
DecisionDate: | 20 April 2022 |
Before: | Elkaim J |
Decision: | See [29] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage for child abuse material – where previous conviction for child abuse offence – where subject offending breach of Intensive Corrections Order |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16AAB, 19AB, 19AC Criminal Code Act 1995 (Cth) s 474.22 |
Cases Cited: | Aboud v R [2017] NSWCCA 140 R v Ramsay-Feeney [2021] ACTSC 5 |
Parties: | The Queen ( Crown) P J Ramsay-Feeney ( Offender) |
Representation: | Counsel D Jordan ( Crown) E Chen ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number(s): | SCC 9 of 2022 |
Elkaim J
On 20 January 2022, the offender pleaded guilty to the offence of using a carriage service for child abuse material contrary to s 474.22 of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is 15 years’ imprisonment. In addition s 16AAB(2) of the Crimes Act 1914 (Cth) says that because the offender has an earlier conviction for a child sexual abuse offence, there is a minimum sentence of four years imprisonment.
The offender is also to be sentenced for breach of an Intensive Corrections Order (ICO) made on 20 January 2021. That order was imposed by Burns J (see R v Ramsay-Feeney [2021] ACTSC 5).
The current offending relates to the accessing of 148 images of child abuse of which 95 per cent depicted animated or cartoon subjects. This is to be contrasted to the facts before Burns J where the accused was found to be in possession of 5370 images many of which were in categories depicting actual sexual activity. Clearly the offending confronting Burns J was significantly more serious than that now before me.
Both parties agree that the present matter is at the lower end of the range of objective seriousness. This assessment seems to be mostly based on the fact that very few of the child abuse images depict actual persons. Consequently there was limited harm to living children.
I viewed a sample of the images, two of which depicted actual children. Suffice to say that even the ‘non-live’ images depict scenes which totally contradict any normal description of childhood and offend the moral senses of any reasonable person.
Burns J recognised that a sentence of imprisonment was inevitable. Reading his judgment I have the impression that full-time custody would have been imposed but for the subjective circumstances which emerged. A lot of these circumstances were set out in a report of Dr Clout, a clinical psychologist.
Burns J was particularly concerned to address the mental health conditions that the doctor identified and which required redress. At [26] Burns J said:
I note that Dr Clout in her report concluded that you are suffering from symptoms consistent with several mental disorders, including Intellectual Disability of a mild nature, Paedophilic Disorder and Schizophrenia. She noted that you had a history of impairments in attention, concentration, hyperactivity and behaviour, dating back to your early childhood.
Dr Clout’s report, dated 17 August 2020, has also been tendered before me.
In addition to Burns J’s assessment of the medical report, I also adopt his description of the offender’s subjective circumstances. Commencing at [20], his Honour said:
20. I note that you are currently 34 years of age and that you were born in Canberra and the youngest of four siblings. During your childhood, your father abused alcohol and illicit substances [redacted]. When you were still quite young, your parents separated. There is some doubt as to whether it was 11 years of age, which is the figure which is set out in the Intensive Correction Order Assessments, or nine years of age, which is the figure which is set out in the report by Dr Clout. However, that is not really of any great significance.
21. [Redacted].
22. The report indicates that you have a positive relationship with your mother, but have limited contact with your siblings. You also currently have no contact with your father.
23. You have two adult children who were adopted by their grandmother, as their mother was deemed too young to care for them. You have not had any contact with your children in the last five years.
24. Since 2015, you have been in receipt of a disability support pension. You have not been employed since 2010.
25. You admitted to Dr Clout to having a sexual attraction to children, both male and female, and to looking at the material to fulfil your sexual urges. You recognise that your actions were unlawful. You stated that you were unaware that the cartoon images were illegal and stated that you do not intend to download or view further images in the future.
There is no updated report from Dr Clout but there is no reason to believe that the mental disabilities do not continue. I was told that the offender is in receipt of NDIS benefits although there have been difficulties with their provision.
Returning to the facts of this matter, on 8 April 2021 the offender was at an appointment at ACT Corrective Services. A case officer saw some suspected images of children on the offender’s phone. He notified the police. The phone was confiscated.
On 6 August 2021 the police attended the offender’s residence with a search warrant. They located a second phone on which there were more images. The police asked the offender for the passcode for the phone which he voluntarily provided. He also told the police that he owned the phone, that nobody else used it and that he knew the material was illegal.
The provision of the passcode and other useful information (for police purposes) was the basis for a submission that in addition to a discount of 25 per cent for the plea of guilty, there should be a further discount arising from assistance to the police.
I do not think the assistance justifies a further discount. In Aboud v R [2017] NSWCCA 140 the New South Wales Court of Criminal Appeal at [57] described the provision of a password as “effectively de minimis…it is commendable but is not critical”.
Although both parties agreed that a 25 per cent discount for the plea of guilty was appropriate, it is necessary for me to form my own judgment on the issue. I can see no reason to disagree. The plea was at an early stage and carried a significant utilitarian value. I intend to follow the submissions of the parties.
Another issue to be decided is the consequence of the breach of the ICO imposed by Burns J. It is noteworthy that the offending commenced very soon after the offender was released from prison. Clearly the intent of the ICO was not achieved.
The offender submitted that no further action should be taken. I disagree. To take no further action would be to effectively condone the original criminal conduct other than to the extent reflected in the limited time spent in custody by the offender.
In my view the original criminal conduct was very serious and would have resulted in a significant term of full-time custody. Burns J sentenced the offender for three offences. Two of them were dealt with concurrently. The third one attracted a term of imprisonment of nine months and was attached to the ICO.
There is no need for me to resentence on other than the third charge. I intend to impose the nine months’ imprisonment originally imposed by Burns J but without the benefit of the ICO. I do so on the basis of the circumstances, including subjective features, that were before Burns J.
The next matter is the sentence for the current offending. Subject to allowable reductions, it must be at least four years. Having regard to the objective seriousness of the offending it would be inappropriate to impose a sentence in excess of four years. I understood the Crown to agree with this approach. I will therefore impose a sentence of three years, being four years reduced by 25 per cent.
The next question is whether the nine-month sentence should be concurrent or partially cumulative upon the three-year sentence. It is important for me to not impose an overly crushing sentence and to respect the principles of totality.
At the same time the offender should know that he is being punished for the offence in addition to the new term that I will set. Consequently I originally intended that there would be a short period of accumulation of the two sentences.
The difficulty that arises however is that if the total sentence exceeds three years then, by virtue of ss 19AB and 19AC, I will not be able to release the offender on a recognizance. I think it is very important that I do so. As the Crown said it will be for the benefit of the offender to be released into supervision as opposed to being released with no controls on his conduct.
I am also concerned that he be given every chance of rehabilitation. The Crown said that on one approach the history of the matter indicated that the offender had been reluctant to engage with rehabilitation. But at the same time, as fairly observed by the Crown, that may have been a product of his mental health state as much as any deliberate reluctance.
I agree with the observations made by Mr Chen, on behalf of the offender, that he suffers from an illness of paedophilia which must be addressed, and if properly addressed, could result in rehabilitation.
In order to release the offender on a recognizance I will make the two sentences concurrent. However the release on recognizance will take place three months later than I had otherwise envisaged.
The value of such an approach will be to ensure supervision of the offender upon release with the overall intent of rehabilitation.
The offender has been in custody since 6 August 2021.
I make the following orders:
(i)The offender is re- sentenced to imprisonment in respect of CC2020/4628 for a period of nine months to commence on 6 August 2021 and end on 5 May 2022.
(ii)The offender is sentenced to imprisonment in respect of the current charge for a period of three years to commence on 6 August 2021 and end on 5 August 2024.
(iii)The offender is to be released on recognizance on 5 December 2022 on the following conditions:
a.Be subject to the supervision of a probation officer appointed in accordance with the order; and
b.Obey all reasonable directions of the probation officer; and
c.Not travel interstate or overseas without the written permission of the probation officer; and
d.Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
e.To report to ACT Corrections within two working days of release.
(iv)Pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Director of Public Prosecutions the following items are forfeited to the Commonwealth:
a.Optus X Sight Serial No. 65d3d0ba
b.Optus X Sight ec42a8a2
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
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