R v Ramsay-Feeney
[2021] ACTSC 5
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ramsay-Feeney |
Citation: | [2021] ACTSC 5 |
Hearing Date: | 20 January 2021 |
DecisionDate: | 20 January 2021 |
Before: | Burns J |
Decision: | See [35]–[38] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using carriage service to posses child abuse material – using carriage service to access child pornography – using carriage service to access child abuse material – pleas of guilty – consideration of Intensive Correction Order – emphasis on punishment, deterrence and denunciation on offences of this nature – consideration of offender’s psychological conditions and disorders |
Legislation Cited: | Criminal Code Act 1995 (Cth) ss 474.19(1), 474.22(1), 474.22A(1) |
Parties: | The Queen (Crown) Patrick Jim Ramsay-Feeney (Offender) |
Representation: | Counsel D Bloomfield (Crown) S McLaughlin (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 153 of 2020 |
BURNS J
Patrick Ramsay-Feeney, you have entered pleas of guilty to three offences. The first is an offence under s 474.22A(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code), an offence of using a carriage service to possess child abuse material which carries a maximum penalty of 15 years' imprisonment.
The second offence is one contrary to s 474.19(1) of the Criminal Code of using a carriage service to access child pornography, which also carries a maximum penalty of 15 years' imprisonment.
Finally, the third offence is one contrary to s 474.22(1) of the Criminal Code of using a carriage service to access child abuse matter, which also carries a maximum penalty of 15 years' imprisonment.
The maximum penalty for each of these offences serves as a yardstick and a basis for the comparison between the case which is currently before the Court and the worst case. The sentence which I impose must take into account the maximum penalty and also take into account all other relevant factors, including the objective seriousness of each of the offences and also your subjective circumstances.
It is accepted that your pleas of guilty were entered at an early opportunity. This is indicative of a willingness to facilitate the course of justice. I propose to reduce by approximately 25 per cent each of the sentences that I would otherwise have imposed in order to take account of your pleas of guilty.
You have been in custody since 6 April 2020 until today, 20 January 2021, which I am told is a period of 9 months and 15 days.
The facts
A comprehensive Agreed Statement of Facts was tendered without objection. I will not now recite the statement of facts. I will, however, provide some basic information in relation to the offences as set out in the Agreed Statement of Facts.
On 13 February 2019, the Australian Federal Police were informed by
Queensland Police that you were the user of a photo sharing website. Your account had been created on 7 October 2017.
On 15 November 2019, police executed a search warrant at your residence in the ACT. During the search, you unlocked your mobile phone and handed it to police. On the mobile phone, police found a large number of images depicting bare-chested pre-teen females who were exposing their genitals. You admitted receiving and transmitting child abuse material using your email address. Police then commenced a
Record of Interview.
During that Record of Interview, you made full admissions about possessing and accessing child pornography material and child abuse material on your mobile phone. You were arrested on 15 November 2019.
I will break at this point to observe that you are entitled to a degree of leniency based upon the fact that you assisted the police in the investigation of this matter by not only providing them with your mobile phone, but voluntarily unlocking it and also participating in a record of interview, in which you made full admissions.
Police subsequently conducted a digital forensic analysis on your mobile phone. This showed that you possessed 5,370 files of child abuse material.
Of those, 4,385 were Category 1 images, as classified according to the
Australian National Victim Identification Library Schema Categorising System. Those are images of children that are likely to cause offence to a reasonable adult but where no sexual activity is taking place.
364 were Category 2 files. Category 2 files are files which depict sexual acts between children only, with no body penetration. The particular files on your mobile phone depicted pre-pubescent and pubescent male and female children engaging in solo masturbation and fondling each other's genitalia.
138 images were Category 3 files. Category 3 files are files depicting adults and children involved in non-penetrative sexual activity. The particular images involved in this case featured images of adults fondling genitalia and other body parts of children, and children fondling the genitalia and other parts of adults. These also included physical contact between adults and children, such as kissing and exposing the child's genitalia.
260 were Category 4 files. Category 4 files depict penetrative sexual activity between children only, or between adults and children. The particular images found included images of penile vaginal intercourse, fellatio and cunnilingus and penetrative use of sex toys.
21 were Category 5 files. Category 5 material depicts children subject to sadism, torture, bestiality or humiliation. The particular images which were located depicted female children subject to sadism.
202 were Category 6 files. Category 6 is material depicting audio-visual representations of child pornography. These images featured underage children or underage characters from the television show, The Simpsons, and stylised drawings of children engaged in activities which are the subject of Categories 1 to 5 in the categorising system to which I have referred.
The analysis showed that you accessed the 5,370 files between 1 September 2017 and 15 November 2019 and that you used the device to access child pornography material on 48 separate occasions between 1 September 2017 and 20 September 2019.
It is clear that these are objectively serious offences. It has been submitted on behalf of the Crown that they call for terms of imprisonment, and I agree. Indeed, it has not been suggested to the contrary by counsel on your behalf.
Subjective Circumstances
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.
[Redacted].
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.
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.
Since 2015, you have been in receipt of a disability support pension. You have not been employed since 2010.
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.
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.
She recommended that further assessment be undertaken to determine whether Attention Deficit Hyperactivity Disorder (ADHD) is implicated in your clinical picture, as untreated symptoms are likely to exacerbate the deficits noted in your working memory, processing speed, adaptive functioning and behavioural regulation. I note the recommendations that were made by Dr Clout.
When the matter came before myself in December 2020, it was clear from a perusal of the Intensive Correction Order Suitability Assessment that the author of that assessment had not had the benefit of reading Dr Clout's report. It appeared to me that, in circumstances where Dr Clout had identified the disabilities to which I have referred, it was important that the author of the Assessment have access to that material in order to determine whether an Intensive Correction Order was a suitable disposition with regard to your personal circumstances and to determine what action might be appropriate for Corrective Services under such an order, if one were to be made.
For that purpose, the sentence proceeding was adjourned until today, 20 January 2021 and a copy of the report by Dr Clout was provided to the author of the Assessment and an Intensive Correction Order Suitability Assessment Supplementary Report (Supplementary Report) was obtained from the author of the Assessment. That maintains the assessment of “suitable for an Intensive Correction Order”, and I note that you have signed an undertaking to comply with all of your obligations of such an order.
The Supplementary Report notes that your mental health would be a factor targeted if an Intensive Correction Order is made, and also provides certain recommendations as to conditions that might be part of an Intensive Correction Order.
There can be no doubt that punishment, deterrence, both individual and general, and denunciation are important parts for considerations with regard to sentencing for offences of this nature. As I indicated earlier, those considerations require the imposition of terms of imprisonment with respect to these offences.
It is also important, however, bearing in mind the contents of Dr Clout's report, to acknowledge that there is a need to address those matters set out in Dr Clout's report with a view to not only encouraging your rehabilitation but protecting the public through addressing the psychological conditions or disorders which are likely to lead to further offending of this nature. It would not be in the public interest to simply sentence you to a term of imprisonment and have you released without being subject to significant supervision and treatment.
I am satisfied that the best approach to take is to impose terms of imprisonment with respect to each of the offences. With regard to two of the offences, I will impose discrete terms of imprisonment commencing on the date that you were taken into custody and expiring yesterday, 19 January 2021.
With regard to the third offence, I will impose a further term of imprisonment, which will commence today and expire on a date to which I will refer in a moment, and I will order that that sentence be served by way of an Intensive Correction Order.
Sentence
On charges CC2019/12336 and CC2020/4629 being the charges of using a carriage service to possess or control child abuse material on or about 15 November 2019 and the charge of using a carriage service to access child abuse material between
22 September 2019 and 15 November 2019, I record convictions.
There will be a term of imprisonment commencing on 6 April 2020 and expiring on
18 January 2021. I do not set a Recognizance Release Order because you have already served those sentences of imprisonment.
With regard to CC2020/4628, using a carriage service to access child pornography material, which occurred over a significant period between September 2017 and September 2019, you will be convicted and you will be sentenced to a period of nine months' imprisonment, which I have reduced from 12 months because of your plea of guilty, commencing today, 20 January 2021 and expiring on 19 October 2021. That is to be served by way of an Intensive Correction Order.
That will be subject to the core conditions, but will also be subject to further conditions.
(a) The first such condition is that you are to engage with specialised mental health resources as facilitated by ACT Mental Health and to follow all reasonable directions in relation to your mental health, including taking medication as directed.
(b) Secondly, you are to accept a referral to the Adult Step Up, Step Down residential program for assisted living in the community as directed by ACT Corrective Services.
[Speaking to offender directly]
You still have effectively a term of nine months' imprisonment hanging over your head. You will be entitled to be released today. I have imposed conditions on the Intensive Correction Order that I have imposed which are designed to assist with treatment of your mental health conditions, but you must understand that if you do not comply with the terms of the order that I have made, you still have that nine months that you have to serve.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns Associate: Date: |
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