R v Rasih
[2022] VCC 228
•18 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-00912
| THE QUEEN |
| v |
| TARKAN RASIH |
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| JUDGE: | HER HONOUR JUDGE CHAMBERS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 February 2022 |
| DATE OF SENTENCE: | 18 February 2022 |
| CASE MAY BE CITED AS: | R v Rasih |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 228 |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Plea of guilty – Using a carriage service to access child pornography, using a carriage service to access child abuse material and possession of child abuse material – serious examples of objectively serious offending - early plea – unrelated prior convictions – general deterrence and denunciation paramount sentencing considerations - prospects of rehabilitation – double punishment – concurrency and principles of totality
Legislation Cited: Criminal Code (Cth) ss474.19, 474.22, 474.22A, Crimes Act 1914 (Cth) ss16A, 16A (2AAA), 17A
Cases Cited:Justin Allison (a pseudonym) v the Queen [2021] VSCA 308; R v De Leeuw [2015] NSWCCA 183; R v Martin [2014] NSWCCA 283; Cluett v R [2019] WASCA 111; The Queen v Pham (2015) 256 CLR 550; CDPP v CCQ [2021] QCA 4; DPP V Gibbs [2017] VCC 716; DPP v Salih [2017] VCC 1755; DPP (Cth) v Maloney [2019] VCC 1285; DPP v Garside (2016) 50 VR 800; R v Porte [2015] NSWCCA 174.
Sentence:Total effective sentence of 3 years and 1 day’s imprisonment, non-parole period of 3 years fixed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Mr P. Russell (plea and sentence) | Director of Public Prosecutions (Cth) |
| For the Accused | Dr M. FitzGerald (plea and sentence) | Doogue + George Defence Lawyers |
HER HONOUR:
1Tarkan Rasih, you have pleaded guilty to the following offences contrary to the Commonwealth Criminal Code (Cth) ('the Code'):
(a) accessing child pornography using a carriage service between 30 July 2017 and 20 September 2019 contrary to sub-s474.19(1) of the Code (Charge 1), the maximum penalty for which is 15 years' imprisonment;
(b)
accessing child abuse material using a carriage service between
21 September 2019 and 23 February 2020 contrary to sub-s474.22(1) of the Code (Charge 2), the maximum penalty for which is
15 years' imprisonment; and
(c) possessing material, being child abuse material, on 26 February 2020 contrary to sub-s474.22A(1) of the Code (Charge 3), the maximum penalty for which is 15 years' imprisonment.
2You were born on 6 April 1977 and were between 40 and 42 years of age at the time of the offending.
Circumstances of the offending
3A detailed prosecution summary was tendered on the plea and is the agreed basis upon which you are to be sentenced. The factual background to your offending can be summarised as follows:
4On 26 February 2020, the police executed a search warrant at your home and seized your Toshiba laptop computer. You provided police with usernames and passwords to the applications on your computer. The computer was the subject of a preliminary examination and was found to contain a large number of images and videos depicting child abuse material.
5A subsequent digital forensic examination identified a total of 263,227 files stored on the laptop that were categorised as child abuse material. An examination of your internet search history revealed that you had accessed and downloaded the child abuse material from a peer-to-peer network, BitComet, which allows the downloading and sharing of files with other users on the network. The child abuse material had been accessed by you in this way between 30 July 2017 and 23 February 2020. The analysis also revealed 'torrent file fragments' or fragments of computer files containing metadata holding various information that had titles corresponding with categorised child abuse material.
6There were 262,440 images and 787 videos that were subsequently classified by reference to the Child Abuse Exploitation Tracking System Scale known as CETS. The images were exclusively of female children between three and 15years of age and were classified as follows:
(i)a total of 259,253 files being images and videos of partially or fully naked female children, including those with their genitalia exposed or striking sexually suggestive poses – CETS Category 1;
(ii)a total of 2901 files being images and videos of female children performing acts of solo masturbation - CETS Category 2;
(iii)a total of 407 files being images and videos of female children with exposed genitalia masturbating adult males and/or having their vaginas stroked, but not penetrated by adult males and females – CETS Category 3;
(iv)a total of 624 files being images and videos of female children being sexually penetrated in the mouth, anus and vagina, including with the use of sex toys - CETS Category 4;
(v)a total of 39 files being images and videos of female children between six and 15 years of age being physically abused, including being bound as part of acts of sadomasochism - CETS Category 5; and
(vi)three images of animated children being penetrated by animated animals – CETS Category 6.
7
Following your arrest, you participated in a record of interview with police on
26 February 2020 during which you made substantial admissions. You stated that you were the only person with access to your computer and admitted downloading 'thousands' of child abuse videos and images over several years, including in the days prior to your arrest. You admitted the material included images and videos depicting 'men having sex with children'.
8In your interview you told police that you viewed the material 'over and over again' but had intended to contact police to demonstrate the type of material that you were able to come across on the internet, specifically on BitComet. You said you kept the material for that purpose, but that you never had the courage to go to police.
9You told investigators you downloaded the material by clicking on the 'Torrent collection' tab in the BitComet application program. Once you clicked on that tab you said you were presented with a list of different types of torrent files. You said you would preview a file before selecting it and only downloaded material depicting female children. The files displayed in the listing were given file names. You downloaded files that included references to the ages of children involved. You acknowledged to police you had done the 'wrong thing by downloading it'.
Procedural history
10
I now turn to the procedural history of this matter. You were arrested, charged and bailed on 26 February 2020. You indicated an intention to enter a plea of guilty to Charge 3 but not guilty to Charges 1 and 2 at a committal hearing on
23 July 2020. The matter was subsequently listed before me for an application to stay Charges 1 and 2. On 25 August 2021 I refused that application. On
12 November 2021 the Court of Appeal granted leave to appeal against my ruling, but otherwise dismissed the appeal.[1]
[1]Justin Allison (a pseudonym) v the Queen [2021] VSCA 308
11You indicated an intention to plead to Charge 3 at an early stage in the proceedings. Further, in circumstances where a question of law was raised in respect of the remaining charges, you entered pleas to Charges 1 and 2 at the first reasonable opportunity after the question of law was resolved. Your plea attracts a significant discount in the sentence that would otherwise have been imposed. Through your plea you accept responsibility for your offending and you facilitate the course of justice. Your plea has heightened utility in the current environment in saving the court the cost and time associated with a trial where court delays have been occasioned in the wake of the pandemic.
Personal circumstances
12Turning now to your personal history. You are now 44 years old. You were born in Australia to Turkish Cypriot parents and are the eldest of three siblings. Neither your parents nor your siblings are aware of these charges. Your father operated a trucking business until his recent retirement occasioned by the onset of the COVID-19 pandemic and your mother, also retired, worked as an office assistant.
13You were educated at Broadmeadows Primary and Secondary College up to Year 10. Although your upbringing was supportive and stable, your schooling was disrupted by behavioural issues. The college initially referred you for counselling, but following a number of suspensions you were required to leave the school.
14Since leaving school you have worked in a number of trades, including periods as a bricklayer, a boilermaker, a welder and cabinet-maker, and for a company that manufactured security doors. In your late 20s, with the assistance of your father, you secured employment with the Spotless Group as a street sweeping contractor, a position you retained for four years. You subsequently trained as a ride-on mower operator and completed a Certificate III in Horticulture. You have now worked as a mower operator, on a full-time basis, for over 10 years. You are currently employed by Serco in this capacity working for Melbourne City Council. You have continued to work throughout the pandemic having been classified as an essential worker.
15You began to abuse cannabis in your early twenties and then thirties. Due to the impact this had on your mood you elected to leave Melbourne and lived in a caravan for a period of three months and have not used cannabis since this time.
16Although you have no relevant prior convictions this is not the first time you have been before a court. Between 1994 and 2010 you were sentenced for dishonesty and drug possession offences and use of indecent language. Your last court appearance was over a decade ago in November 2010. I do not consider your criminal history to be of particular significance in sentencing you for this unrelated offending. I accept the defence submission that these matters have little bearing on my assessment of your prospects of rehabilitation in respect of this offending.
17Other aspects of your personal background are detailed in the report of your treating psychologist, Mr Michael Bilyk, dated 27 September 2021. He states you have become progressively more isolated particularly since your friends commenced relationships and then families. You have never had a significant intimate relationship. You told Mr Bilyk you began to feel different from your peers and those around you. You withdrew socially and spent increasingly extended periods playing online computer games and communicating with people online rather than in person. You told Mr Bilyk you had resigned yourself to a solitary life and did not feel you possessed the skills or the capacity to alter this situation.
18You have not been diagnosed with any mental health disorder by Mr Bilyk. In his report Mr Bilyk expresses the opinion that you appear 'not to have developed interpersonally at a rate similar to [your] peers' and that you have 'struggled to maintain a sense of efficacy'. Mr Bilyk states you have internalised the distress associated with your circumstances and are 'becoming avoidant'. You engaged in 21 sessions of cognitive behavioural treatment with Mr Bilyk between 10 June 2020 and 12 August 2021, including treatment of 'fantasy as a motivation' for your inappropriate behaviours.
19As to your offending, Mr Bilyk states:
Whilst Mr Rasih has not denied possession of the child pornography/child abuse material as alleged, he has experienced a great deal of difficulty reconciling his conduct. Mr Rasih accepts that his behaviour as alleged is inappropriate, though he has been reluctant to consider or accept alternate motivations for offending. Whilst this could be seen as a lack of empathy, denial or minimisation, Mr Rasih's position presented as indicative also of an underlying shame. It is plausible that he is internally conflicted rather than seeking to justify his behaviour.
Defence submissions
20Dr FitzGerald, in his submissions on your behalf, acknowledged that the volume of child abuse material to which the charges relate, and the period of time over which the offences occurred, make these serious examples of these offences. Your counsel accepts that general deterrence must be an important sentencing purpose.
21Whilst acknowledging that the scale of your offending was an aggravating feature of your offending Dr FitzGerald's submissions highlighted that your offending lacked some of the features seen in more serious examples of such offences. For instance you did not have the material in your possession for the purpose of on-selling or actively distributing it to others. You did not pay to access the material and you did not intend to profit from it. You did not transfer or copy the files to other storage media and had taken no steps to avoid detection of your internet usage. I accept these features are not present in your offending.
22Further, it was submitted that the gravity of your offending is lessened by the fact a substantial percentage of material was not in the higher CETS categories, rather that the bulk of the material was categorised at CETS 1.
23Dr FitzGerald submitted that not only was your plea entered at the first reasonable opportunity, but it demonstrated your acceptance of responsibility for the offending, was of utilitarian value and facilitated the course of justice.
24Subject to your engagement in offence-specific treatment, it was submitted your prospects of rehabilitation are reasonably good, noting your solid employment history, the absence of any previous convictions for related offending and your demonstrated preparedness to engage in long-term psychological treatment. The defence submits your limited insight into your offending means that you would benefit from specialised offence-specific treatment to improve your rehabilitative prospects.
25Your counsel also highlighted the need to consider the sentencing principle of totality given the access and possession charges relate to the same material and that this should be reflected in a significant degree of concurrency on those charges.
26It was accepted by your counsel that the gravity of the offending meant that the objective of imposing a sentence of a severity appropriate in all the circumstances of the offence could only be met by a sentence of immediate imprisonment.
27However, in the circumstances of this case, it was submitted that a term of not more than three years' imprisonment, accompanied by a recognisance release order conditioned upon you completing offence-specific treatment and programs, was the appropriate disposition. It was submitted that such a sentence would meet the competing sentencing considerations of general and specific deterrence and denunciation, whilst promoting community protection by facilitating your ongoing rehabilitation.
Prosecution submissions
28Mr Russell, appearing for the Crown, submitted that your offending was very grave for a number of reasons. You intentionally amassed a substantial quantity of child abuse material over a protracted period. The child abuse material contained depraved images of exclusively female children aged as young as three and up to 16 years old. By accessing and possessing the child abuse material you were involved in the further degradation and exploitation of the children depicted in the images.
29
Whilst the prosecution accepts there is no evidence that the files were accessed or possessed by you for distribution or for profit, Mr Russell submits you knew what you were doing was wrong and understood the child pornography you accessed involved the exploitation of children.[2] Further, that by using a
peer-to-peer network you became part of a network and were aware the effects of your access were ongoing as part of that broader network.
[2]Record of interview dated 26 February 2020, depositions page 76.
30The prosecution submits your moral culpability for your offending is significant and is not reduced by the matters dealt with in the report of Mr Bilyk. The prosecution submits your prospects of rehabilitation can only be assessed as guarded, notwithstanding your engagement in ongoing treatment and the need for the sentence to specifically deter you remains relevant.
31Mr Russell ultimately submitted that the objective seriousness of your offending, the quantity of the child abuse material, the period of time over which you had gone about accessing and selecting the material, despite knowing it was wrong and doing so via a peer-to-peer network, means that the paramount sentencing principles including general deterrence and denunciation, can only be met by an immediate term of imprisonment with a non-parole period.
Consideration
32As these are Commonwealth offences I have taken into account the relevant matters set out in s16A(2) of the Crimes Act 1914 (Cth) in sentencing you.
33In addition, the prosecution referred me to a number of cases for the purpose of providing assistance as to the applicable sentencing principles and some guidance as to sentencing range,[3] bearing in mind that comparative cases do not define or fix the proper sentencing range.[4] The defence also referred me to a number of sentences imposed by this court where the volume of material was also significant, to which I have had regard whilst noting the different maximum penalties that applied in some of those cases.[5]
[3]R v De Leeuw [2015] NSWCCA 183; R v Martin [2014] NSWCCA 283; Cluett v R [2019] WASCA 111.
[4]The Queen v Pham (2015) 256 CLR 550; CDPP v CCQ [2021] QCA 4
[5]DPP V Gibbs [2017] VCC 716; DPP v Salih [2017] VCC 1755; DPP (Cth) v Maloney [2019] VCC 1285
34The factors that assist in assessing the objective gravity of your offending are set out in the authority of DPP v Garside,[6] and include the following:
(a) the nature and extent of the material, the age of the children and the gravity of the sexual activity depicted, including the extent of any cruelty or physical harm occasioned to the child or children involved in the material;
(b) the number of items or images possessed, accessed or transmitted;
(c) whether the material was for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence, including payment or other benefit;
(e) the number of children depicted and thereby victimised;
(f) the length of time for which the pornographic material was possessed; and
(g) the degree of planning, organisation or sophistication in acquiring, storing, disseminating or transmitting the material.[7]
[6]DPP v Garside (2016) 50 VR 800
[7]Ibid, at paragraphs [24]-[25]
35Applying these factors to these offences, there is no doubt this was a very serious example of the offences of accessing and possessing child abuse material. The offending involved a very substantial number of files, exceeding 263,000. Whilst the sheer volume of the material is one indicator of the seriousness of the offence, the nature of the material is the primary indicator of the objective gravity of the offence. In this case your counsel submitted it is relevant in assessing the gravity of your offending that the overwhelming majority of video and image files, totalling 259,253 items, were categorised at level 1 on the CETS scale, the lowest level of that scale. I accept that that is relevant, but also note the observations of the NSW Court of Criminal Appeal in R v Porte[8] where the court stated:
The classification of material in accordance with the CETS scale assists in the process of assessment of the objective seriousness of the offence. Although Categories 1 to 5 on the CETS scale involve escalating gravity of the conduct depicted in the images, it should not be assumed that Category 1 material is mild in content. Despite being the lowest classification level Category 1 material itself is capable of possessing significant gravity.
[8]R v Porte [2015] NSWCCA 174 at [77]
36A description of the images provided in the prosecution summary serves to inform the sentencing process in this case. Although the CETS 1 material is not as abusive as the images categorised at the higher level, they still contain images involving the abuse of partially or fully naked girls, aged between three and 15, arranged in sexually explicit poses with their genitalia exposed. The images at the higher levels include shocking images and videos involving the exploitation and degradation of children. These include 2,901 files classified at CETS 2 with images of girls performing solo masturbation, 624 files at CETS 4 with images and videos of female children being penetrated in the mouth, anus and/or vagina by adult males, including with sex toys, and at CETS 5, 39 images of female children between the ages of six and 15, bound and involved in acts of sadomasochism, including being forced to urinate. The images involved the exploitation and degradation of these children and you were aware of this fact.
37In relation to Charges 1 and 2 it is relevant that your offending in accessing the material occurred over a period of approximately two and a half years. It was sustained and protracted offending. The manner in which you accessed the material, via a peer-to-peer website, whereby you become part of that network, is also relevant to the gravity of your offending given you were part of a broader network. This factor is significant in highlighting the need for the sentence to operate as a general deterrent. Others must be deterred from playing any role in a broader system that contributes to the exploitation and abuse of children.
38Charge 3 relates to your possession on the date of your arrest, 26 February 2020, of the child abuse material obtained or accessed on your Toshiba laptop, being the same material that underpins Charges 1 and 2. The two offences therefore arise from the same course of conduct, but involve a different criminality in that the material, once accessed, was intentionally kept by you.
39There is, however, no suggestion, as I have stated, that the material was downloaded by you for the purpose of sale or further distribution, or for profit, all of which would have amounted to further aggravating features.
40
In respect of the three comparative cases I was referred to by the
prosecution – De Leeuw, Martin and Cluett – it is important to note that the maximum penalties were, in some cases, less than those applicable here. The cases also differ in other important respects, including the periods over which the material was accessed, notably four years in the case of Martin, which also included a charge of producing child abuse material and a distribution offence. As to the cases provided by your counsel, it is notable you have no relevant prior criminal history, although the authorities make it clear that limited weight attaches to that consideration.
41Balanced against these matters are some important mitigating features, most particularly your early plea of guilty and by your plea, your acceptance of responsibility for your offending. Mr Bilyk’s report provides some context to your offending, particularly your increasing social isolation and feelings of inadequacy leading to 'maladaptive coping mechanisms', however, as Dr FitzGerald acknowledged, these factors, whilst important context, do not operate to reduce your moral culpability under Verdins principles. Your moral culpability for your offending remains high.
42
I have found it difficult to assess your prospects of rehabilitation. On the one hand you cooperated with police and made substantial admissions when interviewed. Since your arrest you have demonstrated your willingness to engage voluntarily in long-term psychological counselling. It is accepted by your counsel that you will benefit from further offence-specific counselling which
Mr Bilyk is not qualified to provide. Against that, you were aware your conduct was wrong and yet your offending continued over a lengthy period. The justification you provided to police and Mr Bilyk for your offending was, as the prosecution submitted, objectively fanciful. However, as opined by Mr Bilyk, your improbable response may, in part, arise from a sense of shame and internal conflict. Mr Bilyk expresses no opinion as to the effectiveness of your counselling in overcoming this sense of shame or in addressing your offending behaviours.
43Clearly you will benefit from an opportunity to engage in offence-specific treatment. You have much work to do with respect to your rehabilitation. You have limited insight into your behaviour and continue to minimise your offending. You need to address your motivation for your offending directly which will not be easy for you. Presently I am cautious about your prospects of rehabilitation. There is a need for the sentence I impose to specifically deter you from future offending.
44Having considered your case carefully I have concluded that I cannot accede to the sentencing submissions made on your behalf. The nature and extent of your offending is too serious. There is, as highlighted in Garside, a paramount public interest in protecting children from abuse and deterring you and others from similar offending. In cases such as this, one purpose of sentencing is to manifest the community's denunciation of this type of conduct which contributes to the sexual exploitation of children. The emphasis on these sentencing purposes means that a sentence of an immediate term of imprisonment with a non-parole period is the only sentence available.
Sentence
45Taking these matters into account, whilst also having regard to the maximum penalty for each offence, I now sentence you as follows. Mr Rasih, if you could stand, please.
46
In sentencing you for Charges 1 and 2 I have given weight to the fact the offending arises from the same course of conduct. Separate charges were necessitated solely by reason of the introduction of the definition of 'child abuse material' to replace the definition of 'child pornography' with effect from
21 September 2019. However, the two offences relate to different periods of time and arise under different provisions of the Code. Charge 1 relates to your conduct in accessing child pornography for a period of a little over two years. Charge 2 relates to your conduct, which continued, of accessing child abuse material for a further period of approximately five months. I accept that separate sentences should be imposed, but the fact this was a continuing course of conduct means a significant degree of concurrency is warranted as between the two charges.
47On Charge 1, accessing child pornography, you are convicted and sentenced to 2 years, seven months' imprisonment. This is the base sentence and commences with effect from today, 18 February 2022.
48On Charge 2, accessing child abuse material, you are convicted and sentenced to 10 months' imprisonment. This sentence will commence 23 months after the sentence imposed on Charge 1.
49There is considerable overlap between the two access charges and the possession charge. I have been mindful of the need to ensure you are not doubly punished for the offending and that the total sentence reflects the overall criminality of your conduct.
50On Charge 3, possession of child abuse material, you are convicted and sentenced to 14 months and 1 day’s imprisonment commencing 22 months after the sentence imposed on Charge 1.[9]
[9] The sentence imposed on this charge was amended pursuant to s104B of the Sentencing Act 1991
(Vic) by order of the court on 28 February 2022.
51To be clear, two months of the sentence I have imposed on Charge 2 and three months of the sentence I have imposed on Charge 3 are to be served cumulatively upon the sentence I have imposed on Charge 1 and upon each other. This gives a total effective sentence of three years and 1 day’s imprisonment. I fix a non-parole period of 16 months.
52Pursuant to s 6AAA of the Sentencing Act 1991 (Vic) I declare that had you not pleaded guilty to these offences the sentence I would otherwise have imposed would have been a sentence of four years, three months' imprisonment with a non‑parole period of three years.
53It is accepted by your counsel that each offence is a Class 2 offence for the purposes of the Sex Offenders Registration Act 2004 (Vic).[10] On being found guilty of these offences, you become a registrable offender and must comply with the reporting obligations set out in that Act for life. In a moment I will ask your counsel, Dr FitzGerald, to accompany my associate so that you can acknowledge receipt of the notice setting out the relevant reporting obligations under that legislation.
[10]Charge 3 being deemed a Class 2 offence by reason of item 32 of the Schedule 2 of the Act.
54Finally, I make the forfeiture order sought by the prosecution, noting that it is not opposed.
55
HER HONOUR: I will just ask my associate to approach Mr Rasih.
Dr FitzGerald, if you would like to accompany him. Thank you.
56DR FITZGERALD: Yes.
57HER HONOUR: Have a seat, Mr Rasih, for just one moment. Thank you. Do either counsel have any questions or require clarification in relation to my sentencing intention?
58MR RUSSELL: No, Your Honour, that intention has been satisfied.
59HER HONOUR: All right. Can I ask both counsel to check the commencement dates that I've indicated - - -
60MR RUSSELL: Yes, Your Honour.
61HER HONOUR: - - - and advise my associates if any amendment is required to complete that sentencing intention.
62MR RUSSELL: Yes, Your Honour.
63HER HONOUR: Thank you.
64MR RUSSELL: So before Your Honour leaves just one matter in the forfeiture order. I received just before we started today a consent to forfeiture so the order is not strictly necessary in those circumstances. I just didn't have the opportunity to raise that with Your Honour.
65HER HONOUR: Thank you.
66MR RUSSELL: Thank you.
67HER HONOUR: Thank you. Dr FitzGerald, do you wish to approach your client briefly now?
68DR FITZGERALD: If I can do that now I would be very grateful.
69HER HONOUR: Absolutely. I'll just give you an opportunity. All right. Thank you.
70DR FITZGERALD: Thank you, Your Honour.
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