R v Robertson

[2015] NSWDC 372

District Court

New South Wales

Medium Neutral Citation:	R v Robertson [2015] NSWDC 372
Hearing dates:	5 February 2015
Date of orders:	05 February 2015
Decision date:	05 February 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	For the offence of using a carriage service to access child pornography – ordered to perform 400 hours of community service. For the offence of possessing child abuse material – the offender is sentenced to imprisonment for a period of 18 months, suspended upon the offender entering to a bond to be of good behaviour.
Catchwords:	CRIMINAL LAW - Sentence - Use carriage service to access child pornography - Possess child abuse material - Unusual case - Vast majority of images in lowest category of seriousness.
Category:	Sentence
Parties:	The Crown Paul Anthony Robertson
Representation:	Counsel Mr P Krisenthal - Offender Solicitors: The Director of Public Prosecutions – Cth
File Number(s):	2014/117512

SENTENCE

1. HIS HONOUR: The development of the Internet has brought with it things of great benefit to today’s society, but it has also allowed what I would categorise as an “explosion” in the ability of people to access images of child pornography

2. Before the Internet obtaining such images would have involved very very dark and murky world where attempting to identify those who had possession of such images and were willing to share them carried with it a great risk of being exposed, but now the Internet is apparently, from the number of such cases that come before this Court, a place where access to child pornography is easy.

3. Many cases have spoken about the harm that is caused to children because of the ready availability of such terrible images, that harm includes of course harm to the children the subject of the images. As people access the images the demand for them is created and that demand is satisfied by evil people who abuse children and photograph or video such abuse. Other harms flow from child pornography as well.

4. For that reason sentences imposed on people who like this offender, Paul Anthony Robertson, use a carriage service to access child pornography and possess child abuse material are usually almost invariably severe. Sentences of other than full time custody for offences such as these are rare but it is important not to lose sight of a very relevant circumstance namely, there is a range of seriousness of such conduct and as Mr Krisenthal submits and as the Crown in this case concedes, Mr Robertson’s conduct was very much at the lower end of the scale.

5. He had been accessing and storing child pornography for about five months when his wife discovered what he had been up to. She decided that the matter should be reported to police. To his credit Mr Robertson did not try and persuade her otherwise. So it was that police attended Mr Robertson’s home while he was out on 14 April 2014. Whilst there police found a computer hard drive. The offender arrived home shortly thereafter and in a brief recorded conversation with police he told them he had accessed child pornography on that computer.

6. Police examined a random sample of the images on that computer. A number of image files containing child pornography were discovered. It is estimated that there were something in the order of 1000 such photographs and very importantly it is important to note that the vast bulk of them, perhaps 99% contained images of children in the lowest category of seriousness, namely sexually suggestive posing with no sexual activity. A small proportion, perhaps 1%, showed non penetrative sexual activity between children or solo masturbation by a child but none of the images were of a more serious nature in categories 3, 4 and 5 of the scale used under the Child Exploitation Tracking System.

7. This is an important fact to bear in mind and it bears some analysis. In the course of Mr Robertson’s use of the Internet over five months, when he was searching for child pornography it would have been inevitable that he came across images of a more serious kind than those that were ultimately found on his computer. It is clear therefore that he has discriminated in deciding what images to save to his computer and in doing so he has saved only those images at the bottom of the scale.

8. This case is unusual. The images are at the less serious end of the scale both in number and nature. It is a fundamental rule in sentencing that a sentence must reflect the objective gravity of an offender’s conduct. Although all offences involving child abuse material are serious not all offences are of the same seriousness and as I have attempted to demonstrate Mr Robertson’s conduct was at the lower end of the scale.

9. Mr Robertson had a happy childhood but has had a sad life in many respects since then. He left home at 15 to become a jockey but was injured and eventually he had to give up that occupation. He married a woman who already had a child and they have had children together but, and this is one of the most important features regarding Mr Robertson’s life, his wife suffers from a significant mental illness. She has been treated, sometimes aggressively, and things have at times improved but as a consequence of her illness the task of caring for and raising the children has largely fallen to him. This has led to him becoming socially isolated and depressed and it was in those circumstances that these offences were committed. He has worked as a taxi driver when he could. Since discovery of these offences he has been required to leave the family home which has allowed him to work more often but which I gather has meant that his mentally ill wife has had to shoulder the burden of looking after the children, a much less satisfactory arrangement than that which was in place before.

10. I am only allowed to take hardship to third parties into account when the circumstances are exceptional. I regard the circumstance regarding Mr Robertson’s wife’s mental illness as being sufficiently exceptional and I can take into account the consequences to Mr Robertson of a sentence, particularly a sentence of full time imprisonment, if such a sentence were imposed upon him.

11. Mr Robertson pleaded guilty at an early opportunity. As far as the Commonwealth offence is concerned, his plea of guilty demonstrates a willingness to assist the course of justice. As far as the State offence is concerned, the plea of guilty has a utilitarian benefit. Whatever the precise reason, in this case I will impose upon Mr Robertson for each offence sentences which are 25% less than they would otherwise have been. The pleas of guilty have also been important in me deciding to impose upon Mr Robertson a different form of sentence from that I would otherwise have imposed.

12. Mr Robertson has no previous criminal convictions and he has been assessed by both a psychologist from whom he is receiving treatment, and by Corrective Service officers, as representing a low risk of reoffending. Part of that finding is no doubt due to what I accept are genuine expressions of remorse on Mr Robertson’s part. Perhaps the best demonstration of his remorse is to be found in what happened when his wife discovered what he had been doing. As I mentioned earlier, he did not try to persuade her to keep things quiet but accepted that she would report his misconduct to police.

13. There is a substantial overlap regarding these two offences. As is almost invariably the case those who possess child abuse material obtain it from the Internet which represents the Commonwealth offence with which Mr Robertson has been charged. However, the circumstance that there are two offences has enabled me to fashion a sentence which overall I believe represents the appropriate outcome in this case.

14. He needs to be sentenced to imprisonment albeit not full time imprisonment in order to reflect the gravity of his wrongdoing. However, imposing a suspended sentence of imprisonment often carries with it no real punishment and in a case where punishment is clearly required, as it almost invariably is, the fact that there is a second count on the indictment enables me to impose punishment in the form of a substantial number of hours of community service. I repeat the overall outcome I believe best reflects the various purposes of sentencing, in particular marking the wrongfulness of Mr Robertson’s crime and punishing him for them while at the same time not losing sight of the need to continue to promote his rehabilitation in the expectation that Mr Robertson’s offences for which I will shortly pass sentence, are very much isolated breaches of the criminal law. The sentence I impose is as follows:

15. For the offence of using a carriage service to access child pornography, the offender is convicted and ordered to perform 400 hours community service.

16. For the offence possessing child abuse material, the offender is sentenced to imprisonment for a period of 18 months. I suspend the execution of that sentence on condition that Mr Robertson enters into a bond to be of good behaviour for the term of the sentence. The conditions of the bond are as follows:

17. He is to continue to receive treatment from Mr Dieter for the duration of the bond, unless Mr Dieter decides that treatment is no longer necessary or Mr Dieter refers him for treatment by others.

18. In view of his occupation as a taxi driver, he is to notify Roads and Maritime Services of his conviction for these matters within seven days.

19. He is to report to the Wyong office of Community Corrections within seven days in order to begin serving the community service component of the sentence I just imposed.

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Decision last updated: 24 February 2016