R v Singh
[2020] ACTSC 35
•3 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Singh |
Citation: | [2020] ACTSC 35 |
Hearing Date: | 28 January 2020 |
DecisionDate: | 3 February 2020 |
Before: | Burns J |
Decision: | See [25]–[29] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit child pornography – possession of child exploitation material – pleas of guilty – reasonable prospects for rehabilitation – consideration of immediate terms of imprisonment for offences of this type |
Legislation Cited: | Criminal Code 1995 (Cth) s 474.19(1)(a)(iii) |
Cases Cited: | DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 |
Parties: | The Queen (Crown) Jasbir Singh (Offender) |
Representation: | Counsel H von Forell (Crown) J Sabharwal (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Boettcher Law (Offender) | |
File Number: | SCC 251 of 2019; SCC 252 of 2019; SCC 317 of 2019 |
BURNS J:
Jasbir Singh, on 25 September 2019, you entered pleas of guilty in the
ACT Magistrates Court to one charge of using a carriage service to transmit child pornography material (CAN 6409/19) contrary to s 474.19(1)(a)(iii) of the
Criminal Code 1995(Cth), which carries a maximum penalty of 15 years' imprisonment, a fine not exceeding 900 penalty units, or both.
On 26 November 2019, you entered a plea of guilty to one charge of possession of child exploitation material (CC 19/6408) contrary to s 65(1) of the
Crimes Act 1900(ACT), which carries a maximum penalty of
seven years’ imprisonment, a fine not exceeding 700 penalty units, or both.
You were committed for sentence to this Court. On 28 January 2020, you adhered to your pleas of guilty when you appeared before me.
The facts
An Agreed Statement of Facts was tendered which revealed that on 18 July 2018, the Australian Federal Police received a report from the National Centre for Missing and Exploited Children (NCMEC), which stated that an Australian-based internet user had uploaded a video file to the social media platform, Facebook, and that the file was suspected to contain child exploitation material. Police reviewed the file and categorised it using the Australian National Victim Image Library (ANVIL) schema, as being a Category 4 file. A Category 4 file depicts penetrative sexual activity between children or between adults and children.
The length of this particular video is 4 minutes and 35 seconds. It depicts an adult male engaging in anal-penile intercourse with an infant male on a bed. The infant male appears to be between 18 months and two years of age.
The infant male can be heard screaming and crying out in distress and pain, and he makes continuous attempts to escape the grip of the adult male who was penetrating him for the duration of the video. Clearly, this is particularly vile material.
At 12.16 am on 14 July 2018, you uploaded the video and transmitted it to
157 recipients via Facebook. The video file was uploaded and transmitted by a Facebook account in your own name. On 19 December 2018, police executed a search warrant at your home. During execution of the search warrant, you identified an
Apple iPhone as belonging to you. That device was forensically examined, and police located and identified the same video file on it as had been uploaded and transmitted via Facebook. The video file had been saved to the device in July 2018. Police were unable to locate or identify the Facebook message which had been used to transmit the video file.
During execution of the search warrant, you made a number of admissions. You admitted that the Apple iPhone was yours and that you were the only one who used it. You told police that you had a Facebook account in your own name, and you used it to send and receive political and educational video files. You gave police your email address and told them that you were the only one who used that account and who knew its password. You told police that you sometimes watch adult pornography on the internet using your phone. You denied watching child pornography.
You said that someone sent the video file to you and that you then blocked or deleted the account that had sent you the video file. You told police that you were not hurting anyone by having the video file on your phone, and you were not aware that it was a crime to have those sorts of videos on your phone. You told police that you did not watch the video, but you had provided it to others as a warning about the need to care for their children and not to leave them with others. When asked by police whether you had sent the video files to others your answers were equivocal.
Objective seriousness
In assessing the objective seriousness of this offence, I take into account the particularly egregious nature of the sexual activity depicted and the apparent age of the child. I take into account the number of occasions on which the file was disseminated. I also take into account that there was only one file located containing child pornography, although it is important to acknowledge that this was not simply a photograph; it was a video just over four and a half minutes in length.
You gave an explanation to police and through your counsel to this Court for your possession and transmission of this video to the effect that you were concerned to show others, particularly in your homeland, what can happen to children if they are not properly cared for. I have difficulty in accepting that submission, but I do note that there are some unusual features to this offence.
In my experience, it is uncommon for offenders in possession of child pornography material to have only one file or representation in their possession, whether that be a photograph or a video. It is also unusual, in my experience, for someone to disseminate this type of material so openly on a platform such as Facebook using their own name. This gives a degree of credence to the proposition that in effect your motive for possession and dissemination of the video was not sexual.
A sexual motive for possession or dissemination of child pornography material is not an element of either of the offences to which you have pleaded guilty. Proof of such a motive may well aggravate an offence, but absence of such a motive will not necessarily mitigate it. I am not satisfied that your motive was sexual; but, in my opinion, that does not significantly mitigate your moral culpability with regard to these offences.
I accept that there is no suggestion that you were in possession of the file for the purpose of sale, and that the distribution occurred on one occasion, albeit to multiple recipients. I would assess the objective seriousness of the present offences as below the mid-range but not at the bottom of the range of such offences.
Subjective features
You are currently 50 years of age and you were born and raised in a small village in Northern India. Your family was poor and you worked on local farms as a child. Your father passed away approximately 40 years ago. Your mother and your three siblings still reside in India, and you maintain regular contact with them. You send money to your family in India when you can afford to.
You have been married for over 20 years and you have two sons aged 16 and 20 years old. You reside in a property which you are purchasing. You completed the equivalent of Year 12 education in India, before commencing a university degree in that country. You left university after two years of study before completing your degree due to family reasons. You worked as a railway technician in India for approximately 20 years.
Since moving to Australia, you have worked as a taxi driver for approximately nine years. You are financially stable. You have no drug or alcohol issues that need to be addressed. You have no medical or mental health issues that need to be addressed. You are a member of the Canberra Sikh Association, and you attend the temple regularly and you are heavily involved in the local Sikh community.
I note that you have no criminal history. You were assessed by the author of the
Pre-Sentence Report as a low risk of re-offending.
Consideration
I accept that your pleas of guilty were entered at an early time. I also note that you made frank admissions to investigating police and provided them with assistance in their investigation. This lends a degree of support to the proposition that you did not understand the serious nature of this offending. I have no doubt, however, that you understood that what was contained in the video file was particularly morally wrong.
I am satisfied that you have shown a willingness to facilitate the course of justice with regard to the Commonwealth offence. With regard to the Territory offence, I am satisfied that your plea of guilty had significant utilitarian value. I consider it unlikely that you will re-offend, and as such, I am satisfied that you have reasonable prospects for rehabilitation.
The Crown correctly submitted that the predominant sentencing consideration for offences of this nature is deterrence. I must impose sentences that will deter others from committing similar offences. I am satisfied that personal deterrence is not a particularly relevant consideration in the light of all the circumstances to which I have referred. I, of course, take into account the maximum penalty as prescribed for each offence and the relevant sentencing considerations as found in the
Crimes Act 1914(Cth) and the Crimes (Sentencing) Act 2005 (ACT).
The Crown submitted, based on prior authorities to which they referred, that in child pornography offending, a sentence involving an immediate term of imprisonment is ordinarily warranted unless exceptional circumstances exist. As I said on
16 September 2019 in the matter of R v Maruskanic [2019] ACTSC 337 (Maruskanic), “I do not accept this to be an accurate statement of the law”. In the case of the
DPP (Cth) v Garside[2016] VSCA 74; 50 VR 800, it was conceded by the
then-Commonwealth Director of Public Prosecution, Mr Bromwich SC, who now sits as an additional judge of this Court, that it is inappropriate to suggest that something less than an immediate term of imprisonment can only be imposed where exceptional circumstances are demonstrated, because the courts must be careful not to impose a standard to a sentencing task that is not prescribed by statute.
As I said in Maruskanic, what arises from the authorities is that child pornography offences are always serious. This Court should approach the sentencing of child pornography offences in the same way that it approaches sentencing for other serious offences and as prescribed by the various statutes governing sentences for Commonwealth and/or Territory offences as appropriate. It will very frequently be the case that the application of ordinary sentencing principles to the facts in individual child pornography offences will result in the imposition of an immediate term of imprisonment, but that will not always be the case.
Balancing all matters, I am satisfied that terms of imprisonment should be imposed, but that the requirements of sentencing having regard to the particular circumstances of the case do not require that the sentences or any part of them be served by way of
full-time imprisonment.
Sentence
I record a conviction on the charge of possession of child exploitation material
(CC 19/6408), and you are sentenced to six months' imprisonment which I have reduced from eight months’ because of your plea of guilty. That sentence will commence today, 3 February 2020, and expire on 2 August 2020.
That sentence will be wholly suspended, and there will be a Good Behaviour Order for a period of 18 months commencing on 3 February 2020 and expiring on 2 August 2021. It will be a condition of that Order that you are to accept the supervision of
ACT Corrections for a period of 12 months commencing on 3 February 2020 and expiring on 2 February 2021, or such lesser period as deemed appropriate by your supervising officer, and obey all reasonable directions of officers of that Service or their delegates.
I record a conviction on the charge of using a carriage service to transmit child pornography material (CAN 6409/19), and you are sentenced to
nine months' imprisonment, commencing 3 May 2020 and expiring on 2 February 2021. That sentence will be wholly suspended and you will be released upon entering into recognisance in the sum of $100 to be of good behaviour for the period from
3 May 2020 until 2 August 2021. I will impose no further conditions on that order in the light of the Good Behaviour Order for the Territory offence.
The effect of the orders that I have made is that you have been sentenced to a total period of 12 months' imprisonment. That sentence has been suspended and there will be, in effect, a Good Behaviour Order for a period of 18 months from today, 3 February 2020. It is a requirement of that order that you accept the supervision of
ACT Corrective Services for a period of 12 months from today, or such lesser period as deemed appropriate by ACT Corrective Services.
I have suspended the sentence on the Territory charge, with a Good Behaviour Order. I have suspended the sentence on the Commonwealth charge, with a recognisance order.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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