R v Sutton
[2017] ACTSC 95
•2 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sutton |
Citation: | [2017] ACTSC 95 |
Hearing Date: | 2 May 2017 |
DecisionDate: | 2 May 2017 |
Before: | Elkaim J |
Decision: | See paragraph [27] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child pornography – use carriage service to access child pornography – early plea of guilty |
Legislation Cited: | Crimes Act 1900 (ACT) s 65 Crimes (Sentencing) Act 2005 (ACT) s 33 |
Cases Cited: | Director of Public Prosecutions v Garside [2016] VSCA 74 R v Verdins [2007] VSCA 102; 169 A Crim R 581 |
Parties: | The Queen (Crown) Mackenzie William Sutton (Offender) |
Representation: | Counsel Ms E Hobba (Crown) Mr S Whybrow (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Number: | SCC 6 of 2017 |
ELKAIM J:
On 13 January 2017, the offender pleaded guilty to the following offences:
(a)Using a carriage service for child pornography material, contrary to s 474.19(1) (a) (ii) of the Criminal Code (Cth).
(b)Possessing child pornography material, contrary to s 65 of the Crimes Act 1900 (ACT).
The maximum penalty for the Commonwealth offence is 15 years’ imprisonment and/or a fine of $153 000.
The maximum penalty for the ACT offence is seven years imprisonment and/or a fine of $105 000.
The offender has been in custody since his arrest on 2 December 2016. The Crown accepts that he pleaded guilty at an early opportunity and that he is, accordingly, entitled to a discount on his sentence. In my view this discount should be 20 per cent.
In sentencing the offender, it is important to ensure that he is adequately punished for his offending and that the sentence is appropriate in all the circumstances of the case. In addition, in respect of the ACT offence, I note the requirements of s 33 of the Crimes (Sentencing) Act 2005 (ACT).
The New South Wales Court of Criminal Appeal has set out the factors that the Court should have regard to in assessing the objective seriousness of offences of this type. These factors are listed in R v De Leeuw [2015] NSWCCA 183.
It is not suggested that the offender stood to profit from the material. The material was present on the offender’s computer for about one month.
Other than the two factors just mentioned, all of the remaining factors point to a conclusion that the offending was objectively serious.
The material that is the subject of the offences was found on a computer belonging to the offender. It was made up of 4,379 child exploitation images and 84 child exploitation videos. Under the Australian National Victim Image Library Scheme (the ANVIL scheme), exploitation material is classified according to its objective severity. The word ‘severity’ is, to some degree, misleading because the ‘mildest’ of the material (Category 1) should not be regarded as inoffensive.
In the present case, the bulk of the images were in category 1, although 113 of them were in category 4. Most of the videos were in category 4, with the balance being fairly evenly spread between categories 1, 2 and 3. Plainly, therefore, a significant amount of the material was in category 4. This category relates to material depicting penetrative sexual activity between adults and children. In this case, the children were all under the age of 10.
On 23 October 2009, the offender was found guilty and convicted of three offences involving child pornography. The sentences included periods of community service and a suspended sentence of imprisonment. The offender was placed on the ACT Child Sex Offenders’ Register for a period of 15 years. His reoffending has occurred within seven years of his conviction.
The offender was born in 1980. He was born with significant disabilities, which included: mild cerebral palsy; grand mal epilepsy; hydrocephalus; hypothalamic malfunction; and vision impairment. The offender’s epilepsy is apparently well controlled by medication. In 2008, a tumour was identified which suggested pancreatic cancer. However, this diagnosis was not formally made as the tumour disappeared and a firm diagnosis of focal pancreatitis was reached.
As a result of his disabilities, the offender attended special education classes during his schooling, had few friends and was often bullied. The offender left school after achieving the School Certificate, and was placed on a Disability Support Pension. He was recently placed on the National Disability Insurance Scheme. He has been unemployed most of his working life. He has lived with his parents, although I note that his mother recently passed away.
The offender appears to have developed a problem with alcohol from the age of 20, although this seems to have abated following the cancer ‘scare’.
The offender lives with his father and a brother. The latter is also disabled. The offender appears to engage in few social activities and may be described as a loner. This is probably a product of his cognitive disabilities. He has had the enormous benefit of supportive parents. His father continues to support him at this present time.
I have viewed a small sample of the many images that were either accessed or possessed. It is entirely unacceptable and abhorrent that children have been put through the terror, humiliation and probable physical and psychiatric injury that have led to the production of these images. The law must adopt the most serious attitude to offences of this kind.
In De Leeuw, the Court noted at paragraph [72]:
Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted.
The offender’s disability is a matter to be taken into account. It does not, however, amount to an exceptional circumstance sufficient to justify any order other than immediate imprisonment.
In 2009, when sentencing the offender, Refshauge J made the following observations:
Mr Sutton is a vulnerable and under socialised man who has intellectual, social and adaptive functioning deficits. He has led a sheltered life with parents who have sought to protect him and as such he has never achieved independence, he has never been separated from his family for any length of time nor has really interacted much with others who are not disabled or in a care role to him. That being the case, Mr Sutton would find the experience of custody terribly confronting and frightening. Moreover he will probably be highly vulnerable with such an environment to the manipulative, antisocial and ambivalent behaviour of many others he would meet in jail.
These observations seem equally applicable today. However, the offender’s position is now compounded by the previous convictions, the commission of further offences while on the Register and his further overall maturity.
The relevance of mental illness to sentence was discussed in R v Verdins [2007] VSCA 102; 169 A Crim R 581. The Victorian Court of Appeal, at paragraph [32], listed six points of relevance:
Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.
It is difficult to precisely know the extent to which the above principles should be applied here. The offender clearly has a reasonable degree of intellectual functioning. He gave evidence. Nevertheless, he has cognitive disabilities. The impression he gave in the witness box was of a person who had difficulty in understanding other than simple questions and dealing with other than simple concepts. I think the answer is that his disabilities must be taken into account as one of the overall factors in the sentencing process.
The Crown submitted that there should be a degree of accumulation, referring me to Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74. In paragraph [99], the Court noted that:
The question whether sentences should be concurrent or, to some extent, cumulative involves consideration of whether a sentence for one offence can comprehend and reflect the criminality for the other offence. If it can, the sentences ought be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality for the two offences.
In my view, having regard to the above considerations and also to the limited period during which the material was on the offender’s computer, the sentences should be concurrent.
I have also specifically taken into account Doctor Clout’s comments on rehabilitation and the need to deal with deterrence, both in respect of the offender and generally.
As already stated, I have applied a 20 per cent discount in reaching the terms of imprisonment.
I make the following orders:
(i)The convictions are confirmed.
(ii)For the offence of access child pornography material contrary to s 474.19(1)(a)(ii) of the Criminal Code (Cth), the offender is sentenced to a term of imprisonment of twenty-four months commencing on 2 December 2016 and ending on 1 December 2018.
(iii)The sentence is to be suspended after a period of eighteen months, the suspension to commence on 1 June 2018.
(iv)For the offence of possess child exploitation material contrary to s 65 of the Crimes Act 1900 (ACT), the offender is sentenced to a term of imprisonment of eighteen months, to commence on 2 December 2016 and expire on 1 June 2018.
(v)I make a Good Behaviour Order for a period of three years, commencing on 1 June 2018 and ending on 31 May 2021 on condition that the offender report to ACT Corrective Services and accept all reasonable directions of the Director-General in respect of the counselling, programs or treatments as directed by the supervising officer.
(vi)I impose a separate Recognizance Order for the Commonwealth offence for the same term and on the same conditions as those attached to the Good Behaviour Order detailed in the previous order.
(vii)In respect of the Recognizance Order, I order that the offender give security in the amount of $1,000.
(viii)I make a Forfeiture Order in the terms requested by the Crown.
(ix)I make a recommendation to ACT Corrective Services that the offender take part in the Adult Sex Offenders Program during his period of imprisonment.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 3 May 2017 |
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