R v Thrift

[2014] NSWDC 266

District Court

New South Wales

Medium Neutral Citation:

R v Thrift [2014] NSWDC 266

Hearing dates:

28 August 2014

Decision date:

29 August 2014

Jurisdiction:

Criminal

Before:

Cogswell SC DCJ

Decision:

For the offence of possessing child abuse material, under s 9(1) of the Crimes (Sentencing Procedure) Act 1999 I make an order directing Mr Thrift to enter into good behaviour bond for two years. The conditions of the good behaviour bond are these:
1) That he be of good behaviour.

2) That he appears before this Court if called upon to do so at any time.

3) That he advise the registrar of the District Court at Sydney of his residential address on release from custody and of any future change in that residential address.

4) That within seven days of release from custody he report to any office of the Community Corrections Office of the Department of Corrective Services.

5) That he accept supervision from an officer of that service and comply with all reasonable recommendations of any such officer, in particular regarding the following: dealing with sexual offending behaviour; accessing psychotherapy sessions at the Wentworth Clinic associated with the Wentworth Avenue Community Corrections Office; obtaining a mental health treatment plan from a general practitioner for treatment by a registered psychologist; any referral to the pastoral care institute directed by the Reverend Dr Peter Powell; engagement in the positive lifestyle program conducted by the Salvation Army.

Catchwords:

CRIMINAL LAW - sentence - particular offence - possession of child abuse material - previously seized child abuse material mistakenly returned to offender by police - previously prosecuted for possession of the same material - degree of culpability exceptionally low - breach not trivial but not at all serious - plea of guilty to narrow charge - sentenced on the terms of the charge - prior criminality - extensive criminal record – three previous convictions involving child abuse material - long record of offences involving dishonesty - on intensive correction order at time of offence - good behaviour bond - conditions to encourage ongoing rehabilitation

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999, s 9(1)

Category:

Sentence

Parties:

Regina (Crown)
Scott Anthony Thrift (offender)

Representation:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (offender)

File Number(s):

2013/00226956

Judgment

1. This case illustrates why it is important for judges to provide remarks on sentence - that is, to explain the reasons for sentencing persons.

2. I am sentencing a man who has pleaded guilty to possessing child abuse material, in other words child pornography. The material ranges over various categories including the most serious. The man has no fewer than three previous convictions involving child abuse material. Indeed he has spent time in gaol for some of those offences. Not only that, when he was arrested for the offence that I am sentencing him for, he was on an intensive correction order for the last occasion that he committed such an offence.

3. Given these circumstances, it will come as a surprise to anyone reading this man’s criminal record without these reasons, that I am about to give him a good behaviour bond. That is why I need to explain what I am about to do.

4. The man’s name is Scott Anthony Thrift. He is now 37 and had an unstable childhood. He claims that it involved being extensively sexually abused. I do not need to resolve that. I am conscious that I am providing public reasons and the person he accuses is not present or able to respond. That is why I am giving no more detail about that claim.

5. Mr Thrift is a gay man who accepted his sexual orientation as a teenager. It was not so acceptable in the community where he lived so he left home and, in his own words, embraced a lifestyle involving parties and drug taking. This is reflected in his criminal record. The record does not start until he was aged 19 when he was convicted for an offence of larceny as a clerk. Then through the first three or four or five years of this century he has been convicted numerous times of offences involving dishonesty. He explains that during those years his life was out of control and he was taking - and therefore needing to finance - illegal drugs.

6. What happened in this case is important to explain. When Mr A Amaranth opened his case for the prosecution he tendered as exhibit A the Crown sentence summary. This contained the usual documents which are given to a sentencing judge by the prosecution. They included the customary document called a statement of facts. Mr J Hutchinson who appears for Mr Thrift indicated when exhibit A went in that he took exception to some aspects of the statement of facts. I admitted that along with the balance of exhibit A but have kept in the back of my mind Mr Hutchinson’s observations about the statement of facts. Over the luncheon adjournment today I asked Mr Hutchinson to indicate what in the statement of facts his client took issue with. Mr Hutchinson did that and provided me with an annotated copy of the statement of facts.

HIS HONOUR: I depart from my remarks on sentence here. Do you tender that Mr Hutchinson?

HUTCHINSON: I do your Honour.

AMARANATH: Is your Honour referring to the amended document?

HIS HONOUR: It’s not amended so much as it’s a commentary. What I should do is mark it for identification rather than take it is a submission.

Mr Hutchinson, that’s what I have in mind.

MFI #2 COMMENTARY

7. That document I will mark for identification 2 by way of a submission because it is a submission by Mr Hutchinson as to what is in issue and what is not. Many items are not disputed. Some were not within the knowledge of his client and there is one matter which was in dispute and is contained in para 19. I will return to that.

8. What happened is this. In 2012 Mr Thrift was arrested for the offence of possessing child abuse material. This was the third time he had been arrested for that kind of behaviour. He came before the District Court a year later and was given an intensive correction order for two years commencing 12 April 2013 and concluding on 11 April 2015.

9. Within days of receiving that sentence Mr Thrift went to the Surry Hills Police Station to get back the items which were seized from him the previous year when the police arrested him. They included a hard drive and a computer called an Apple mini. He also picked up other items such as his mobile telephone. The statement of facts contained in exhibit A, with commendable frankness, discloses the hard drive which was given back to Mr Thrift “still contained child abuse material (by mistake)”.

10. The next thing that happened, so far as the police were concerned, is they called into Mr Thrift’s place some months later on 24 July 2013 with a search warrant. They confiscated various items and found that the Apple mini computer contained child abuse material. When they had analysed the Apple mini computer the previous year it had contained no child abuse material but the hard drive had. When the police analysed the child abuse material on the Apple mini computer they found almost all of it was the same material which had been present on the hard drive they had confiscated the year before and which they had returned to Mr Thrift.

11. Amongst the items on the Apple mini computer was what is called a zip file which contained some child abuse material. Police could not open the zip file and had to have a specialist open it for them. They found some ninety different video files containing various levels, including the worst, of child abuse material. The statement of facts goes on to record that “73 of the 90 different videos were all previously identified as being on the [hard drive] when previously examined by police.” What police of course did not know is how the material, which was on the hard drive and given back to Mr Thrift, got itself onto his previously empty Apple mini computer.

12. Mr Hutchinson called his client to give evidence. Mr Thrift explained he wanted certain material on the hard drive to be transferred to his Apple mini computer. So he simply transferred it and therefore his Apple mini computer became loaded with all of the material on the hard drive, including the child abuse material. He did not realise the child abuse material was there until about four days before he was arrested. The circumstances were that a stranger had visited him and the stranger was playing around with his computer. When the stranger left Mr Thrift found that the images on the computer included child abuse material. He immediately deleted what he saw but panicked and did not know what to do. He was still in that condition when the police arrived a few days later, seized both computers again and found substantially the same material.

13. A question arises as to the 17 files in the zip folder which could not be identified as being seized by the police on the previous occasion. Mr Amaranath appropriately cross-examined Mr Thrift about that and Mr Thrift suggested the police did not examine all of the material previously seized. When he said that I checked the facts of the previous offence of 2012 (which were part of exhibit A) and indeed I found there were 340 video files seized but only 300 examined. Mr Thrift’s response to the question therefore exposed in the prosecution statement of facts the reasonable possibility that those seventeen unidentifiable files were amongst those previously seized and given back to Mr Thrift by mistake by the police.

14. I mention it in those terms because one of the factors Mr Amaranath points out about the offence is that a significant aspect of Mr Thrift’s criminality is he added the seventeen files as fresh files. It is important in dealing with that submission to appreciate the principles of criminal law that apply and bind me as a judge in assessing such a submission. For me to sentence Mr Thrift on the basis that he has added the seventeen files would significantly aggravate the circumstances of his crime. The High Court of Australia has said that if the prosecution wants to prove against an offender who is being sentenced a fact which is aggravating in nature, it must satisfy the judge beyond reasonable doubt of that fact. I cannot be satisfied beyond reasonable doubt of that fact because - just as I would say to a jury in determining the outcome of a trial - there exists a reasonable possibility that there is an innocent explanation for the existence of those seventeen files. That explanation is that they were amongst the 40 unexamined by the police on the previous occasion. I therefore cannot be satisfied beyond reasonable doubt that Mr Thrift added those seventeen files to those which he already had.

15. Mr Amaranath made an attack on Mr Thrift’s credibility as a witness. He had a sound basis for that attack. There were two principal factors which formed that basis. One is that, as I have already said, Mr Thrift is a person who has a long record involving offences of dishonesty. He has dealt with other people in the past in ways that have been deceptive and dishonest and obtained money to which he is not entitled. That obviously to my mind affects the reliability of him as a witness of the truth.

16. Secondly, Mr Amaranath pointed out that what Mr Thrift was saying from the witness box was in some significant ways inconsistent with a history taken by one of the psychologists he had seen, the experienced forensic psychologist Ms Anna Robilliard. Mr Amaranath was right about that too.

17. The question of Mr Thrift’s believability is relevant to a number of factors. It is not relevant to his answer about the seventeen videos. I do not need to accept or reject his evidence about that. His answer simply raises a logical and reasonable possibility which is consistent with the statement of facts about the earlier offence.

18. Mr Thrift’s believability could be relevant to his explanation as to how long he had had the material and what he did with it in the months between 17 April and 24 July 2013. The prosecution would suggest that he had been using it and downloading it. In some ways some of the information taken by Anna Robilliard is consistent with that. But on the other hand, the terms of the offence to which he has pleaded guilty - also contained in exhibit A - are that he “did possess child abuse material, to wit, an Apple mini computer containing a number of videos and pictures depicting child abuse material between 1.15pm and 2.12pm on 24/7/2013”. The charge is therefore very narrow in its compass. It does not allege that he had the material for some months. It alleges in effect that he had the material only for about an hour. His plea of guilty must be, it seems to me - and I acknowledge that I may be wrong - an acceptance of possessing that material only for that time.

19. I am therefore not going to find that, as an aggravating matter, Mr Thrift had knowingly possessed the material for much longer than that. I will sentence him on the basis of the terms of the charge that he has pleaded guilty to.

20. There is a third matter where Mr Thrift’s credibility is important. I made reference to what is called a zip file and the fact that it was not immediately accessible by the police. They had to get a specialist to open it. Mr Amaranath appropriately explored this in cross-examination, suggesting that Mr Thrift had himself secured that zip file and protected it from being opened. Mr Thrift denied that, saying that the facilities he used were very basic and that he did not use any form of encryption to protect those files.

21. Again, I have to take into account the standard of proof required for a judge to be satisfied of a factor in sentencing which is aggravating. The only evidence about the zip files is contained in MFI 2 and it is that assertion in MFI 2 which is specifically put in issue by Mr Thrift. The assertion is the specialist “was able to forensically recover and access video files and picture files from the zip file that initially could not be accessed by police”. The notation on MFI 2 is that Mr Thrift denies zipping in 2013. Given the explanation by Mr Thrift, on balance I am not satisfied beyond reasonable doubt that he was responsible for protecting those files which were contained in the zipped folder.

22. It is of fundamental importance to a judge in sentencing an offender to commence with an assessment of just how serious an example of the crime the particular case is. An offence could be a technical breach or a trivial breach or a very serious breach of the same law. In this case it seems to me that the breach, although not trivial, is not at all serious. I make that finding because of the circumstances in which Mr Thrift came to possess the material that he has been charged with possessing. He was given back the material by the police. I am satisfied that the material found by the police again some months later was the same as the material which they had confiscated in 2012 and prosecuted him for previously.

23. As I pointed out to Mr Amaranath, the assessment of the seriousness of this offence is analogous to police confiscating a prohibited drug from a drug addict and then mistakenly giving it back to the drug addict and then arresting the drug addict some time later for possessing the same drug. The police, by mistake I accept, put into this serial offender’s hands the very material that he was criminally addicted to. That to my mind affects the culpability of the offender. It renders his degree of culpability very low. He had an acknowledged addiction - which is borne out by his criminal convictions - and was in error provided by the authorities with the very material that he was addicted to. Asked by Mr Amaranath in cross-examination how he came to commence using the material, he frankly acknowledged that when he was addicted to drugs and partying those he was mixing with could get into an “odd headspace”.

24. Let me make clear that that does not justify in any sense anyone possessing child pornography material. It is rightly outlawed by Parliament and regarded as abhorrent by the community. That is reflected in the penalties which Parliament has attached to those sorts of crimes. But some people in the community find that they become addicted to illegal possession of such material. That does not excuse them accessing it, downloading it and possessing it but this case is a significant exception because the offender was provided, again I emphasise mistakenly, by the police with the very same material that they had confiscated from him and that he had been sentenced on before, in the knowledge that he was addicted to it.

25. There is a good amount of material tendered by Mr Hutchinson about his client. His client has evidently built up a good rapport with Anna Robilliard and she has provided a number of reports over the years which support him and his efforts to rehabilitate himself. I will take into account her recommendations in sentencing him. There is also a report from another forensic psychologist, Tim Watson-Munro. I have taken into account the remarks on sentence by his Honour Judge Freeman when sentencing Mr Thrift on 28 June 2010 for the second of his now four episodes of this kind of criminal behaviour.

26. I have significant reservations about the credibility of Mr Thrift. But the principles of the criminal law require me to give him the benefit of the doubt in the circumstances of this case and sentence him on that basis.

27. An independent observer, Ms Robilliard, is impressed by his efforts at rehabilitation and that bodes well. Mr Watson-Munro said that Mr Thrift “impresses as an intelligent man whom I believe would respond positively to treatment should he take this course of action”. They have also made observations about his contrition for this kind of behaviour. It is because of his low culpability in committing the same offence on this occasion that I am going to take the extraordinary course of simply putting Mr Thrift on a good behaviour bond.

28. An arguable alternative would simply be to sentence him to prison and let the time that he has spent over the last year or so serving out the balance of his intensive correction order - but in fulltime custody - count towards the sentence. I do not propose to take that course because it would suggest to another judicial officer sentencing Mr Thrift in the future that I regarded the crime in this case as so serious that it should attract a custodial sentence. That is not the case. I repeat, I regard Mr Thrift’s culpability in the circumstances of this case as exceptionally low. I think a sensible course is to put him on a good behaviour bond for two years and to attach such conditions to that bond which will encourage him in obtaining the help that he clearly needs for his ongoing rehabilitation and dealing with this criminal addiction.

29. Accordingly the sentence which I impose is this. Instead of imposing a sentence of imprisonment, under s 9(1) of the Crimes (Sentencing Procedure) Act 1999 I make an order directing Mr Thrift to enter into good behaviour bond for two years. The conditions of the good behaviour bond are these:

• That he be of good behaviour.

• That he appears before this Court if called upon to do so at any time.

• That he advise the registrar of the District Court at Sydney of his residential address on release from custody and of any future change in that residential address.

• That within seven days of release from custody he report to any office of the Community Corrections Office of the Department of Corrective Services.

• That he accept supervision from an officer of that service and comply with all reasonable recommendations of any such officer, in particular regarding the following: dealing with sexual offending behaviour; accessing psychotherapy sessions at the Wentworth Clinic associated with the Wentworth Avenue Community Corrections Office; obtaining a mental health treatment plan from a general practitioner for treatment by a registered psychologist; any referral to the pastoral care institute directed by the Reverend Dr Peter Powell; engagement in the positive lifestyle program conducted by the Salvation Army.

HIS HONOUR: Mr Hutchinson and Mr Amaranath, I’ll explain that to your client in a moment Mr Hutchinson, but any other matters that--

HUTCHINSON: Your Honour it is covered by attendance at any community corrections office. I don’t think attending the city office would--

HIS HONOUR: I've deliberately not specified an office because we don’t know where he's going to live when he's released so I've left that as “an office”. Now it might be sensible to go to Wentworth Avenue, who knows but--

HUTCHINSON: Do you understand that?

OFFENDER: Yes.

HIS HONOUR: I’ll explain that to him in a moment, yes.

HUTCHINSON: Thank you, your Honour.

HIS HONOUR: I've deliberately left that.

OFFENDER: Thank you.

HIS HONOUR: Mr Amaranath any suggestions or proposals?

AMARANATH: No your Honour.

HIS HONOUR: Mr Thrift I've taken some time giving these remarks on sentence deliberately because it is an extraordinary low sentence and it’s important that I explain why. You're on a good behaviour bond for two years from today. Somebody will come down and see you in custody with the bond. They’ll come down in the next hour I imagine. The bond contains the usual conditions that you may be familiar with. You’ve got to behave yourself and stay out of trouble, any sort of trouble. If you get a notice to come back to court, you’ve got to turn up without having police or Sheriff’s officers chasing after you. When you get released you’ve got to email this Court or send them a letter telling them where you live so they know where to send someone if need be and if you have to be brought to court. And if you change that address you’ve got to let them know at the Court so that they can send somebody out to get you. Hopefully they won’t need to because you'll be busy getting on with Community Corrections. Within seven days of your release you’ve got to turn up at any corrections office, Community Corrections Office. I've left that open because I don’t know where you'll be. The most important is to accept supervision from an officer of that service and you’ve done that before haven’t you?

OFFENDER: Yes your Honour.

HIS HONOUR: That’s what I thought. And I've specified a couple of things from Anna Robilliard’s report, Dr Peter Powell and the Wentworth Clinic, they're two of the things.

OFFENDER: I did actually - if it turns out that for whatever reason an alternative is offered to me do I need to come back to the Court?

HIS HONOUR: No, because I've left it just as you accepting their, that is the officer’s reasonable recommendations and directions and if they think no that’s not reasonable, not Wentworth, we’ll send you somewhere else or we’ll send you to this psychologist or another thing, that’s fine. Provided you do what they say, that’s the important thing.

OFFENDER: Okay.

HIS HONOUR: And that’s why it’s not so much me, it’s a recommendation. I recommend that they get you sorted out for the mental health treatment plan from a GP and this positive lifestyle program you heard Mr Hutchinson talking about that.

OFFENDER: I'm aware of the existence of that program, your Honour.

HIS HONOUR: Yes, good. It’s now up to you. In a sense you’ve been caught red-handed but in very unfair circumstances and which I've taken into account in sentencing you so leniently but you’ve really got to deal with this issue and it sounds as though you're on the track to deal with it but you’ve really got to deal with it or you'll be back and forwards to gaol which you don’t want.

OFFENDER: No, your Honour.

HIS HONOUR: You don’t want to be going into your fortieth year in a couple of years’ time, you want to be out and doing things for the rest of your life and not just going backwards and forwards to gaol. Everybody said how intelligent you are, I'm not being patronising about that, I'm reading it in the reports and you’ve got yourself a degree, you're a librarian, these are all positive things. It’s not going to be easy adjusting in the community again, you know that better than I do but let those people help you. All right anything else?

OFFENDER: No, your Honour.

HIS HONOUR: Do you need to see your client whilst he's here? Well he might need you to go down and help him with the bond, I don’t know.

OFFENDER: I have signed one.

HIS HONOUR: You’ve signed one before, you know it, okay.

HUTCHINSON: I’ll go downstairs, your Honour.

HIS HONOUR: Okay, that’s all. Thanks and good luck Mr Thrift.

OFFENDER: Thank you, your Honour.

HIS HONOUR: It’s now right on 4 o’clock and I think you might have missed out Mr Hutchinson.

HUTCHINSON: I have, your Honour.

HIS HONOUR: I'm sorry about that but I say in my own defence that case needed extended remarks on sentence because of the extraordinary outcome and I’ll just give the exhibits back to my associate.

HUTCHINSON: Your Honour I wonder could I just impose on you that you order that your remarks on sentence be extracted.

HIS HONOUR: Yes, thanks I will. Yes, I would have done that anyway. I'm glad you reminded me. I direct that a transcript of these remarks on sentence be taken out and provided to me for revision and that will happen over the next month or two, it’s not urgent but I’ll see if I can remember to send a copy to you and to you Mr Amaranath as well so that you'll have a record of it. And thank you both for your assistance. It’s not been an easy case at all and it wasn’t the straightforward case we thought it might have been but it’s been satisfactorily resolved so far as I'm concerned.

**********

Decision last updated: 12 February 2015