R v Turner

[2024] NSWDC 214

District Court

New South Wales

Medium Neutral Citation:

R v Turner [2024] NSWDC 214

Hearing dates:

15 April 2024

Date of orders:

18 April 2024

Decision date:

18 April 2024

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

1. The offender is convicted of the offence.

2. Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, I order the offender to comply with a Community Correction Order for a period of 3 years with standard conditions and supervision by Community Corrections to apply during the term of the order are as specified

3. Forfeiture Orders as per SMO.

Catchwords:

CRIMINAL – sentence - possess child abuse material –a total of 7,458 images found on offender’s devices - random sample described as Category 1 and Category 2 CAM per the Interpol baseline – objective seriousness of offences – no evidence of further dissemination - offences disputed, “it’s not abuse” – mental health issues – other subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Minehan v R (2010) NSWCCA 140

Mouscis v R (2009) NSWCCA 181

Category:

Sentence

Parties:

Rex
Turner, Matthew Neil

Representation:

Counsel:
Defence: Mr J McKenzie
Solicitors:
ODPP (NSW): Ms E Lyte
Defence: Ms S Watts, Tony Cox Lawyers

File Number(s):

2022/00370954

JUDGMENT

1. Matthew Turner appears for sentence in respect of a single offence of possess child abuse material contrary to s 91H(2) of the Crimes Act 1900. The maximum penalty provided is 10 years’ imprisonment. There is no relevant standard non parole period.

2. He was committed for sentence on 21 September 2023 in the Local Court at Port Macquarie. He is accordingly entitled to a twenty-five per cent discount for the utility of the plea alone, which has been taken into account. I note that he was in custody from 8 to 9 December and that this in my view constitutes two days of custody to be taken into account.

3. The facts are agreed and are as follows;

1. In December 2022 police received intelligence relating to suspicious online activity by the offender and possible involvement in possession and dissemination of child abuse material (CAM).

2. On 8 December 2022 police attended premises in Table Street, Port Macquarie, and were met by the offender.

3. Police cautioned the offender and explained the search warrant and explained to the offender that they were searching for CAM. The offender replied, “Just because you call it child abuse, doesn’t mean that’s what it is. It’s not abuse.” The officer replied, “I am happy for you to explain yourself.” The offender then said, “You’re calling it something it’s not. The laws are unjust. The laws are bullshit.”

4. The officer then asked if police would find any CAM during their search, the offender replied, “No.” He was given a copy of the owner occupier notice and said, “What you’re doing is a ... violation of my human rights.” The officer informed him that the search was court-ordered and lawful, and the offender then indicated, “He didn’t consent to those laws.”

5. During the search police located an unlocked iPhone in the offender’s bedroom. Police adjusted the settings so that the phone would not lock. The offender was asked for the code but refused to provide it. A preliminary search of the device depicted Category 1 and Category 2 CAM as per the Interpol baseline. The officer cautioned the offender again and arrested him. Police continued to search and seized the offender’s electronic devices.

REVIEW OF SEIZED DEVICES

Possess child abuse material.

6. Police reviewed the portable storage device which was seized from the offender’s bedroom.

7. A folder was located containing 2,699 images of prepubescent children either engaging in sexual acts between themselves or with adults.

8. Image 0454 depicted an adult male engaging in penile/vaginal sexual intercourse with a prepubescent girl under the age of thirteen. Image 1314 depicted an adult male placing his penis into a mouth of a prepubescent girl under the age of thirteen.

9. These images were categorised as Category 1 and 2 as per the Interpol baseline.

I add to the facts by indicating that the Interpol baseline system allows partners in the public and private sectors to recognise, report and remove known child sexual abuse material from their networks. Category 1 relates to real prepubescent children under thirteen involved in (or witnessing) a sexual act with the focus on the genitals or anal region. Category 2 (other illegal) any other illegal files involving children under sixteen including written or animated child exploitation material.

10. An officer reviewed the offender’s mobile phone and located the Photofast application. The app contained 4,759 images depicting young children aged between seven and fifteen naked or engaged in sexual acts.

11. An officer reviewed a random selection of images to categorise them;

• Eleven images depicted prepubescent children engaged in penile/anal intercourse and fellatio with adults. These images were categorised as Category 1 as per the Interpol baseline.

• Twenty images depicted children between the age of seven and fifteen exposing their genitals or posing explicitly. These images were classified as Category 2 as per the Interpol baseline.

12. The iPhone also contained a large amount of rhetoric regarding the age of consent, the definition of abuse and support for people convicted of child abuse related offences. The officer took photos of that material which are part of the Agreed Facts, and I will not further describe them; the photographs are contained in the facts. There was a total of 7,458 images. I note that the Agreed Facts refers to them as images rather than photos or videos. There is however no indication that any of the files located were in fact videos of the 7,458 images otherwise described in the Crown’s submissions as photos. Only 33 were the subject of examination. Accordingly, from what is contained in the facts it is unclear whether the random sampling included a broader assessment of what was contained on the devices. The random sample however included a mix of both Category 1 and Category 2 material.

4. A number of factors were identified as being relevant to the assessment of objective seriousness for matters of this type in Minehan v R (2010) NSWCCA 140 at (94). Considering those factors, the following can be identified as relevant to this matter;

1. The material possessed involved actual children.

2. The ages of the children depicted were prepubescent (under thirteen years of age.)

3. A random sample of the images included images depicting prepubescent children engaged in penile/vaginal intercourse and fellatio with adults (Agreed Facts at 8) along with penile/anal intercourse and fellatio with adults (Agreed facts at 11[1]) alongside images of prepubescent naked children.

4. There is no suggestion of cruelty or physical harm in any of the material, or for that matter, bestiality.

5. The 7,458 images appear to show a range of different children in a range of different contexts.

6. The purpose of the possession was for the offender’s sexual gratification. There is no evidence of further dissemination.

7. There is no evidence before the Court of the offender providing payment for the images or acting within a network of other offenders. I note that although the Crown asserts that there was a degree of planning in the storage of the material in particular by the use of the Photofast application on the offender’s mobile phone, I do not accept that this indicates an instance of preplanning. The Photofast application is a common application that can be used to assist in the compilation of any grouping of photographs and is generally available to the public. It is not something specifically associated with the collection of CAM or CEM.

5. The total number of photos is of course a significant amount of child abuse material, and the description of the material indicates that it depicts serious sexual offending against real children, and thus is a serious example of such an offence. There are, however, no aggravating factors referred to or arising from the material before me.

6. As to subjective matters, the offender was approximately thirty-seven years of age at the time and is now thirty-nine years of age. Before the Court in respect of subjective matters are his criminal history and a New South Wales Department of Corrective Services “Conviction, Sentence and Appeals Report”, a Sentencing Assessment Report under the hand of John Swarbrick, dated 23 November 2023, a psychological report under the hand of Laura Durkin, dated 10 April 2024, and a number of medical reports under the hand of Dr B Parsonage, a psychiatrist, as to treatment of the offender in the past for mental health issues. There are a number of those, and I will not refer to them in particular as they have all been taken into account by Ms Durkin. Subjective matters are drawn from that material.

7. His criminal history indicates an offence of larceny committed in 2003, for which he received a s 9 bond for twelve months supervision, and in June 2005, he committed a further offence of behave in an offensive manner near a public place/school in respect of which he was fined $400. I note that those are matters of substantial age and the penalties imposed indicate that they were regarded as relatively minor in my view, and I will simply take them into account as indicating that he does not have a clean record but not as matters that are of any significant relevance to the sentencing procedure I am embarking on. It can be said in that light that he is generally a person of good character, considering his age and lack of other offending; however, I note that offences of possessing child pornography or child abuse material are frequently committed by persons of prior good character, and given the need for deterrence, that factor can be given less weight in the sentencing exercise, as per Mouscis v R (2009) NSWCCA 181 at (37).

8. The various reports from Dr Parsonage, as I have previously indicated, were taken into account and referred to in the psychological report provided by Laura Durkin, and I will only refer to them as referred to in her report, although I have considered them in total.

9. The offender was born and raised in the Port Macquarie area and is the second of four children to his parents’ union. That relationship was terminated when the offender was approximately nine years of age, both partners then re-partnering. His siblings are aged forty, thirty-three and thirty. He is said to have struggled to describe his family in any meaningful way, describing his father as “okay” and stating that they shared an amicable relationship throughout his life. However, once his parents separated, their contact was apparently intermittent and he perceived his father’s new partner, his stepmother, as discouraging his father from having a relationship with him.

10. As to his mother, he said that their relationship had been up and down, but mostly positive, and that they are currently amicable with one another. I note that he was living on his own up to the time of being charged, and from the time of being charged to date, he has been required to live with his mother and her partner. He is at least able to disclose personal information to his mother more than anyone else in his life. He indicated that his relationship with his siblings has always been strained, and the offender has had significant problems in establishing social and sexually intimate connections with females throughout his life, that being a source of distress for him.

11. He had some discomfort living in the family home and moved out at the age of sixteen having secured public housing, and has lived independently for some twenty years, at some stage going onto a form of disability pension. I note from the material that living on his own required a significant level of assistance from various organisations.

12. He said that his academic performance at school was adequate but that he struggled socially and was bullied. Due to the challenges he experienced at school, and his mental health problems, it resulted in Mr Turner being admitted to hospital when he was fifteen years old. He left school in Year 9 before commencing at TAFE to obtain his School Certificate the following year. He has not engaged in any further study.

13. He has significant anxiety in social situations and in interpersonal issues. Although Laura Durkin’s report indicates that he has never engaged in employment, material otherwise indicates that he was, at least for some period, employed in a supermarket, his mother having obtained what would apparently be a short-term job for him, I would presume stacking shelves and matters of that nature. He was supported financially by the disability support pension, which he obtained in his late adolescence following a diagnosis of what is now known as Autism Spectrum Disorder (ASD). He has had significant and chronic social difficulties, struggling to engage socially and experiencing a high level of anxiety when he tries to engage with others, with intense anxiety about being harmed, mistreated, judged or assaulted by others. This has meant that interacting with others is challenging for him. He described himself as having never fitted into conventional society and that he consequently operated as an outsider.

14. He denied ever having been able to establish a sexually intimate relationship and that he is scared of women and has a hostile view of them. He identified himself as an “incel” (being an involuntary celibate person) which is a group of people who, despite their desires for a sexually intimate relationship, have experienced no success at such. Ms Durkin indicates that people who identify as incel are reportedly frequently men and often maintain negative, stereotyped and or misogynistic views of women, and they are likely to express hostility towards women, which describes some of Mr Turner’s language and attitudes. The offender has no children.

15. He denied experiencing any notable health issues and has never sustained any significant injuries or been prescribed any medications of note with the exception of medications prescribed for mental health issues. He apparently has abused alcohol consistently for many years, although he has in recent times reduced his alcohol intake to no more than three Vodka-based drinks nightly. While he has always been interested to experience the effects of illicit drugs, he says he has never had the social connections that might provide him with access to such substances, so he has in fact never indulged in any illicit drug, and he reports having never abused prescription medications.

16. Of note, and of some alarm in relation to the offences, the offender disputes that his conduct is an offence,

“His account revealed a poor understanding of the nature and impact of his conduct. He appears to display a range of cognitive distortions about his conduct and there is general suspiciousness and animosity towards authority and government in particular which appears to reflect Mr Turner’s general distrust and paranoia about others and systems.”

17. Ms Durkin opines that the offender.

“… has high needs both from a mental health perspective and in terms of managing his offending, multiple services would be required to support him.”

18. I note that Dr Parsonage has been treating the offender since he was sixteen years of age, noting in his report of 14 February 2001 that the offender had,

“longstanding difficulties being socially reclusive and never having many friends with difficulties with attention and concentration at school since early primary school,”

and also noting that, “At times he was verbally abusive and physically aggressive.” He had been at the time of that report previously admitted to the James Fletcher Hospital and may have been on a Community Treatment Order in the past. He was further assessed at Redbank House during a one-week admission, and Dr Anderson, being the head of the Adolescent Unit, had indicated that he was,

“not sure of the diagnosis but that he is delusional, and obsessional/depressive symptoms should be helped by anti-psychotic and anti-compulsive medication.”

19. He had at that time as a result been reluctantly taking Olanzapine which had recently been increased to a higher dose, as well as Cipramil. Even at that stage, it was indicated he had no history of substance abuse but indicated that he wished to use marijuana. During the interview he was uncooperative and swore at times, sometimes refusing to answer any questions, saying that it was none of Dr Parsonage’s business and denying that he had any problems or that any of his actions were in any way unreasonable. Dr Parsonage described himself as trying to form a therapeutic relationship with the offender, but on his assessment, without success.

20. I note that at one stage the offender moved to the Christo House Youth Refuge, presumably to provide some relief to his parents, and he was given when he was living on his own, regular ongoing support from Centre Care officers or employees, that support including support with shopping, budgeting and like matters.

21. His diagnosis has apparently never been clear, although it is apparent that he has suffered from depression for a long time, and has at least some features of Autistic Spectrum Disorder, as well as having demonstrated as a teenager some psychotic symptoms because of the oddness of his behaviour. I accept that there is a causal link between Mr Turner’s offending and his sad personal history and mental health issues.

22. It has been submitted that he has been on restrictive and onerous bail conditions, and that this should be taken into account. I accept that the conditions were restrictive: he was being required to reside with his mother and her current partner rather than in his own premises, and to accord with a curfew. In my view, while that is relevant, it does not amount to what is generally referred to as quasi-custody. Of note is that during the duration the offender has not committed any further offences.

23. Of concern is the offender’s apparent attitude towards offending of this nature, taking account not only of the images but the various photographs or screen shots as part of the facts, which indicate that his attitude is that what he was doing was not an offence, and in effect, that children, once they are at least more than thirteen years of age, should be able to indulge in adult sexual conduct. There is no evidence that his violent psychotic episodes which were apparently evident when he was a much younger person are still current. In the report of John Swarbrick ,of concern is that, under the heading, “Attitudes,” it is reported that,

“Mr Turner justified his actions and minimised his behaviour because he was on the internet that everybody has access to ... Mr Turner stated he is sex deprived, and enjoys watching pornographic material, describing himself as a collector of such material.”

24. I note he lives on his own and is referred to as having no interaction with peers in the community or during his school years, and as stating that he has no friends, no associates and is not involved in any social activities. In “Insight into the Impact of Offending”, the following is indicated,

“Mr Turner was unable to identify the impact his offending has on victims, the community or his family.”

25. As to his willingness and ability to undertake intervention, the following is stated,

“Mr Turner stated he would be willing to engage in supervision ... his described history of failing to participate in intervention for his mental health suggests he may be resistant to engaging the services to address his offending behaviour.”

26. He is assessed as a medium risk of reoffending, although on the basis of his past history and the nature of these offences, in my view, if he does reoffend, it is most likely that that will take the form of accessing further material of this nature, particularly considering that he still adheres to a view that it was not an offence. That is a matter of serious concern in relation to both remorse and rehabilitation. There is in the circumstances no evidence of remorse or contrition, and rehabilitation in the circumstances must be regarded as very guarded, if not extremely guarded.

26. I have given consideration to all of those matters, and as to the question of whether this matter passes or crosses the s 5 threshold, despite the large number of photos found in the offender’s possession, in my view the matter does not pass the s 5 threshold.

27. In my view, the offender requires a significant level of assistance, psychiatrically and/or psychologically. Whether that will assist him is an entirely moot point in my view, considering what I have said about remorse, contrition and rehabilitation, but he should not be deprived of the opportunity to have that enforced on him. Accordingly, I propose to proceed by way of giving him the benefit of a Community Corrections Order.

28. The offender is convicted of the offence. Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999 I order the offender comply with a Community Corrections Order for a period of three years commencing today. Standard conditions are that he must not commit any offence, and he must appear before the Court if called upon to do so, at any time. As to the additional condition, I see no point in any condition other than that he be subject to the supervision and guidance of Community Corrections Services for as long as that service deems it necessary or desirable, which, in my view should be the whole of the three year period, but that is a matter for them, but not exceeding the term of the order, and the offender is to obey all reasonable directions of that service, including any direction or instructions to undertake examination, assessment, therapy, treatment and/or counselling whilst under their supervision and guidance.

29. I note that failure to comply with the conditions of the order may result in further action being taken against you, which may require you to return to Court to be re-sentenced. If you fail to comply with the Community Corrections Order, I will be notified of that, and I will ensure that it comes back before me rather than some other judge, and it is unlikely that I will be as reasonable as I have been today, so you should take that into account.

30. Mr Turner, in my view, the community has reason to be concerned about your freedom in the community even on a Community Corrections Order. I have to an extent ameliorated the appropriate sentence on the basis of your mental health issues, reducing your moral culpability.

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Decision last updated: 11 June 2024