R v Walker

[2019] ACTSC 172

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Walker

Citation:

[2019] ACTSC 172

Hearing Dates:

1 May 2019, 3 July 2019

Decision Date:

3 July 2019

Before:

Murrell CJ

Decision:

Sentenced to a total of 16 months’ imprisonment to be served by way of intensive correction, with additional conditions imposed.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Possess child exploitation material – Use carriage service to solicit child pornography – Discount of sentence for guilty plea in  Commonwealth offences – Sentence of imprisonment – Whether it is appropriate to impose an intensive corrections order – Whether the time spent in custody adequately reflects the objective seriousness of the offending

Legislation Cited:

Crimes Act 1900 (ACT) s 65(1)

Crimes Act 1914 (Cth) s 16A(2)

Crimes (Sentencing) Act 2005 (ACT) s 35

Criminal Code 1995 (Cth) s 474.19(1)

Cases Cited:

Cameron v The Queen [2002] HCA 6; 209 CLR 339

DPP (Cth) v Thomas [2016] VSCA 237; 53 VR 546

Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243

R v Conway [2017] ACTSC 275

R v Cooper [2012] ACTCA 9

R v Currie [2015] ACTSC 404

R v De Leeuw [2015] NSWCCA 183

R v Harrington [2016] ACTCA 10; 11 ACTLR 215

R v Keski-Nummi-Wilson [2017] ACTSC 115

R v Philpot [2015] ACTSC 96

R v Simonetti [2018] ACTSC 31

Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1

Parties:

The Queen (Crown)

Wayne Ethan Walker (Offender)

Representation:

Counsel

Ms S Janackovic (Crown)

Ms J Campbell (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 31 of 2019

Murrell CJ

The offences

1.        The offender is to be sentenced for the following offences:

(a)       On 13 December 2018 – Possess child exploitation material, contrary to Crimes Act 1900 (ACT) s 65(1), an offence that carries a maximum penalty of 7 years’ imprisonment and/or a fine of 700 penalty units;

(b)       Between 12 June and 10 December 2018 – Use carriage service to solicit child pornography contrary to Criminal Code 1995 (Cth) s 474.19(1) (Criminal Code), an offence that carries a maximum penalty of 15 years’ imprisonment;

(c) Between 21 November and 9 December 2018 – Use carriage service to distribute child pornography contrary to s 474.19(1) of the Criminal Code, an offence that carries a maximum penalty of 15 years’ imprisonment.

2.        On 13 December 2018, the offender was arrested. He was granted bail the next day, i.e. after spending one day in custody.

Facts of the offences

3.        Between June and December 2018, the offender communicated online with various children using several internet-based services, including:

(a)       Twitch, a live streaming video platform that allows users to use text-based instant chat and make PayPal payments;

(b)       Discord, a platform that allows users to communicate with one another via text, image, video and audio;

(c)       Facebook Video, a video and audio call service; and

(d)       Facebook Messenger, an instant message service.

4.        During interactions with children, the offender used software to record material depicted on his computer screen and to save it as a video file. He used female user names and images to suggest that he was a young female.

5.        The material created and possessed by the offender has been categorised using the child exploitation material (CEM) categorisation. Relevantly, Category 1 refers to images of children that are sexually suggestive or sexual, but where no sexual activity occurs. Category 2 includes solo masturbation by a child. Category 6 includes texts describing sexual activity involving a child.

6.        On 14 June 2018, the offender spoke on Twitch with a prepubescent female child and directed her to remove her clothing in exchange for money. She did so, revealing her genital area (Category 1 CEM). Similar events occurred on 3 July 2018 and 28 August 2018.

7.        On 9 November 2018, the offender communicated with a prepubescent British child on Twitch and Discord, and screen recorded his interactions with the child in videos. When requested, the child revealed, and the offender recorded, her chest area (Category 1 CEM), genital area (Category 1 CEM), and sent a text message telling her to spread her legs (Category 6 CEM). He screen-recorded other videos depicting her performing sexual acts at his request.

8.        On 19 November 2018, the offender spoke on Twitch and Discord to a male child in the early stages of puberty, giving him directions and promising him money. He recorded his interactions with the child in four videos. In one the child is naked, showing his penis. In a text message, the offender directed the child to get fully naked and “play” with his penis (the video is Category 1 CEM and the text exchange is Category 6 CEM). In another video, the child is naked below the waist and is masturbating during a text exchange with the offender (the video is Category 2 CEM and the text exchange is Category 6 CEM).

9.        On 22 November 2018, the offender spoke with an American male child in the early stages of puberty, giving him directions and promising him money. He screen-recorded his interactions with the child in three videos. In one video the child exposed his penis during a text exchange (the video is Category 1 CEM and the text exchange is Category 6 CEM).

10.      Further, on 22 November 2018, the offender spoke with a Caucasian male child on Discord and screen recorded his interactions into videos. In one, the offender sent the child a screen shot of the genital area of a female child that he had earlier recorded and then told the child that it was “ur turn”.

11.      On 2 December 2018, the offender spoke with a female child in the early stages of puberty, giving her directions and promising her money. He screen-recorded his interactions in six videos. In one, the child reveals her minimally developed breast area during a text exchange (the video is Category 1 CEM; the text exchange is Category 6 CEM).

12.      On 8 December 2018, the offender spoke to a male child in the United Kingdom, giving him directions and promising him money. The offender screen recorded his interactions with the child in seven videos. In one, the child removes his underwear and reveals his penis (the video and image are both Category 1 CEM and the associated text exchange is Category 6 CEM). The offender sent the child a screenshot of a female child with her legs apart. In accordance with messages sent by the offender, the child touched his penis (the video is Category 2 CEM and the text exchange is Category 6 CEM). In a subsequent Facebook Video call and Facebook Messenger conversation, the child again touched his penis at the direction of the offender.

13.      The Australian Federal Police launched an investigation after receiving reports from the National Centre for Missing and Exploited Children about an Australian-based Twitch user enticing children to perform sexual acts during a live stream. The police investigation revealed that the IP addresses associated with the reported Twitch usernames had been allocated to the offender.

14.      On 13 December 2018, police executed a search warrant at the offender's home address. When directed by police to remove dogs who were barking at the front door, the offender took a dog back into the residence and used the opportunity to delete files from his Acer computer, before returning to the front door, removing the remaining dogs and allowing police access to the premises.

15.      Police seized the Acer computer and an HP laptop. Child exploitation images were found on the HP laptop. Police also located a Google account associated with one of the Twitch user names; three videos taken of the female child around 3 July 2018 were found on the associated Google Drive.

16.      The offender participated in a record of interview in which he made admissions, including that:

(a)       He was the sole user of the Google account and was responsible for uploading the videos onto the Google drive.

(b)       He has been informed by Twitch about four or five months earlier that he had a lifetime ban and that his IP address may be blocked.

(c)       He had deleted a folder containing recorded Twitch videos from the Acer computer while the police were waiting to gain entry to his residence.

(d)       The youngest child depicted in the deleted videos was about 10 years old.

(e)       He had recorded all the videos of children engaged in sexual activity within the last two months.

(f)        He had pretended to provide donations to some of the children.

(g)       He had used multiple other accounts on Twitch and Discord to communicate with children online and had created other Twitch accounts with female names after his account was banned.

17.      The offender acknowledged that he knew that his conduct was wrong, and that he should not have asked the children to perform sexual acts on video. He understood that child pornography laws prohibited “children under 16 stripping and doing things [he] asked them to do”.

18.      Police recovered the contents of the folder that the offender had deleted on his Acer computer. They found a number of files that were CEM. In Category 1 there were 23 videos and eight images. In Category 2 there were six videos. In Category 6 there were 24 videos (of which 15 were also categorised as either Category 1 or Category 2).

Plea

19.      The offender entered a plea of guilty on the fourth mention before the Magistrates Court, following discussions between the parties. The resulting charges captured the whole of the criminal conduct.

20. For the possession offence, s 35 of the Crimes (Sentencing) Act 2005 (ACT) applies. The early plea of guilty has high utilitarian value, although the Crown case was very strong. Nevertheless, I will allow a discount of 25 per cent on the sentence that would otherwise have been imposed.

21. The soliciting and distribution offences are offences against a Commonwealth law. Section 16A(2)(g) of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act) requires the court to take into account the fact that the person has pleaded guilty to the charges.

22.      This Court has held that the utilitarian value of an early plea is not to be taken into account: R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at [125] per Refshauge ACJ and Gilmour J. Rather, a discount may be given if “the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice”: Cameron v The Queen [2002] HCA 6; 209 CLR 339 at [22] per Gaudron, Gummow and Callinan JJ. However, in a recent Victorian decision of DPP (Cth) v Thomas [2016] VSCA 237; 53 VR 546, and in the recent New South Wales Court of Criminal Appeal decision in Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1, it has been held that, for Commonwealth offences under s 16A(2)(g) of the Commonwealth Crimes Act, a sentencing court may take into account the utilitarian benefit of a plea of guilty.

23.      In this case, regardless of whether utilitarian value is to be taken into account, the offender accepted responsibility and expressed remorse more or less from the outset (when he cooperated with the police during the interview), and his pleas of guilty reinforced that acceptance. Consequently, with or without reliance on utilitarian value, in the circumstances of this case I would allow a discount of 25 per cent on the Commonwealth sentences that would otherwise have been imposed.

Objective seriousness

24.      The cases of Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 and R v De Leeuw [2015] NSWCCA 183 discuss matters relevant to sentencing for child pornography offences, including the factors that inform the objective seriousness of such offences. The following general matters are relevant in the present case, particularly in relation to the soliciting offence, which is the principal offence before the court.

(a)       The offence involved a course of conduct.

(b)       At least eight actual children were solicited and used to create the material.

(c)       The children were prepubescent (two were as young as 10 years old) or in early puberty. The offender knew that the children were as young as 10 years old.

(d)       A not insignificant volume of material was created and possessed.

(e)       As to the nature of the material, in CEM Category 1 there were 23 videos and eight images; in CEM Category 2 there were six videos; in CEM Category 6 there were 24 texts which were somewhat repetitive of earlier material. The bulk of the material was in Category 1, i.e. at the lower end of the classification range of CEM. In relation to the texts, most were relatively inoffensive. However, as to the Category 1 material, it was not the least offensive type. Most of it was not simply sexual posing but involved naked genitalia. The Category 2 material involved two different victims masturbating. The Category 6 material was not particularly explicit, except in relation to one exchange where the offender directed the child about how they should masturbate.

(f)        The material was not produced for sale or distribution, other than the limited distribution for the purpose of soliciting further material from other children.

(g)       In most cases the children were bribed to participate, although the bribe was never paid.

(h)       Except in one case involving a chat group, the offender acted alone.

(i)        The offences were relatively unsophisticated, unlike many such offences, which may involve national or international criminal groups. However, the offender did engage in planning to the extent that he set up deceptive female profiles.

(j)        The solicited material was recorded and retained. The offender used the Nvidia ShadowPlay application to record material that he had solicited. This application was not specifically acquired for this purpose, but had come with the computer as part of a package.

(k)       The offender has said that he did not engage in the activities for the purpose of sexual gratification, but he must have done so, given that he had no intention to sell or share the material or otherwise profit from it.

25.      The possession offence relates to only one day, but it occurred in the context that the offender had possessed and stored such material for up to six months. Forty-six files had been solicited from children, recorded and saved in a folder specifically created for such recordings on the offender's desktop computer. There were also videos on his Google Drive and a couple of images on his HP laptop.

26.      The distribution offence involved material relating to one female child that was distributed to two other children. On these two separate occasions, the offender claimed that it was his image. He was masquerading as a young female while using the images for the purpose of encouraging them to participate in sexual activity. In other words, the purpose of distribution was to corrupt vulnerable children. Mercifully, except for the two images of the female child that were distributed, the material will not remain perpetually available on the internet.

27.      It may readily be inferred that the harm to the victims was substantial.

Subjective circumstance

28.      The offender was 22 years of age at the time of the offences.

29.      He has no criminal record. However, given the nature of the offences, the offender's prior good character is of limited weight: R v Cooper [2012] ACTCA 9 at [46].

30.      The offender experienced a very unstable childhood. His mother left the family when the offender was three years old, and the offender has long harboured understandable feelings of rejection by his mother.

31.      In Year 6, while the offender was living with his father in Canberra, he displayed behavioural problems and was suspended from school.

32.      He moved to live in Sydney with his mother and her new family. He remained there for about three years. At that time, he was prescribed Ritalin for Attention Deficit Disorder and also antidepressant drugs. However, he continued to experience anger issues and manifest behavioural problems at school.

33.      The offender then moved from Sydney to the south coast of NSW, where he resided with grandparents before returning in 2011 to Canberra to reside with his father. When he returned to Canberra, he continued to experience behavioural problems at school. He was both bullied and a bully. He was referred to an adolescent mental health unit, where he saw a psychiatrist. Thereafter, his school attendance was sporadic, but he managed to obtain a Year 12 Certificate.

34.      Recently, the offender disclosed that, when he was eight to ten years old, he was sexually abused by an adolescence foster child who was living with his grandparents. He was told by a grandparent that he should not tell anyone about the abuse. He now accepts that he needs to deal with the issue. He has received appropriate referrals and hopes to undertake regular counselling in the near future.

35.      The offender is not employed. He has been residing with his grandmother, acting as her carer for the past three years. He last held casual employment approximately twelve months ago, undertaking carpentry work. He receives a Centrelink Carer's Payment. His grandmother has had two strokes. She has mobility problems. Although she is not completely dependent on the offender, he provides important companionship and general support to her.

36.      The offender does not participate in any organised pro-social activities and he has a limited social network. At the time of the offences he was very lonely and socially withdrawn. His main activity was engaging in online games. He was not immersed in producing and viewing pornographic material; these offences occupied very little of the total time that he spent at his computer.

37.      The offender has no drug or alcohol problem.

38.      The offender has denied that he is sexually attracted to children. However, as mentioned above, I am forced to conclude that sexual gratification prompted the offences.

39.      The offender has a history of chronic depression and is currently medicated with anti-depressant medication.

40.      The authors of the pre-sentence report assessed the offender as at a low risk of general re-offending, but high risk of sexual re-offending, given the subject sexual offending and his mental health issues. It has been suggested that he engage in one-on-one offence-specific intervention with a psychologist to address sexual re-offending and engage in mental health treatment.

41.      The offender is remorseful. He expressed remorse following his arrest. He was polite and cooperative with the police. He acknowledged the impact of the offending on the victims. He agreed with the police statement of facts and expressed regret for his actions. When speaking to the authors of the pre-sentence report, he accepted responsibility for his actions and expressed willingness to engage in relevant interventions.

42.      Until 1 May 2019, the offender was on bail. One of the conditions of bail was that he not access the internet, and he complied with that condition, which severely restricted his activities and was a penalty of sorts.

Other sentencing considerations

43. In relation to the Commonwealth offences, s 16A(2) of the CommonwealthCrimes Act applies, and lists the relevant factors to be considered when sentencing for such offences. Generally, they are very similar to the factors that are relevant in sentencing for Territory offences.

44.      General deterrence is usually the primary sentencing consideration for offending that involves child pornography. Such offending is difficult to detect, and it poses a great and growing threat to the community.

45.      Protection of the community is a related and critical sentencing purpose. There is a high public interest in protecting children from exploitation and corruption.

46.      The Court recognises the harm to the victims.

47.      Given the offender’s age, his appreciation of wrongdoing, and the fact that he himself was the subject of child sexual abuse for which he is now seeking treatment and which may well be related to the offending behaviour, rehabilitation is a very important sentencing consideration.

48.      Personal deterrence is also very important.

Comparable cases and statistics

49.      I was referred to comparable cases and viewed the Commonwealth Sentencing Database, which discloses that the sentences imposed for the relevant Commonwealth offence nationwide are generally significantly higher than those that have, to date, been imposed by this Court. In relation to Commonwealth sentencing, it is important for courts to follow the national sentencing pattern, rather than any local sentencing pattern. I was referred to R v Simonetti [2018] ACTSC 31, R v Conway [2017] ACTSC 275, R v Keski-Nummi-Wilson [2017] ACTSC 115, R v Currie [2015] ACTSC 404, R v Philpot [2015] ACTSC 96, and to two New South Wales cases in which significantly heavier sentences were imposed.

50.      The maximum penalties are the most significant guide to an appropriate sentence.

Sentence indication – 1 May 2019

51.      Counsel for the offender conceded that a sentence of imprisonment was warranted. I agree. Given the number of victims, their age, and the length of time over which the soliciting offence occurred, a sentence of imprisonment is the only appropriate penalty.

52.      The offender submitted that I should impose an intensive corrections order. I agree that an intensive corrections order is a highly appropriate sentence to address the consideration of rehabilitation and the associated consideration of protection of the community from future harm, which is particularly important in this case, as the authors of the pre-sentence report considered that the offender poses a high risk of sexual re-offending.

53.      The sentencing purposes of general and personal deterrence and recognition of harm to the victims point to a penalty that involves an element of punishment by way of fulltime incarceration.

54.      On 1 May 2019, I revoked bail and requested an assessment for an intensive correction order. I indicated the following sentences:

(a)       For the offence of soliciting, 16 months’ imprisonment, reduced from 21 months’ imprisonment for the plea of guilty. 

(b)       For the possession offence, six months’ imprisonment, reduced from eight months’ imprisonment for the plea of guilty.

(c)       For the distribution offence, four months’ imprisonment, reduced from six months’ imprisonment for the plea of guilty.

55.      I indicated that the sentences for possession and distribution should be served concurrently, and that the sentence for soliciting should commence two months later, resulting in an effective sentence of 18 months’ imprisonment. I stated that I would take into account the period spent in custody (bail refused) by reducing the 18-month period to which I have referred.

56.      The sentencing proceedings were adjourned until 3 July 2019 to enable the assessment to occur while the offender was in custody.

Intensive Corrections Order – 3 July 2019

57.      The intensive corrections order assessment report was received on 27 June 2019 and the sentencing proceeding resumed on 3 July 2019. By 3 July, the offender had been in custody for two months, bail refused.  The period in custody addresses, at least to some extent, the sentencing purposes of punishment and general and personal deterrence.

58.      I have considered the contents of the intensive corrections order assessment report. 

59.      The prosecution questioned whether a two-month period in fulltime custody was adequate to meet sentencing purposes such as punishment and general deterrence, bearing in mind the gravity of the offending, which was not at the lowest end of the range in terms of objective seriousness; it was attended by several matters that gave the offences significant objective seriousness.  The prosecution noted that the intensive corrections order assessment remained valid for a period of three months from 3 July 2019.

60.      I accept the prosecution submission that, while an intensive corrections order is a sentence of imprisonment, it does not have the punitive impact of a sentence of fulltime imprisonment and, therefore, is less useful in addressing sentencing purposes such as punishment and general deterrence.

61.      The defence submitted that it would be inappropriate for the Court to require the offender to serve a further period of up to three months in custody bail refused for the purpose of adequately addressing all relevant sentencing considerations. The considerations that are relevant to the grant or refusal of bail differ from those that are relevant to the determination of the length and nature of a sentence. 

62.      I accept the defence submission.

63.      Defence counsel submitted that I should take into account that the period of two months that the offender has spent in custody has been a very difficult time for him.  It has been his first period in custody.  While in custody, he has been assaulted and he has not received medical attention for a chronic back condition from which he suffers. 

64.      I accept that the custodial experience, while brief, has been salutary and that the offender has not received medical treatment for his chronic condition.

65.      With some hesitation, I have decided to impose intensive correction orders. While the prosecution’s submission has merit, in the context of the period spent in custody and the obligations associated with an ICO, it is my view that sentencing purposes such as punishment, general deterrence and personal deterrence will be adequately addressed if I add a significant community service work condition to the other conditions associated with the intensive correction orders.

Sentence

66.      The offender is convicted of each of the offences and sentenced as follows:

(a)       Possess child exploitation material – 6 months’ imprisonment, from 3 July 2019 to 2 January 2020.

(b)       Use carriage service to solicit child pornography – 14 months’ imprisonment, from 3 September 2019 to 2 November 2020.

(c)       Use carriage service to distribute child pornography – 4 months’ imprisonment, from 3 July 2019 to 2 November 2019.

67.      The total sentence is 16 months’ imprisonment (or 18 months’ imprisonment, considering that, in effect, two months has been served).

68.      I order that each sentence is to be served by way of intensive correction in the community, subject to the core conditions mentioned in the Crimes (Sentence Administration) Act 2005 (ACT).

69.      For the soliciting offence, I impose the following additional conditions:

(a)       The offender is required to undertake 200 hours of community service work.

(b)       The offender must, within seven days of release from custody, contact the ACT Policing Child Sex Offender Registry Team.

(c)       The offender must comply with reporting obligation sunder the Crimes (Child Sex Offenders) Act 2005 (ACT).

(d)       The offender must, within two working days of release from custody, report to Community Corrections.

(e)       The offender must undertake any treatment intervention that is recommended by Community Corrections.

I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.

Associate:

Date: