R v Walshe
[2016] ACTSC 267
•3 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Walshe |
Citation: | [2016] ACTSC 267 |
Hearing Date: | 27 July 2016 |
DecisionDate: | 3 August 2016 |
Before: | Burns J |
Decision: | See [38]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – sexual offences – possession of child pornography – transmission of child pornography – pleas of guilty – reasonable prospects of rehabilitation – terms of imprisonment imposed. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 64(5), 65 Crimes Act 1914 (Cth) part 1C Crimes Sentencing Act 2005 (ACT) s 61 |
Parties: | The Queen (Crown) David Walshe (Offender) |
Representation: | Counsel Ms Musgrove (Crown) Mr Edmonds (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender) | |
File Number: | SCC 54 of 2016 |
BURNS J:
David Walshe, you have pleaded guilty to two offences. The first is an offence contrary to s 474.19(1)(a)(ii) of the Criminal Code Act 1995 (Cth) (the Criminal Code), an offence of using a carriage service for the transmission of child pornography material. The maximum penalty for that offence is 15 years imprisonment, a fine of $153,000 or both.
The second offence to which you have entered a plea of guilty is a charge under s 65 of the Crimes Act 1900 (ACT) (the Crimes Act), which is a charge of possessing child pornography. The maximum penalty for that offence is seven years imprisonment, a fine of $105,000 or both.
On 23 June 2015, the Australian Federal Police commenced an investigation into the sharing and distribution of child pornography material by persons using eMule peer to peer file sharing on the Internet. eMule is apparently a peer to peer file sharing network used to exchange files between computers. The eMule network uses file hashing to uniquely identify files on the network and uses typically located files with key word searches.
Between 23 June 2015 and 2 September 2015, Australian Federal Police investigators successfully downloaded 18 image files and 8 video files from a number of IP addresses linked to you. An IP address is a unique identifier of an Internet account utilised by a computer to connect to the Internet. The IP address can be used to identify the Internet account subscriber it has been assigned to by the relevant Internet Service Provider at a specific time and date. Police viewed all 26 files downloaded from the IP addresses which were linked to you and classified them as child pornography material as defined by s 473.1 of the Criminal Code.
On 29 September 2015, as a result of police inquiries, a search warrant was obtained from a magistrate with respect to your residential premises in the Australian Capital Territory (ACT). On 30 September 2015, police executed the search warrant. During the search an Antec brand personal computer (PC) tower was located in your computer room. The computer was actively connected to the Internet when inspected by police digital forensic experts. File sharing application eMule software was identified on this computer and the default software settings allowed other users of eMule to access and download material stored on your PC, including child pornography via the Internet. Five internal hard drives were identified within your PC tower.
Inspections of the first hard drive revealed the eMule software and a file path to a folder named “downloads”. Within the “downloads” folder were hundreds of files; in fact, over 300 with titles indicative of child exploitation material. A sample of files was viewed by the informant and classified as child pornography material as defined in s 473.1 of the Criminal Code and child exploitation material as defined in s 64(5) of the Crimes Act. The sample included a video of a naked pre-pubescent female performing fellatio on an adult male. This image was categorised by the informant as category 4 in accordance with the Australian National Victim Image Library (ANVIL) schema.
A further two portable external hard drives were located by police while you were present during the search. The first, a Western Digital brand 1 terabyte model, was found to contain thousands and, indeed, more than 5,000 images and video files indicative of child exploitation material. A sample, including a series of images depicting an infant female being penetrated vaginally by an adult male and pre-pubescent females bound, gagged and sexually abused by adult males was viewed by the informant and classified as child pornography material as defined in s 473.1 of the Criminal Code and child exploitation material as defined in s 64(5) of the Crimes Act and categorised as categories 4 and 5 in accordance with the ANVIL schema.
The second hard drive, an Iomega brand 2 terabyte model, was found to contain more than 78,000 images and over 3,000 videos indicative of child exploitation material. The informant viewed a sample of images, including a mix of pre-pubescent and infant females and males depicted engaged in sexualised posing, which is category 1, and sexual acts of categories 2 to 5. In addition, there were digitally engineered images (category 6), depicting child pornography material as defined in s 473.1 of the Criminal Code and child exploitation material as defined in s 64(5) of the Crimes Act.
You were cautioned and availed your rights under part 1C of the Crimes Act 1914 (Cth). You were arrested at about 1.51 pm on Wednesday, 30 September 2015.
You participated in a conversation with investigating police which was recorded. During that conversation you made a number of admissions. You said that you were aware that child pornography material listed in the conditions on the search warrant would be located on your computer. You said that you downloaded and viewed large amounts of pornography and hundreds of files would be located on your PC. You said that you constructed the Antec computer yourself and you installed the eMule file sharing application on your computer. You said that your computer was connected to the Internet and that you conducted research activities and downloaded files that interested you using eMule. You said that you did not publish your research. You told police that you had obtained child pornography from the eMule network and that you searched for child pornography on the eMule network and downloaded and viewed child pornography over a period of years.
Your search terms included: pedo, young, family affair, family situation, naked, pre-teen and toddler. You viewed child pornography for sexual gratification in the past. You said that you did not prefer any age group, you just thought it was an interesting field as to how people behave in different societies and different contents of what they would do and how they did it.
You told police that images downloaded would go into the general downloading area and then you might pick them up and put them in a separate area. You told police that you were not interested in trading child pornography. You said that you understood that child pornography was illegal and you said that child pornography and child abuse material on your computer was offensive to a reasonable person. You agreed that no other person used or had access to your computer systems. You told police that you had been viewing and storing child pornography since 2004.
Your computer equipment was seized during the search on 30 September 2015 and it was forensically examined. There was a very large volume of material. The informant reviewed over 300,000 image, video and text pornography files from your computer equipment, classifying 86,114 files as child pornography material as defined in s 473.1 of the Criminal Code and child exploitation material as defined in s 64(5) of the Crimes Act.
On 2 February 2016, the informant ceased viewing and classifying the material on your devices. The cessation of viewing, rather than marking completion of the examination, was due to the enormous volume of data and time frames required for digital forensic experts to prepare their report on the seized devices. As a complete search and review was not finalised it is believed that there is further child exploitation material on your computer equipment.
At the time of ceasing the classification, due to time constraints, the informant had categorised the 86,114 child pornography material as follows:
(a)55,334 pictures and videos depicted erotic posing with no sexual activity (category 1);
(b)1,010 images and videos depicted sexual activity between children or solo masturbation by a child (category 2);
(c)3,229 pictures and videos depicted non-penetrative sexual activity between adults and children (category 3);
(d)25,682 pictures and videos depicted penetrative sexual activity between adults and children (category 4);
(e)105 pictures and videos depicted children involved in bondage, sadism, torture, child abuse or bestiality (category 5); and
(f)754 files of anime, cartoons, computer generated graphics and text depicting and describing children engaged in sexual poses or activity (category 6).
On 2 February 2016, the informant requested the Australian Federal Police Digital Forensics area prepare a report outlining their analysis of your devices. On 1 March 2016, an Interim Digital Forensic Report was prepared. The Interim Report identified 18,845 existing non-duplicate, non-thumbnail files classified as child pornography material and categorised as:
(a)14,268 pictures and 49 videos depicting erotic posing with no sexual activity (category 1);
(b)871 pictures and 56 videos depicting sexual activities between children or solo masturbation by a child (category 2);
(c)1,613 pictures and 92 videos depicting non-penetrative sexual activity between adults and children (category 3);
(d)1,555 pictures and 217 videos depicting penetrative sexual activity between adults and children (category 4); and
(e)107 pictures and 17 videos depicting children involved in bondage, sadism, torture, child abuse or bestiality (category 5).
It is noted that the Interim Digital Forensic Report does not include duplicates of files which explains the difference between the initial figures that I gave with respect to the 86,114 child pornography files which were identified on your computers and the figures that I have just given which were non-duplicate files.
In the Interim Digital Forensic Report it was identified that the Antec tower computer seized from you had been used to download child exploitation material from the Internet no fewer than 35 times between 11 July 2014 and 24 September 2015. During the interim digital forensic examination of your computer the following search terms were located in the eMule program: pedoland, fondle, suzieq, erection, 3yr, babysitter, incest, neighbour, 4yr, molested, evelyn and sex education.
The maximum penalties which I have referred to indicate the seriousness with which these offences are viewed by the legislature. While the bulk of the child pornography material fell within the category 1 level it should not be assumed that category 1 material is innocuous or mild in its content. This is because material in the level 1 category encompasses a wide range of activities, particularly with sexual posing. It is, in fact, quite ordinary in cases of this type for these files to far outnumber the amount of files in other categories.
In determining the degree of depravity of the two offences, as well as the degree of physical harm, fear or distress occasioned to the victims, this Court should be informed by the representative material of child pornography material that is tendered at the sentence. I had an opportunity to view such material. When considering the material, the type of material and the degree of depravity is the primary focus. The quantity of the material is a secondary focus.
It was submitted that you were unaware of the precise extent of the material you downloaded and that you did not examine or view each individual image. In the light of the number of images and the extent of duplication of images I accept that it is possible that you did not examine each image individually. That, however, does not significantly mitigate these offences. It is clear from the searches that you undertook and the search terms that you used that you were actively seeking child pornography. I have no doubt that you expected to receive and were aware that you did receive material depicting a wide range of depraved and sexual activity involving children. I accept that there was no evidence that this material was for sale or supply.
Taking into account the number of non-duplicate files on the computer devices that were examined by police it is quite clear that there were a very large number of victims involved in this matter. It is also clear that the material had been accessed, transmitted and possessed for many months prior to the execution of the search warrant. In my opinion these offences fall within the middle of the range of offences of this nature.
Subjective features
I note that you have a prior criminal history. Some of that history is not particularly relevant to these offences, however, I note that in 1992, in the ACT, you were convicted of 2 offences of committing an act of indecency on a person between the age of 10 and 16 years. At that time you were sentenced to two years imprisonment but that sentence was suspended and a recognizance was imposed.
In 1997 in New South Wales (NSW) you were convicted of one offence of indecent assault and one offence of committing an act of indecency. With respect to the offence of indecent assault, you were placed on a bond for a period of time and you were given a sentence of periodic detention with respect to the offence of committing an act of indecency.
I take into account the contents of the Pre-Sentence Report that was tendered at the sentence hearing. You are 65 years old. In the past you have been subject to supervision by ACT Corrective Services following the orders made in the ACT in 1992 and after the orders that were made in NSW in 1997 which were transferred to the ACT. Your response at that time was described as problematic although I do note that this was many years ago. Since being remanded in custody at the Alexander Maconochie Centre in October last year there have been no disciplinary issues and you have completed programs and education courses.
The Report notes that your early family life was disrupted and marred by criminal activity, drug and alcohol abuse, violence and mental illness within the family. Your father left home when you were about four years old. You lived with your mother but when you were 14 she was hospitalised for mental illness and between 1966 and 1968 you lived at the Salvation Army Boys Home in Goulburn in NSW. You reported that you were subject to physical abuse at that institution. You lived in a supportive relationship with your grandmother from the age of 16 to 18 years.
In 1980, you married your wife who you reported suffered from an intellectual disability. A son was born of that relationship in 1986.
You told the author of the Pre-Sentence Report that you had the child pornography in your possession for research purposes. I note that that position was not maintained in the present proceedings, however, it is clear that at the time that you spoke to police at the time of the execution of the search warrant and also when you spoke to the author of the Pre-Sentence Report, you were attempting to minimise your culpability with respect to these offences. I do accept that subsequently you have accepted responsibility for these offences and that you accept that you had a purpose of sexual gratification in accessing this material. You told the author of the Pre-Sentence Report that you accepted that your conduct supported the production of child pornography and to that extent you demonstrated some insight into the impact of your offending on victims.
A psychological assessment by a clinical psychologist, Mr Sam van Meurs, was tendered at the sentence hearing. He did not diagnose you with any mental illness or impairment. He said that you presented as a complex individual. He said that you had experienced childhood trauma and neglect prior to and following your mother's psychiatric admission. He said that you were defensive, immature, grandiose and petulant at times, and also presented as quite erratic emotionality.
You were defensive surrounding your childhood, immature when discussing sexual experiences, grandiose when talking about your intelligence, and petulant when talking about a range of topics. Mr van Meurs said that whilst this cluster of observations does not constitute a clinical disorder in and of itself, it depicted to him the more subtle impact of your childhood experiences on your personality development which ultimately related to your offending behaviour and any risk of reoffending. He said your defensiveness and minimisation may not be conscious and was likely a defence mechanism whereby your ego was spared the full weight of the wrongness of your deviant arousal and motives. In criminogenic terms, it was the experience of Mr van Meurs that your lack of maturity and subsequent emotional intelligence lead to an extant dynamic risk factor of intimacy deficits.
Mr van Meurs said that current dynamic risk factors assessed in your case included intimacy deficits, deviant arousal, difficulty becoming aroused in your current romantic relationship and poor social skills. The test that he conducted assessed you as being submissive, meek, and low in aggression and dominance. This related specifically to intimacy deficits and poor social skills. You reported to be solely interested in sexually activity whereby children were interested in each other. It was Mr van Meurs' opinion that you were not at high risk of reoffending and he suggested that treatment for addressing your dynamic risk factors would assist in avoiding reoffending. On the basis of the material before me, I am satisfied that you have reasonable prospects for rehabilitation, particularly if you access appropriate treatment with respect to the issues identified by Mr van Meurs.
Sentencing considerations
General deterrence is the primary or paramount sentencing consideration with respect to offences of this type. It is also important to adequately punish offenders and to denounce their conduct. Specific deterrence is not as important in the present case in the light of Mr van Meurs' report, particularly if appropriate treatment is undertaken, but it is not irrelevant to sentencing.
I accept that your pleas of guilty were entered at the earliest reasonable opportunity. While the case for the Crown was strong, this was in part because of the admissions that you made to the police at the time of the execution of the search warrant. I am satisfied that the pleas of guilty indicate a degree of remorse on your behalf. With respect to the ACT offence, I am also satisfied that your plea of guilty had a significant utilitarian value. With respect to the Commonwealth offence, I am satisfied that your plea of guilty evidenced a willingness to facilitate the course of justice. I take into account your cooperation with investigating police officers.
Taking all of the circumstances into account, in my opinion, a sentence of imprisonment is the only sentence that adequately punishes you and satisfies the requirements of sentencing in this matter.
Sentence
With respect to the ACT charge of possession (CC2015/9427), you will be convicted and sentenced to 18 months imprisonment, which I have reduced from 24 months in order to reflect your plea of guilty, commencing on 30 September 2015 and expiring on 29 March 2017. With respect to the Commonwealth charge (CC2015/9428), you are convicted and sentenced to 28 months imprisonment, which I have reduced from 36 months in order to reflect your plea of guilty. That sentence will commence on 30 March 2016 and expire on 29 July 2018. The aggregate sentence which I have imposed is therefore equal to 2 years and 10 months imprisonment commencing on 30 September 2015 and expiring on 29 July 2018.
With respect to the ACT charge (CC2015/9427), I order that the period commencing on 30 September 2015 and expiring on 29 April 2017 be served by way of full-time imprisonment with the balance suspended. There will be a Good Behaviour Order for a period of three years from 30 April 2017, with conditions that you are to accept the supervision of ACT Corrective Services or its delegate for a period of three years or such lesser period as deemed appropriate by your supervising officer and you are to undertake such assessments, programs or treatment as directed by ACT Corrective Services, particularly addressing issues relating to sex offending.
With respect to the Commonwealth charge (CC2015/9428), I order that the period of imprisonment commencing on 30 March 2016 and expiring on 29 April 2017 be served by way of full-time imprisonment with the balance suspended upon you entering into a recognizance set in the sum of $500 to be of good behaviour from 30 March 2017 with the same conditions that I have imposed on the Good Behaviour Order with respect to the ACT matter. I also make the order of forfeiture which was requested by the Crown.
Amendment to orders
Following the hand down of this sentence, the sentencing proceedings were subsequently re-opened pursuant to s 61 of the Crimes Sentencing Act 2005 (ACT) on 5 August 2016. On this date, the sentence was amended as follows:
(a)With respect to the ACT charge of possession (CC15/9427), you will be convicted and sentenced to a term of 18 months imprisonment commencing on 30 September 2015 and expiring on 29 March 2017.
(b)With respect to the Commonwealth charge (CC15/9428), you will convicted and sentenced to term of 28 months imprisonment commencing on 30 March 2016 and expiring on 29 July 2018.
(i)The period commencing on 30 March 2016 and expiring on 29 April 2017 will be served by way of full-time imprisonment, with the balance suspended upon you entering into a recognizance in the sum of $500 to be of good behaviour for 3 years from 30 April 2017 with the following conditions:
i.you accept the supervision of ACT Corrective Services or its delegates for a period of 3 years or such lesser period as deemed appropriate by supervising officer; and
ii.you undertake such assessments, programs or treatment as directed by ACT Corrective Services, particularly to address issues relating to sex offending.
(c)The aggregate sentence is one of 2 years and 10 months imprisonment commencing on 30 September 2015 and expiring on 29 July 2018. There is also a forfeiture order as requested by the Crown.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 15 September 2016 |
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