R v West (a pseudonym)
[2015] VCC 1151
•21 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| THE QUEEN |
| v |
| ERIC WEST (a pseudonym) |
---
| JUDGE: | HER HONOUR JUDGE DAVIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 August 2015 |
| DATE OF SENTENCE: | 21 August 2015 |
| CASE MAY BE CITED AS: | R v West (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1151 |
REASONS FOR SENTENCE
---Subject: Criminal law – plea - sentence
Catchwords: Using a carriage service to access child pornography contrary to sub-s.474.19(1) of the Criminal Code (Commonwealth) – general deterrence – participation in market for child pornography – genuine remorse – gravity – relevance of category and amount of images.
Sentence: Four months imprisonment with a release forthwith on recognisance with conditions and to the sum of $2500. Offender to be placed on the Sex Offender Register with reporting period of 8 years.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Padmanablan | CDPP |
| For the Offender | Ms R. Sleeth |
HER HONOUR:
1
Eric West,[1] you have pleaded guilty to one charge of using a carriage service to access child pornography between 28 December 2013 and
20 August 2014, contrary to sub-s.474.19(1) of the Criminal Code (Commonwealth). The maximum penalty for this offence is 15 years' imprisonment.
[1] A pseudonym.
2This offence is a Class 2 offence and therefore a registrable offence under s.7 of the Sex Offenders Registration Act 2004 (Victoria). This means that you are a registrable offender and must comply with the reporting obligations imposed by the Act for a period of eight years.
3The circumstances of your offending are set out in full in the agreed summary of facts, which was tendered by the prosecution as Exhibit 1. I sentence you on the basis of the summary, which can be briefly further summarised as follows.
4After covert investigations, Victoria Police executed a search warrant at your home on 20 August 2014 and seized a laptop computer which was open on your kitchen table and which revealed 17 opened child pornography files. At the time you told police that you looked at the material not because you were a paedophile but were bored and curious, did not realise that you would be in so much trouble, but realised you had done wrong and felt really ashamed. You said you had been told of the search term PTHC, which you used once.
5Forensic analysis of the laptop revealed a total of 1,053 child pornography files which had been accessed from the internet. Of these, two files were video files, the remainder were images. These files were classified[2] as follows: 658 Level 1 images; 256 Level 2 images and two Level 2 videos; 31 Level 3 images; 98 Level 4 images; one Level 5 image; and seven Level 6 images.
[2] in accordance with the Australian National Victim Identification Library.
6The material contained in the files depicted female children from approximately eight or nine years old up to approximately 13 years of age. Images included a girl of approximately nine years of age, posing suggestively in her underwear, a naked adult woman holding the breasts of a girl of approximately 13 years of age, and a ten year old child posing with her breasts exposed. The file sharing program "Shareaza" had been installed and deleted on your computer on 15 occasions over the relevant period.
7On the same day the warrant was executed, you participated in a record of interview where you stated, among other things, you may have looked at the material out of boredom; never saved it; were not particularly turned on by child pornography; were mainly interested in teenagers; would sometimes get sexually aroused; had an adult sexual partner with whom you had a healthy sex life; were unaware that the search term PTHC was an abbreviation for Pre-Teen Hardcore; knew it was wrong and did not know why you did it; felt when viewing the material you were not doing any harm, but now realised you were "just another one that makes these other people do it"; would never do this again; and considered seeing a psychiatrist.
8You were bailed on your own undertaking after your arrest. As at the date of the plea hearing, you have served no time in custody. You have no prior convictions and no pending matters.
9
The material tendered on your behalf includes an outline of submissions prepared by your counsel, a report by psychiatrist, Dr Lester Walton, dated
31 July 2015, and Austin Health documents indicating that you have appointments coming up in August and September to follow up on your recent hospitalisation for severe anaemia. I have taken all of this material into account.
10You are now 63 years old. You were born and raised overseas and have two younger sisters who are still overseas, although you are in contact with them. You left school at age 15, worked as a law clerk for ten months and then worked as a painter and carpenter. You came to Australia 25 years ago to pursue a relationship but it broke down after a short time. You married in 1989 and had two daughters, with whom you are very close. You separated amicably from your wife 15 years ago and co-parent cooperatively with her.
11After your separation you engaged in casual sexual encounters including participating in swingers groups. You dabbled in methamphetamines to overcome your loneliness, but have ceased using drugs since your arrest. You had one close male friend who died suddenly two years ago.
12You have been self-employed as a painter and continue to financially support your daughters. Recently, however, you have found it difficult to compete with the lower prices charged by other painters and are considering moving into another line of work such as traffic management. You currently live alone but are in a relationship with an adult woman. You have not told your family or anybody you know about your offending, as you are very ashamed and do not want to bring shame on them.
13You have had longstanding problems with a hiatal hernia and associated gastroesophageal reflux and you are on medication for this condition. You developed vitamin B12 deficiency and were hospitalised four weeks ago with severe anaemia, requiring four blood transfusions. The cause of your anaemia is currently being investigated and you have some medical appointments to attend in the next few weeks.
14You have a minor irrelevant past psychiatric history involving two consultations with a psychiatrist many years ago. Since being charged, you have felt awful, with anxiety and depressed mood, insomnia, poor appetite and weight loss. You told Dr Walton that you are terrified of going to prison, mainly because of the shame that this will bring on your family and that you do not think you would ever be able to see them again.
15Dr Walton found that you are of normal intelligence, cognitively intact and were not suffering from any psychological disorder at the time of your offending, although since being charged you have developed a mixed anxiety depressive disorder and have not been sexually active. You are not drug dependent.
16Unlike many offenders, he stated, you have been very quick to develop a sense of victim empathy and appear remorseful. He felt that you were unlikely to reoffend and could usefully participate in a sex offenders treatment program to reinforce the gains you have already made.
17Dr Walton noted at p.4 of his report:
"Mr West is not entirely typical of people who otherwise would not seem to be paedophiles, but accumulated significant amounts of child abuse material in that his collection was strikingly modest in comparison to many others I have assessed, although I draw no particular conclusion from that.
There does seem to be a common theme where such offenders are not involved in meaningful intimacy. They become increasingly bored with legitimate pornography and seek more extreme material which may include child abuse imagery. Rather than primarily seeking sexual stimulation, it seems that what is often more relevant is simply the thrill of participating in the illegal endeavour in what is a readily available pursuit courtesy of the internet.
Typically the subjects of the child abuse material tend to be objectified and dehumanised so that moral considerations can be pushed to one side to effectively breach strong social taboo."
18Your counsel drew attention to the following features of your offending:
The offending occurred in the context of your being lonely.
Your initial encounter with child pornography was incidental to your watching adult pornography.
It was unsophisticated offending and you made no effort to avoid detection.
About two-thirds of the images are Level 1, which do not depict any sexual activity.
The Level 2 images demonstrate the sexualisation of children but without any adult involvement or contact.
You accessed child pornography on at least 15 occasions over eight months, but most of the images you viewed were in the lowest categories.
19The matters relied on in mitigation are as follows:
You have no criminal history or pending matters.
You initially encountered the child pornography accidentally.
You viewed mostly lower category child pornography on a relatively low number of occasions.
You were co-operative with police and made admissions from the start.
You also demonstrated remorse, shame and victim empathy from the time of the execution of the warrant.
You pleaded guilty at the earliest opportunity.
You have agreed to the destruction of your laptop and do not intend to replace it.
You are a good candidate for rehabilitation and have a close relationship with your daughters.
You have some significant health issues.
20Your counsel advocated in favour of the imposition of a Community Corrections Order on the basis that a sentence of imprisonment is one of last resort, general deterrence can be adequately met by appropriate work and treatment conditions, and protection of the community can equally be served by your receiving treatment and being rehabilitated. In the event that this was not considered appropriate, she submitted that it would be appropriate to impose a sentence of imprisonment but release you forthwith on a recognisance release order which includes a condition requiring you to participate in a sex offenders treatment program.
21The prosecution submitted that given the importance of general deterrence in this kind of offending, the imposition of a Community Corrections Order would be inappropriate. However, the prosecution conceded that it was open in this case for the Court to impose a term of imprisonment but release you forthwith on a recognisance release order.
22It was common ground that general deterrence is the paramount sentencing principle in offending of this kind.[3] It is clear that both Federal and State Parliament are united in an attempt to address the problem of internet sexual exploitation of children and in highlighting the seriousness of these offences.
[3]Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Zarb [2014] VSCA 347 at [34] R v De Leeuw
[2015] NSWCCA 183 [at 30]; R v Porte [2015] NSWCCA 174 at [57-58]R v Gent (2005) 162 A Crim R 29;
DPP v D’Alessandro [2010] 26 VR 477; R v Fulop [2009] VSCA 296; Heathcote (a pseudonym) v The Queen
[2014] VSCA 35.
23In 2010, when Parliament increased the penalty for these offences from ten to 15 years, it was noted in the Explanatory Memorandum to the Bill (at p.81) that:
"The internet is being used to access and distribute child pornography on a massive global scale and offending has become pervasive and widespread. As a result, offending behaviour is becoming increasingly destructive.
The maximum penalties set by Government are intended to reflect a worst case scenario. They are also intended to indicate to the courts the Government's position on the level of seriousness which it believes the particular conduct involves."[4]
[4] The penalties for offences were increased (and the offences expanded), with the introduction of the Crimes
Legislation Amendment (Sexual Offences Against Children) Act 2010 on 15 April 2010.
24People exploiting children by producing child pornography are encouraged by the fact that there is a market for it. Those who make up the market cannot escape responsibility for such exploitation of children. For this reason, limited weight must be given to an offender's prior good character. In addition, courts have held that such offending will ordinarily attract a custodial disposition involving immediate imprisonment, given the prevalence and ready availability of pornography involving children, particularly on the internet.[5]
[5]DPP (Cth) v Guest [2014] VSCA 29 [at 21, 48]; Assheton v R (2002) 132 A Crim R 237 at [35]; R v Gent
(2005) 162 A Crim R 29 at [100]; CDPP v D’Alessandro (2010) 26 VR 477 at [21]; R v Jongsma (2004) 150 A
Crim R 386 at 405 [35]-[36].
25I am required to sentence you in accordance with Part 1B of the Crimes Act 1914 (Commonwealth). I must impose a sentence that is of a severity appropriate in all the circumstances, and I must specifically take into account the matters listed in s.16A(2) that are relevant and known to the Court.
26I deal with the relevant matters as follows:
Firstly, the nature and circumstances of the offence. I have already set out these above and I have already noted the maximum penalty, which indicates that this offence is a very serious one;.
Secondly, the nature and content of the material, in particular, the age of the children and the gravity of the sexual activity depicted. I have already outlined this in the material above. The primary focus here must be on the type of material and the degree of its depravity, although quantity is relevant. More importantly, I note that over 80 per cent of the files were of Level 1 and 2 material, although there were close to 100 files on Level 4 material;
Thirdly, the number of images or items possessed. I note that the number of images viewed is relatively small when compared with other cases where immediate terms of imprisonment have been imposed;
Fourthly, distribution or profit. It is not suggested that you profited from the offending or were involved in distribution or sale. However, this does not mitigate your offending;
Fifthly, I note that in relation to the number of children depicted and thereby victimised, that it is impossible to quantify the number, although the files depicted children between the ages of eight and 13; and
Finally, the duration of the offending. Your offending occurred on at least
15 occasions over approximately eight months. I note that, even though not identifiable, the children and the images have been clearly horribly exploited in order to supply the market,[6] not only suffering the abuse, but also having to live with the consequences of their images being swapped, traded and accessed, perhaps perpetually, in the child pornography trade.[7]
[6]R v Jones (1999) 108 A Crim R 50 at [9]; R v Fulop [2009] VSCA 296 at [20]; R v Gent (2005) 162 A Crim R
29 at [100]; CDPP v D’Alessandro [2010] VSCA 60 at [19].
[7]R v Fulop [2009] VSCA 296 at 20; NSW Sentencing Council, Penalties relating to Sexual Assault Offences in
NSW, Vol 1 (2008).
27Overall, however, I accept your counsel's submission that your offending, whilst serious, is at the lower end of offending compared with other examples of this offence. Relative to other cases, you have been charged with one offence, that of using a carriage service to access a relatively low number of images, over 80 per cent of which fall within the lowest two categories, on a relatively limited number of occasions, albeit over an eight month period.
28In relation to remorse, I accept that by your early cooperation with authorities, the admissions you made in your record of interview, your early plea of guilty and expressions of shame, contrition and acknowledgment of the harm you have caused by participating in the market for child pornography, that you are genuinely remorseful and willing to undergo further education and treatment in relation to your offending.
29Of course, I take into account your early plea of guilty as a mitigating factor and one which warrants a substantial sentencing discount.
30
In relation to specific deterrence, I note your admission to police that you knew you were probably doing the wrong thing,[8] that you did not know why you did it, but that it was due to boredom and perhaps fascination.[9] Although you may lack significant insight into your motivations, Dr Walton noted that you rapidly showed empathy with the victims on the day of your arrest and have expressed shame and remorse for your conduct and that being charged has been a salutary experience. There are no psychological or other factors which explain your offending. However, I consider on the material before me that you have considerable insight into the harm you have caused, that you are unlikely to reoffend and that your prospects of rehabilitation are good.
Dr Walton suggested that you could benefit from participation in a sex offender program.
[8] Record of Interview, p.100.
[9] Record of Interview, e.g. A.166.
31I acknowledge that the sentence to be imposed upon you should be of such a severity as to act as a specific deterrent personally to you as well as to reflect the seriousness of the offence as indicated by the maximum penalty. Again, as I have said, in this kind of offending your prior good character carries less weight.
32It is difficult to discern comparable cases. In some cases sentences involving an immediate custodial disposition with some months to be served reflect that more than one offence has been committed and the number of images exceeds tens of thousands, as was the case in DPP v Dunn [2014] VCC 2228.
33Weighing all the relevant considerations outlined above and bearing in mind that general deterrence is the paramount sentencing consideration, I consider that only a sentence of imprisonment properly reflects the gravity of your offending in all the circumstances. However, in the circumstances of this case I consider it appropriate to impose a sentence of imprisonment but to release you immediately on a Recognisance Release Order which will include conditions concerning participation in a sex offenders program.
34Would you please stand?
35On the sole charge on the indictment, using a carriage service to access child pornography, you are convicted and sentenced to four months' imprisonment. I propose to release you forthwith, pursuant to s.20(1)(b) of the Crimes Act 1914, upon your entering into a Recognisance Release Order for the sum of $2,500 for a period of 12 months, with the following conditions:
Firstly, you must be of good behaviour for a period of 12 months.
Secondly, you are to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee; and
Thirdly, you are to attend for assessment and, if assessed as suitable, treatment for a sex offender program or programs to reduce reoffending, as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.
36I just ask of counsel the appropriate reporting centre?
37MS PADMANABLAN: Carlton, Your Honour.
38HER HONOUR: You are to report to the Carlton Community Corrections Centre by 4 pm on 25 August 2015 and you are to report to and receive visits from a Community Corrections officer, or officers, and you are to notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days of the change, and you are not to leave Victoria, except with the permission of an officer at the specified Community Corrections Centre, and finally, you are to obey all lawful instructions and directions of Community Corrections Officers.
39If you fail, without reasonable excuse, to comply with this order, it may be discharged or varied and you would be brought back to Court to be sentenced. There is a strong likelihood, if that occurs, that you will be sentenced to a term of immediate imprisonment. You would also be required to pay the sum of $2,500 in the event of your returning to Court in those circumstances.
40Do you consent to being subject to a Recognisance Release Order in the terms that I have just explained?
41OFFENDER: Yes.
42HER HONOUR: I formally sentence you, therefore, in the manner just stated. Your sentence will commence on today's date.
43Pursuant to s.6AAA of the Sentencing Act 1991, I direct that were it not for your plea of guilty, I would have sentenced you to nine months' imprisonment with the requirement that you serve five months before being released upon recognisance.
44Your offending attracts the provisions of the Sex Offenders Registration Act 2004 (Victoria). You have been convicted of a Class 2 offence and, as a result, you have become a registrable offender and must comply with the reporting conditions of that Act for a period of eight years.
45A document specifying your obligations will be given to you by my Associate.
46I understand that the prosecution has the text of the Recognisance Release Order, and I will sign that Order shortly.
47Just take a seat, Mr West, for a moment.
48MS SLEETH: Your Honour, can I approach Mr West?
49HER HONOUR: Yes.
50MS SLEETH: Thank you for that time.
51HER HONOUR: All right, thank you. Do you want to approach while my Associate takes ‑ ‑ ‑
52MS SLEETH: Yes, Your Honour.
53(Recognisance Release Order signed).
54HER HONOUR: Thank you very much.
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