R v White
[2016] ACTSC 237
•19 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v White |
Citation: | [2016] ACTSC 237 |
Hearing Date: | 19 August 2016 |
DecisionDate: | 19 August 2016 |
Before: | Elkaim J |
Decision: | (i) The convictions are confirmed. (ii) For the offence of possess child exploitation material contrary to s 65 of the Crimes Act 1900 (ACT), the offender is sentenced to a term of imprisonment of 2 years. (iii) For the offence of access child pornography material contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth), the offender is sentenced to a term of imprisonment of 2 years, to run concurrently with the sentence imposed in respect of the other count. (iv) The 2 terms of imprisonment are suspended with immediate effect. (v) I make a Good Behaviour Order for a period of 3 years on condition that the offender report to ACT Corrective Services within 72 hours and accept all reasonable directions of the Director-General in respect of the counselling, programs or treatments as directed by the supervising officer. (vi) I impose a separate Recognizance Order for the Commonwealth offence for the same term and on the same conditions as those attached to the Good Behaviour Order detailed in the previous order. (vii) In respect of the Recognizance Order (vi), I order that the offender give security in the amount of $1,000. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child pornography – use carriage service to access child pornography – early plea of guilty |
Legislation Cited: | Crimes Act 1900 (ACT), s 65 Criminal Code Act 1995 (Cth), s 474.19(1) |
Cases Cited: | Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477 Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 |
Parties: | The Queen (Crown) Sean Dylan White (Offender) |
Representation: | Counsel Mr E Chen (Crown) Mr K Archer (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Darryl Perkins Solicitor (Offender) | |
File Number: | SCC 110 of 2016 |
ELKAIM J:
On 25 May 2016 the offender pleaded guilty to the following two offences:
(i)Possess child exploitation material on 26 November 2013, contrary to s 65 of the Crimes Act 1900 (ACT).
(ii)Access child pornography material between on or about 10 June 2013 and on or about 25 November 2013, contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth).
The first count carries a maximum penalty of seven years imprisonment and/or a fine of $77,000. The second count carries a maximum penalty of 15 years imprisonment and/or a fine of $153,000.
The offender was born in 1994. He is now 22 years of age. He was brought up within a very supportive family.
When the offender was 12 years of age he was diagnosed with Asperger’s Syndrome. This is a matter of considerable significance in the conclusions that I have reached.
His formative years, and the closeness of his family, are described in the statement from his mother (Exhibit B).
Mrs White details the difficulties the offender faced, especially until the diagnosis of Asperger’s Syndrome was made, which enabled him to receive Special Needs assistance on an individual basis.
The offender was able to go to university but often failed subjects despite allowance being made for his disability. As I understand the position, the offender’s university course was suspended but has recently resumed. He has also been studying at Canberra Institute of Technology.
Mrs White ends her statement with this plea:
All I ask for is that his commission of these offences be considered in the context of who he was and the difficulties he was experiencing and he will continue to experience.
A medical perspective to these difficulties has been provided through a report from a psychologist, Mr Sutton (Exhibit A). The most notable observations he has made are these:
The offences were committed during his late adolescence. He was struggling with social isolation from school peers, sexual identity issues (homosexuality) and tension of stressful exams. Most young males release tension through sexual orgasm, aggressive sports and the rough and tumble of peer relationships. His introverted cold interpersonal style, immaturity and lack of social empathy (part of his Disorders), led to his private viewing of general pornography, male oriented, which then devolved into younger and then younger age groups. The usual internal and external peer group check’s and balances, with their behaviour outlets, were absent due to his personality (Disorder) makeup.
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His particular personality and cognitive social perception disturbances would have impaired his judgement, when compared to the normal population of adolescents. Unfortunately, it was coupled with a sexual identity issue, which complicated matters as far as normal adolescent social feedback was concerned. As to whether he intellectually knew his actions were legally wrong, I would say yes.
But his internal mental state was different to the norm: he is ‘wired’ differently at a neuropsychological level and unable to form normal developmental close relationships which led to not only social isolation but active rejection from peers.
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I do not know if prison is a legal possibility, but if it at all contemplated, it would be permanently damaging for such a lad: his Schizoid/Asperger traits would be cemented in by such environments. Given what the evidence suggests and what I believe is a very deep, wholly unconscious and underlying depressive experience of the world, he would eventually run a high risk of suicide in such a scenario.
Three other subjective factors are important. The offender pleaded guilty, and made admissions, at the earliest opportunity. Secondly, he assisted the police investigation, although there were some instances that perhaps reflect a degree of dishonesty. Thirdly, there is no suggestion the images or texts were to be sold or otherwise shared.
Thus far I have outlined a number of subjective factors, some going towards the mitigation of sentence. There is of course another side to these offences and that is their extent and their abhorrent nature.
I have viewed a small sample of the many images that were either accessed or possessed and also some of the text stories. It is entirely unacceptable that children have been put through the horror, humiliation and perhaps psychical injury that have led to the production of these images. The law must adopt the most serious attitude to offences of this kind.
These offences were discovered with the assistance of international authorities. The agreed statement of facts reveals that 2,337 pornographic files were involved. Almost 300 different children were involved. These are large numbers. The majority of images were in the lowest category of seriousness but that description is misleading. All of the files, in all categories, must be regarded as morally offensive. In addition there are a number of images (86) that fall into the highest category.
The New South Wales Court of Criminal Appeal, in R v De Leeuw [2015] NSWCCA 183 said a court should have regard to a number of factors in the sentencing process. These include:
1. the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
2. the number of items or images possessed;
3. whether the material is for the purpose of sale or further distribution;
4. whether the offender will profit from the offence;
5. in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
6. the length of time for which the pornographic material was possessed: R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 49 [99]; DPP (Cth) v D’Alessandro at 483-484 [21]; DPP (Cth) v Guest at [25].
(paragraph 72).
The judgment in De Leeuw also stated at paragraph 72: “Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted”.
A case referred to me by the Crown which I think requires special mention, is Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60, a decision of the Victorian Court of Appeal. The offender in this matter was also a young man who obtained access to many images of child pornography, over 16,000 images. He exchanged these images with 44 other persons and they were clearly images reflecting a high degree of degradation of children. The judge at first instance sentenced the offender to 2 years imprisonment but released him upon his entering into a recognizance to be of good behaviour for a period of 3 years. The Commonwealth Director of Public Prosecutions appealed against the sentence on the basis that it was manifestly inadequate. The Court of Appeal agreed and increased the sentence to 3 years imprisonment with the offender to be released on a good behaviour bond after 2 years.
The court in D’Alessandro made this observation:
For reasons which to the ordinary lay mind are very hard to comprehend, there are those who have such lack of empathy that they cannot assimilate a simple truth: that what they see is not merely a titillating picture, but the degradation of human beings too young to avoid the exploitation to which they are being subjected. One must conclude that the respondent himself demonstrate this lack of empathy, given that the sentencing judge described the offending images as “certainly ... the worst that I have seen ... because of the level of exploitation of the defenceless that is involved”.
The portion I have just quoted raises an important distinction with the present matter. The court noted the offender’s lack of empathy for the victims. The difference here is that this offender lacks the capacity to empathise. There are other differences such as the number of images and the sharing of material that occurred in D’Alessandro.
The Crown suggested that there should be a degree of accumulation in the sentences. This is despite the Crown conceding that the two charges arose from the same acts.
Both parties drew my attention to the decision of the NSW Court of Criminal Appeal in R v Porte [2015] NSWCCA 174. This was also an appeal against an inadequate sentence and once again the appellate court agreed. At paragraph 56, the court discussed the interrelationship between Commonwealth and State (or Territory) offences. At paragraph 90 the Court said:
The primary task for a sentencing court is to impose a sentence for a Commonwealth offence that is of a severity appropriate in all the circumstances of the case.....An important purpose of sentencing under New South Wales law is to ensure that the offender is adequately punished for the offence.
The same approach must be adopted in this matter. The Crown submitted there should be a degree of accumulation, referring me to Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74. In paragraph 99, the court said that:
The question whether sentences should be concurrent or, to some extent, cumulative involves consideration of whether a sentence for one offence can comprehend and reflect the criminality for the other offence. If it can, the sentences ought be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality for the 2 offences.
For the reasons just quoted I think the sentences imposed should be concurrent.
At one level, every offence involving child pornography could be viewed as being objectively serious. Regrettably the cases indicate that there have been many instances where the pornography is even more extensive and depraved than that in the current case. Without in any way seeking to diminish the objective seriousness of this matter I think it appropriate, to the extent that it is possible, to rate it as of medium objective seriousness.
In its written submissions, the Crown concedes that there was a delay in the prosecution of the matter and that there would have been stress caused to the offender during the period of delay. Ultimately the Crown says that “the ordinary outcome of full-time imprisonment should be considered by the court.” Notably the Crown calls for consideration but does not suggest imprisonment is inevitable.
The question then arises of how to deal with a sentence where a term of full-time imprisonment is generally regarded as inevitable. Clearly there must be exceptional circumstances to avoid this result.
The relevance of mental illness to sentence was discussed in R v Verdins (2007) 169 A Crim R 581. The Victorian Court of Appeal, at paragraph 32, listed six points of relevance:
Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.
In my view, each of the above six factors has a degree of relevance here. I also do not think this is a matter akin to Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73. The relevant condition here is a specific and diagnosed mental disability, as described by Mr Sutton, and susceptible to the Verdins principles.
It is important, nevertheless, to bear in mind the need for general deterrence, especially for young persons, who may be tempted to access pornographic material.
I have come to the conclusion that the offender’s mental disability, which he suffers, has suffered at all relevant times, and will continue to suffer, should be regarded as an exceptional circumstance. It affects not only his moral culpability in the offence but also, as noted by the Crown, the offender would “run a high risk of suicide” if sentenced to full-time imprisonment.
I therefore do not propose to impose a sentence of full-time imprisonment. The next issue is what then is the appropriate sentence, bearing in mind the severity of the offence and that the offender did know his actions were wrong. I must also take into account his early plea of guilty and his remorse.
I think the two alternatives are: referring the offender for assessment for an Intensive Correction Order or a suspended sentence carrying with it a Good Behaviour Order and Recognizance Order with attached relevant conditions.
I have come to the conclusion that the appropriate course I should take is by way of a term of imprisonment which is suspended with immediate effect together with a Good Behaviour Order and Recognizance Order with appropriate conditions. The only condition suggested by the defence, and the Crown, related to the offender attending appropriate counselling. I will impose such a condition.
In relation to the length of the term of imprisonment I think it needs to be reduced to take into account the early plea of guilty and assistance provided by the offender. This reduction should be in the order of 25%. I have also taken into account the delay before the prosecution proceeded.
After reduction for the reasons set out above I think the term of imprisonment should be 2 years but it should be suspended immediately. I will a make a Good Behaviour Order for a period of 3 years to reflect the inclusion of specific deterrence.
I make the following orders:
(i)The convictions are confirmed.
(ii)For the offence of possess child exploitation material contrary to s 65 of the Crimes Act 1900 (ACT), the offender is sentenced to a term of imprisonment of 2 years.
(iii)For the offence of access child pornography material contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth), the offender is sentenced to a term of imprisonment of 2 years, to run concurrently with the sentence imposed in respect of the other count.
(iv)The 2 terms of imprisonment are suspended with immediate effect.
(v)I make a Good Behaviour Order for a period of 3 years on condition that the offender report to ACT Corrective Services within 72 hours and accept all reasonable directions of the Director-General in respect of the counselling, programs or treatments as directed by the supervising officer.
(vi)I impose a separate Recognizance Order for the Commonwealth offence for the same term and on the same conditions as those attached to the Good Behaviour Order detailed in the previous order.
(vii)In respect of the Recognizance Order (vi), I order that the offender give security in the amount of $1,000.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: V Wei Date: 22 August 2016 |
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