R v XH
[2024] ACTSC 370
•19 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v XH |
Citation: | [2024] ACTSC 370 |
Hearing Dates: | 26 August 2024 and 7 November 2024 |
Decision Date: | 19 November 2024 |
Before: | Loukas-Karlsson J |
Decision: | See [117] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – produce child abuse material for use through carriage service |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A, 16A(1), 16A(2), 16A(2AAA), 17A, 19AC(1)(b), 19AC(3), 20(1), 20(1)(b)(ii), 20(1B), pt 1B Criminal Code Act 1995 (Cth) ss 474.23 Victims of Crime ACT 1994 |
Cases Cited: | Boulton v The Queen [2014] VSCA 342; 46 VR 308 Bugmy v The Queen (1990) 169 CLR 525 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 Deakin v The Queen (1984) 58 ALJR 367; 11 A Crim R 88 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Ponniah v The Queen [2011] WASCA 105 Power v The Queen (1974) 131 CLR 623 R v Crivici [2024] ACTSC 156 R v Dean [2023] ACTSC 98 R v Dunnicliff [2023] ACTSC 350 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Hutchinson [2018] NSWCCA 152 R v Kilic [2016] HCA 48; 259 CLR 256 R v LS; R v MH [2020] NSWCCA 148 R v Tootell; ex parte Attorney-General (Qld) [2012] QCA 273 R v Verdins [2007] VSCA 102; 16 VR 240 Siganto v the Queen [1998] HCA 74; 194 CLR 656 Stanford v the Queen [2007] NSWCCA 73 |
Texts Cited: | Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) |
Parties: | Commonwealth Director of Public Prosecutions XH ( Offender) |
Representation: | Counsel C Pascoe ( CDPP) B Morrisroe ( Offender) |
| Solicitors Commonwealth DPP Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 204 of 2024 |
LOUKAS-KARLSSON J:
Introduction
1․On 4 July 2024, Mr XH (the offender) pleaded guilty to the following offence:
(a)An offence (CC2024/6649) of possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service, contrary to s 474.23 Criminal Code Act 1995 (Cth). The maximum penalty for this offence is 15 years’ imprisonment.
Agreed facts
2․The agreed facts are set out in the Agreed Statement of Facts, which forms part of the Prosecution Tender Bundle. It is disturbing reading. Nevertheless, the facts should be summarised for the purpose of sentencing the offender. The agreed facts may be summarised as follows.
Offending
3․Between 01 May 2023 and 16 May 2024, the offender wrote a detailed story which contained child abuse material. The story depicted the sexual abuse of a female child who was “based on the offender’s 11-year-old stepdaughter” with the same name. The fictional character in the story was 17 years of age for most of the story. The story also depicted the sexual abuse of the fictional character’s schoolgirl friends.
4․In May 2023 the offender began writing a story on his work computer. He worked in the ACT for the Australian Defence Force. The offender saved it in the ‘Drafts’ section of his work email application. He would update the story while working on shift.
5․The offender’s work email application was connected to the network such that the application would use a carriage service to save the new versions of the story and allow him to continue to access the updated story from different locations.
6․The story is of approximately 200 pages in length and is “written from the perspective of a central character who is the offender.” The majority of the child abuse material focuses on a 17-year-old female child with the same name as his step-daughter. As referred to above, this character was based on his stepdaughter who was 11 years of age at the time of the writing of the story.
7․The story describes sexual abuse of the character. The story describes the offender placing his sperm in the character’s smoothies, adding it to her shampoo, and such.
8․The story then describes the offender engaging in fellatio, cunnilingus, penile/vaginal sexual assault and penile/anal sexual assault of the character. It also depicts the offender engaging in fellatio, cunnilingus, penile/vaginal sexual assault and penile/anal sexual assault of the character’s teenage friends, resulting in 16 of the friends becoming pregnant with his children. The story mentions the girl with the same name as his step-daughter in excess of 900 times. The story also contains sexual fantasy about young girls at school.
Arrest and Record of Interview
9․At about 10:00am on 16 May 2024, the offender accidentally sent an email containing the story to four work colleagues while he was at work. At the time the offender worked in NSW. The offender was asked to leave his work and go home. The matter was reported to police.
10․At about 8:00pm on the same day, police went to the offender’s house where the offender participated in a record of interview. He made the following admissions:
(a)The offender used his work email application on his work computer to write a story of himself as the central character engaging in sexual activity with underage children ranging from ages 15 to 18.
(b)The story was saved into his draft emails where he would regularly add to it.
(c)He could access his work emails from home.
(d)He was the sole author of the child abuse material and the email application was protected by a secure pass and password.
(e)The character was based on his 11-year-old stepdaughter.
11․The offender was arrested, and police seized a Samsung mobile phone which belonged to the Offender.
12․The offender spent two days in custody solely referable to this offending.
Uncharged conduct
13․By way of context to the offending, the agreed facts note that on 5 June 2024 police used specialist software to analyse the offender’s phone and found three photos which had been taken by the offender and then deleted, of pubescent girls in their school uniforms.
Relevant sentencing Principles
14․At the outset I note that the principles of sentencing for Commonwealth offences are contained in Part 1B of the Crimes Act 1914 (Cth) (Crimes Act). Section 17A of the Crimes Act relevantly provides:
17A Restriction on imposing sentences
(1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
(2) Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:
a. shall state the reasons for its decision that no other sentence is appropriate; and
b. shall cause those reasons to be entered in the records of the court.
(3) The failure of a court to comply with the provisions of this section does not invalidate any sentence.
(4) This section applies subject to any contrary intention in the law creating the offence.
(emphasis added)
15․I will refer to relevant Commonwealth sentencing legislation in more detail later in this judgment at [79] – [84].
Objective seriousness
16․An assessment of the objective gravity or objective seriousness of an offence has always been an essential part of the sentencing process. Nevertheless, it is not necessary for a judge to indicate where the offence falls in a scale of low, midrange, or high objective seriousness. What is required is for a court to “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19].
17․With these principles concerning objective seriousness in mind, what follows is an outline of the submissions of both the prosecution and counsel for the offender in relation to objective seriousness.
18․I note that in R v Hutchinson [2018] NSWCCA 152 (Hutchinson) at [45], R A Hulme J set out matters that may be relevant to an assessment of the objective seriousness of offences involving the possession, dissemination or transmission of child abuse material. The prosecution in this case submitted that although the present offence is one of producing child abuse material, these matters are nevertheless useful for this court to consider.
19․The prosecution properly submitted that taking into account the factors outlined in Hutchinson and the particular facts of this case, the seriousness of the present offending is informed by the following features:
(a)The written child abuse material described, in vivid detail, the offender sexually abusing a child based on, and sharing the same name as, the offender’s 11-year-old stepdaughter. The prosecution submitted that the fact the material described a real child and one with whom the offender had a family relationship increases the gravity of the offending: see R v LS; R v MH [2020] NSWCCA 148 at [137]-[138].
(b)The prosecution submitted that the offending was prolonged and cannot be regarded as spontaneous or an aberration of character.
(c)The high volume of the material, approximately 200 pages.
(d)The depravity of the sexual activity described which included penile/vaginal and penile/anal sexual assault of the character and her teenage friends. It also describes the abuse of children by impregnating them and ‘branding’ with initials occurring.
(e)The risk, by saving it within his work email application, that others in the community would be exposed to the child abuse material. The prosecution submitted that this risk did in fact eventuate when the offender accidentally sent the material to colleagues.
20․The prosecution conceded that the production of the material did not arise from his stepdaughter or other real children being required to perform sexual acts or pose sexually. Nevertheless, the prosecution submitted that the offending had the potential to harm the offender’s stepdaughter. The prosecution submitted that potential harm included degradation of his stepdaughter’s relationship with her mother and the risk to her emotional and psychological wellbeing if she found out about the offender’s perversion of his role as her stepfather.
21․The prosecution submitted that potential harm, at least in relation to the degradation of his stepdaughter’s relationship with her mother, has been realised upon discovery of the offending.
22․Counsel for the offender properly conceded that the conduct of the accused in writing the story was not “anything other than abhorrent.” This Court agrees.
23․Additionally, counsel for the offender submitted that in considering the objective seriousness of the offending, the Court must consider that the circumstances of the offending are highly unusual. Counsel for the offender submitted that it is implicit in the facts that the story was only ever intended for the offender’s own personal perusal. And there was never any intention for anyone else to see the material or for it to be disseminated. Counsel for the offender further submitted that the production of the material did not contribute to a wider market for child abuse material or serve to normalise this type of material in the broader community. I note that the Court is obliged to take these matters into account. I further note that these submissions are not in conflict with the prosecution submissions.
24․Counsel for the offender further submitted, as is acknowledged in the prosecution submissions, the production of the material did not involve the actual abuse of any children, and therefore did not contribute to the global market for this depraved material to be created. Again, the Court will take this into account.
25․Counsel for the offender concluded by submitting that the offending must fall towards the lower end of the scale for this type of offending.
Conclusions on objective seriousness
26․I accept the identifying features delineated by both the prosecution and counsel for the offender. The identifying features outlined by both counsel are not incompatible and in fact coalesce in a proper understanding of the objective seriousness of the offence. I note, insofar as range or scale is a useful (although invidious) denomination, that the offence is not in the high range of such offences, as the offence does not involve the physical abuse of real children. The offence therefore falls towards the lower rather than the higher range.
Subjective circumstances
27․The offender is 54 years of age. This is an age where wisdom is to be hoped for; such was absent in this case, on the part of the offender.
28․In evidence before me is a pre-sentence report (PSR) dated 20 August 2024 prepared for the offender. Also in evidence before me is an Intensive Correction Order Assessment Report dated 1 November 2024 (the ICOAR), which includes further details on the offender’s subjective circumstances.
29․The relevant details included by the PSR and ICOAR are set out below. I will also discuss the conclusion of the ICOAR as to the offender’s suitability for an Intensive Corrections Order (ICO) later in this judgment at [62] – [68]. There is also a report from a psychologist, Mr Sutton (the psychologist), dated 19 July 2024, tendered by counsel for the offender. I discuss this further at [77], [98] and [102].
Response during ICO Assessment Period
30․At the outset I note that the ICOAR referred to the fact that the offender engaged satisfactorily during the ICO assessment period. The offender returned negative results for any alcohol or illicit substance consumption for the urinalysis tests conducted on 03 September 2024 and 15 October 2024.
Family/marital background
31․The PSR noted that the offender reported a “mostly unremarkable” upbringing with his parents and two younger brothers, and a relatively stable and loving relationship with his mother and brothers growing up. The offender reported eventually growing estranged from his father due to a relationship breakdown.
32․The offender further reported to the author of the PSR his father’s inconsistent presence during his formative years due to his employment. The offender reported not currently maintaining a relationship with his father but reported a supportive relationship with his mother and two brothers. His mother verified this. Curiously, his friend verified this but claimed that the offender’s father had passed away recently. Nothing of significance in sentencing turns on this apparent anomaly.
33․The offender reported being in a relationship with his current wife since July 2021, following the end of his first marriage of 25 years. He stated that he was maintaining a supportive relationship with his wife despite stress caused by the current charges. This was verified by his friend.
34․Furthermore, the offender claimed maintaining healthy and supportive relationships with his three older sons from his previous marriage; a non-existent relationship with one of his two stepdaughters, and occasional contact with the younger stepdaughter, who is the child represented as the Victim-character in the offender’s charge; and a difficult relationship with his two biological sons with his current partner due to this charge.
35․Additionally, the offender referred to not having any contact with his other stepson.
Accommodation
36․The offender reported to the author of the ICOAR that he was residing in an Australian Defence Force property in the ACT. The offender reported his desire to eventually relocate to South Australia.
Education/employment
37․The offender reported completing Year 12 and subsequently pursuing a diploma in Leadership and Management, and a year-long language course in Korean. Additionally, the offender reported a career with the Australian Defence Force, where he has worked for 35 years in various capacities and referred to trauma from his various international deployments in active warzone areas. This was verified by his friend, and his mother.
38․The offender reported to the author of the ICOAR that he was due to receive a formal termination from the Australian Defence Force in the near future.
39․Further, the ICOAR noted that as a result, the offender reported being enrolled in a “Operate and maintain chainsaws” course in South Australia for potentially expanding his employment opportunities.
40․The report also discussed the offender’s financial situation, companions, leisure activities and the limited consumption of alcohol as such.
Medical, emotional and mental health
41․The offender reported a historic spinal injury from an accident he had around the age of 22 years old.
42․Further, he reported a history of “mild” depression and referred to resuming his mental health treatment approximately 18 months ago to get support for depression. The offender’s psychologist assessment report dated 19 July 2024, verified his diagnosis. Correspondence with ACT Justice Health dated 15 August 2024, noted that he had had no contact with their Services. His friend claimed the offender’s mental health was fine. His mother noted that his mental health was a pressing issue and he had significant trauma from his international deployments in warzone areas.
Victim submission
43․As per section 17B(2) of the Victims of Crime ACT 1994, for the purpose of the ICOAR ACT Corrective Services must seek and consider the victim’s concerns about their need for protection from violence or harassment by the offender.
44․No victim information was provided for the purpose of the ICOAR.
Conclusions of the PSR and ICOAR
45․The PSR noted various matters in conclusion, including that the offender is a first-time offender with identified areas of risk including, unstable accommodation, lack of engagement in pro-social group activities, unresolved mental health concerns and that the notable lack of insight into the motivation and reasoning behind his offending. The Court agrees that the lack of insight remains of concern.
46․The PSR further noted it appears that the offender is in the process of understanding his own actions through professional psychological assistance and might be able to better address his actions, following development of at least a functional understanding of his actions. The PSR noted that it appeared as if the offender had created a distinction between himself and his story and disassociated himself from the actions and behaviours of the characters and story that he wrote.
47․The Court notes that the offender would obviously benefit from further psychological assessment and treatment.
48․As to the suitability of a Good Behaviour Order, the PSR stated the offender is suitable for a low level of intervention by ACT Corrective Services, commensurate with the assessed risk. If supervision is imposed, the ICOAR recommended a further condition that supervision be only for the period deemed necessary by Corrective Services.
Submissions on subjective circumstances at the hearing
49․I note that, at the sentence hearing on 7 November 2024, counsel for the offender referred to the fact that the offender had been living in a Defence Force Housing property in Canberra; and that the offender has now been formally discharged from the defence force. The offender was asked to vacate the property by 15 November 2024. This is the property that was assessed for the purposes of the ICOAR.
50․Counsel for the offender further submitted that the offender’s family and support system are primarily in South Australia. I note that his wife was present at the sentence hearing, having travelled from South Australia. The offender’s wife and children now reside in South Australia. Counsel for the offender further submitted that the offender has enrolled in further courses, including to obtain his construction white card, a loader driver course and a traffic management course, with the intention that these qualifications will give the offender a significant opportunity of being employed in South Australia.
51․Additionally, counsel for the offender submitted that the offender is still subject to 24 hour a day supervision with respect to his children and he is not entitled to be in their presence unless he is supervised by his wife, and that this would not be an impediment to the offender living with his family in South Australia. Counsel expressed that the offender’s family wish for this to occur. Counsel for the offender properly submitted that it would be far from ideal to keep the offender in the ACT, given his support system is in South Australia; and that social isolation would be a criminogenic risk factor. I accept this submission as it accords with my view of the evidence in this case.
References
52․Two references were tendered in support of the offender.
53․A signed reference under the hand of the offender’s ex-colleague from the military and friend is dated 12 August 2024 and included the following:
…I have known [the offender] for over 30 years.
I first met [the offender] while in the military… [in] June 1991. I wasn’t posted to the same battery as [the offender] but would see him in the Soldiers’ Mess at lunch and he would be reading survival and history books.
It wasn’t until 1995 that I was posted to 111th Air defence Battery light and was posted to the same Troop as [the offender]…we formed a good friendship...
… I attended his engagement party and his wedding… in 1997. [The offender], [The offender’s wife] and [The offender’s son] attended my wedding on 31 October 1998.
During this time [the offender] and I started a company together and produced a military role playing game from 2000 to 2004, that [the offender] designed on 4 A4 pages and it was a fictional military force based on real world events. We worked on the story and rules and continued when [the offender] got deployed to East Timor in 2001. During this time [the offender] and I would contact each other about the game idea and updates and it was one thing that helped him during the deployment to take his mind of the stress associated with conditions he faced.
[The offender] said to me while he was deployed the updates was the one thing he like getting, as well as letter from his family and it kept him grounded.
Our military careers were going in different directions, [the offender] got promoted to [Sergeant] and even then, we kept our friendship. In 2003 I was deployed to Iraq and apart from my family, [the offender] would always contact me and see how I was going and drop in and see how my wife was going.
During my deployment my father passed away in a vehicle accident and [the offender] was there and he knew how much my father meant to me and was always there to talk.
I got promoted in 2004 to Sergeant and [the offender] was posted out… but we still talked and caught [up] when we could. While he was posted away, we played a fictional email post-game that [the offender] had designed, and we would email updates very regularly.
In 2007 [the offender] was deployed to Iraq and [we] would still contact each other…
We still saw each other over the next few years till he was deployed to Afghanistan…
… One of the most times I was proud of [the offender] was when I was working away in Nauru in 2014 and I got an email from [the offender] titled what a Sunday. I started to read it and I was amazed what happen[ed], there was a vehicle accident [approximately] 150 metres from his house and he saw a fireball and [he] went to look and could see a vehicle in the trees and a body on the road and he ran toward the body… not thinking what he would see, once he got close enough he could see the bike rider was fatality wounded and the bottom half below the right knee was gone and the femur had punched out of his leg. [The offender] didn’t even worry about his safety and immediately applied first aid to the man’s leg. [The offender] stabilised the man and then waited [until] the emergency services arrived and handed over. The rider survived because of [the offender]’s actions by using his own shirt as an emergency torniquet. After reading this and [replying] to his email I sent the story to an Army newspaper and they did a feature on [the offender], and I still have a copy of that article today. This show[s] what type of person [the offender] is… even giving his own shirt to save someone.
In June 2018 my wife passed away from a cancer battle and during this time [the offender] was there, and he would even drop in to see me… to see if I needed a hand with anything and would regularly call me. He knew I was grieving and it was tough [on] me mentally and physically due [to] my FIFO career.
In late 2023 [the offender] received a gold commendation for his service performance.
… I have known [the offender] for 30 years plus and in no way did, I have a feeling or witness anything of this nature.
Once I got to speak with [the offender] after about a week, he informed me it was a story and nothing else and that it had [no] meaning or any desire to follow or act on it. I know from my psychologist has said to me in the past to help combat PTSD by writing the thoughts down and then destroying it, by either burning it or deleting it.
I could hear in [the offender]’s voice that he had made mistake and was worried for his future in the Army, as he has worked so hard to get where he was.
I still feel this is just a story and [the offender] has never showed this type of behaviour in front of me or around my partner and she knows firsthand and she didn’t get any feelings or feel uneasy around [the offender].
54․A signed reference under the hand of another of the offender’s ex-colleagues is dated 12 August 2024 and included the following:
…. I am 58 years old and currently a semi-retired Army reservist, having previously served in the Australian Regular Army for 34 years.
I have known [the offender], soldier, for approximately 34 years. We have worked together as Australian Regular Army soldiers on many occasions throughout that time. I can say that, as well as a work colleague, I would also class [the offender] as a friend.
I understand that [the offender] has to attend court about to be sentenced for producing child abuse material. I also understand that he has pleaded guilty to the charge and, after speaking to him regarding that exact nature of the [offence], I know he is very upset about the charge and I firmly believe that he is sorry for what he has done.
With [the offender’s] immediate plea, after understanding his poor judgment in this matter and having spoken directly to him, I believe there may have been other possible factors that could have contributed, even if only in a very small way, to his conduct.
He has been under stress since a relatively recent divorce and a posting away from friends and family. [The offender] had expected this posting to be the last one interstate prior to [his] return to South Australia to complete his Army Service and settle into civilian life. With the vagaries that sometimes exist with Army postings I fully understand the stresses he would have been facing and the pressure that this would have put on his mental [wellbeing]. Even though he has been charged with this offence I would continue to trust [the offender] as I have previously, with my life.
I can say that in all the time I have known him, [the offender] has been a decent, hardworking and trustworthy person. During his tenure within the Australian Army his character and work ethic were such that he was selected to represent the Australian Army with the introduction and training of new equipment purchased from overseas, a highly sought position. I believe any behaviour he displayed that caused him to be charged with this [offence] was an aberration of his normal character.
55․I take these references from the offender’s friends into account on sentence. Both referees have known the offender for over three decades.
Remorse
56․The prosecution submitted a plea may be relevant on a subjective basis as evidencing remorse (Siganto v The Queen [1998] HCA 74; 194 CLR 656 at [22]); though submitted that in the present case, this Court would be cautious in concluding that the plea of guilty, of itself, demonstrates remorse.
57․Somewhat illogically on the part of the offender, the PSR referred to the offender ascribing some responsibility to “boredom” and isolation at work. The offender further attempted to refer to his psychological assessment report dated 19 July 2024, noting that his behaviours were also linked to underlying anger due to being a sperm donor and admitted that he was still trying to understand it himself. He denied being physically attracted to anyone but his wife and denied being obsessed with teenagers as the story was fictional.
58․At the sentence hearing on 7 November 2024, the prosecution submitted that the offender lacks insight into the motivation and reasoning behind his offending in stating that it was boredom at work. In my view, this submission concerning a lack of insight is soundly based, on the facts of this case. In my view, there is clearly a lack of insight on the part of the offender and a lack of logic in his purported excuse of “boredom”; creative writing does not have to involve committing a criminal offence.
59․The offender admitted to the author of the PSR that his actions were wrong and acknowledged that he and his family were all unsure why he had written the story and referred to consequence of his actions having a negative impact over family dynamics, his life and his employment.
60․The ICOAR noted that the offender stated he understood that his actions were wrong and was reportedly undertaking treatment for it. He added that he was hopeful that this would help him. His mother confirmed that he was undertaking treatment with a mental health professional.
61․I conclude on the issue of remorse, that the offender has expressed remorse (and I note the references in this regard). Nevertheless, the lack of a developed insight into his offending is of concern and undermines to a certain extent attributing significant weight to the factor of remorse.
Intensive Correction Order Assessment Report
62․When this matter came before me on 26 August 2024, I determined that I should give serious consideration to the sentence being served by way of intensive correction order (ICO). To that end, I referred the offender for assessment.
63․The ICO assessment report dated 7 November 2024 concluded that the offender is suitable for an ICO and the report was generally positive concerning the suitability of the offender for an ICO.
64․I note the following assessment and recommendation.
Assessment and recommendation
65․The ICOAR stated that the offender’s approach towards broadening his employment opportunities through further skill development, and willingness to seek professional treatment in relation to his index offending behaviours is positive.
66․The ICOAR stated the following factors associated with the offending would be targeted if an Intensive Correction Order is made:
(a)Unresolved mental health concerns
(b)Lack of engagement in pro-social group activities
67․If an Intensive Correction Order were ordered, the ICOAR recommended that the order contain the following additional conditions:
(a)Continued engagement with treatment provided by appropriate Services in relation to offending behaviours.
68․I will have more to say about the sentencing option of ICO as opposed to a recognizance release order later in this judgment at [108] – [115].
Criminal History
69․The offender has no prior criminal history. I accept that the offender was a person of prior good character prior to the committing of this egregious offence.
70․The prosecution submitted that in offending of this nature, less weight may be attributed to an offender’s prior good character: relying on DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 at [63].
Plea of guilty
71․The offender pleaded guilty to the offence on 4 July 2024 in the ACT Magistrates Court.
72․The prosecution properly accepted that there is utilitarian benefit to the plea which was entered early, thereby avoiding the cost and delay of a trial and sparing witnesses from giving evidence. The prosecution properly submitted that a discount of 25% would be appropriate.
73․In 2020, s 16A of the Crimes Act was amended with effect for any sentence imposed on or after 20 July 2020. As a result of this amendment, the Court is now required to take into account, if an offender has pleaded guilty to a charge, the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g)(iii). Previously, R v Harrington [2016] ACTCA 10; 11 ACTLR 215 prohibited a court from taking into account the utilitarian value of a plea of guilty.
74․Taking into account the relevant matters discussed above in my view, a discount of approximately 25% is appropriate.
Time in custody
75․I note that the offender has spent two days in custody referable to this offence.
Comparable cases
76․This, it must be said, is a particularly unusual case, and consequently and unsurprisingly, I was not referred to any comparable cases by the prosecution nor by counsel for the offender.
Mental condition
77․The psychologist’s report referred to the offender’s depression as “part of [the offender’s] reaction to the stress of his current situational circumstance.”
78․The prosecution accepted the offender is “clinically depressed”. However, the prosecution correctly submitted that the fact that the offender is depressed does not reduce the offender’s moral culpability nor does it make him a less appropriate vehicle for general deterrence. I accept this submission as it accords with my view of the facts in this case. The depressive symptoms, according to the report, arose after the offender was charged. I take into account the principles outlined in DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 and R v Verdins [2007] VSCA 102; 16 VR 240 and conclude that there is not significant weight to be accorded to these factors, on the expert evidence before the Court.
Statutory and other relevant considerations
79․As stated earlier at [14], the Court must sentence the offender in accordance with the principles of sentencing for Commonwealth offences, which are contained in Part 1B of the Crimes Act. Section 16A(1) states that a sentence must be of a “severity appropriate in all the circumstances of the offence”. A non-exhaustive list of factors to be taken into account are contained in s 16A(2).
80․I further note s 17A of the Crimes Act, referred to earlier at [14] which provides that a Court may only impose a sentence of imprisonment if satisfied that imprisonment is the only appropriate sentence.
Presumption of immediate imprisonment – s 20(1)(b)(ii)
81․Section 20(1) of the Crimes Act is relevant on sentencing this offender and is set out below:
20 Conditional release of offenders after conviction
(1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
a. by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
i.that he or she will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;
ii.that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences (if any), or pay such costs in respect of his or her prosecution for the offence or offences (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):
A. on or before a date specified in the order; or
B. in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs—by specified instalments as provided in the order;
iii.that he or she will pay to the Commonwealth such pecuniary penalty (if any) as the court specifies in the order (being a penalty not exceeding the maximum amount of the penalty that, in accordance with subsection (5), the court may specify in respect of the offence or offences) on or before a date specified in the order or by specified instalments as provided in the order;
iv.that he or she will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order; or
Example: A condition under subparagraph (iv) could be that the person will undertake a specified counselling, education or treatment program during a specified part of, or throughout, the specified period
b. sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):
i.if none of the offences is a Commonwealth child sex offence—either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
ii.if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances—after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or
iii.if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances—immediately.
(emphasis added)
82․Pursuant to s 20(1)(b)(ii), if a court determines to sentence a Commonwealth child sex offender to imprisonment but release the offender on a recognizance release order, there is a presumption that the offender will serve an immediate term of imprisonment, unless there are exceptional circumstances that justify the offender being released immediately on a recognizance release order. The prosecution correctly submitted that, as referred to in the Explanatory Memorandum, this amendment was intended to ensure “that child sex offenders receive sentences that reflect the exceptionally serious nature of their crimes.”
83․It is well established that it is a deliberative legislative choice that the phrase “exceptional circumstances” is not defined in the legislation. The decision of R v Tootell; ex parte Attorney-General (Qld) [2012] QCA 273 at [18], is often referred to by the Courts in this context. In that case, it was stated that to be exceptional, a circumstance need not be unique or unprecedented or vary rare; but it cannot be one that is regularly, or routinely or normally encountered.
84․This Court must therefore determine in the sentencing exercise in the case of this offender whether the factors are relevantly exceptional, as to warrant imposing a non-custodial sentence. This involves considering a number of matters including the objective seriousness of the offending and the need for general deterrence: see R v Tootell; ex parte Attorney-General (Qld) [2012] QCA 273 at [18] – [27].
85․The prosecution correctly accepted that the level of objective seriousness of the offending, the offender’s admissions and early plea and his lack of criminal history are all factors relevant to the Court’s determination of whether exceptional circumstances arise. I accept that these are relevant factors.
86․Counsel for the offender submitted that the Court would make a finding of exceptional circumstances thereby displacing the presumption of immediate imprisonment and relied on the combination of the following factors concerning the examination of exceptional circumstances in this case:
(a)The material subject to the offending did not involve the actual abuse of any children;
(b)The material was intended solely for the offender;
(c)The offender’s assistance to authorities by way of immediate admissions;
(d)The offender spent two days in custody as a consequence of the offending;
(e)The offender’s early plea of guilty;
(f)The significant impact the offending has had, and will continue to have, on his life and the life of his family;
(g)His voluntary engagement with treatment; and
(h)His assessed very low risk of reoffending.
87․As I stated in R v Crivici [2024] ACTSC 156 at [206] (citing R v Dunnicliff [2023] ACTSC 350 (Dunnicliff) at [126]) the question of “exceptional circumstances” only arises if the sentence is to be made under s 20(1)(b). The question of exceptional circumstances is not enlivened on the question of the imposition of an ICO:
…[T]he question of “exceptional circumstances” only arises if the sentence is to be made under s 20(1)(b). An imposition of an ICO is of a different nature, being imposed under s 20AB of the Commonwealth Crimes Act: Dunnicliff at [126]. The statutory presumption that an offender will serve some period of actual imprisonment is not enlivened through the imposition of an ICO: Dunnicliff at [126]. The presumption does apply to a recognizance release order. See also R v Dean [2023] ACTSC 98 at [47]-[48] (Berman AJ).
88․It should be stated at this juncture that I was initially leaning toward imposing an ICO. Nevertheless, the fact of the offender being formally terminated recently from his employment and consequently losing his accommodation in the ACT, is a significant change of circumstance. Accommodation in the ACT is relevant for an ICO. Therefore this Court must reconsider the appropriateness of sentencing the offender to an ICO.
General and specific deterrence
89․It is well established that offences of this ilk must be denounced and that general deterrence is important. In Ponniah v The Queen [2011] WASCA 105, Mazza JA relevantly stated, at [38] that offending where real children are not abused is in a distinct category from offending where children are physically abused. Nevertheless, it was also emphasised that such offending is not harmless. It is not harmless because it normalises sexual abuse:
The criminality involved in the material that does not depict real children is of a different nature to that involving real children: Dodge v The Queen [2002] WASCA 286; (2002) 134 A Crim R 435 [24]; and Hutchins v The State of Western Australia [2006] WASCA 258 [8]. This is not to say that material of this type is harmless; it has the tendency to “normalise” exploitative sexual activity involving children and may stimulate a susceptible recipient to engage in sexual activity involving real children.
90․In relation to specific deterrence, the prosecution submitted that, notwithstanding the offender’s lack of criminal history and the psychologist’s positive assessment of the offender’s prospects of rehabilitation, there is a role for specific deterrence.
91․I note that in this regard, the psychologist stated that the offender “has no psychological insight when asked about his behaviours”.
92․The prosecution submitted that the motivation was a sexual interest.
93․The prosecution further submitted that the offender’s explanation for his offending, that he did it to “fill in time” while in a boring work role, is not plausible and highlights the defensiveness identified by the psychologist. I agree with this submission on the evidence, as I stated earlier at [58].
Maximum penalty
94․As with every sentencing exercise, the Court pays careful attention to the maximum penalty of 15 years imprisonment, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Rehabilitation
95․Rehabilitation is an important consideration. I draw on the statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32] that rehabilitation, where it can be achieved, is likely the most effective guarantor of community protection. Such rehabilitation is in the public interest.
96․Pursuant to s 16A(2AAA) of the Crimes Act, in determining a sentence in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:
(a)when making an order—to impose any conditions about rehabilitation or treatment options;
(b)in determining the length of any sentence or non‑parole period—to include sufficient time for the person to undertake a rehabilitation program.
97․The prosecution correctly submitted that the s 16A(2AAA) requirement does not displace or override the requirement of s 16A(1) of the Crimes Act, that the Court must impose a sentence that is “of a severity appropriate in all the circumstances of the offence”: see Boulton v The Queen [2014] VSCA 342; 46 VR 308 at [72]).
98․Nevertheless, it is important for this court to underline that in the psychologist’s report, the psychologist underlined that the offender’s “psychometric assessment and [the offender’s] clinical history strongly indicate he is very unlikely to re-offend.” This is of importance in the exercise of instinctive synthesis in determining the sentence for this offender.
99․The psychologist also made it clear in his report that “[o]ngoing treatment will be important in having the reasons for his current behaviours and thoughts more healthily managed”. The psychologist recommends that the offender “continue with psychotherapeutic treatment on a long-term basis (over some years). Though he is motivated for treatment and all indications from his psychometric profile indicate a smooth treatment process if he is committed, his defensive nature will make such treatment long-term”. In my view, this underscores that long-term treatment in the community is important in sentencing the offender.
100․The prosecution correctly submitted that on the facts of this case, this Court would consider, pursuant to s 16A(2AAA), whether it is appropriate to include as a condition of any recognizance a requirement to engage in treatment. I propose to do so, as ordering a condition that the offender engage in treatment is, on all the evidence, called for and important in this case.
101․On the evidence, the offender’s continuing rehabilitation must be supported and must be supervised. This is so particularly in this case as the offender’s insight is still not fully developed and limited, and the offender needs ongoing psychological assistance.
102․Evidence of rehabilitation may mitigate the need for personal deterrence and does so in this case, taking into account, as I referred to earlier at [98], that the psychologist has stated in his report, “the psychometric assessment and [the offender’s] clinical history strongly indicate he is very unlikely to re-offend”: Stanford v The Queen [2007] NSWCCA 73 at [19].
Recognizance Release Order
103․As I referred to earlier in this judgment at [87] the statutory presumption that an offender will serve some period of actual imprisonment is not enlivened through the imposition of an ICO: Dunnicliff at [126]. See also R v Crivici [2024] ACTSC 156 at [206].
104․The presumption, however, does apply to a recognizance release order. See also R v Dean [2023] ACTSC 98 at [47]-[48] (Berman AJ).
105․In relation to Commonwealth offences, the Court must fix a recognizance release order if a sentence of imprisonment exceeding six months but not exceeding three years is imposed: Crimes Act ss 19AC(1)(b) and 19AC(3). Where the sentence of imprisonment imposed exceeds three years, the court must fix a single non-parole period: s 19AB(1).
106․There is “no judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order”: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili) at [13]. The minimum term that should be served is to be determined by reference to Pt 1B of the Crimes Act and the principles in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367; 11 A Crim R 88, and Bugmy v The Queen (1990) 169 CLR 525: Hili at [44]. What is required is a judicial assessment of the minimum time that justice requires the person to serve having regard to all the circumstances of the offence. I take these principles into account.
Sentence
107․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence (discussed at [16] – [26]), the subjective matters concerning the offender (discussed at [27] – [51]), general and specific deterrence (discussed at [89] – [93]) and rehabilitation (discussed at [95] – [102]).
108․As I stated earlier at [88] I was initially considering an ICO and called for an ICOAR on 26 August 2024. Since that time the offender has been found to be suitable for an ICO. Nevertheless, since that time, relevant facts have changed, and to paraphrase Winston Churchill, when the facts change a conclusion may change. Since I called for the ICOAR, the offender has been discharged from the Australian Defence Force, as a consequence of the offending. As a result of the discharge of the offender, he can no longer live in his defence housing property. He was required to vacate this property by mid November 2024, and that of course was the property for which the offender was assessed for the purposes of the ICOAR to live in while undertaking an ICO.
109․Now, the offender’s only real connection to the ACT, no longer exists. His family and support systems are primarily in South Australia. His wife and their children reside in South Australia. The two youngest children are enrolled in school there. The offender’s three adult sons also live in that region. The offender will be undertaking further training to be able to be employed, as a consequence of his departure from the Australian Defence Force. The offender’s wife wishes for the family to live together in South Australia and child protection services have no objection to that course. The offender is enrolled to undertake training courses in South Australia in December 2024.
110․Those factors tend towards a recognizance release order to be undertaken in South Australia, rather than an ICO in the ACT. I have therefore considered the question of exceptional circumstances. I note that on the most recent evidence before me in this case, a recognizance release order to be served in South Australia would more appropriately deal with the criminogenic factors in this case rather than an ICO in the ACT, where employment and associated accommodation, no longer exist. In the submissions of both the prosecution and counsel for the offender, it is open to this Court to find that exceptional circumstances exist in this case. I so find.
111․Indeed, as stated earlier, a recognizance release order to be served in South Australia better addresses, on the evidence before me, the sentencing requirements for this offender as a matter of individualised sentencing.
112․Section 20(1)(b) of the Crimes Act requires exceptional circumstances for a recognizance release order. I note there is expressed remorse albeit that I also note that greater insight is required on the part of the offender and that long-term treatment is required for this offender. That is clear on all the evidence before me, including the report of the psychologist. I also note that if the offender is in South Australia he will have access to a structured life and employment. I note that there is an administrative process to undertake concerning the transfer of the supervision of the recognizance release order from the ACT to South Australia. I am satisfied that exceptional circumstances are established that make the making of a recognizance release order appropriate, taking into account all sentencing factors, including objective seriousness and deterrence as I further discuss below.
113․Relative to the finding of exceptional circumstances, I note the identifying features concerning the offence, result in a finding of lower-level objective seriousness, as discussed at [16] – [26]. Additionally, the offender has undertaken psychological treatment and is attending regular appointments and intends to continue to do so. Continuing treatment, self-evidently, must be encouraged by this Court. I refer to the offender’s loss of career, and the consequent issues for his family, below.
114․I further observe concerning exceptional circumstances, the following factors that tend toward the Court making a finding of exceptional circumstances: as I have stated earlier, the fact that the material, the subject of the offending did not involve the actual physical abuse of children; the fact that the material was intended solely for the offender; the fact of the offender’s assistance to authorities by way of immediate admissions; the fact that the offender did spend two days in police custody as a consequence of the offending; the fact of the offender’s early plea of guilty; the fact of the significant impact the offending has had and will continue to have on the offender’s life and the life of his family; the fact of his voluntary engagement with treatment; and the fact of the assessment by the psychologist that “the psychometric assessment and [the offender’s] clinical history strongly indicate he is very unlikely to re-offend”. These factors, taken together, in my view must result in a finding of exceptional circumstances. I accept counsel for the offender’s submission in that regard, on the evidence before me.
115․I underline that in this matter, the prosecution properly accepted, as this Court accepts, that the level of objective seriousness, the offender’s immediate admissions, early plea and lack of criminal history, are all factors relevant to determining whether exceptional circumstances exist.
116․I have therefore concluded that exceptional circumstances unquestionably exist in this case and therefore that a recognizance release order is the appropriate sentence.
Orders
117․For these reasons, I make the following orders:
(1)For the offence of possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service (CC2024/6649), contrary to s 474.23 Criminal Code Act 1995 (Cth), the offender is sentenced to 12 months imprisonment, suspended immediately. The sentence is to commence on 19 November 2024 and expire on 18 November 2025.
(2)The offender is to be released immediately, upon entering into a recognizance, with security of $500 without payment today and without surety, to be of good behaviour for a period of 3 years from today and to appear and receive sentence if so called upon at any time in respect of any breach within the relevant period.
(3)Pursuant to s 20(1B) of the Crimes Act 1914 (Cth), the conditions of the recognizance will be that the offender:
(a)Accept the supervision of a probation officer appointed by the Commissioner of ACT Corrective Services or their delegate;
(b)Obey all reasonable directions of the probation officer;
(c)Not travel interstate or overseas without the written permission of the probation officer; and
(d)Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
(4)The supervision imposed by the recognizance order be only for the period deemed necessary by ACT Corrective Services.
118․I recommend that supervision be transferred from ACT Corrective Services to South Australia as a matter of priority.
| I certify that the preceding one-hundred and eighteen [118] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.................. Associate: Date: 29 November 2024 |
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