R v Yardley
[2021] ACTSC 2
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Yardley |
Citation: | [2021] ACTSC 2 |
Hearing Date(s): | 12 November 2020; 10 December 2020 |
DecisionDate: | 25 January 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [111] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth and Territory offences – use carriage service to access, transmit, and solicit child pornography – pleas of guilty – prospects of rehabilitation |
Legislation Cited: | Crimes Act 1900 (ACT) s 65 Criminal Code 1995 (Cth) ss 474.17, 474.19, 474.22, 474.24A, 474.27 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33, 35 |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Bugmy v The Queen (1990) 169 CLR 525 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | Commonwealth Director of Public Prosecutions ( Crown) Ernest Henry Yardley ( Offender) |
Representation: | Counsel B Morrisroe ( Crown) C Brown ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number(s): | SCC 38 of 2020 |
LOUKAS-KARLSSON J
Introduction
On 17 August 2020 Ernest Yardley (the offender) pleaded guilty to the following offences before Murrell CJ:
(a)Count 1: Possessing child pornography, contrary to s 65(1) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is seven years imprisonment, a fine, or both.
(b)Count 2: Using a carriage service to transmit and solicit child pornography material, contrary to s 474.19(1) of the Criminal Code 1995 (Cth) (Criminal Code). The maximum penalty for this offence is 15 years imprisonment, a fine, or both.
(c)Count 3: Using a carriage service to transmit and make available child pornography material, contrary to s 474.19(1) of the Criminal Code. The maximum penalty for each of this offence is 15 years imprisonment, a fine, or both.
(d)Count 4: Using a carriage service to transmit, solicit, make available, and cause child pornography material to be transmitted to himself, contrary to s 474.19(1) of the Criminal Code. The maximum penalty this offence is 15 years imprisonment, a fine, or both.
(e)Count 5: Using a carriage service to transmit and solicit child pornography material, contrary to s 474.19(1) of the Criminal Code. The maximum penalty for this offence is 15 years imprisonment, a fine, or both.
I note that since the commission of these offences there been various changes to the Criminal Code, which include the replacement of the terms “Child Pornography Material” (CPM) and “Child Exploitation Material”, incorporating those definitions into the term “Child Abuse Material”. The previous terminology will be used for the material in these sentencing remarks for the sake of consistency with the relevant legislation at the time.
Agreed Facts
In brief summary, the offending can be summarised as follows:
Count 1: Between 9 June 2018 and 5 February 2019, the offender possessed CPM on five separate devices.
Counts 2 – 5: Between 24 April 2019 and 4 February 2019 the offender used a carriage service for CPM. In particular, the offender transmitted and made available CPM to 13 different recipients using the Whatsapp and Telegram encrypted messaging services, and Dropbox, an online file storage and sharing service. In addition, the offender solicited, made available, and caused CPM to be transmitted to himself.
On 2 January 2019, the Australian Federal Police received reports in relation to potentially inappropriate or illegal online activity by the offender. On 5 February 2019 a search warrant was executed at the offender’s residence, locating five devices containing CPM (Count 1), and containing communications on the messaging services which were the subject of Counts 2 – 5.
Objective Seriousness
The principles set out in R v De Leeuw [2015] NSWCCA 183 (De Leeuw) at [72] have been adopted in this jurisdiction and are to be applied when considering the objective seriousness of child pornography offences: see R v Ferguson [2015] ACTSC 363 at [48]; R v Arthur [2017] ACTSC 23 at [17]; R v Major [2016] ACTSC 161 at [25]. In De Leeuw the Court stated that the objective seriousness of the offending is to be determined by reference to the following factors (at [72]):
(a) The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(b) The number of items or images possessed;
(c) Whether the material is for the purpose of sale or further distribution;
(d) Whether the offender will profit from the offence;
(e) In the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(f) The length of time for which the pornographic material was possessed.
Police have employed the ANVIL schema to separate the categories of CPM involved in these offences. The schema contains five categories, each escalating in the gravity of the conduct depicted. The sixth category relates to animations, cartoons, drawings or computer-generated imagery depicting conduct within the other five. 1,424 files of CPM were detected across the five devices belonging to the offender in the following categories:
(a) 1000 files in Category 1
(b) 210 files in Category 2
(c) 143 files in Category 3
(d) 217 files in Category 4
(e) 6 files in Category 5
Material classified under this scale is categorised as follows:
Category Type Guide 1 Depictions of children with no sexual activity Nudity, surreptitious images showing underwear / nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination 2 Non-penetrative sexual activity between children or solo masturbation by a child Explicit sexual activity not involving an adult 3 Non-penetrative sexual activity between child(ren) and adult(s) Mutual masturbation and other non-penetrative sexual activity 4 Penetrative sexual activity involving child(ren) or both child(ren) and adult(s) Including, but not limited to, intercourse, cunnilingus, and fellatio 5 Sadism or bestiality Sexual imagery involving pain, humiliation, or animals 6 Animation/Cartoon/CGI depicting CSETS scales 1 – 5 Any animations, cartoons, drawings or computer generated imagery depicting any of the CETS scales (1 – 5)
Prosecution submissions
Nature and Content of the Material
The prosecution submitted that caution must be exercised when assessing the objective gravity of offending by reference to its categorisation: Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 (Garside) at [67] – [71], noting that it should not be assumed that material contained within Category 1 is mild in content. It was submitted that the absence of material in higher levels of classification must not unconsciously result in a minimisation of the objective gravity of possessing lower level categories: Garside at [71]. The age of the children depicted, and in particular the degree of fear or distress in the victim were also submitted to be relevant to the assessment of the seriousness of the offending.
The prosecution submitted that in the present matter, although the majority of the files are in Category 1, this should not reduce the objective gravity of the offending, particularly so where there was material falling within Categories 1 – 5.
At sentencing hearing the prosecution tendered a sample of the CPM for the Court to view, submitting that it was appropriate for the Court to do so in order to form an impression of the true nature of the material and its degree of depravity. The prosecution submitted that the physical harm and distress caused to the children depicted in that material was a significant factor in assessing its seriousness, and that its nature and content demonstrated a high level of depravity.
Number of images possessed, and children depicted
It was submitted that in matters where the material is obtained for personal use, the significance of quantity lies more in the number of different children who are depicted and thereby victimised, than the volume of material itself: R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at [99]. It was submitted that while it is unclear precisely how many child victims were depicted in the files, each of the children were victimised by the offender on every occasion that an image of them was transmitted and viewed.
Transmission of material
It was submitted that the offender actively engaged in the transmission of CPM, transmitting material to 11 different recipients between 24 April 2018 and 4 February 2019, either by sending files directly to the recipients, or by providing a link to a Dropbox from which they could access the material. It was submitted that the offender had made use of a Virtual Private Network, indicating some level of attempt to conceal his actions (T 34.10-13).
It was submitted that by transmitting this material to others, the offender acted as supplier, increasing the number of people viewing the material. It was submitted that this transmission has caused the material to remain “published” on the internet as it is potentially passed between users on various sites.
It was submitted that on three occasions the offender solicited CPM by asking the recipients for material to be sent to him, and on one occasion caused CPM to be transmitted to him by first transmitting CPM to the recipient.
Whether the material is for the purpose of sale or further distribution or for profit
The prosecution submitted that there is no evidence that the offender paid for the material or that he was involved in the sale of CPM. It was submitted that if such evidence existed it may be an aggravating factor, but its absence did not mitigate the offending. It was submitted that the offender’s conduct has encouraged the demand for, and continuation of, the market for CPM regardless of whether there was a payment or sale of the material.
The length of time the material was transmitted / possessed
The length of time over which the material was transmitted or possessed was submitted to be relevant to the objective seriousness of the offending. In this case the offender transmitted and possessed the material for eight to nine months.
Defence submissions
Counsel for the offender conceded that as Counts 2 – 5 consist of ‘rolled up’ charges, this increases the objective seriousness of the offences. It was also accepted that the principles enunciated in De Leeuw are to be applied in the assessment of the objective seriousness of offences of this type.
Nature and content of the material
Counsel for the offender conceded that a number of images and videos were in Category 4, and that this accordingly increased the objective seriousness of the offending. It was submitted that the majority of the material does not depict children who are particularly young (T 25.29-33). It was submitted that while the total number of CPM images detected was not small, it was also not a particularly large number in comparison with comparable cases (T 23.15-20)
Duration
Counsel for the offender submitted that the duration of the offending, being nine to ten months, was not a particularly long period of time, but conceded that it could not be described as ‘brief’ either. It was submitted that the offending was intermittent, however conceded that there was a course of offending that was not isolated or brief in duration.
Purpose of possessing the material
Counsel for the offender submitted that there is no suggestion on the facts that the offender had obtained the material for the purpose of selling or making a commercial advantage from the material, however it was conceded that some of the material was in the offender’s possession for the purpose of further distribution and exchange.
Counsel for the offender conceded that the offending is objectively serious, and as such a sentence of imprisonment is the only appropriate penalty. However, it was submitted that the offending was relatively unsophisticated, did not involve encryption, payment for, or sale of, the material. It was submitted that the offender did not attempt to conceal his identity, often using his own name and easily traceable identifiers when committing the offences. It was submitted that the offender was far removed from the actual creation of the material, was not engaged in any organised criminal syndicate involved in creating or distributing CPM, and made no attempts through social media to engage children in sexual activity.
Objective Seriousness: Conclusion
I accept the prosecution submissions in relation to objective seriousness. The prosecution submissions are broadly aligned with the defence submissions in this regard and highlight the relevant identifying features of the objective seriousness of this offending.
General deterrence
I accept the prosecution and defence submissions in relation to general deterrence which again are broadly aligned.
Defence counsel correctly conceded that general deterrence is of paramount importance in sentencing for offending of this type, and correctly submitted that this is not a principle that should be seen as restricting the sentencing discretion of the Court (Written submissions at [11]).
General deterrence is of paramount consideration when sentencing for offences of this nature, due to the public interest in promoting the protection of children: De Leeuw at [72]. The transmission of child pornography material creates a market for the continued exploitation of children on an international level and is not a victimless crime. Offences of this kind are becoming increasingly prevalent at a time when the internet provides a means to access the material. There is an intrinsic harm caused by child pornography material offences, coupled with their prevalence and difficulty of detection. Such material may fuel the fantasies of child sexual assault offenders, and may promote a distorted and depraved view of reality where children are seen as appropriate sexual partners for adults.
Subjective Circumstances
The following documents were prepared and tendered in relation to the offender:
(a)A psychiatric report prepared by Dr Furst dated 5 November 2020
(b)A report prepared by Dr Nicholas Malouf dated 21 July 2020
(c)A letter prepared by Dr Karmaker dated 25 August 2015
(d)A Patient Health Summary for the offender, printed on 30 October 2020
(e)A letter of referral from Dr Robert Lui dated 29 June 2012, 22 November 2011, and 24 September 2012
(f)A letter from Karen Ott, Psychologist dated 14 November 2012 and 16 August 2018
(g)A letter from Dr Abdeen dated 16 March 2017
(h)A Forensic Court Liaison Service Report dated 8 February 2019; and
(i)Notes from the Woden Mental Health Team dated 1 April 2012
The offender’s subjective circumstances are outlined in the Forensic Psychiatric Report prepared by Dr Richard Furst dated 5 November 2020. At the hearing of sentencing submissions on 12 November 2020, the prosecution indicated that Dr Furst would be required for cross-examination. Accordingly, the matter was adjourned until 10 December 2020 so that this could occur.
Expert evidence of Dr Furst
The offender is a 35-year-old man with no dependents. He lives with his parents, and is the youngest of four siblings. He struggled at school, including with learning in class and socially. He reported being bullied regularly. He was not diagnosed with an intellectual disability at this time and was placed in normal classes throughout his school years.
The offender did not have any involvement at sport at school and had only one close friend. He found it hard to meet new people, struggled to speak in class or talk publicly, features which Dr Furst opines are consistent with the presence of an autistic spectrum disorder and/or social anxiety disorder. He left school before completing Year 11. The offender attempted to find work at this time, however was unsuccessful and was unemployed in the 1 – 2 year period after leaving High School.
The offender saw a psychologist in 2011 in relation to symptoms of depression and anxiety, and was prescribed antidepressant medication. He was subsequently thought to be suffering from Bipolar Affective Disorder, type II by an ACT Health psychiatrist. Dr Furst does not believe that the features described by the offender meet the criteria for a diagnosis of a bipolar disorder.
The offender has a history of drinking alcohol only occasionally, with no features of alcohol abuse or dependence, and has no history of illicit drug use.
The offender initially denied being attracted to images in the nature of CPM, however later acknowledged being sexually aroused by some of the material in question. He said to Dr Furst “I feel like I’ve been picked on and set up… my Facebook account got hacked. My phone has played up. I don’t know how that happened. I don’t know how these photos and that got on my phone”. Dr Furst opined that these comments were suggestive of minimisation and/or denial. In cross-examination Dr Furst stated that minimisation or denial was ‘more common than not’ among sexual offenders, and that engagement with therapy can address this issue (T 20.17-22).
Dr Furst’s opinion is that the offender meets criteria for the diagnosis of Autism Spectrum Disorder towards the milder end of the full autistic spectrum of level 1 (T 16.38-39) , Social Anxiety Disorder, and Tourette’s Syndrome, however the offender was aware of the nature and quality of his conduct, understood that it was wrong, and had the capacity to control his conduct (T 21.43-47; 22.1-12).
With respect to the factors elucidated in R v Verdins [2007] VSCA 102; 169 A Crim R 581 (Verdins) Dr Furst states:
The causal relationship between [the offender’s] mental disorders and his offending behaviour is most likely related to his global social and emotional impairments as a consequence of his autism, high levels of social anxiety, Tourette’s syndrome and his low self-esteem.
There is an over-representation of people with autism amongst sexual offenders, often in the form of Internet-based offending such as possession of child exploitation material and/or inappropriate sexual conversations or grooming offences with underage victims…
In Dr Furst’s opinion the risk of reoffending in relation to CPM offences appears to be ‘relatively low’ in comparison to the ‘average’ male sex offender coming before the courts. The offender’s lack of prior criminal convictions, family support, and prior access to psychological/psychiatric treatment over many years are additional factors supporting Dr Furst’s opinion that the offender has good prospects of being successfully rehabilitated. Dr Furst expressed the view that the offender would respond well to an extended period of supervision by ACT Corrective Services, and engagement in treatment programs (T 18.28-47).
In cross-examination Dr Furst accepted that, generally speaking, acceptance of wrongdoing, and an expression of motivation to change would be an important early step towards rehabilitation. He stated that for a person who is operating at a low level of social, emotional, and cognitive functioning, it may be difficult to express words in a way which may be expected from those who are more intelligent. He accepted that it was important to look at the underlying factors that may have contributed to the offending, and then make a plan or take steps to deal with those underlying factors (T 19.29-45). Dr Furst agreed that sexual attraction to prepubescent children was something that needed to be specifically addressed in treatment and rehabilitation (T 20.4-6). In relation to autism spectrum disorder, Dr Furst stated that this diagnosis was present amongst the community of sexual offenders in custody at ‘around the 10 per cent mark’ as opposed to 1 per cent in the community (T 20.40-45). Dr Furst stated that the disorder involves a deficit of the frontal emotional area of the brain, and a lack of social-emotional reciprocity (T 21.25-41). In his report Dr Furst agreed that while there was some linkage between the offender’s autism spectrum disorder and the offending, Tourette’s syndrome and social anxiety were not “particularly contributing factors” to the offending (T 20.30-35):
Counsel: You indicated, both in your report and in your evidence, some linkage between the autism spectrum disorder and the offending. Would you accept, however, that the other diagnoses, the Tourette's and the social anxiety, those are not particularly contributing factors to the offending?
Dr Furst: That’s correct.
Defence submissions
Counsel for the offender submitted that while the offender did not have a particularly disadvantaged upbringing, he had been the victim of childhood bullying behaviour throughout his school years, and was a very socially isolated child. It was submitted that he was likely to have been suffering from his autism spectrum disorder as a child, although it was only positively diagnosed in his adult years.
It was submitted and I accept that the absence of a criminal history entitles the offender to some degree of leniency by virtue of his prior good character, in accordance with s 16(2)(m) of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act). It was further submitted, and I accept, that this prior good character was not used to assist in the commission of the offences. Defence counsel properly conceded that prior good character has less weight for offending of this type.
It was submitted, and I accept, that if the offender is sentenced to full time imprisonment this will be the first time he has been separated from his parents for any significant time. It was submitted and I accept that the offender is under socialised and of limited social ability.
Counsel submitted that the offender is in very poor health for a man of his age, and that his mental and physical issues will make his time in custody more onerous in comparison with an offender without these ailments. It was submitted that this can be taken into account under s 16A(2)(m) of the Commonwealth Crimes Act. It was submitted that the offender is extremely frightened of being imprisoned, and will be extremely vulnerable in custody. I accept that his time in custody may be more onerous and take that into account under s 16A(2)(m). Counsel also submitted in relation to assistance given by the offender to his parents, and his father’s declining health in particular. Nevertheless, counsel submitted that it was not in this case an exceptional hardship case, but a matter to be taken into account in relation to subjective matters, in accordance with the relevant authorities (T 29.8-25).
Counsel noted that Dr Furst has assessed the offender as having good prospects of rehabilitation due to his lack of criminal antecedents, family support, and engagement with psychological and psychiatric treatment, despite his continued minimisation and denial of his offending. In relation to the factors listed in Verdins, counsel for the offender submitted that the offender’s mental conditions have contributed to his offending in some degree, and should have some bearing in assessing his moral culpability, and reduce the weight to be placed on denunciation as a sentencing principle. It was submitted that Dr Furst’s findings in relation to the delay in the offender’s social, emotional, and sexual development suggests some causal relationship between his mental disorders and his offending behaviour. I accept on the basis of Dr Furst’s report that, in the offender’s case, there is a relationship between his mental disorder, being the offender’s autism spectrum disorder, and his offending behaviour. I further note Dr Furst’s evidence that “the clinical impression would be more towards the milder end of the full autistic spectrum” (T 16.41-42) and I find accordingly.
Counsel submitted that as a result of his mental condition, the offender is an inappropriate vehicle for general deterrence, which may justify a reduction in the sentence that would otherwise be imposed. It was submitted that it may also reduce to some degree the need for specific deterrence. Counsel submitted that the offender has been on conditional bail since his arrest on 5 February 2019 and has complied with his conditions. It was submitted that the process of having been arrested, charged and sentenced has in and of itself had a significant impact in terms of personal deterrence. I accept generally there is some limited significance with regard to the submissions on general deterrence and specific deterrence. Some limited amelioration is appropriate. Nevertheless, general deterrence and specific deterrence are not irrelevant and remain relevant in sentencing the offender. Further, I take into account that a custodial sentence will weigh more heavily on the offender: see R v Tsiaris [1996] 1 VR 398 at 400; R v Israil [2002] NSWCCA 255 at [26]; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]; Verdins at [32].
Counsel for the offender submitted that the impact of COVID-19, including the apprehension of risk to the offender’s health and safety, the delay in sentencing proceedings, and the restrictions on movement and activities imposed within the Alexander Maconochie Centre during the pandemic gives rise to detainees having a more onerous and harsh experience while in custody. It was submitted that these factors could be taken into account on sentence. I take these factors into account on sentence.
Prosecution submissions
The prosecution noted the following factors in particular:
(a)The offender is 35 years of age, with no dependents, he has been diagnosed with autism, social anxiety, and Tourette’s syndrome.
(b)The offender has been assessed and found to have been aware of the nature and quality of his conduct, able to understand that it was wrong, and had the capacity to control his conduct.
(c)The offender has also denied any wrongdoing and stated that he had been “picked on and set up”.
With respect to the offender’s mental illness diagnoses, the prosecution submitted that Dr Furst’s evidence that autism spectrum disorder is more prominent in sexual offenders than members of the community in general did not specifically deal with the offender and the connection between his diagnosis and the offending. The prosecution emphasised that Dr Furst’s report indicates that the offender knew that his conduct was wrong, was for the purpose of sexual gratification, and that he had the capacity to control himself and chose not to do so (T 38.1-17). Nevertheless, I note in this context that Dr Furst stated that “the causal relationship between the offender’s mental disorders and his offending behaviour is most likely related to his global social and emotional impairments as a consequence of his autism, high levels of social anxiety, Tourette’s syndrome and his low self-esteem” referred to above at [36]. I further note the relevant cross-examination of Dr Furst discussed above at [38] and additionally refer to my findings at [43] of these remarks.
The prosecution submitted that the offender was motivated by sexual gratification, and his ongoing denials of wrongdoing demonstrate a lack of acceptance of responsibility. The prosecution submitted that despite the evidence of Dr Furst, there was no evidence of reasonable prospects of rehabilitation in the offender’s case (T 33.19-23). I accept that the prospects of rehabilitation remain guarded.
Criminal History
The offender has no prior convictions. The prosecution submitted that while this was a factor in the offender’s favour, it should be considered in the context of the nature of this type of offending. I accept this submission, as discussed at [88] of these remarks.
Remorse
The prosecution submitted that there was no evidence indicating that the offender has any remorse for his conduct. It was submitted that there was a complete lack of remorse and contrition at the time of the offending, as evidenced by the content of the communications between the offender and an unknown person with whom he had engaged in the transmission of material. It was submitted that his ongoing denial demonstrates that this lack of remorse continues (T 32.33-40).
Counsel for the offender accepted that there had been no expression of remorse, but that this should be viewed in the context of the offender’s mental conditions. It was submitted that this was an embarrassing set of charges that the offender has yet to deal with and face up to at this point in time (T 27.45-47; 28.1-3).
I accept the submissions. The submissions of the prosecution and defence are not in conflict in this regard, and stand together.
Plea of Guilty
Prosecution submissions
The offender entered pleas of guilty in this matter on 17 August 2020, six months after the matter was committed for trial on 20 February 2020.
The prosecution submitted that in considering the fact that a Commonwealth offender has pleaded guilty to a charge, the Court must then have regard to the timing of the plea, and the degree to which these factors resulted in any benefit to the community (the utilitarian benefit), or any victim or witness to the offence (the subjective features). The prosecution submitted that the offender’s plea of guilty should not be considered an early guilty plea, but nevertheless should be given some discount on sentence for the utilitarian value of the plea.
Defence submissions
Counsel for the offender submitted that the offender’s pleas of guilty were entered effectively when the matter was listed for arraignment in the Supreme Court, after the matters had been committed for trial from the Magistrates Court. It was submitted that there is significant utilitarian benefit for the pleas of guilty, and that given the timing of the pleas a discount of 15% from the head sentence to be imposed would be appropriate in accordance with s 16A(2)(g) of the Commonwealth Crimes Act. It was submitted that plea was entered in a manner which demonstrated a willingness to facilitate the course of justice. Counsel submitted that there was a real benefit to the community through the avoidance of the need for a jury trial, which would involve members of the community examining inherently distressing material. It was submitted that this amounted to a significant “benefit to the community, or any victim of, or witness to, the offence” in accordance with s 16A(2)(g)(iii) of the Commonwealth Crimes Act.
Counsel for the offender submitted that the offender made certain admissions and provided the passwords to his phone and other electronic devices, evidencing cooperation with law enforcement: s 16A(2)(h) Commonwealth Crimes Act.
In relation to the ACT possession offence, it was submitted that the offender should be entitled to a discount of 15% for his plea of guilty in accordance with s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The prosecution accepted that a discount in this region would be appropriate for the plea of guilty (T 32.10-11).
I accept that a discount of approximately 15% is appropriate in this case.
Time in Custody
The offender has spent one night in custody in relation to these offences following his arrest on 5 February 2019. Any sentence will be backdated by one day to take into account this pre-sentence custody.
Comparable Cases
In the case of federal offences, it is implicit in Part IB of the Commonwealth Crimes Act that I must have regard to current sentencing practices throughout the Commonwealth: see R v Pham [2015] HCA 39; 256 CLR 550 (Pham) at [18]; [23]-[24]. Regard must be had to sentencing decisions of intermediate appellate courts in comparable cases as “yardsticks” that may serve to illustrate but not define the possible range of sentences available: see Pham at [29]; Hili v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [53]-[54].
Bare sentencing statistics provide limited assistance: Pham. Statistics do not provide information about why sentences were fixed as they were in each case: Hili. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:
considerations to which a sentencing judge is obliged …to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent
The prosecution and the defence provided the Court with a number of comparable cases. What follows is a short summary.
In R v Mara [2009] QCA 208; 196 A Crim R the offender was sentenced for three offences of using a carriage service to access child pornography material contrary to s 474.19 of the Criminal Code, and one offence of indecently treating a child under the age of 16 contrary to s 210(f) of the Criminal Code Act 1899 (Qld) (Queensland Criminal Code). At this time the s 474.19 offence carried a maximum penalty of 10 years. The offender was a founding member of a highly organised group of individuals, who used the internet to trade in large quantities of CPM. More than 75,000 files containing CPM were found on the offender’s hard drives, including a video which he had taken of a family friend’s child. The offender was sentenced to a term of 6 years imprisonment for the Commonwealth offences, to be released after 32 months upon entering into a 3 year good behaviour recognizance and be subject to 18 months’ probation. The offender was sentenced to a concurrent 6 months imprisonment for the Queensland offence. The offender’s appeal on the basis of manifest excess was dismissed.
In R v Howe [2017] QCA 7 the offender had been sentenced for four offences of using a carriage service to access and make available child pornography material contrary to s 474.19 of the Criminal Code. The offender was also sentenced for the aggravated offence of making material available on three or more occasions and to two or more people contrary to s 474.24A of the Criminal Code, and possessing CPM contrary to s 228D of the Queensland Criminal Code. The offender had accessed, possessed, and made available several thousand files, many of which were in the higher categories. The offender was sentenced to 2 years imprisonment for each of the first four offences, with a 1 year and 9 month non-parole period. For the aggravated offence, the offender was sentenced to 4 years imprisonment with a non-parole period of 1 year and 9 months. For the possession offence, the offender was sentenced to 2 years imprisonment, with a non-parole period of 1 year and 9 months. The sentences were served concurrently, the total effective sentence being 4 years. The offender’s appeal on the basis of manifest excess was dismissed.
In James v R [2009] NSWCCA 62 the offender had been sentenced for one offence of using a carriage service to access child pornography material contrary to s 474.19 of the Criminal Code, and one offence of possessing material contrary to s 91H(3) of the Crimes Act 1901 (NSW) (NSW Crimes Act). At this time the s 474.19 offence carried a maximum penalty of 10 years. More than 3000 CPM files were identified. The offender had been collecting the images for approximately 5 years. Psychological reports indicated that he was emotionally immature, had no adult relationships, and had some insight into his behaviour. The offender was sentenced to 18 months imprisonment with a 12 month non-parole period and good behaviour recognizance for 3 years. The offender was sentenced to 6 months imprisonment for the possession offence. The total effective sentence was 21 months imprisonment to be released after serving 15 months. The offender’s appeal against sentence was dismissed.
In Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 the offender had been sentenced for one offence of using a carriage service to transmit child pornography material contrary to s 474.19 of the Criminal Code, three offences of using a carriage service in an offensive manner contrary to s 474.17 of the Criminal Code, one offence of using a carriage service to groom a person under the age of 16 contrary to s 474.27(1) of the Criminal Code, and two offences of disseminating child pornography contrary to s 91H(2) of the NSW Crimes Act, two offences of possessing child pornography contrary to s 91H(3) of the NSW Crimes Act. At this time the s 474.19 offence carried a maximum penalty of 10 years. The offender had no criminal history and was of prior good character. The offender had been diagnosed with depression, had attempted suicide, and had been admitted to mental health facilities on several occasions. The offender subsequently disclosed his attraction to young boys to medical practitioners. The offender was sentenced to 3 years imprisonment with a non-parole period of 2 years for the s 474.19 offence. The total effective sentence was 5 years and 2 months with a non-parole period of 3 years and 3 months.
In Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 the offender had been sentenced for two counts of accessing and transmitting child pornography material contrary to s 474.19 of the Criminal Code, one offence of possessing material for use through a carriage service, one offence of using a carriage service to transmit child abuse material, one offence of using a carriage service to access child abuse material, and one offence of possessing child abuse material for use through a carriage service. Each offence carried a maximum penalty of 10 years imprisonment. The offender pleaded guilty to the offences and made full admissions, but displayed a lack of remorse. The offender possessed over 1000 images, and accessed and transmitted over 8000 of the files. Psychiatric and psychological evidence indicated a deficiency in capacity for insight, and tendencies which indicated some risk of re-offending. The offender was sentenced to a term of 18 months imprisonment for the s 474.19 offences, with a total effective sentence of 2 years imprisonment ordered to be released forthwith with a 3 year good behaviour order. A subsequent appeal by the Director of Public Prosecutions was successful. The total effective sentence was increased to 3 years imprisonment, to be released after 2 years, and a 1 year good behaviour order.
In Pantelic v The Queen [2010] VSCA 105; 200 A Crim R 510 the offender had been sentenced for three counts of using a carriage service to access, transmit, and make child pornography material available contrary to s 474.19 of the Criminal Code. At this time the s 474.19 offence carried a maximum penalty of 10 years. The offender had no prior offences and was of prior good character, made full and frank admissions, and provided passwords to police. Over 8000 images and videos were detected on the offender’s devices, including material from categories 1 – 5. The offender was sentenced to 18 months imprisonment for the first offence, and two 6 month sentences cumulative upon the first for the remaining two offences. The total effective sentence was 2 years imprisonment to be released after having served 12 months, and a good behaviour recognisance of 12 months thereafter.
In The Queen v Hancock [2011] NTCCA 14 the offender was sentenced for three offences contrary to s 474.19 of the Criminal Code, one offence contrary to s 474.22 of the Criminal Code, and three possession of child abuse material offences contrary to s 125B(1) of the Criminal Code Act 1983 (NT). The offender entered an early plea of guilty and had a minor criminal record. He sought counselling in the 12 months following his arrest and was considered at a low risk of reoffending with good prospects of rehabilitation. A forensic examination of the seized items identified over 150,000 images and over 3000 videos. The offender was sentenced to 6 months imprisonment for three of the Commonwealth offences, and received a sentence of 9 months imprisonment for the final Commonwealth offence. On appeal by the prosecution the effective sentence was increased to 3 years and 4 months imprisonment to be suspended after serving 12 months. The sentences for the Commonwealth offences were left undisturbed on appeal.
In R v Honeyman [2016] ACTSC 2 the offender pleaded guilty to one offence of accessing CPM contrary to s 474.19 of the Criminal Code, and one offence of possessing CPM contrary to s 65(1) of the Crimes Act. The maximum penalty for the access offence was 15 years imprisonment. A total of 1,290 CPM images were detected, with 92% of those images classified as Category 1. The offender had no criminal history, and immediately began seeking professional help with matters relating to his offending following his arrest. Expert evidence assessed the offender as being at a low risk of reoffending, and stated that the offender had expressed remorse and disgust about his behaviour. The offender was sentenced to 16 months imprisonment for the access offence, and seven months for the possession offence after a 25% reduction for his pleas of guilty. The total effective sentence was 18 months imprisonment.
In R v Sutton [2017] ACTSC 95 the offender pleaded guilty to one offence of accessing CPM contrary to s 474.19 of the Criminal Code, and one offence of possessing CPM contrary to s 65(1) of the Crimes Act. The maximum penalty for the access offence was 15 years imprisonment. A total of 4,379 images, and 84 videos were detected. The majority of the images were in Category 1, and most of the videos in Category 4. The offender was born with significant disabilities, attended special education classes during his schooling, had few friends, and was often bullied. The offender had previous convictions at the time of the offending. The offender received a discount of 20% for his pleas of guilty. The offender was sentenced to 24 months imprisonment for the access offence, suspended after 18 months. The offender was sentenced to 18 months imprisonment for the possession offence, concurrent with the access offence.
In R v KB [2019] ACTSC 136 (R v KB) the offender pleaded guilty to two offences contrary to s 474.19 of the Criminal Code. The maximum penalty at this time was 15 years imprisonment. The offender accessed 490 CPM images, and had communicated with other internet users for the purpose of trading the material. The access offence occurred over a period of approximately 3 years and 5 months. The duration of the transmission offence was 3 months. The offender was assessed as having good prospects of rehabilitation and a motivation to change, having taken positive steps toward rehabilitation prior to sentencing. The offender had no relevant criminal history and expressed clear remorse for his offending. The offender was sentenced to a term of 18 months imprisonment for the access offence, and 21 months of imprisonment for the transmission offence. The total effective sentence was 3 years imprisonment, to be served by way of an Intensive Corrections Order, in conjunction with community service and rehabilitation conditions.
In Director of Public Prosecutions (Vic) v Groube [2010] VSCA 150 the offender had pleaded guilty to one offence of accessing and transmitting CPM contrary to s 474.19 of the Criminal Code, and on offence of possessing CPM contrary to s 70 of the Crimes Act 1958 (Vic). The maximum penalty for the s 474.19 offence at this time was 10 years imprisonment. A total of 12,802 CPM files were detected, and had been possessed by the offender over a period of 3 years. The offender received a sentence of 18 months imprisonment, to be released forthwith on a recognizance release order for the access offence, and a 2 year community service order for the possession offence. The plea material put on behalf of the offender was described as ‘extremely powerful’. The sentencing Judge found that given these mitigating circumstances, the offender’s case was exceptional and called for an unusual disposition. On appeal by the Director of Public Prosecutions, the Court of Appeal determined that despite the mitigating circumstances, the sentence was manifestly inadequate, but nevertheless declined to intervene.
Commonwealth and Territory Sentencing Principles
The offender is to be sentenced for offences against both Commonwealth, and ACT law. As such, the Court is required to have regard to both Commonwealth and ACT sentencing principles.
The sentencing provisions that apply to Commonwealth offences are contained in s 16A of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act), and require that a sentence be imposed that is of a severity appropriate in all in all the circumstances of the offence, having regard to the non-exhaustive list of considerations set out in s 16A(2) of the Act.
The sentencing provisions that apply to ACT offences are contained within the Sentencing Act. The Court must have regard to the purposes of sentencing s 7, and the relevant considerations set out in s 33 of the Sentencing Act.
Statutory and other Considerations (Commonwealth offences)
When sentencing offenders for offences against the laws of the Commonwealth, I am bound to apply the provisions of Part IB of the Commonwealth Crimes Act, as well as some common law principles of sentencing, including proportionality: see Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638.
State and Territory sentencing laws operate only so far as they are applicable and the laws of the Commonwealth do not otherwise provide. They are excluded where applicable Commonwealth sentencing laws leave no room for their application: see Pham.
The Court sentences in the context of s 16A of the Commonwealth Crimes Act, which pertains to matters which the court is to have regard when passing a sentence.
The Court is required to impose a sentence of appropriate severity in all the circumstances of the offence under s 16A(1) of the Commonwealth Crimes Act.
Section 16A(2) provides a number of mandatory considerations on sentence, which include the consideration of general and specific deterrence, adequate punishment, and rehabilitation. I have taken into account those matters under s 16A(2) that are relevant to the offender’s sentence.
When sentencing for multiple offences, I must set an appropriate sentence for each offence, then consider questions of accumulation, concurrence and totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill v The Queen); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
Appellate courts throughout Australia have stated that unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted for child pornography offences. As with every sentencing exercise, careful attention must be paid to the maximum penalty which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
In R v Ferguson [2015] ACTSC 363 it was observed at [55]:
The maximum available penalty is always a critical sentencing parameter. It reflects the objective seriousness of offences of that type. In 2010, the maximum penalty for an offence against s 474.19(1) was increased from 10 years to 15 years’ imprisonment. The associated Explanatory Memorandum referred to the fact that the distribution of child pornography had become a global problem, involving “pervasive and widespread” offending, which was “becoming increasingly destructive”.
The distribution of child pornography is a global problem. Child pornography is a depraved black hole of the internet: see R v KB at [90]. It is destructive of young lives. General deterrence is a paramount consideration.
R v Porte [2015] NSWCCA 174 (Porte) at [57] quoted the Explanatory Memorandum with respect to the 2010 amendments to the relevant Commonwealth offences:
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. Children, in addition to being victims of the initial abuse required for the production of the material, are exploited on a massive scale through the repeated distribution of the image, or images, throughout international networks.
In that case Johnson J stated at [59] that:
At the same time as maximum penalties for these offences have been increased, the courts have made clear that the ready availability of material of this type has warranted substantial penalties with general deterrence and denunciation being paramount considerations.
In De Leeuw, the NSW Court of Criminal Appeal stated at [72], above referred to at [7] of these remarks, that:
(a) General deterrence is the primary sentencing consideration for offending involving child pornography
(b) Less or limited weight is given to an offender’s prior good character
(c) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography
(d) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet
(e) The possession of child pornography material creates a market for the continued corruption and exploitation of children
(f) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime — children are sexually abused in order to supply the market [and]
(g) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending
It is important to underline in sentencing the offender that child pornography offences are not victimless crimes. Accessing and transmitting child pornography creates a market for the continued exploitation of children. Children are sexually abused to supply the market for this depraved material.
I take these factors into account on sentence.
Statutory and other Considerations (ACT offence)
In sentencing the offender for an ACT offence, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victims are important sentencing considerations.
Rehabilitation is also an important consideration having regard to the offender’s lack of prior criminal record. On the evidence it must be said that the prospects for rehabilitation remain guarded.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357
Cumulation and totality
The prosecution submitted that the offences of transmit and possess child pornography material overlap but are not identical. It was submitted that these are distinct offences which require a degree of cumulation between charges.
Counsel for the offender submitted that there is some overlap in the conduct which constitutes the offences and it would be appropriate for there to be some degree of partial concurrency.
The submissions of the prosecution and defence are broadly aligned in this regard.
Recognizance release order
The Court may not impose a single non-parole period or recognizance release order in respect of both Commonwealth and ACT terms of imprisonment: Commonwealth Crimes Act s 19AJ.
In relation to Commonwealth offences, the Court must fix a single recognizance release order if a sentence of imprisonment exceeding six months but not exceeding three years is imposed: Commonwealth Crimes Act ss 19AC(1)(b); 19AC(3). Where the sentence of imprisonment imposed exceeds three years, the court must fix a single non-parole period: s 19AB(1).
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 recognisance release order”: Hili at [13]. The minimum term that be served should be determined by reference to Pt 1B of the Commonwealth Crimes Act and the principles in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367, and Bugmy v The Queen (1990) 169 CLR 525: Hili at [44]. These cases require an assessment of the minimum time that justice requires the person to serve having regard to all the circumstances of the offence.
In accordance with s 19(3) of the Commonwealth Crimes Act, where an offender is sentenced to a term of imprisonment for Commonwealth and Territory offences, the Court is required to direct when the Commonwealth sentence commences, but so that:
(a) No federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(b) If a non-parole period applies in respect of a Territory sentence, the first federal sentence to commence after the end of that non-parole period commences immediately after the end of that period.
As has been noted in Edwin v The Queen [2014] ACTCA 47 at [11], when sentencing in the context of both Commonwealth and Territory offences, “a sentencing judge must accommodate the two distinct regimes”. Necessarily, the structure of the sentences imposed must accord with these two regimes. It is therefore appropriate to commence with the Territory offence and accumulate the Commonwealth offence upon this sentence in order to encompass the entire criminality associated with both the Territory and Commonwealth offences.
Sentence
In coming to a sentence by way of instinctive synthesis, I have taken into account all of the matters discussed above, including the objective seriousness of the offences, and the subjective matters.
The appropriate sentence for the possession of child pornography is 18 months’ imprisonment, reduced to 15 months on account of the plea of guilty.
The appropriate sentence for using a carriage service to transmit and solicit child pornography material is 24 months’ imprisonment, reduced to 20 months on account of the plea of guilty.
The appropriate sentence for using a carriage service to transmit and make available child pornography material is 24 months’ imprisonment, reduced to 20 months on account of the plea of guilty.
The appropriate sentence for using a carriage service to service to transmit, solicit, make available, and cause child pornography material to be transmitted is 24 months’ imprisonment, reduced to 20 months on account of the plea of guilty.
The appropriate sentence for using a carriage service to transmit and solicit child pornography material is 24 months’ imprisonment, reduced to 20 months on account of the plea of guilty.
The sentences will be partially concurrent, in accordance with the principle of totality discussed above, and I will set a recognizance release order after 15 months of imprisonment. The offender will therefore be released on 23 April 2022.
The prosecution seeks a forfeiture order in relation to the electronic devices used in connection with the commission of the offences, pursuant to s 23ZD of the Commonwealth Crimes Act. The offender has consented to this order being made. I am satisfied the offender has committed a Commonwealth child sex offence, as defined in the Commonwealth Crimes Act, and pursuant to s 23ZD, I make the forfeiture order.
Orders
I make the following orders:
(a)I record convictions for each of the offences.
(b)In respect of the ACT offence of possession of child pornography material (CC19/1863), the offender is sentenced to a term of 15 months of imprisonment, commencing on 24 January 2021 and ending on 23 April 2022
(c)In respect of the Commonwealth offence of use of carriage service to transmit child pornography material (CC19/13367), the offender is sentenced to a term of 20 months of imprisonment, commencing on 24 January 2021 and ending on 23 September 2022
(d)In respect of the Commonwealth offence of use of carriage service to transmit child pornography material (CC19/3830), the offender is sentenced to a term of 20 months of imprisonment, commencing on 24 April 2021 and ending on 23 December 2022
(e)In respect of the Commonwealth offence of use of carriage service to transmit child pornography material (CC19/3831), the offender is sentenced to a term of 20 months of imprisonment, commencing on 24 July 2021 and ending on 23 March 2023
(f)In respect of the Commonwealth offence of use of carriage service to transmit child pornography material (CC19/3827), the offender is sentenced to a term of 20 months of imprisonment, commencing on 24 October 2021 and ending on 23 June 2023
(g)In respect of the Commonwealth offences, I set a recognizance release order, commencing on 23 April 2022 with a recognizance self in the sum of $500 for a period of two years, commencing on 23 April 2022 and expiring on 22 April 2024, with conditions that:
i.The offender accepts the supervision of ACT Corrective Services and obey all reasonable directions of officers of that service or their delegates;
ii.The offender undertake such assessments, counselling or treatment for sex offending as directed; and
iii.The offender be assessed for and, if found suitable, directed to attend the adult sex offender program.
(h)Pursuant to s 23ZD of the Crimes Act 1914 (Cth), I make a forfeiture order in relation to the offender’s electronic devices used in connection with the offences, being:
i.Samsung Galaxy S8 (SM-G950F) smart phone, serial number RF8K307XV6D, containing Samsung 128 EVO Micro SD card
ii.Western Digital Elements SE external hard disk drive, serial number WXF1E880LA89
iii.Lexar 64gb Micro SD card
iv.Hewlett Packard 14-an025AU laptop, serial number 5CG707298B
v.Samsung SM-T580 Tablet, serial number R52JB08ABIN, containing Verbatim 8gb Micro SD card
| I certify that the preceding one hundred and eleven [111] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Date: |
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Amendments
14 May 2021 Paragraph [49]:
Replace “[36]” with “[88]”
Paragraph [59]:
Replace “taken” with “take”
Paragraph [99]:
Replace “ss 19C(1)(b); 19C(3)” with “ss 19AC(1)(b); 19AC(3)”
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