R v Yates (a pseudonym)

[2021] NSWDC 701

District Court

New South Wales

Medium Neutral Citation:

R v Yates (a pseudonym) [2021] NSWDC 701

Hearing dates:

8 October 2021

Decision date:

08 October 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

NSW Offences - Aggregate sentence of 14 years with a non-parole period of 10 years. See [80]-[91]

Federal offence - Sentenced to a term of imprisonment of 1 year 6 months. See [92]

Catchwords:

CRIME - Possess child abuse material - Use child under 14years to make child abuse material - Indecent assault person under 16 years of age - Indecent assault person under 14 years of age - Use carriage service-transmit child abuse matter to self

CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession

CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material

SENTENCING - Relevant factors on sentence – categories for assessing and grading child abuse material serious abuse of trust of children sleeping over in his home- possession of a large number of images of children -

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act2006

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

BT v R [2010] NSWCCA 267

Dennison v R [2011] NSWCCA 114

Hutchinson [2018] NSWCCA 152

Lamella v R [2014] NSWCCA 122

Minehan v R [2010] NSWCCA 140

Muldrock v The Queen (2011) 244 CLR 120

R v Booth [2009] NSWCCA 89

R v NJK [2011] NSWCCA 151

Texts Cited:

Sentencing offenders convicted of child pornography and child abuse material offences Sydney, 2010, by Mizzi, T Gotsis and P Poletti

Category:

Sentence

Parties:

Bill Yates (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Ms S Hall SC (for the offender)

Ms N Keay, Crown Prosecutor

Solicitors:
Morrisons Law (for the offender)

File Number(s):

2020/00186006; 2020/00215779

Publication restriction:

The name of the offender is not to be published, and in this judgment the offender is referred to by a pseudonym, as publishing the name of the offender may identify the complainants. The names of the complainants are not to be published, nor is any other material that could lead to the identification of those complainants or any information that may reveal the relationship between the defendant and the child complainants: s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987

sentence – ex tempore revised

1. Pseudonyms have been adopted for the names of the child victims in this matter. Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 and s 578 of the Crimes Act 1900 there is to be no publication of any information, fixture or other material that identifies or is likely to lead to the identification of a child victim. I have sought to remove from this oral judgment and the published judgment any identifying details. That means I have to keep to a minimum, and I would ask anyone who reports this matter to keep to a minimum, the relationship between the child complainants or child victims and Mr Yates.

Introduction

2. In June 2020 Bill Yates' wife located on her husband's computer evidence of deleted images. She investigated further and discovered thousands of images of young girls, sorted into files under girls' names. She also discovered numerous photographs taken of young girls in public locations, including a photograph that could only have been taken by her husband. She also found a list of accessed or recently accessed files and a pornography folder that had in it images of young girls, aged predominantly six or seven, in sexually explicit positions. She spoke to a psychologist and then the matter was reported to police.

Agreed facts

3. There are comprehensive agreed facts before the Court. A summary has been provided in the Crown's submissions. A police Detective has provided comprehensive summaries of a selection of documents that he viewed; which in turn were only part of the vast number ultimately recovered. I am indebted to the Detective and the Director of Public Prosecutions for providing those summaries. The descriptions of some of the material, that I have had to read even if repeated even in a judgment of the Court, carry a risk that the harm done to children might be perpetuated. Every repetition of the material is a further publication. Samples were viewed, samples were summarised. That is an entirely appropriate procedure: s 289B Criminal Procedure Act 1986. Here it would appear that the offender's preoccupation was with prepubescent females.

4. I also, and not for the first time, have to comment negatively on the Interpol categorisation system presently used by police forces in Australia to describe and provide a uniform assessment of child abuse material seized by police. There are only two categories that now apply to how the seriousness of this sort of material is graded:

Category 1 – Baseline - Images depicting a real prepubescent child (under the age of 13 years approximately); and the child is involved in a sex act, witnessing a sex act or the material is focused/concentrated on the anal or genital region of the child.

Category 2 – Other child abuse material - Material that is not included within Category 1 and such material includes a person who is, appears to be, or is implied to be a child and is depicted or described in a way that reasonable persons would regard as being, in all the circumstances offensive who:

• is a victim of torture, cruelty or physical abuse, or

• is engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others), or

• is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity or

• is exposing the genital area or anal area or the breasts of a female child.

5. The material before me covers such a broad range that comparisons, which might allow an assessment of relative seriousness, is impossible. There is a great difference in the material, type of activity depicted and age ranges. Previously a 10 point ‘Copine scale’ made evaluation of the seriousness of what was depicted so much easier. In England and Wales a 5 point “SAP” or “Oliver“ scale is used.

6. When he was before the Local Court, Yates pleaded guilty to 12 offences.

• Three possess child abuse material: s 91H(2) Crimes Act 1900 (NSW). The maximum penalty for that offence is ten years imprisonment.

• One count of use a carriage services to transmit child abuse material: s 474.22(1) of the Criminal Code Act (Cth). That offence carries a maximum penalty of 15 years imprisonment.

• Four offences of use a child under 14 to make child abuse material: s 91G(1)(a) Crimes Act 1900 (NSW). The maximum penalty is 15 years imprisonment and for an offence that taking into account only objective factors falls in the middle of the range Parliament have said there is a standard non-parole period of six years.

• The four counts of aggravated indecent assault: s 61M(2) Crimes Act (NSW). As it then was the maximum penalty was ten years imprisonment. The standard non-parole period was eight years.

7. When I sentence for some of the State matters I have been asked to take into account on a Criminal Procedure Act Form 1 other offences to which Yates has admitted his guilt; possess child abuse material and the aggravated filming of a child under 16 years engaged in a private act. It is appropriate that I do so.

8. Yates was spoken to by police in June 2020 and arrested and then later charged with further offences after his arrest on 23 July 2020. He has been in custody since that date and the sentence will date from that date.

9. Turning to a short summary of the offences. After the disclosures made by his wife, police attended their premises and seized certain items. Yates was interviewed on 23 June 2021 about child abuse material that was seized. Some of that material took a while to fully examine. That investigation revealed other material that led to the further charges.

Offence 1.

10. On a Samsung tablet police found on a bedside table, there were at least 1,000 category 1 images and 5,000 category 2 images. There were 200 videos of child abuse material that included children as young as seven engaged in sexual intercourse with adults. Two Form 1 offences of possessing child abuse material which had a significant number of images are also to be taken into account. The samples indicate that that some of that material fell into category 1, others into category 2.

Offence 2

11. The second offence relates to material found on a USB device. It contained a document, a manual, with many pages, “How to Practice Child Love”. That manual is itself child abuse material. There are two Form 1 offences for possessing more images found on a portable hard drive and separate CDs. One relates to over 300,000 images, some of which fell into category 1 and some category 2; there are 225 images of children in provocative or engaged in sexual acts with children.

Offence 3

12. Offence 3 relates to child abuse material located on a CD. It contained fanciful stories about sex with children as well as images and a CD with over 7,000 images. A random sample found that all were in category 1.

Offence 4

13. The federal offence, use carriage service, relates to the offender's admission that he downloaded the child abuse material from the dark web for the purposes of masturbation. He said when speaking to a psychologist and to the police that he often downloaded large amounts of material for later viewing. It would also appear that he has some impulsive behaviours in his personality because he saved all of this material, well a significant proportion of the material. He had been, it appears, viewing the material for many years prior to his detection.

14. The remaining offences relate to offences against children to whom he had access and particularly access overnight. It would appear that consistent with the child abuse material that he was viewing, and the photographs he took of other children, that he took advantage of his access to these four children and took photographs of them when they were in the bathroom or when they were asleep. The children were in his care as a responsible adult. They were vulnerable. In most cases they were unaware of what was happening. That fact cannot mitigate; it merely enhances the need when sentencing to take into account his abuse of their vulnerability. The offences were a gross breach of trust, not only of the child victims but of their parents who allowed the children to stay over. He also, in this double life he led, abused the trust of his own family must have had in him because he presented otherwise as a respectable, hardworking man of our community.

Offence 5, 6 & 7

15. Offence 5, 6 and 7 relate to a child, Anna (a pseudonym), a prepubescent girl. The offences commenced when she was nine years old

16. Offence 5 encompasses eight incidents that occurred over 14 months. It involves 145 images. Photographs were taken of Anna; sitting on a lounge in loose fitting shorts, of her showering, of her sleeping with the blankets removed and her underwear exposed, her legs open, with her genitals covered by her underwear. The photographs were focused on the genitalia, buttocks and the like.

17. On 17 February 2018 the offender assaulted Anna by touching her as he moved her underpants aside to take close-up photographs of her genitals while she was asleep; offence 6.

18. Offence 7 relates to an offence on the same evening when he took photographs of his middle finger inserted into her buttocks.

Offences 8, 9 & 10

19. Offence 8, 9 and 10 relates to the child Belinda (a pseudonym). She was approximately eight or nine years old.

20. The use child offence, offence 8, encompasses five incidents over 14 months and 35 images. They show photographs of her sleeping with her nightie pulled up, buttocks exposed, her genitals exposed and there are also photographs of her showering or images of her showering.

21. Offence 9 relates to the offender pulling her underwear aside to take close-up photographs of her genitals as she slept in February 2017. There is a Form 1 offence attached to this offence which relates to an image taken of her in another location when she was in the bath. That photograph was cropped to focus on parts of her body that fits the definition of child abuse material.

22. Offence 10 is the only offence where the child was aware something was done to her. She was spoken to by police and disclosed that one night she either awoke or was asleep when the offender put what she described as a "marble" in between her buttocks. She recalled Yates’ phone had a light on.

Offence 11

23. Offence 11 relates to the child Caitlin (a pseudonym). She was about ten at the relevant time. There are three incidents over a month, 36 images including images of her showering, of her genital and anal area covered by underwear as she slept and of her playing, but with a focus on her bottom.

Offence 12

24. Offence 12 relates to the final complainant Deanna (a pseudonym). She was about 11 at the relevant time. The offence encompasses five incidents over 11 months with 89 images. The images include those of her sleeping, of her showering and changing, images of her bottom while she slept. She was 12 years old when the last images were taken.

Objective Seriousness

25. Judges are obliged to make an assessment of the seriousness of each offence. There is unanimous support amongst all jurisdictions in this country so far as child abuse material is concerned, that the problem of child abuse material is an international one. Given the ready availability of such material, as is evidenced by this case, the principle of general deterrence must be given paramount consideration. That is; by the retribution extracted upon individual offenders, an attempt must be made to make it clear to others in the community that if they offend in this way, by having in their possession child abuse material, they will be seriously punished. It is hoped, sometimes forlornly, that that this threat will deter people such as the present offender.

26. It must be recognised that without people such as this offender willing to acquire child abuse material on the internet, people would not be producing it. Obtaining this type of material encourages further exploitation of children in order to meet the market for such material. Those who consume such material cannot escape responsibility for the exploitation of the children. And that includes people who, prior to their offending commencing, would have been regarded both by themselves and others as people of good character.

27. In assessing such material, I look to the nature of the material including the age of the children, the gravity of the sexual activities portrayed and the number of images. I have also found useful a monograph by the New South Wales Judicial Commission: Mizzi, Gotsis and Poletti Sentencing offenders convicted of child pornography and child abuse material offences Sydney, 2010,

28. Both counsel in their submissions, took me to the decisions of the Court of Criminal Appeal in Hutchinson [2018] NSWCCA 152 and Minehan v R [2010] NSWCCA 140 at [94]. By reference to those matters I note that here; actual children were used, there were many images of young children engaged in sexual activity with adults. Some of the images described would have occasioned physical harm to children.

29. A large proportion of the material was less serious but still involved sexualised behaviour by children, children in the 6 to 12-year-old range. While, some of that material might, out of context, have be seen as completely innocent but the context here was far from innocent. There are an enormous number of images of various categories. They were not for dissemination but rather for the prurient sexual purposes of the offender.

30. So far as the child abuse material offence is concerned (s91H(2)) the vast majority of the material was not brought into existence by the actions of this offender. Although some was found, I focus primarily on the material that was downloaded. There was nothing particularly organised or sophisticated about the material, to the contrary, it was stored on devices in the family home; which as is obvious, his wife had access to. Given his own children were growing up, it was not beyond the bounds of possibility that they could have, as his wife did, stumble upon the material.

31. Some of the material was fictional or fantasy or descriptive and did not involve real children. But what was being described was activity involving children or in the case of the manual, the methodology for abusing children. In criminalising fictional or written material Parliament does not draw particular distinction between real children in such matters. That is because overall there is a need to shield the community from injury and children from exploitation. Such documents, even if they do not involve real children perpetuate a distorted view of reality in which sex with children is somehow seen as appropriate.

32. As I indicated the manual falls into this category. It is a particularly egregious example.

33. Other factors of universal application which must be considered when sentencing these offences include the offender's motivation, the organisation and the surrounding circumstances.

34. When speaking of the principle of general deterrence, Justice Simpson J said these wise words”

"It is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world” and that is what makes these crimes so callous. Every time the material is viewed, every time an offender is reminded of and confronted with the obvious pictorial evidence of that exploitation the abuse and the degradation it causes is perpetuated:” R v Booth [2009] NSWCCA 89

35. So far as the carriage service offence is concerned the same basic principles just noted apply when assessing the seriousness of such offences. The matter for sentence today is a Federal offence. Despite the fact it carries the highest maximum penalty, it is perhaps the least serious. It could not however be put on a NSW Form 1. Given that the child abuse material found had to have been obtained somewhere; to do so by using a carriage service, is not unusual. I have already taken into account the origin of the material when considering the State offences when I came to evaluate the objective seriousness of the child abuse material matters. To ensure that I don’t double count maters against the offender this sentence should be made concurrent with those matters.

36. So far as using a child under 14 to make child abuse material is concerned, child abuse material is defined to include images of the private parts of a child 91FB(1)(d). That includes a child's genital area or anal area whether bare or covered by underwear and the breasts where they are not sexually developed 91FB(4).

37. Similar principles apply to those discussed above when assessing the objective seriousness of these offences but each separate offence has to take into account here that each involved the exploitation of children; known to the offender, who were his guests and entitled to his protection as he was the adult and in charge of them. They involved, particularly so far as the bathroom matters are concerned, some planning and all involved some deviousness.

38. It would appear that at least for some matters he encouraged overnight stays. This was thus not the normal behaviour of an adult looking after children but obviously directed, given some of the material in the agreed facts, to satisfy his, and gratifying his needs to either touch or photograph young children.

39. It breached so many trusts; his victims, their parents, his own family and the community. The images were kept for his own sexual gratification. Perhaps the only thing that could be said to his advantage is that they were not otherwise disseminated but here too, as with the other matters, there was a risk of others discovering this material, even by his own children. And, there was a significant volume of material. And, the offences occurred more than once. With one exception the children were unaware of what was going on but that does not mitigate. Some may still not now be aware, but those who have been spoken to by police certainly are; an unknowing child is still a vulnerable victim.

35. So far as the indecent assault matters are concerned, I have to give effect to the basic principles of sentencing law set out in s 3A Crimes (Sentencing Procedure) Act 1999 and the common law. One important principle is the sentence of imprisonment should never exceed that which is justified and appropriate and proportionate to the gravity of the crime considered in the light of all the objective circumstances. It is recognised that every act involving the touching of a child and their sexual exploitation is serious. There is an absolute prohibition on sexual activity with a child. That prohibition is intended to protect children from the physical and psychological harm taken to reason for the high maximum penalties and high standard non-parole periods fixed for such matters.

36. I must consider the actual character of the assaults in question. The degree of physical contact, the part of the body touched, whether there was skin-on-skin contact, the age difference and relationship between the perpetrator and the child and the age of the child relative to the range set out in the offence- the younger the child, the more serious the offence. There were two examples of skin-on-skin contact, Counts 7 and 10. Count 10 took a couple of minutes, the others were for the purpose of taking photographs. They involved the interference in a sexual way with a sleeping child or a child presumed to be asleep. The activity was furtive. Yates he took actions to ensure that he would not be discovered> He committed the offences for his own prurient purposes. The children were young and in need of protection not abuse.

The maximum penalty and standard non-parole period.

42. Careful attention to maximum penalties and where applicable any standard non-parole period is required; they are one of many sentencing measures that must be taken into account. But an example of why they are only a guide can be found in the material here. The offence that carries the highest maximum penalty is the least objectively serious offence. Where a standard non-parole period applies to a State offence, I am required to give it content. I am required to assess objective seriousness without regard to matters personal to the offender and wholly by reference to the nature of offending. However, as the High Court made clear in Muldrock v The Queen (2011) 244 CLR 120 I cannot engage in a staged approach to sentencing. I have to synthesize that assessment along with all other relevant matters.

43. In submissions both counsel proffered a suggestion as to where in the range of seriousness the standard non-parole period offences lay. There is still some debate as to whether a sentencing judge must categorise offences in such relative terms. Such assessments are encouraged by the standard non-parole periods that apply and they can provide a short hand and can help distinguish very serious (often called “worst case” offences) from the trivial. But every sentencing exercise requires individual assessment and the task of the Court is to take into account all factors which bear upon the process and synthesize them, taking into account all relevant matters. A process of comparing and contrasting an actual offence with an abstract one is not necessary. I do have regard to a standard non-parole period. I do have regard to the authorities, particularly those of the High Court of Australia to which I have referred.

44. An example of the problems to judges arises here. The s 61G offence has a maximum penalty of sixteen years and a standard non-parole period of six years. The s 61M(2) offence has a maximum penalty of ten years with a standard non-parole period of eight years. The relativity or ratio between that maximum and the standard non-parole period has been described as “absurd” and “curious”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. It is an “uncontroversial fact that it is not mathematically feasible to set a head sentence for a s 61M(2) offence that is close to the mid-range while also giving weight to the standard non-parole period:” LB v R at [39].

45. Nevertheless, another bench of the Court of Criminal Appeal has said “an eight year standard non parole period has been prescribed by the legislature and the courts must give effect to it”: R v NJK [2011] NSWCCA 151 at [40]

46. I will endeavour to appropriately give weight and content to the standard non-parole period for the s 61M offence but in discussion with counsel it was accepted that the s 91G offences occurred essentially in parallel with s 61M(2) offences. Given their extent the s 91G matters in most cases would be treated more seriously objectively than the section 61M(2) matters.

Form 1

47. There are matters on a Form 1, I take them into account when determining an appropriate penalty. I do so in relation to taking into account the guideline of judgment: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]: Dennison v R [2011] NSWCCA 114: Lamella v R [2014] NSWCCA 122 at [48]

48. I am not sentencing for those matters but they form part of my instinctive synthesis of the appropriate penalty as they are matters I have to take into account. They do here increase a sentence that would otherwise be appropriate. That increase recognises the need for personal deterrence and retribution for the crime for sentence.

Criminal history

49. The offender had no criminal record until today. He has been in custody since 23 July 2020. His prior lack of criminal convictions was not facilitative of these offences but he had been offending extensively while presenting to his family, his friends and those he worked with as a law abiding citizen; when in fact he was not. The child abuse material goes back many years and the offending against Anna, Belinda, Caitlin and Deanna took place over about two years.

50. He has demonstrated a capacity to lead a law abiding life. He has the capacity to work. He is an intelligent man and while he can be viewed for sentencing purposes as a first offender, the nature of the offending here means that that is far from a decisive consideration. He was smart enough to have engaged in treatment and realised that he was committing serious offences and done something about it well before his arrest. Nevertheless, it is a matter that I have to factor in to his advantage.

51. He is presently on Special Management Area Protection (SMAP) which imposes upon him additional restrictions that are not imposed on prisoners in general discipline. But it is but by no means the worst form of protective custody. It is commonly imposed upon those who commit child sex offences for their own protection. I do not undervalue the experience of prisons. They are violent, they are crowded and they are not conducive to rehabilitation but his crimes leave me no option but to impose a substantial criminal penalty.

COVID-19

52. He has served his sentence to date subject to all the restrictions in place to try and restrict, and initially try and prevent the spread of COVID in the gaol. COVID is in our gaols and I have already sentenced in other matters, including one today, prisoners who have caught the virus in gaol and are suffering the after effects of it. Gaols are locked down regularly, social visits are being suspended, and access to family is restricted, although there are telephone and AVL links. New prisoners have to endure periods of quarantine. It does not appear that Yates would fall into the category of a prisoner that would be eligible for early parole. Everyone in the community has heightened anxiety and concern but we have some freedoms, a prisoner has none.

53. There is also evidence that prisoners have problems accessing work and general programs and what is available is restricted. I have received and discussed with counsel the New South Wales government advice received yesterday that indicates that sex offender program, and other programs which require people outside Corrective Services to attend, have been suspended while the pandemic continues. He will have less access to programs of work while those restrictions continue.

Guilty plea

54. Yates entered his plea of guilty in the Local Court. I must reduce each State sentence by 25% to reflect the utilitarian value of the plea. So far as the Commonwealth matter is concerned, similar considerations apply. I have to take care that the process of accumulation does not erode the benefits given for that plea. In matters such as this, the guilty plea does facilitate the course of justice because it means that by not having the taking of his right to a jury trial he has spared a large number of people the ordeal of giving evidence in court.

Subjective Case

55. The subjective case comes from a number of sources. There is a letter indicating he has been able to do a course in custody. In particular, there is a letter from his parents who will stand by him no matter what and the support of close social people in the community. It is an important factor in keeping a person serving a lengthy period of imprisonment focused on their rehabilitation and what they will do when they are released from custody.

56. He made some admissions to police but that was in an interview relating to only some of the material before me.

57. He gave an account of himself and his offending to Ms North, psychologist but that account lacked real insight into his offending behaviour. He is an untreated sex offender and he put forward some justifications, minimisations of his offending particularly given the period and extent of it. Ms North analysed and assessed what he said professionally. She did not parrot his statements, to the contrary, she carefully viewed what he said against all the material available to her using her professional judgment and the test results. The material I gained from that report would not have been significantly enhanced by testing the accused had he chosen to given evidence. What she sets out can be accepted.

58. Ms North, uncontroversially, gives some evidence of the background of the offender. He came to Australia when he was a young boy and has lived here most of his life. He did well at a local school. He did his HSC and completed a degree at the university. He has been in steady employment all his adult life. He described a lonely childhood and difficulties as a teenager with forming close friendships. He was however, able to meet a young woman and marry and they lived together as husband and wife for many years. They have children. There were problems in the relationship; that is not unusual. One of his children has a disability.

59. There is material to support a conclusion he too has a high functioning Autism Spectrum disorder. He reports that he had limited sexual experience and none outside his marriage but for many years, since an adolescent, he has viewed pornography and shown a preference for adolescent females and that is reflected in all the material before me.

60. His told his psychologist his method of rationalising or justifying his behaviour was "consistent with psychological literature emphasising the prevalence of cognitive distortions in sexual offending --- he knew what he was doing was illegal…He made efforts to conceal what he was doing."

61. Ms North reports a history of depression and ASD. She also notes that he would satisfy the criteria for major depressive disorder and current episodic matters that I can and should take into account. She conducted a number of score testing procedures on him and he reported above average risk for future behaviour in relation to child pornography, an average risk or moderate risk in relation to other scores looking at his risk of re-offending. Yates will, I trust, have the opportunity of engaging in treatment in custody and he will need it probably for the rest of his life.

62. Importantly, Ms North sets out matters which might increase his risk of reoffending and potential protective factors. And although many of them will not be able to be dealt with in custody, it is important that any treatment and therapy address them.

63. Potential protective factors are his age at release, the fact that he has no prior convictions. The fact that there are no indications of impulsivity or poor problem solving skills. He has shown a capacity for stable relationships, he has expressed appropriate regret for his offences and he is co-operative and motivated for treatment but there are other matters which will be exacerbated by time in custody which must be addressed. A socially isolated depressed man with some underlying conditions, knowing what he was doing was wrong, committed serious offences against young children and the community in general.

64. Ms North's report is very helpful in formulating an appropriate sentence and I will have a copy attached to the warrant so it can assist Community Corrections in future treatment options.

Submissions

65. I am indebted to both Ms Keay, for the Director, and Ms Hall, counsel for the offender, for their comprehensive written and oral submissions. There is no significant disagreement on the matters of principle and I have sought to address those matters of principle in this judgment. What disagreement there was on the structure of the sentence and where emphasis should be placed in assessing the objective seriousness of some of the offences and placing them in a notional range.

66. There was also a question about whether a finding of special circumstances justifying a longer period on parole than set out in s 41 of the Crimes (Sentencing Procedure) Act should be allowed and questions about future risk. They were more a question of perspective. Ms Hall noted that as an untreated sex offender with limited insight there was a lot of work to be done and he would have time and hopefully support to learn from treatment which he was willing to engage in.

67. Ms Keay took me to the scores found by Ms North which called for a very guarded assessment and I have already referred to those matters.

Structure of the sentence.

68. There is a Commonwealth offence; it requires consideration of s 16A and 17A of the Crimes Act (Cth) and the purposes of the code offences and the maximum penalty fixed by federal Parliament. Here, I intend to impose a fixed term but that term will be subsumed by the State offences. I take care not to double count matters to which I have already referred.

69. Particular care needs to be taken when sentencing for multiple offences, particularly here, where they involve discreet offending and multiple victims and multiple offences against two cases a particular victim, offences that have overlapping aspects to them.

70. I have to have regard to the principle known as totality. That principle works to limit the punishment to an overall assessment of the offender's criminality in its entirety and to recognise that sometimes appropriate punishment for each offence, if added one on top of the other, could result in a sentence that is unduly harsh or crushing. That does not mean that harsh or even crushing sentences should not be imposed. Given the sentence I must impose, it has a prospect of crushing the hope for future rehabilitation of any person. But the Court must impose a minimum sentence that reflects all the purposes of sentencing.

71. I have to indicate each of a series of sentences, review them, review the aggregate sentence and determine what is just and appropriate. There is no general rule whether they should be served concurrently accumulatively and here no one offence could properly comprehend and reflect the criminality of the other but some do at least well do significantly need to be dealt with partially, accumulatively. Proper application of those principles given the number and nature of the matters here gives rise to significant practical considerations, only some of which are solved by the aggregate sentence process.

72. I have to synthesise all relevant considerations and that often contradictory purposes of sentencing. Simple arithmetical addition of the sentences appropriate for each offence would not be called for, I have to evaluate sentence overall. At the same time, I have to ensure that public confidence in the administration of justice continues. The public should not be left with the perception a person who commits deliberate serious of discrete offences involving individual victims can effectively escape punishment.

73. I have considered the issue of special circumstances in Ms Hall's submission that the offender's need for monitoring and help adjusting to normal community life require an extended period on parole. I am however, mindful, as Madam Crown points out, that the offender's minimum period in custody should properly reflect what he did in the purposes of sentencing. I am aware from studies by the Bureau of Crime Statistics and Research that offenders who are supervised on parole on release take longer to commit new offences and were less likely to commit few offences than those released unconditionally.

74. Here, given the length of the sentence, monitoring will be enabled for a considerable period. I have made a slight variation in the offender's favour which would fall into the category of special circumstances but that is more because of the process of accumulation and the formulation of an aggregate sentence. My view that sentencing should not be strictly mathematical. Here my assessment of the maximum term and the minimum period that must be spent in custody are decisive.

75. Release will be subject to the State Parole Authorities, the decision of the State Parole Authority will give paramountcy to community safety.

Synthesis

76. I have to synthesise all of those matters. I return to the simple fact Yates had for much of his life, presented as a respectable citizen and for much of his life he was a respectable citizen, worker and family man. But he also committed serious offences, not just against the individual victims but against the community and those unknown victims of the many images that were found in his possession. Trust is lost when the vulnerable are abused and our community can only exist as a community if we are able to trust others. And that trust is of particular importance for all of us who have to look out for and care for children.

77. Yates put his own interests above everyone else but ultimately he self-destructed and in doing so injured so many others. He has lost his reputation, he has lost his family but he offended against many and he must be punished for what he did. He will, however, have to be released and hopefully he can be released in a better position and better supported, so far as his underlying paedophilic disorder, is concerned that when he went to custody.

78. I have to be guarded because that disorder that will probably be with him for the rest of his life. He must have his guilty pleas recognised. He will be subject to the Crimes (High Risk Offenders) Act2006. It is not a matter I can take into account on sentencing but he has to be cautioned that as the law presently stands, if he does not co-operate and he presents a danger for the community his sentence might be extended or he could be subject to even additional conditions but that is a matter for another place.

79. On the material before me, I believe he is capable of acting in his self-interests. I believe he will do everything he can to engage in treatment if it is made available to him, whether that is successful or not is not for me to determine.

Orders

State offences - Indicated sentences

80. Offence 1, possess child abuse material, taking into account the matters on the Form 1: I indicate a sentence of two years three months.

81. Offence 2, possess child abuse material, taking into account the matter on the Form 1: I indicate a sentence of two years three months

82. Offence 3, possess child abuse material: I indicate a sentence of one year six months.

80. Offence 5, use child under 14 to make child abuse material: as it carries a standard non‑parole period I indicate a sentence of five years three months, non-parole period three years 11 months.

81. Offence 6, indecent assault of a person under the age of 16: as it carries a standard non‑parole period I indicate a sentence of three years, non-parole period two years three months.

82. Offence 7, indecent assault of a person under the age of 16: as it carries a standard non‑parole period I indicate a sentence of four years six months, standard non-parole period three years four months.

83. Offence 8, use a child under 18 to make child abuse material: as it carries a standard non‑parole period I indicate a sentence of three years four months, non-parole period of two years six months.

84. Offence 9, indecent assault a person under 16: as it carries a standard non‑parole period I indicate a sentence of four years six months, non-parole period three years four months.

85. Offence 10, indecent assault a person under 16, taking into account the matter on the Form 1: as it carries a standard non‑parole period I indicate a sentence of five years three months and a non‑parole period of three years eleven months.

86. Offence 11, use child under 14 to make child abuse material, indicative sentence: as it carries a standard non‑parole period I indicate a sentence of two years three months, non‑parole period one year eight months.

87. Offence 12, use child under 14 to make child abuse material: as it carries a standard non‑parole period I indicate a sentence of three years nine months, standard non-parole period two years nine months.

State offences – Aggregate sentence

91. There will be an aggregate sentence for the State offences of 14 years imprisonment. The non-parole period is ten years will commence on 23 July 2020. He will be eligible for consideration of parole 22 July 2030. The balance of term, four years reflecting a modest finding of special circumstances will commence on 23 July 2030 expiring on 22 July 2034.

Federal offence – Offence 4

92. You are convicted and sentenced to a term of imprisonment of one year six months. The sentence is to commence on 23 July 2020 and expire on 22/1/2022. I decline to fix a non-parole period or make a recognisance release order because that sentence will be subsumed in the sentence already imposed.

93. The Registrar to forward a copy of the report of Kris North, Forensic Psychologist to Corrective Services with the warrant.

94. Offender warned about application of Crimes (High Risk Offenders) Act 2006 - Sect 25c

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Decision last updated: 20 December 2021