Re Tilyard
[2009] VSC 117
•18 March 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1414 of 2009
IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an Application for Bail by PAUL RONALD TILYARD
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2009 | |
DATE OF JUDGMENT: | 18 March 2009 | |
CASE MAY BE CITED AS: | Tilyard v R | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 117 | |
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Criminal Law – Application for Bail – Applicant charged with using a carriage service to access and transmit child pornography material, using a carriage service to groom persons under 16 years of age and possession of child pornography material – Psychologist considered applicant to be at moderate risk of re-offending and having very limited insight into his conduct – Applicant held to be an unacceptable risk – Bailed refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G. Mullaly | James Dowsley & Associates |
| For the Respondent | Ms E. Tickey | Director of Public Prosecutions (Commonwealth) |
HIS HONOUR:
By application received in this court on 24 February 2009, the applicant Paul Ronald Tilyard makes application for bail. On 21 November 2008, he was charged with the following offences:
(1) Between 1 January 2007 and 24 November 2008 use a carriage service to access child pornography material;
(2) Between 12 October 2008 and 21 November 2008 use a carriage service to transmit child pornography material;
(3) Between 12 October 2008 and 21 November 2008 use a carriage service to groom persons under 16 years of age.
Those offences are all contrary to sub-paragraphs of paragraph 474 of the Criminal Code (Commonwealth). The offences are all serious. The first two offences carry a maximum penalty of ten years and the third a maximum of 12 years.
He was also charged on 21 November 2008 with possession of child pornography material contrary to s.70 of the Crimes Act 1958 (Victoria). The maximum penalty for that offence is five years. It has been raised with me that there is a possibility of the applicant being charged with other offences. I have not had regard to that fact in my consideration of these matters but make it clear that fairness to the applicant dictates that if there are to be other charges, they be laid absolutely as soon as possible.
The applicant came to the notice of the authorities by virtue of the fact that he published on a photo sharing website: http\\ an on-line album of photographs containing 164 images of two young boys. Among the images were two sets: 17 photographs titled, "Duct tape boy" showing a young male of approximately 11 years of age in a red T-shirt, his hands and legs being bound with silver tape; and 10 photographs named, "Gaffer tape boy" containing images of the same boy bound by hands, legs, and torso with brown parcel tape. There appeared to be another child present in some of those photographs.
The given name and contact details led to the applicant. A raid was conducted on his home by the AFP and Victoria Police members and a large amount of material was recovered, including computers and at least one camera. Original or copies of the 164 photographs referred to above were found. A large amount of child pornography material and child abuse material was recovered.
About 40,000 images and 150 videos were recovered. There was also material to demonstrate that the applicant had used a program called “googlehello” to transmit and receive child pornography material. It became clear that the “Duct tape boy” and “Gaffer tape boy” images had been taken at the applicant's home. The subject of the photographs was a young friend of his son's with whom he had become besotted. The friend had stayed at the home on a number of occasions. The applicant had very frequent access to the site and corresponded with others about it. It also became clear that the applicant had been corresponding with another young boy, also a friend or acquaintance of his son, by email. Much of the email which has been recorded on his computer is provocative, and some at least is specifically sexual in use of language and amount to an invitation to engage in sexual activity. That is the material on which the grooming charge is based. It is fair to say that in relation to that material, the email path created by the applicant is quite sophisticated and well planned.
Mr Mullaly, who appeared on behalf of the applicant, relied upon a series of propositions in relation to the grant of bail. He provided written submissions which I have placed on the court file. He emphasised the applicant's right to bail and the applicant's preparedness to receive and undergo treatment. He also emphasised that the nature of the offences should not, of themselves, become the unacceptable risk which would be required for the refusal of bail in present circumstances.
He called Mr Patrick Newton, an experienced psychologist, to give evidence. He also called Mr Peter Tilyard, the brother of the applicant who said he would do all in his power to support the applicant, particularly by offering him accommodation with their mother and father in a building adjoining his own house. Although both he and his wife are employed, both of them and their adult children could be expected to be present at various times and give support to the applicant. One could not help but be impressed by the evidence given by Mr Peter Tilyard and the generosity that he expressed.
In relation to the evidence of Mr Newton, it emerged that he assessed the applicant as being at a moderate risk of recidivism but at the higher end of the moderate range. That is based on the interviews that he conducted on two occasions and his assessment of the material.
One of the important pieces of material in this case is a very long interview conducted by the police with the applicant. It is clear from that material that at least at the time of the interview the applicant had very little, if any insight into both the nature of his offending and particularly the importance of the manner in which it related to young boys. Mr Newton, for his part, would say that there is now some glimmer of insight, but it would be fair to say that is not much greater than insipient.
Although the applicant would generally have a right to bail, if it can be demonstrated that he is an unacceptable risk, then bail will not be granted. The following difficulties arise for the applicant:
(a) Although he could reside with his brother and extended family, he would not be subject to continuous supervision. If he were to undergo treatment it would be necessary in any event for him to leave the premises.
(b) He is not presently employed and I do not hold that against him, but if he were to obtain employment, the times which he would be away from any reasonable supervision would be very substantial.
From the whole of the material it is clear that the applicant's use of a computer to access child pornographic material has been vast. Because of the presence of computers in so many places to which public access can be gained, in my view, particularly having regard to the guarded assessment of Mr Newton, he continues to be a risk. And he continues to be at risk of re-offending.
On balancing the whole of the material, it having been accepted by Mr Mullaly on behalf of the applicant that he does represent some risk, I have come to the conclusion that the risk of re-offending in the present circumstances is unacceptable and bail will be refused.
The only thing I can say about it is, Mr Tilyard, if there is an opportunity for you to get some treatment while you are in custody, if that can be done, you ought to do it. That will, as these things unwind, be a matter tremendously to your advantage. You will have opportunity further down the path to make further applications for bail. We are only at the beginning of the process. I have made it clear what I feel at the moment, but I would advise you to do whatever you can about getting yourself engaged in some treatment.
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