Regina v Sereno

[2007] NSWDC 273

CITATION:	Regina v Sereno [2007] NSWDC 273
HEARING DATE(S):	30 November 2007, 14 December 2007, 21 December 2007
JUDGMENT DATE:	21 December 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Williams DCJ at 1
DECISION:	He is convicted of both offences. ; In regard to the possession of child pornography, he is sentenced to a minimum period in custody of 9 months and a total term of 18 months to date from 5/5/2006.; In regard to the aggravated indecent assault and taking into account the matter on the Form 1, he is sentenced to a minimum term of 15 months and a total term of 2 1/2 years to date from 5/11/2006. ; He is to be released on parole on 4/2/2008. The total term will expire on 4/5/2009. He is to accept the supervision of the Probation and Parole Service over the period of his parole and is to attend such programs as may be directed.
CATCHWORDS:	Aggravated Indecent Assault on a person under 10 - Aggravated Indecent Assault on a person under 16 - Possession of Child Pornography - Sentence
LEGISLATION CITED:	Crimes Act (1900) NSW
CASES CITED:	R v Gent 162 A Crim R R v A.I.S (2006) NSWCCA 355 R v L.J.G (2006) NSWCCA 216 R v Blinco (2006) NSWCCA 105 R v AEL (2005) NSWCCA 148 R v Newbigging (2004) NSWCCA 239 R v Di Cola (1999) NSWCCA 195 R v Lozanovski (2006) NSWCCA 143 R v Spiller (2000) NSWCCA 36 Power v DPP (unrep. DC. 19/7/2007, Boulten ADCJ)
PARTIES:	ODPP Jeffrey Ian Sereno
FILE NUMBER(S):	06/11/0588, 07/11/0502
COUNSEL:	Mr. D. Dalton SC Defendant Mr K Gilson Crown
SOLICITORS:	ODPP

1 HIS HONOUR: Mr Sereno has pleaded guilty to an offence of aggravated indecent assault on a person under 10 and asks that a similar offence in regard to a person under the age of 16 be taken into account on a Form 1. The maximum penalty for these offences is 10 years and 7 years imprisonment respectively. He has also pleaded guilty to possession of child pornography which carries a maximum penalty of 5 years imprisonment. The offences against s.61M(1) and (2) each carry a 5 year standard non parole period. He was arrest on 5/5/2006 and has been in custody since. The principal offences occurred on 28/4/2006 and the child pornography offence between 14/2/2006 and 5/5/2006.

2 There is an agreed statement of facts which is Exhibit A in these proceedings.

3 Mr Sereno is aged 31. He has expertise in I.T. and was hired by Dr Schwartz to work on his home and business computers. Mr Sereno visited the home on 26/4/2006 to work on the computers. Staying at the house were 3 young girls, the 1st victim aged 9, a second child aged 12 and the 2nd victim aged 12. Mr Sereno was installing a computer that was a present for the 1st victim. At some stage, the 1st victim sat on Mr Sereno’s lap. Mr Sereno left and the next day sent an email to say he would not charge for the installation but as the work was not complete it would be necessary for him to return. Dr Schwartz’s partner discussed with him when he could come back and her being present when this occurred. She told him that she could not be there on 28/4/2006 and Mr Sereno said it would take too long for him to come and do it on 27/4/2006.

4 On 28/4/2006, a friend telephoned Dr Schwartz’s partner and told her the children were at the house as was the computer man. Dr Schwartz’s partner rang Mr Sereno and asked why he had not telephoned her and was told he had re-arranged things to do the work as soon as possible. She then organised for the cleaner to come to the house.

5 However what had occurred on 28th April, was that while the first victim was sitting on Mr Sereno’s lap, he put his hands inside her underpants and touched her genitalia. She said stop, ran away and was later found in tears. While victim 2 was washing dishes, Mr Sereno approached her from behind and massaged her shoulders and pressed his penis against her bottom through their clothes. She told him to go away. This is the Form 1 offence.

6 Later victim 1 said to police that she was glad Sereno didn’t know where she lived, that she didn’t want him to touch her and felt very uncomfortable that he did what he did.

7 After his arrest, Mr Sereno’s girlfriend was using his computer when she found child pornography images on it. She eventually told police about this on 13/10/2006. The hard drives were examined and found to contain over 100,000 deleted images of child pornography and 1,000 actual images as well as 5 videos of child pornography. There were also a number of deleted videos. There is a description of these videos in the Agreed Facts (Exhibit B). I have viewed some of these images and parts of the videos. I would agree with the descriptions in the agreed facts and the statements of Senior Constable Wayne Plumridge. There are many images of very young children, mostly engaged in acts of overt sex of all descriptions with adults and others as well as suggestive poses not involving sex and so called art photos. It is appalling that such young and innocent children can be victimised in the ways depicted. It is doubtful that they will ever be able to lead a normal life.

8 It seems fairly clear from the facts, from the existence of the child pornography and the matters referred to in the various reports, that Mr Sereno deliberately positioned himself to be at the house when he knew there would be no supervising adult present, thus abusing the trust his employer had placed in him and setting himself up to abuse the trust the young victims had also placed in him.

9 There is a Pre-Sentence Report. I also have a report from a psychologist, Mr Mark Anthony Diment, dated 6 November 2007 and a report from Corrective Services Forensic Psychology Services dated 11/12/2007.

10 The Pre Sentence Report says, amongst other things, that "Mr. Sereno indicated that following the initial download he, unbeknown to his partner, continued to search for similar material and having found it downloaded it onto his computer. He initially claimed the material downloaded was 'not physical' and 'no adults were involved.' It was 'just people in front of a camera naked'.

This Service subsequently acquired the statement of facts dealing with Possess Child Pornography Charge and gave Mr. Sereno the opportunity to alter or elaborate on his claim. He indicated that he was aware of the contents of the statement of facts but reiterated his previous claim saying that he did not download any material that was of a sexual nature but only down loaded material which depicted people in various states of undress. He acknowledged that the people depicted were from the age of eight to early teens but he claimed that all participants were not being harmed and in fact looked to be enjoying the experience. He elaborated saying the participants looked as though they enjoyed being the centre of attention.

Reference was also made to the content of the videos found on his computer and he stated he "didn't have that kind of material" on his computer and asserted that it must have been placed there by his ex partner. Mr Sereno claimed that it could be proved he did not down load the recording by examining the 'date stamp' when the material was downloaded which, he claimed, would indicate the material was downloaded after he entered custody. Asked why he agreed to the statement of facts if he did not download the videos he claimed he was sick of the legal process and wanted it to end. When the indecent aspect of the gestures were highlighted, Mr. Sereno stated he did take part in conscious acts which he acknowledged crossed the line on his part but which occurred because he was thinking she would respond positively. He now thought that such thinking showed his own naivety. He explained that when the victims objected to his actions he backed off immediately because he did not want to hurt them. Mr. Sereno stated that he now recognised that he had broken the trust of the victims and that such betrayal mortified him.

As to the CUBIT program, condition of entry into the program is that participants fully acknowledge their culpability with regards to the offences. Mr. Sereno's denial of some aspects of the Possess Child Pornography offences would at this stage make his entry into the program highly improbable. Should he acknowledge his responsibility at a later date he could then apply for entry if he so chose.

Mr Sereno recognises the impact his offending behaviour has had on his own person, his own family and his own relationships but his recognition of its impact on the victims and their family appears to be somewhat ambiguous.

The offender is suitable for a high level of intervention by this Service. The individualised case plan would include strategies to address the following identified areas of criminogenic need:

Sex Offender Program/Counselling and the monitoring to ensure of the offender has no unsupervised contact with children. "

11 Mr Diment’s report was somewhat less detailed than the DoCS Forensic Psychology report and I have given it less weight. However he reported that, "Mr Sereno impressed as an articulate, intelligent young man and there was no indication in his account to me of major psychopathology (psychotic content, formal thought disorder, delusions, hallucinations or significant personality disorder). He did not appear to try and portray himself in an overly favourable manner and was realistic in discussing the impact of his offences on the victim, himself and his family.

He was born in Melbourne, the elder son of Hugo Sereno (“56, with whom he has had no contact since he was 12”) and his wife Olga (“52…an English second language teacher…who remarried Leon Radunz, an entomologist and lives in Queensland”).

He completed his HSC. He told me that he enjoyed school and that his first exposure to computers was awesome and had remained his passion. He was employed as the Chief of Information Officer for Schwartz Family Company. This company owns and operates eight sites – hotels and surgery.

He takes no prescribed medication, is a non smoker, “never liked alcohol and denied ever experimenting with illicit drugs”. In 2002, he met a woman and stated that he was “after companionship”. They formed a relationship which ended in August 2006 (while Mr Sereno was in custody). He told me that she was “very overweight and this was a very self-conscious point of concern for her”.

The Offence.

He told me he “does not know why he touched them…” He told me that he deeply regretted his loss of judgment in “doing something I had no right to do”. In relation to the viewing of child pornography he told me that he and his partner “used to have challenges…me against her…lots of little things…private games”. He told me that “we found awful stuff but also artistic material…She deleted it but I was interested in the sense of researching question related to my own views sexuality”. He also stated that, “I didn’t redistribute it…was just kept…I didn’t use it to get aroused…didn’t encrypt it to hide it”.

His mother was interviewed and impressed as a thoughtful, intelligent and articulate person and very concerned as to her son’s welfare. She told me that she was supportive of his stated desire to re-establish himself and avoid any future trouble.

Formal Psychological Assessment

Overall, a basically well-adjusted personality profile was obtained. These profiles are consistent with my clinical observations, obtained history, the Beck Scales and his mother’s and his own self-description.

Opinion

Mr Sereno has formally assessed with average levels of anxiety and slightly above average levels of depression.

He has formally assessed with a well adjusted personality structure with no deviation into psychopathology.

Nevertheless, he has crossed a line of appropriate behaviour in circumstances he deeply regrets and his account to me of his offending behaviour in relation to the girls involved shows an impulsive temporary distortion of reality.

He has a high degree of insight into how he can address and control his behaviour and was realistic in discussion of behavioural controls. He told me that he was upset he had “destroyed any trust I had with the girls…I earnestly hope they will not suffer any effects from this”.

I cannot be unequivocal about his prognosis but he was open in discussing his future. In his favour is a basically, well-socialised, well-adjusted personality structure, support from family and close friends and his “soul-searching” approach.

He would benefit from psychological counselling designed to reinforce his motivation to keep out of trouble in future and relate appropriately to others.

He told me he was willing to undergo a Sex Offender’s Programme.

12 The Forensic Services Psychology report is the most detailed examination of Mr Sereno’s situation. It reports that:

Discussion of offence and acceptance of responsibility

He described setting up a search engine to automatically down load images from linked sites. He reported that he would view them approximately five times per month and that he deleted the images when there was aggression and violence, preferring those images when the children looked happy. He believed that the children "of all ages appeared to be enjoying it", that they wanted the attention they were receiving and commented that, "the girls knew what they were doing".

Mr Sereno was reluctant to disclose the extent of his viewing of the child pornography and the level of deviant sexual arousal he experienced. He did described that there was arousal with masturbation and that the pornography "might have 'G'd' me up to have sex, when Pippa wanted sex", and that he would '"use that material (child pornography) of thin athletic bodies and imagine Pip with that body". He reported that she was sensitive about her weight, so he told her that it was his problem. Mr Sereno described that "My main reason for looking at the child pornography was to investigate the social conflict of what kids do or don't do" and that "it didn't look like anything serious, children masturbating themselves".

In regard to the charges Mr Sereno described that he placed his hand on the victim Savannah's "groin area", by "cupping" his hand there. He described that "It was an idea that just popped into my head ... l had plenty of evidence to support that they can enjoy it". Mr Sereno thought that "Savannah would be interested as well" after viewing the child pornography. He described that he stopped after she told him to and that he apologised and hadn't meant to harm her in any way. In addition, Mr Sereno described his general behaviour toward Savannah as just "friendly" interactions that were misunderstood. In regard to Savannah, Mr Sereno described that as a result of the offence he had "lost a best friend...to have someone to value your presence so highly".

In reference to the second victim Stacy, Mr Sereno admitted to the behaviour, but that he was just being friendly and self assured and "thought I could do the same thing", as he would behave with others and that this was misinterpreted. He said that, "I put my hands on her shoulders and leaned in". This description appeared to minimize his behaviour and the intention behind gaining this level of physical intimacy with a 12 year-old girl he just met.

It was difficult to determine Mr Sereno’s current understanding of victim harm. The clinical observation suggested that Mr Sereno continued to believe that sexual acts with children were acceptable and that somehow society had it wrong. This was tempered by his self-report that on no occasion had he intended to harm anyone and that he asked the victim if "had hurt her and she said no". He also commented that he would not wish to harm anyone in the future. Mr Sereno had also acknowledged that he had "ignored the legal and social" rules.

Test Assessment

His response style, along with those items he clearly endorsed, appeared to show a consistent presentation of beliefs that justify and also to minimize the effects of sex with children, as was indicated by the clinical observation.

Overall Risk

Mr Sereno is considered to be at a moderate Current Risk Category for sexual and violent recidivism and general recidivism.

Discussion of individual dynamic risk factors (Poor Problem Solving Skills

In regard to Mr Sereno, his deficits in this area are significant in regard to his inability to address his problems with his wife and associated issues. Mr Sereno appeared to have attempted to resolve his sexual and intimacy needs through inappropriate sexual and social contact with children.

Four Factors are weighted together to assess Sexual Self-Regulation

· Sex drive and preoccupation

This area of risk was demonstrated by Mr Sereno' s regular viewing of child sexual pomography over an extended period of time, and the use of this pornography in stimulating his sexual arousal toward his partner. This risk factor will need to be thoroughly addressed in treatment.

Sex as coping

Mr Sereno demonstrated some evidence of using sex to cope, however his general use of sex as a coping strategy appeared low. It was thought that during the interview Mr Sereno minimized his use of child pornography as a preferred means of sexual gratification.

· Deviant sexual preference

It was clearly identified that Mr Sereno has significant sexual arousal for pre pubescent and pubescent females. In the current agreed facts there are two victims aged 9 and 12, and victims depicted in the pornography are between the ages of 5 and 14.

Conclusion and Recommendations

Mr Sereno has been assessed as moderate-high risk for sexual reoffending and would be appropriate for treatment of moderate intensity needs intervention.

It is, therefore, recommended that Mr Sereno complete a treatment program of moderate intensity that will address his sexual offending behaviour.

It is also recommended that Mr Sereno not be allowed unsupervised contact with children under the age of 16. There is currently a significant wait list for the Custody Based Intensive Treatment Program (CUBIT). The suggested amount of time to allow for this process to take place is approximately 24 months in custody.

In regard to the community treatment program of the Sex Offender Program, a 24 month period would also be needed to complete the treatment program, including pre and post assessments.

13 As can be seen from these three reports, there is confusion as to what exactly were his reactions to the various situations he placed himself in. That must affect the reliability of some of the opinions, especially Mr Diment, to whom he said that he got no sexual pleasure from the downloaded images.

14 Mr Sereno has been in custody, bail refused since 5/5/2006, a period of just over 19 months. The plea of guilty was not made in regard to the indecent assault offences until a second trial date had been fixed. The plea was entered on 19/3/2007 so that it was a late plea in that sense but apparently the first time the charges had been formulated in that way.

15 He pleaded guilty to the child pornography offences in the Local Court and was committed for sentence on 3/7/2007. He is thus entitled to the full benefit of that early plea.

16 In comparing sentences for child pornography offences, caution needs to be exercised in that the offence of importation of child pornography under Commonwealth law carries a maximum penalty of 10 years imprisonment, whereas the State offence of possession of child pornography carries a maximum penalty of 5 years.

17 R v Gent 162 A Crim R was a case involving a maximum penalty of 10 years. However, the principles enunciated in Gent are relevant to State offences. Indeed, given that most cases of possession of child pornography involve the downloading of material from the internet, one wonders at the need to distinguish between physical importation, as in Gent, and electronic importation in cases of possession. Be that as it may, the statutory maximum for this offence is 5 years.

18 Because of the lateness of the plea of guilty, Mr Sereno has been unable to access the CUBIT program in custody as he has been not only on remand but also a Protected - Limited Association inmate, only allowed out of his cell for 2 hours per day.

19 It would be an incorrect approach to sentencing to formulate a sentence that required Mr Sereno to remain in custody for a longer period than would otherwise be appropriate, merely so that he can complete the custody based CUBIT program, particularly as there is a long waiting list, the program takes 2 years to complete and he has already served 19 months imprisonment.

20 In the Crowns written submission, he agreed that “relatively short” goal sentences would be appropriate in each case. Whilst it is difficult to compare decided case sentences, the particular cases I have been referred to would tend to support the Crowns concession, both in regard to indecent assault cases and possession of child pornography cases. As to the former, R v A.I.S (2006) NSWCCA 355 involved behaviour probably worse than Mr Sereno’s. R v L.J.G (2006) NSWCCA 216 also involved worse behaviour. R v Blinco (2006) NSWCCA 105 was of a similar factual nature. R v AEL (2005) NSWCCA 148 involved other more serious offences. R v Newbigging (2004) NSWCCA 239 was after trial where the Jury had returned not guilty verdicts in regard to 4 counts of indecent assault. R v Di Cola (1999) NSWCCA 195 was factually different but perhaps of a similar degree of seriousness. R vLozanovski (2006) NSWCCA 143 involved many more serious offences. R vSpiller (2000) NSWCCA 36 is a two Judge sentence appeal of no relevant value.

21 In regard to child pornography cases, I have been referred to R v Gent and Power v DPP (unrep. DC. 19/7/2007, Boulten ADCJ) which was an appeal from the Local Court. Neither case provides great assistance in determining the appropriate sentence in the present case.

22 The disturbing feature of these matters is the combination of the offences of child pornography with two indecent assaults on young children. It is also disturbing that on detailed examination of Mr Sereno’s values, his attitude to his offending is equivocal.

23 Whilst I would agree that Mr Sereno’s offending in regard to the s.61M offences was at the lower end of the spectrum and that he desisted immediately he got an adverse reaction, nonetheless the offences occurred within a framework of obtaining pleasure from child pornographic images and extending that situation into the reality of his contact with the victims, who obviously trusted him, and in ensuring that he was able to access the victims when no other responsible adult was present.

24 Indecent assault is a serious offence and no doubt the aggravated offence has a standard non-parole period because of the probability that indecent assaults that are not resisted can lead to more serious sexual interference. That being said, these offences are below the mid range of objective seriousness and thus the standard non parole period operates as a benchmark only.

25 Section 3A of the Sentencing Act sets out the purposes for which a Court may impose a sentence. They include to ensure adequate punishment, to deter the offender and others, to protect the community, to promote the offenders rehabilitation, to make the offender accountable for his actions, to denounce the offenders conduct and to recognise the harm done not only to the victims, but also to the community.

26 Children are the future of any community and are, therefore, to be protected from inappropriate behaviour by adults whether that be physical, sexual or exploitative behaviour. Children should be allowed to find their own sexuality in a normal way over a normal time and not have adult concepts forced on them unnaturally. The inherent wrongness of Mr Sereno’s behaviour towards the two victims can be seen in their immediate reaction against his unwanted and inappropriate advances. That puts the lie to any suggestion that children somehow enjoy such contact. Child pornography victimises the children who participate in the acts depicted. Having a market for such images encourages the continued exploitation of such children and their continued victimisation. That is why it is an offence and why the penalties are relatively high.

27 In regard to both lots of offending, the statutory aggravating features would be the abuse of a position of trust that he brought upon himself, the vulnerability of the victims, the multiplicity of acts and the degree of planning involved. In mitigation, Mr Sereno has no prior convictions (but see Gent) and appears to have been a person of good character. Fortunately, the harm caused to the victims appears to have been slight. As to re-offending, rehabilitation and remorse, they are not of such a positive value as to mitigate an appropriate sentence. Of course, he has pleaded guilty to both offences as already indicated and expressed a willingness to participate in programs, but has not given evidence on sentence. He is entitled to a discount in respect of both matters which I would assess as 25% for the child pornography offence and 20% for the indecent assaults.

28 Whilst in my view the indecent assaults and the child pornography are inter-related, they are quite separate offences and there ought be, at least, a partial accumulation of sentence. Also had Mr Sereno not been charged with the indictable offences, I am prepared to accept that the child pornography offence would probably have been prosecuted in the Local Court. I am prepared to find special circumstances because of the partial accumulation but also because of the necessity for a high level of intervention by the Probation and Parole Service and Mr Sereno’s need to participate in a sex offender program.

29 I make the following orders:

a) He is convicted of both offences.

b) In regard to the possession of child pornography, he is sentenced to a minimum period in custody of 9 months and a total term of 18 months to date from 5/5/2006.

c) In regard to the aggravated indecent assault and taking into account the matter on the Form 1, he is sentenced to a minimum term of 15 months and a total term of 2 ½ years to date from 5/11/2006.

d) He is to be released on parole on 4/2/2008. The total term will expire on 4/5/2009. He is to accept the supervision of the Probation and Parole Service over the period of his parole and is to attend such programs as may be directed.