The Queen v Bechaz

[2016] VCC 530

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -16-00059

THE QUEEN

v

ANDREW BECHAZ

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2016
DATE OF SENTENCE:	28 April 2016
CASE MAY BE CITED AS:	The Queen v Bechaz
MEDIUM NEUTRAL CITATION:	[2016] VCC 530

REASONS FOR SENTENCE
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Subject:Use a carriage service to access child pornography – Use a carriage service to make available child pornography.

Sentence:Total Effective Sentence 10 months imprisonment (Federal) – Release upon serving 6 months of the term of imprisonment - $1,000 recognisance bond of good behaviour for 2 years – Supervision – Sex Offender Registration for life.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms K. Breckweg	C.D.P.P
For the Accused	Ms E. Ramsay	VLA

HIS HONOUR: 

1Andrew Geoffrey Bechaz, you have pleaded guilty to one count of using a carriage service to make available child pornography and one count of using a carriage service to access child pornography, both contrary to s.474.19(1) of the Criminal Code of the Commonwealth.  The circumstances of the two offences were set out in the prosecution opening which was read in open Court this morning and I incorporate it wholly by reference.  Both offences carry a maximum sentence of 15 years' imprisonment.

2In brief outline, the police, the AFP, were able to access an ISP address that was registered to you and in using that address, they were able to access a particular software program called eMule, and they ascertained that over the period of the first count, namely between 29 June and 16 July 2015, you were using that particular software program and as a consequence of that program, making available child pornography files.  They ascertained that a total of 19 files had been made available at that time.  Four of them were level 1 videos, five level 2, ten level 4, being a total of 19, and the contents of the videos were set out as depicting oral and or vaginal penetration between an adult male and what police described as a pre-pubescent girl.  The files have been classified under the ANVIL Classification Scheme.

3A few months later, the police, on 15 October 2015, executed a search warrant at your home at 1/49 The Avenue, Morwell.  You were there and they seized a Compaq computer and two flash drives.  You fully co-operated with them in the course of that raid and proceeded to advise them that you had been accessing and downloading child pornography and deleting that pornography after you had viewed it.  You admitted that you had been doing that.  The police subsequently found on the flash drives and on the computer a significant volume of child pornography material.  That consisted of the total of 174 images and videos that are set out in paragraph 21 of the opening.  Essentially 67 videos and images were classified as Category 1, 77 classified as Category 2, 9 classified as Category 3, 20 classified as Category 4, 1 classified as Category 5.  So a total of 113 images and 61 videos making a total of 174.  The content of those videos was set out in paragraph 22 of the Crown opening.

4At the invitation of the prosecutor, I proceeded to view a representative sample of those videos and found that they matched the description of them as set out in paragraph 22, and comprised the usual disturbing material.

Seriousness of the offending. 

5In relation to Charge 2, the offending related to the period 18 September 2014 to 14 October 2015, a period of 13 months.  The appropriate way to characterise the seriousness of the offending here is set out in the prosecution sentencing submissions.  First, the nature and content of the material.  Here, the bulk of the material was level 1 and 2, although a significant proportion was the more serious level 4.  I had an opportunity to peruse a representative sample and found in particular the level 1 and 2 images to be of the usual offensive, disgusting and degrading nature.  I regard them as a fair representation of what is described in paragraph 22 of the prosecution opening.

6Next, the absolute number of the items puts this matter in the lower range of offences of this type, but not at the bottom of the range.  It is not disputed that the material in relation to Charge 2 was for your personal use.  The method of access of the material was such that using the software system, the material also became available to other users and that is the gist of Charge 1, which covers a narrower period of about a month.

7In that sense, it was not deliberately making the material available to other users for the purposes of culpability in Charge 1.  Rather, it was an incident of the use of that particular software.  However, I am satisfied that you knew that it was an element of the use of that particular software that the material would, when you were using it, become available to other users of that software.

8Further, in terms of Charge 2, when the material was sourced by the police on the computer hard drive and on the flash drives, it had been deleted and was unavailable and that is relevant to the overall culpability of the offence here.  A significant factor in relation to Charge 2 in this case is that the charge does cover a span of offending of a period of 13 months.  In that sense, this raises the level of culpability of the offending.  I accept that the offending was, in that sense, in episodes over that period, but it is clear that you continued to access that material on a regular basis as set out in the table in pp.90-96 of the depositional material.

9I accept the submission of your counsel that this was not sophisticated offending in that you were using your own IP address and home computer and thus it was easily detected by the police once they accessed that particular IP address.  Overall the offending here is in the lower range of the offending in terms of volume and categorisation but the period of accessing raises its seriousness as does the fact that you had previously been dealt with for possession of child porn.

Prior convictions. 

10A salient matter in sentencing you are your prior convictions.  You have a prior conviction for knowingly possessing child pornography when you were dealt with at the Magistrates' Court here in La Trobe Valley on 27 August 2007, where you were sentenced to eight months' imprisonment that was suspended for a period of 12 months.

11On the same date, on four charges of using a postal service to menace or harass, you were sentenced to an 18 month community based order with a special condition that you access programs to reduce offending, including programs relating to the sex offender program.

12The precise circumstances of this prior appearance was not fully available to me.  You counsel indicated that it involved the possession of a volume of child pornography material larger than the amount available here.  The offending must have been relatively serious to receive a suspended sentence of eight months at that time, given the maximum penalty at that time which has subsequently been raised.  It is a direct prior conviction and directly relevant to your culpability for this offending and makes specific deterrence a salient sentencing consideration.

13In addition to that prior appearance, before the same Magistrates' Court, on 29 November 2011, on two charges of making a false document and two charges of failing to comply with reporting conditions, you were fined $500 on the first charge and placed on a recognisance on the remaining charges.  While the offending on that occasion is different from the offending here, it is still relevant in that three years before this offending commenced, you were before the Magistrates' Court on criminal offences.

Explanation for the offending. 

14The explanation for the offending here relates to your overriding personality deficiency of depression and your mood disturbance when your cat had to be put down and you found this a distraction.  It was seen as a fantasy world of risk taking behaviour.  Your counsel did not seek to rely on any Verdins considerations to reduce your moral culpability.  I am satisfied that your longstanding personality deficiencies including depression that has required long term medication do provide something of an explanation for the offending, but no excuse for it.  Adult pornography has apparently been a significant part of your life for many years and in circumstances of high stress, you proceeded to child pornography.

Matters in mitigation. 

15Your counsel put a number of matters in mitigation, which I have taken into account.  First, you pleaded guilty.  Your plea of guilty was at the earliest opportunity.  I give you significant credit for that plea as facilitating the course of justice.  I proceed on the same basis as His Honour Chief Judge Kidd in Okoka [2016] VCC 172 in giving you credit for the plea of guilty as facilitating the course of justice. You have obviated the need for a contested committal and trial. In addition, you co-operated with the police by providing them with your passwords and made full admissions in the record of interview.

16I accept that your plea of guilty and your co-operation with the police do indicate that you have some insight into your offending.  Your counsel relied on a report from Ms Carla Lechner and she indicates that you have expressed shame and guilt about your offending.  She indicates also that you recognise that your actions are abhorrent and have sought appropriate help.  Your counsel did not contend that this constitutes remorse strictly construed, but I do accept that you have insight into your offending and that is relevant to your prospects of rehabilitation.

17In relation to your prospects of rehabilitation, your counsel relied on the conclusion of Ms Lechner that this did not appear to be an escalation of your prior offending but rather a relapse into old habits.  She submitted that after your earlier sentence for possession of child pornography, you had a significant period without further offending and that this supported the proposition that you have prospects of rehabilitation.

18Relevant to this is that since the offending came to light, you have re-engaged with a psychological counselling service and have been referred to a psychiatrist, although you have not yet seen that psychiatrist.  The learned Crown prosecutor submitted that your prospects of rehabilitation should be regarded as guarded.  Overall, I regard your prospects of not reoffending as fair to reasonable.  You have obviously had a long term problem with depression and anxiety and have been on medication.  Your explanation for this offending was a lapse into depression as a result of a decline in mood when your cat being put down.  You relapsed into child pornography as a means of distraction.

19You have however recognised the need for professional help.  It is clear from the earlier report from Mr Patrick Newton that you have entrenched pervasive interpersonal difficulties and social skills deficits.  He opined that you require long term professional assistance.  You have already undertaken one course of a sex offender program as part of your earlier sentence.  Your rehabilitation will be enhanced by a further sex offender program and further supervision, which I propose.

20Your personal circumstances were set out on the plea.  You are now aged 39.  Your father has passed away but your mother and an older sister were present in court to support you.  You grew up in the Moe area and attended local schools until the start of Year 12.  You left school at that point and commenced but did not finish a hospitality course, and since that time, you attempted a security course but did not graduate into the workforce in that field.  For the past 20 years you have basically been unemployed, although in recent times, for the last four years, you have worked on a casual basis as a gardener and labourer with a local institution.  You work limited hours and basically live a solitary existence with no real friends or social networks.  You are regarded by Ms Lechner as being of low average intelligence.  You do not use alcohol or illicit drugs.

Sentencing considerations. 

21The learned Crown prosecutor submitted a term of imprisonment was called for.  She submitted that intermediate appellate courts have repeatedly stated that the pervasive availability of child pornography and the effect it has on victims calls for deterrent sentences at all times.  Your counsel did not dispute this submission.  I regard general deterrence as a paramount consideration in sentencing you.  The sentence of the Court must denounce your conduct, vindicate the victims of the offending and deter others from accessing this material.  It must attempt to send a signal that despite the ready availability of this material on the internet, those found to be accessing or making available such material will be the subject of terms of imprisonment.

22In your case, specific deterrence also has some salience given a direct prior conviction.  In sentencing you, rehabilitation is also a consideration.  It is always in the community interest for an offender to be rehabilitated and reintegrated into the community.

23In sentencing you, I have taken into account all the matters set out in s.16A of the Crimes Act (Cth) and have regarded a sentence of imprisonment as a last resort.  The learned Crown prosecutor submitted that there should be some cumulation between the sentence on the two offences.  I do not accept that submission.  Your offending involved a course of conduct or a continuum over a 13 month period.  Within that period, for a period covered by the first offence, using similar software, you made available child pornography.  While I accept that that offending is different from that in Charge 2, which involves accessing of child pornography using a carriage service, given that the actual images that are the subject of Charge 1 are captured within those the subject of Charge 2, I regard there as being a substantial overlap between the two charges and in those circumstances, I do not accede to the submission that there should be a cumulation between the two counts.

The sentence of the court is as follows.

24On Charge 1, you are sentenced to a term of imprisonment of six months.  On Charge 2, you are sentenced to a term of imprisonment of ten months.  I direct that those two sentences be wholly concurrent.  I direct that you after you have served a period of six months, provided you agree, you will be released on a $1,000 recognisance for two years.

25There will be terms of that recognisance as follows.  That you be of good behaviour for two years, that you be under the supervision of the Deputy Commissioner of the Community Corrections Service and the sex offender management or his or her nominee for a period of two years.  That you attend for assessment, and if assessed as suitable for a sex offender program or programs, to reduce offending as directed by the Deputy Commissioner or the Community Corrections Services and the sex offender management or his or her nominee, that you report to the Morwell Community Corrections Centre, 25 Anne Street, Morwell, by 4 pm within two business days of your release.  That you report and receive visits from the Community Corrections officer or officers.  You notify the Morwell Community Correction officer of any change of address or employment within two clear working days, and you do not leave Victoria without the permission of the Community Corrections officer and in addition, you obey all lawful instructions and directions of the Community Corrections officers.

26So I have got to explain the sentence to you.  I have accepted the submission of the prosecution that you must serve a sentence of imprisonment.  I have ordered that you be sentenced to ten months' imprisonment, total effective sentence, but I have also ordered that after you serve six months, you be released on a recognisance, which is a bond, to be of good behaviour for a period of two years, and over that period of that bond, you undertake a sex offender program and be under supervision of the relevant Community corrections officer.

27I will have the paperwork prepared.  I will ask counsel to explain it to you and have you sign it before I resume.

28I declare that pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty, I would have imposed a total effective sentence of 13 months' imprisonment and ordered that you serve nine months before being released on a two year good behaviour bond or recognisance order.

29Consequent on my sentence, you are required to be on the Sex Offender Register for life.  My associate will prepare the relevant paperwork for that.  You have got to sign that.  That again will be explained to you, you understand that because you have been on it previously, but now you have got two more convictions, then the Sex Offender Program kicks in for life.  It is not part of the sentence, it is a consequence of the sentence.

30Any other matters, Madam Prosecutor?

31MS BRECKWEG:  No sir, thank you.

32HIS HONOUR:  Madam Defence Counsel?

33MS RAMSAY:  No, Your Honour.

34HIS HONOUR:  Well I will stand down while my associate prepares the paperwork for both the recognisance order, the sex offender program, if you can explain it, then I will resume.

35MS RAMSAY:  Yes, Your Honour.

36(A short time later.)

37HIS HONOUR:  Mr Bechaz, as I indicated before, I require that you serve six months of this ten month sentence that I have imposed on you and then when you are released, you are on a two year good behaviour bond for the sum of $1,000.  And then you have got to comply with directions of the Community Corrections officer, undertake the sex offender program, receive visits, tell them of your change of address or change of job.  If you commit an offence in that two year period, then that breaches the recognisance and you may be required to pay the $1,000 and you will then also may be required to serve the balance of the four months of the sentence.   Now, you understand all that?

38OFFENDER:  Yes.

39HIS HONOUR:  And then on top of that, you are on the Sex Offenders Register and you have got to comply with that and you have already been before a court once for failing to meet your obligations under that.  It is an onerous set of requirements, but you are going to have to do it for life, that includes a new mobile phone, you name it.  So I do not want to see you back in this court or in the Magistrates' Court for failing to comply with that or breaching this order and I just hope you can reflect on the need to modify your behaviour in the light of the sex offender program in the sentence that I am imposing on you.

40So I want to thank counsel for their assistance.  Thank you for your assistance in this circuit so far.

41MS BRECKWEG:  Thank you, Your Honour.

42HIS HONOUR:  Ms Ramsay for your helpful assistance and adjourn.

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