OVERVIEW AND SUMMARY
Will a conviction be recorded?
Given that for the State version of this offence the maximum penalty is 14 years imprisonment, and that the vast majority of offenders who are convicted of this type of offending receive a period of actual imprisonment, avoiding the recording of a conviction is extremely difficult. But it can be done.
Recently in the case of The Queen v (REDACTED) convinced the sentencing court that my client should receive a penalty which permitted it to refrain from recording the conviction against his name. It was a fine balancing exercise.
Firstly, I recognised that the gravity of the offending must be lowered. This was done by demonstrating that the Crown could not adequately classify each of the images.
Then the type of treatment and rehabilitation specific to my client’s reasons for offending had to be secured. Lastly, strong evidence of the intertwined relationship between my client’s employment and continued rehabilitation needed to be demonstrated. In the end, that was all accomplished and my client was appropriately given a sentence which was very rare indeed.
TRANSCRIPT OF PROCEEDINGS
DISTRICT COURT OF QUEENSLAND
Indictment No 2435 of 2020
10.59 AM, THURSDAY, 28 JANUARY 2021
Any Rulings that may be included in this transcript, may be extracted and subject to revision by the Presiding Judge.
HER HONOUR: Mr (REDACTED), if you could please stand up. You are being sentenced by me for two counts of possessing child exploitation material. The maximum penalty for this offence is 14 years imprisonment. The history of this matter coming before me today is that police executed a search warrant in November 2019 at your family residence when you were away from work and your nine and five year-old sons were at home. A number of devices were seized which later revealed your offending. You were then charged and released on strict bail conditions which meant that you had to leave the family home and have supervised contact with your children, it seems, for some eight months.
An indictment was presented after a committal hearing last year. The indictment was presented in November and you indicated, at that point, a guilty plea. In the circumstances that have been outlined, I accept that when you pleaded guilty before me this morning, that this was an early guilty plea and that you have assisted in the administration of justice. I have taken into account your early guilty plea in determining the sentence that I am going to impose upon you today. In your case I also accept that not only is your guilty plea an indication of your remorse, there is also an abundance of other material before me which reflects, what I find to be the case, that you are genuinely remorseful for your offending.
You have pleaded guilty on a schedule of facts that I have marked as an exhibit before me. This schedule sets out that there were two devices on which child exploitation material was found.
You are being sentenced on the basis that you were in possession of that material on one day; the 28th of November 2019. Authorities are unable to tell when that material was downloaded or for how long you have had it. What the material revealed was that there were child exploitation images and videos in your possession. There were three images and 12 videos in what is called category 1. That is, there was child exploitation material involving children under 13 years, and there were six images and 14 videos of other illegal child exploitation material. This included images of naked, prepubescent girls performing oral sex on the erect penis of a naked, adult male lying on a bed, as well as an image of a girl under 13 looking at a flaccid male, adult penis.
It is accepted that there were no very young children in this material. That is, there were no young girls under nine in any of the material that was found in your possession.
The category 2 images included girls under 13 showering, exposing their breasts, being touched and performing oral sex on a male. The category 2 videos include both clothed and naked young girls under 13 performing oral sex on adult males and an adult male having penile sex with a girl under 13. These videos also included naked adult men performing various sexual acts, including penile sex with naked girls, both under and around the age of 13, exposing their vaginas and touching themselves and masturbating. The difficulty is, and it is accepted by the Crown, that the number of videos or images within the categories have not been identified, but I am sentencing on the basis that there is at least one image and at least one video of a concerning nature in each category.
These offences are generally regarded as extremely serious. Only as recently as last week, the Queensland Court of Appeal in the Commonwealth Director of Public Prosecutions v Cooper  QCA 4 restated the general principles for sentencing in cases involving child exploitation material, such as this case, to include that:
General deterrence is the primary sentencing consideration for offending involving child abuse material given the prevalence and ready availability of pornography involving children, particularly on the internet, and the need to protect children from sexual abuse. There is a paramount public interest in promoting the protection of children as possession of child pornography is not a victimless crime, the possession of child abuse material creates a market for the continued corruption and exploitation of children, and children are sexually abused in order to supply the market.
The Court of Appeal also emphasised that:
The fact that an offender has no relevant prior convictions carries less weight in sentencing for child pornography offences. Offending involving child abuse material occurs on an international level, and the advent of the internet as a means to access child abuse material means both that such offending is becoming increasingly prevalent. The fact that an offender did not pay to access a child abuse material website or was not involved in the distribution or sale of child abuse material, does not necessarily mitigate the offending.
And the Court of Appeal set out that:
The subjective circumstances of an offender must not overshadow the objective gravity of the offences.
The Court of Appeal also recognised that:
There are a number of relevant considerations when assessing the objective seriousness of offences involving child abuse material.
And including, relevantly in your case: the nature and content of the material, the age of the children, the gravity of the sexual activity depicted, including the extent of any cruelty or physical harm to the children that may be discernible from the material and the number of items or images possessed, accessed or transmitted, and whether the material is for the purpose of sale or further distribution.
It is with these principles in mind I want to turn to your personal circumstances. You are 43 years of age and you were 41 at the time relevant to these offences. You have no criminal history. You are married and have been for 11 years. You have two young sons. You are highly intelligent and analytical. You have been diagnosed as being on the mild end of the autism spectrum, but without any intellectual impairment. You are a man who has a full-time position with a food sales company. On the material before me I can see that the offending has had a devastating impact on your life and those around you.
But very much to your credit, you have shown remorse and great courage over the last year. Many people, both family and friends, family on both sides, and your employer, know of these charges and have been prepared to provide references to the Court, which I had a chance to read before coming to Court. They speak of you with high regard. You also had the courage to tell many of these people of the charges face-toface. And, again, that is something that bodes in your favour.
You self-referred to Dr REDACTED, a forensic psychologist, almost immediately, and you undertook some 15 sessions with him. Your wife and father are present in Court today. Your wife attended your sessions with Dr REDACTED with you on a number of occasions. She supports and has stood by you. The therapy and rehabilitation by you is impressive. You have also sought and spoken to a psychologist, Associate Professor REDACTED and I have his report, which I have read. It has centered around your therapy and your understanding and managing of your compulsion towards adult pornography, which it seems, resulted in you accessing the material for which I am sentencing you today. I have before me a relapse prevention plan that shows great insight into your offending and that you have put considerable steps into place right from the outset since you were charged with these offences.
In this case, on the evidence before me I am satisfied that you are a low risk of reoffending and that you are not a person who has a sexual interest in young children. As the Crown rightly recognised, these are difficult cases to sentence. Parliament has legislated now that I must impose a sentence that sees an actual term of imprisonment unless I find that there are exceptional circumstances. You stand to be sentenced pursuant to the principles set out in section 9( 4 )(7)-(7 A) of the Penalties and Sentences Act.
In relation to the nature of the offending, I have taken into account that there were only three unique images and 12 unique videos falling into category 1 and that the ages of the children do not fall below the age of nine. None of the activity depicted involved the children being hurt or bound. Overall, there was a limited time period, limited images and whilst some of the images are concerning, I do not know how many, I am sentencing you on the basis that there were only a few. There were no aggravating aspects to the material found and so I find that the nature of the offending is at the lower end for this type of offences.
In relation to your personal antecedents and the matters set out in (9)(7)(b ), which includes the need to deter similar behaviour by other offenders in order to protect children, I take into account that the deterrent aspect of sentencing is important in this case. In terms of your rehabilitation, it is considerable, and I must say, in my over four years as a judge, certainly some of the most impressive rehabilitation that I have seen. The medical and psychiatric evidence before me supports that you are a low risk of reoffending and that there is little need to personally deter you in the penalty to be imposed. There is genuine remorse. In your case I find that there is no need to be concerned about the safety of children under 16.
Ultimately, I have reached a view that a combination of features justifies a finding of there being exceptional circumstances in your case; those being the low number of images and videos, the extent of the rehabilitation, that you are a low risk of reoffending and that you have considerable support in the community. So, having reached the view of there being exceptional circumstances, the question then becomes: what is the appropriate penalty in this case?
I have taken into account the decisions that the Crown has provided to me of R v Vantoosten  QCA 54 and R v F ormenton  QCA 77.
Both of these cases involved more serious offending, but the defendants had different personal circumstances than yours. They are of some assistance because they restate the principles. I have also taken into account R v Daw  QCA 386 and each of the single judge decisions provided by your Counsel.
No case is on all fours, but ultimately too in considering what the appropriate sentence is, I have considered the purpose for which I am imposing a sentence. I need to punish you to an extent and in a way that is just in all the circumstances. I need to provide any conditions which I consider will help you to be rehabilitated. I need to deter you and other people from committing this or similar offences. I need to make it clear that the community acting through the Court denounces the sort of conduct in which you were involved, and I need to consider protection to the Queensland community.
I have found that there are exceptional circumstances. I consider a community-based order is appropriate in your case. To ensure your continued rehabilitation, I consider that a period of one-year probation and two hundred hours community service is appropriate. I also consider that in the exercise of my discretion whether to record or not to record a conviction, that the recording of a conviction would have an impact on both your economic and social wellbeing.
It would affect your ability to do your work and this would mean an inability to assist your wife with supporting the family. It would also affect you socially because, if I record a conviction, it will make you a reportable offender. I consider that to be an unnecessary impost on the State given that you are a low risk of reoffending and I do not need to protect the broader community from you.
So I am, subject to you agreeing, placing you on probation and community service. I am proposing not to record a conviction. But before I can impose community-based orders, I need to tell you a few things and you need to agree. I am proposing a period of one-year probation. The purpose of that order is to enable you to be supervised in the community. The effect of the order is that you will be released under the supervision of an authorised corrective services officer for a period of one year and that you must not commit another offence during the period of that order. You will need to report to an authorised corrective services officer where will that – – –
MR McMILLAN: Brisbane Central, your Honour.
HER HONOUR: Brisbane. Can he get there today?
MR McMILLAN: Yes, your Honour.
HER HONOUR: By 5 pm today. And you will need to report and receive visits from an authorised corrective services officer as directed. You will need to take part in counselling and satisfactorily attend other programs. I am going to direct that you submit to such medical, psychiatric or psychological treatment as is directed by an authorised corrective services officer in order to assess your physical and mental health and support you in rehabilitating yourself from your problem.
Now, in your case it may be upon provision of the reports of Dr REDACTED and Associate Professor REDACTED that there may not be any further need for any treatment, but that is part of my order. You will need to advise an authorised corrective services officer of every change of your place of employment within two business days.
And you will not be able to leave or stay out of Queensland without the permission of the authorised corrective services officer.
And you will need to comply with every reasonable direction. Now, if you fail to comply with these requirements, you can be punished for that and you can be brought back and resentenced for these offences. This order can be amended or revoked on an application by you, an authorised corrective services officer or the Director of Public Prosecutions. Do you understand those requirements?
DEFENDANT: Yes, your Honour.
HER HONOUR: Do you agree to the order being made?
DEFENDANT: Yes, your Honour.
HER HONOUR: And do you agree to complying with the order?
DEFENDANT: Yes, your Honour.
HER HONOUR: Now, I am also going to impose a period of 200 hours community service. Again, 1 need to tell you a few things. The effect of that order is to enable you to be supervised in the community. You are to perfotm 200 hours within one year of this order. And as with the probation order, you will need to report to the authorised corrective services officer at Brisbane by 5pm today.
You will need to receive visits from that officer, you will need to perform in a satisfactory way, the community service directed. You will need to again notify the officer if you change address or work. You cannot leave or stay out of Queensland without the permission of an authorised corrective services officer and you will need to comply with every reasonable direction. Now, if you do not comply with the order you can be punished for that and you can also be resentenced for these offences. This order can be amended or revoked on an application by you, an authorised corrective services officer or the Director of Public Prosecutions. Do you agree to a community service order being made?
HER HONOUR: Do you agree to a community service order being made?
DEFENDANT: Yes, your Honour,
HER HONOUR: And do you agree to complying with the order?
DEFENDANT: Yes, your Honour.
HER HONOUR: Now, I can make the one order for the two offences in this case.
MR McMILLAN: Yes, your Honour.
HER HONOUR: So, in relation to the two offences, I order that you be released -and a conviction is not recorded.
I order that you be released under the supervision of an authorised corrective se1vices officer for a period of one year and that you must comply with the requirements set out in section 93( l) of the Penalties and Sentences Act and report by 5 pm today to an authorised corrective services officer at Brisbane. T order that you submit to such medical, psychiatric or psychological treatment by an authorised corrective services officer.
I also order that you perform 200 hours community service and that you must comply with the requirements set out in section 103(1) of the Penalties and Sentences Act and report by 5 pm today to an authorised corrective services officer at Brisbane. Conviction is not recorded.
I also make an order in terms of the draft. That is, an order for forfeiture which I have initialled, and I will place with the file. I will direct too that a copy of exhibits 4, 5 and 6 be provided to corrective services. That is, the relapse prevention program, the report of Associate Professor REDACTED and the report of Dr Gavin REDACTED. Now, is there anything that I have overlooked?
MR McMILLAN: No, your Honour.