New South Wales District Court CITATION: R v Darren William Gibb [2009] NSWDC 340 HEARING DATE(S): 18 September 2009 JUDGMENT DATE: 18 September 2009 JURISDICTION: District Court Criminal JUDGMENT OF: Knox SC DCJ Count 1 The offender is sentenced to a term of imprisonment of 16 months with an additional term of 11 months, to be served concurrently. DECISION: Count 2 The offender is sentenced to a term of imprisonment of 16 months with an additional term of 11 months, to be served concurrently. Count 3 The offender is sentenced to a fixed term of imprisonment of 12 months, to be served concurrently. CATCHWORDS: Sentence - Child pornography - Procedure adopted in viewing images in courts - Nature of images - Offender's disabilities - Cerebral palsy - Difficulties in incarceration Crimes Act 1900 LEGISLATION CITED: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth) Assheton (2002) 132 A Crim R 237 Cahyadi v R (2007) 168 A Crim R 41 Johnson v R [2004] HCA 15 Jones (1999) 108 A Crim R 50 CASES CITED: Pearce v R (1998) 194 CLR 610 R v Gent (2005) A Crim R 29 R v Kani [2004] NSWCCA 143 R v Totten [2003] NSWCCA 207 R v Way [2004] NSWCCA 131 Ryan v R (2001) 206 CLR 267 PARTIES: Regina Darren William Gibb FILE NUMBER(S): 2009/11/0222 COUNSEL: Mr B Neild - The Crown Ms P David - Offender SOLICITORS: Commonwealth DPP SENTENCE 1 HIS HONOUR: The offender Darren William Gibb appears for sentence. The relevant charges and legislation are as follows. On 31 March 2009, the offender pleaded guilty to the following counts: COUNT 1 Between 1 March 2005 and 13 May 2008 he used a carriage service to access child pornography contrary to the Criminal Code Act 1995 section 474.19. The maximum penalty for that offence is imprisonment for ten years. COUNT 2 A charge of possessing child pornography contrary to the Crimes Act 1900 (NSW) section 91H(2). The maximum penalty for that offence is imprisonment for ten years. COUNT 3 Possess child pornography contrary to Crimes Act 1900 (NSW) section 91H(3). The maximum penalty for that offence is imprisonment for five years. BACKGROUND: THE MATERIAL DEPICTED 5 A statement of agreed facts was tendered (exhibit S2). That provided as follows: The Australian Federal Police were provided with information that a computer with its IOP address located at Mr Gibb's address was used to download a total of forty-seven images classified as child pornography. On 13 May 2008, a search warrant was executed on Mr Gibb's residential premises. 6 About 200 image files and videos were found on his personal computer. The majority of those files contained child pornography. They ranged from depictions of children posing in a sexual manner or with focus on the genitalia to penetrative sexual activity between children and adults, children depicted as the victims of violent sexual acts and children engaged in bestiality. There was a collection of about thirty magazines and newspaper clippings relating to children in underwear or swimwear. 7 An analysis of the laptop showed 335 child pornography videos and 9,374 child pornography images. 4,663 of those images have a creation date after 1 March 2005. NATURE OF THE IMAGES 8 The images and videos depict children between about six months and 15 years of age. They ranged from depictions of children posing in a sexual manner or with focus on the genitalia to penetrative sexual activity between children and adults, as I have said. In excess of 2,000 images depict adult males engaged in penetrative sexual activity or committing other sexual acts on children under three years of age. 9 The Australian Federal Police classified 5,803 of the images in child pornography categories, with a remaining 3,572 images of a similar nature. The following categories were found: 5,024 images depicted children ranging in age from infant to about 14 years of age, naked or in various states of undress posing in a sexual manner; 153 images depicted sexual activity between children and solo masturbation by a child; 227 images depicted non-penetrative sexual activity between adults and children ranging from infancy to 12 years; 13 images depicted sadistic acts committed on children or children involved in sexual activity with animals; and 335 child pornography videos depicting children ranging from infancy to 14 years of age showing penetrative sexual activity between children and adults, children depicted as the victims of violent sexual acts and children engaged in bestiality. CHILD PORNOGRAPHY VIDEOS 10 The 335 child pornography videos depict children ranging in age from infants to about 14 years of age. Again, they depict posing, penetrative sexual activity between children and adults, children depicted as the victims of violent sexual acts and children engaged in bestiality. 11 Again, there can be no ambiguity about the titles used for the offending material as shown on the desktop. Those were detailed in the statement of facts. USAGE 12 Mr Gibb did not deny that he had looked at the child pornography nor did he dispute the quantity. Mr Gibb reported that he had been deliberately looking for child pornography for approximately two and a half years prior to his arrest. He admitted to being sexually aroused by the images as well as masturbating in front of them. 13 Mr Gibb stated that he would access the pornography initially weekly, and then on a daily basis, for up to six hours per day. Mr Gibb denied that he preferred images of children engaging in sexual intercourse, but said that he preferred images depicting naked children in sexual poses and he denied enjoying sadistic images. Nevertheless, those images were found on his personal computer. TEXT 14 Mr Gibb admitted to having written a text some years ago but that the stories were fictitious. 15 The material was located in folders on the laptop that had been saved but was saved to a separate folder and included titles such as "Pedoland baby", "Baby-She ass raped", and "FYO Lucy - masturbation." 16 In excess of 200 images depicted penetrative sexual activity or committing other sexual acts on children under three years of age. 17 Also located in the accused's bedroom was a notebook containing eight pages of stories that he had written detailing children in a sexualised context in the presence of adults. CHILDREN PORTRAYED 18 The material recovered displayed in excess of 800 individual child victims depicted in the video and images. The offender now says that he is aware of how bad the situation is for the children involved. VIEWING OF THE IMAGES 19 A summary of the relevant videos and images, exhibit 15, was played in open court, although with a restricted viewing. In my view, it is appropriate that these matters be played in open court as part of the sentencing process, although with the restricted viewing, a viewing not visible to the offender. It is necessary to balance two matters and two conflicting objectives and they are these; firstly, that there should not be a repetition of the exploitation of the young people involved and shown in the videos and other offending material. Steps need to be taken, when appropriate, to ensure the children depicted are not identified. Secondly, I think it is important that the community knows of the material on which the sentencing exercise is proceeding. 20 Here, the images are sordid, depraved and exploitive and I should add, distressing. They include actual or simulated acts of intercourse, penetration and bondage including acts involving infants and pre-pubescent children. There were some images and sexualised posing and some indicating real distress and repugnance on the part of the children. PERSONAL DETAILS OF THE OFFENDER 21 The offender is aged thirty-eight years. He has extensive disabilities associated with the cerebral palsy from which he suffers. He is on a disability support pension. He resides with his sister and, until recently, a twenty-four year old nephew. He has no prior convictions; which is an important matter. 22 Certificates of achievement were also tendered (exhibit S13), indicating that the offender has attempted to better himself in the recent past and pursued interests in matters of animal welfare and training. ORAL EVIDENCE 23 The offender gave evidence and confirmed virtually all the material contained in the tendered documents. 24 He said he knew that what he was doing was wrong. He said he could not stop. It was "like a drug". He would stop for a few days and then access the material again. He was relieved when the police came. He did not want to live like that anymore. 25 He admitted that some of the videos he watched contained sexual acts. He did not try to delete all these videos. There were folders of material on his desktop. 26 He said he was aware of the shock these matters had been to his family. The offender said he was particularly fearful of imprisonment and that he was defenceless. A drunk had attacked him 18 years ago when he was on a walking stick and on another occasion. The offender said he wished to get involved in the Spastic Centre. He intends to continue treatment with Dr Powell, which I will refer to later. He said, and I accept, that he would continue with that treatment. He said he believed his treatment with Dr Powell has stopped him from looking at pornographic material anymore. 27 Mr Gibb told the Forensic Psychology Service (exhibit S8) that he had never had an intimate relationship with another person. He had a very close relationship with his mother, which was one of strong dependence. Once she died, he experienced great difficulty in coping and developed a sense of abandonment. He turned to pornography and masturbation as a coping mechanism. What started out as a "general curiosity" for child pornography soon developed into an addiction. The risk factors for Mr Gibb were times when he felt emotional stress, isolated and when he was alone in front of his computer. PROBATION AND PAROLE REPORT - 19 JUNE 2009 (EXHIBIT S3) 28 The report indicated that Mr Gibbs was adopted by his current family who included, on his description, "loving and great parents". He resided in the home until his mother died last year. His sisters were present in court and were shocked to hear of their brother's offences. They have rallied around him to provide him with their support. EDUCATION 29 The offender attended the Spastic Centre in Mosman where he obtained his Year Ten School Certificate. He has worked temporarily as a cleaner for some limited periods. 30 The report paints the picture of the offender as a lonely man who has been unable to form a normal relationship with the opposite sex because of his disabilities. He became involved with adult pornography and was then exposed to child pornography, which brought him before the court. His oral evidence was to the effect that the initial exposure was accidental. However, clearly, his later usage was deliberate and continual. HEALTH/MENTAL HEALTH ISSUES: REPORT OF DR ZEMAN - 12 FEBRUARY 2009 (EXHIBIT S5) 31 I have had regard to the report of Dr Zeman of 12 February 2009 (exhibit S5). Dr Zeman is a medical practitioner and consultant in rehabilitation medicine. He said that Mr Gibb is a significantly physically disabled man with impaired mobility and deformities which will deteriorate over time over the next ten years until he is ultimately permanently wheelchair bound. His speech is affected but he is able to engage and comprehend discussion although, as noted elsewhere, he has a severe stutter. That was evident while giving his oral evidence. 32 Dr Zeman noted that the offender has difficulties in walking too far and is not able to carry anything while using a walking stick. He has some difficulties in communicating verbally and would not be able to call out for assistance in emergencies or if attacked. He is five foot, one inch in height and is of slight build, about 77 kilos in weight. REPORT FROM PASTORAL COUNSELLING INSTITUTE: SEX OFFENDER ISSUES 33 Relevantly noted in the report dated 10 June 2009 (exhibit S4) that Mr Gibb demonstrated very little insight into his behaviour initially. He has only just begun to grasp what his behaviour reveals about his personality. Since then, he has indicated a willingness to address the issues raised in that report. 34 The report notes that "Mr Gibb articulated very strong moral and ethical values". There appears to be a strong link between his values and his family of origin. The family is not without its social problems including a brother who has been in jail for offences relating to drunkenness. However, the immediate family members support the offender and are uncompromising in challenging his criminal behaviour. They are willing to put clear boundaries around him as a condition of contact with the family. 35 He acknowledged the seriousness of the images to the author of that report and that he wanted to look at naked children. He said he was unaware of how many images were there. He said he did not know how to type in addresses on the computer nor did he use it for the purpose of typing or creating files. He does not use email. As I have said, he tried to delete some of the images but was unable to do it. ASSESSMENT 36 His risk of re-offending, in terms of using child pornography, has been assessed as low. 37 The report states that Mr Gibb is considered appropriate for treatment in the Institute's individual therapy process. It would be conducted in conjunction with the Probation and Parole Service over a 12 month period. 38 The medical assessment report carried out by Dr Brian Zeman of the Vocational Centre contains the following conclusions: Mr Gibb is a significantly disabled man. He has impaired mobility and deformities that will deteriorate in time. He will need suitable accommodation and support to cater for his limitations in some equipment. He had medical problems that will require monitoring and treatment. FORENSIC SERVICE REPORT 39 A report from NSW Forensic Services section of the Department of Corrective Services dated 14 July 2009 was tendered (exhibit S8). It said there would be difficulties in the offender being able to be involved in any group-based programs because of his speech impediments. 40 Mr Gibb presented as a well groomed, polite, thirty-eight year old man in terms of that report. He has had cerebral palsy since birth and as noted earlier, the basis of that report is that he has symptoms including the stutter, the walking difficulty and the aid of a walking stick, for example relevantly, as far as the Correctional Services environment is concerned, a tray of food. 41 The reporter indicates that Mr Gibb displayed good insight into some potential antecedents to his offending behaviours. He was forthcoming with information and did not appear to minimise or rationalise his behaviour. 42 Mr Gibb's offending behaviour appeared to be primarily as a result of him using sex as a coping mechanism in the absence of any intimate relationships. OFFENDER'S FAMILY 43 Family references were tendered from the offender's sisters. They became exhibits S11 and S12 and testified to the offender's loving and caring nature and his position in the family. They also gave oral evidence. 44 Ms Jillian Gibb confirmed the family's support for the offender. She had attended the offender's counselling sessions with Dr Powell. The family had purchased the computer for the offender to keep him occupied. I accept that none of the family knew of the illegal items being viewed and used. Clearly, the offender was able to conceal this aspect of his usage from the family. 45 Ms Gibb proposes that the offender would return to live with her. She now is in the practice of searching the offender's room and other areas such as the garage to ensure that there is no prohibited or inappropriate material. Ms Gibb has impressed me as someone who would undertake the difficult tasks associated with the ongoing supervision and support of the offender. I accept her evidence of the offender's remorse but in my view that has come about for a mix of motives. 46 Ms Dawn Turner, another sister of the offender, gave a written reference and oral evidence on behalf of the offender. She said she was prepared to take the offender to periodic detention if so ordered. 47 Ms Turner and her sister both expressed their concern for the offender based on his vulnerability, his mental and emotional instability and his tendency to trust people in circumstances that might rebound on him. JUSTICE HEALTH REPORT (EXHIBIT 6) 48 A Justice Health report was tendered (exhibit S6). Ms Jan Dougherty, the Manager of the Statewide Disability Services for the NSW Department of Corrective Services gave evidence. The report notes that Justice Health does not have extensive experience in managing prisoners with cerebral palsy, but would take advice from specialists at the Prince of Wales Hospital. Justice Health regularly takes care of patients with mobility problems ranging from a need for a walking stick up to quadriplegia. The report noted that there have been 17 offenders with cerebral palsy within the Department. Those inmates are usually managed in mainstream correctional centres. 49 Ms Dougherty said that the Department had had experience in the managing of offenders with cerebral palsy. There is a call-out button in every cell. Arrangements can be made for a ground floor cell to alleviate walking difficulties. Ms Dougherty said that food could be taken to the offender if he was incarcerated. The condition of incarceration would depend on the initial and on going assessment of the offender. 50 The report recommends that the offender's access to a computer with the Internet should be restricted. REMORSE 51 A psychosocial report was prepared through the Legal Aid Commission (exhibit S14). The offender had indicated that he felt ashamed and upset that he had let everyone down, including himself. He said to the author that he now realises how bad child pornography is and that it became a drug to him. He also said he felt awful about what he had done and aware that it had destroyed the lives of those involved. ASSESSMENT OF RISK OF RE-OFFENDING 52 It seems to me, looking at all the reports and the various tests and interviews, particularly the application of various risk assessment tests; they indicate that Mr Gibb is to be regarded as being in a low risk category of re-offending. RECOMMENDATIONS 53 The report notes that an offender may be eligible for the CUBIT program in the event that a 20-month custodial period is imposed. Alternatively, lower risk category inmates are eligible for the CORE eight to ten month program, which would follow a period of 15 months in custody. DIFFERENT FACTORS UNDER COMMONWEALTH AND STATE LEGISLATION RELEVANT TO SENTENCE 54 The offences under the Commonwealth legislation are more serious, not only in terms of the maximum penalties prescribed but also the activities prohibited, although the Crown argues to the contrary. The factors relevant to the Commonwealth offences are set out in section 16A Crimes Act 1914 (Cth). Those relevant to the state offence are set out in section 21A Crimes (Sentencing Procedure) Act 1999 (NSW). 55 The approach to be adopted where there are such multi-count, mixed jurisdictional counts with different penalties and different statutory and other relevant sentencing considerations was set out in the decision of Cahyadi v R (2007) 168 A Crim R 41 which I will follow here. STATUTORY FACTORS 56 In terms of the relevant statutory factors under the Commonwealth, the particular factors that I regard as being applicable pursuant to s 16A Crimes Act 1914 (Cth) are: (a) The nature and circumstances of the offences as detailed; (c) That the offence here formed part of a course of conduct, consisting of a series of criminal acts of the same or of a similar character; (d) The personal circumstances of the victims of the offence. Here, that they are children; (f) The degree to which the person has shown contrition for the offence and I have set that out; (g) That the person has pleaded guilty, which is relevant here; (h) The degree to which the person has cooperated with law enforcement agencies in the investigation of the offence; (j) The deterrent effect that any sentence or order under consideration may have on the person; (k) The need to ensure that the person is adequately punished for the offence; (m) The character, antecedents, age, means and physical or mental condition of the person; (n) The prospect of rehabilitation of the person that I have referred to. Those seem to be the matters of relevance in this particular case. SECTION 21A(3) FACTORS CRIMES (SENTENCING PROCEDURE ACT) 1999 AGGRAVATING FACTORS 57 There are few aggravating factors of relevance here in my view. MITIGATING FACTORS 58 Importantly, the offender does not have any prior criminal convictions. There has been evidence of some contrition and remorse expressed, which although genuine, came from a mix of motives. It was expressed in the face of the sentencing proceedings and should be viewed against the time period over which that offence took place. 59 In terms of submissions, the Crown submits that persons of good character such as the offender previously was, should be viewed in the light of a number of factors. Those were set out by the High Court in Ryan v Regina (2001) 206 CLR 267. I am entitled, in my view, in these circumstances to take that character into account. This is not a situation of a breach of trust - other than to a minor extent in terms of the trust that the family imposed on him - which I do not regard as relevant here. PLEA OF GUILTY 60 The offender pleaded guilty at the first opportunity. There is no issue that the full discount should be applied to both the Commonwealth and State offences. The offender's remorse and contrition expressed in his evidence in court and in the various reports was, in my view, genuine and not contrived. 61 In relation to the Commonwealth offences, to use the language used there, the plea had considerable value in facilitating the interests of justice and his willingness to facilitate those interests. In terms of the State offence, there was considerable utilitarian value in the plea and it was a further indication of remorse. 62 Relevant to all the charges is the fact that the plea, given the length of any trial which would have been held, it's impact on the time and resources of both the court and the various prosecutorial and law enforcement agencies was significant. A trial of these matters would also have meant that particular care would need to have been taken with any jury to ensure that only proper matters were admitted and that issues of prejudice were excluded, such that a proper and dispassionate consideration of the evidence was carried out. 63 I should specify though, considering this factor of the plea, that I do not regard the plea as appropriate to alter the nature of the sentence to be imposed from a custodial to a non-custodial sentence. Having regard particularly to the principles of general and specific deterrence that I am required to consider and the overall factual circumstances of the case, I specify that the discount applicable to the head sentence that would otherwise be imposed on each count will be twenty-five per cent. GENERAL DETERRENCE 64 As is often said, child pornography offences are not victimless crimes. There would be no market for those who create pornography by abusing children if there were no users. 65 General deterrence is the paramount sentencing consideration for these types of offences, as was set out in the decision of R v Gent (2005) A Crim R 29, at [100]. Offences of this nature primarily require the imposition of sentences that will both deter others in the community from committing similar offences and which will punish and denounce the conduct of the offender. 66 The Crown submits and I think appropriately, that the sentences to be imposed upon the offender must make clear to other like-minded persons within the community that these types of offences are abhorrent and that such offenders will be met with condign punishment to reflect the community's attitude to child pornography. The Crown submits that the only appropriate sentence here would be custodial sentences. Further, the Crown submits that any custodial sentences should include a significant period of actual fulltime custody. That seems to be relevant under relevant legislation: see s 17A Crimes Act; s 5(1) Crimes (Sentencing Procedure) Act 1999 (NSW). PREVALENCE OF OFFENCE 67 I should say that my experience and that of other judges in this court is that offences of this type are becoming increasingly prevalent in the community: see Assheton (2002) 132 A Crim R 237 at [35]. The advent of the internet has facilitated the prevalence of child pornography as it has provided a widespread medium that allows people to easily access, transmit and obtain possession of child pornography: see Jones (1999) 108 A Crim R 50 at [2]. The Internet provides an anonymous forum for people such as the offender to commit child pornography offences in privacy and with relative anonymity. 68 Offending is difficult to detect, however, the Internet is widely available and makes offences such as these easy to commit from within the home. The widespread availability of the internet and the difficulty of detecting offences, together with the relative ease by which child pornography can be accessed or distributed, mean that offences such as these call for a significant component of general deterrence. 69 The repeated experience of judges of this court, including myself, is that day after day we see young children turning into adults, then turning into offenders who have been in some way, shape or form, the subject of either child abuse or unfortunate behaviour when they have been exposed at an early age to this sort of conduct. I should, however, emphasise that the offender is not charged with any aspect of child abuse. There is absolutely no evidence of that. Nevertheless, the public interest considerations in ensuring that Internet and related accessing offences are condemned, particularly because of its impact on the children involved, must be reflected in the sentence imposed. FACTORS TO BE CONSIDERED 70 The authorities indicate that I need to consider the following matters: nature of the victim; ages of the children involved; the involvement of the offender with the victims; the acts displayed; the number of images; and the period of time over which the images were collected and received. 71 I have set out the relevant matters in this case and I do not propose to repeat them. Sufficed to say that there is no suggestion, and I should stress this, that there has been no involvement by the offender on any personal basis with any of the victims. 72 These facts were referred to in R v Gent (2005) 162 A Crim R 29, as a part of the range of factors which would bear upon the objective seriousness of an offence of possession in this case. Those are as I have set out and I do not propose to reiterate them for these purposes. 73 In that case, however, it was noted that the number of images as such might not be the real point, although these are clearly important matters here. In a case of possession of child pornography for personal use, the significance of quantity lies more in the number of different children who are depicted and thereby, victimised. Here, some 800 children were depicted. RISK OF RE-OFFENDING 74 The reports indicate that there is a low risk of the offender re-offending. Nevertheless, I think I have to be guarded about any findings that the offender, on his own, will be able to withstand the addiction and the lifestyle that produced it, in the future unless he both receives and maintains professional support and assistance from those close to him. I acknowledge that this is also going to impose a big strain on his family and, particularly, his sister. 75 The offender has acknowledged the extent of the compulsion he experienced. I do not think that on his own, he will necessarily have the emotional resources to withstand that addiction in the future if there is deterioration in his support or social structure. 76 The evidence as to his risks of re-offending put forward in the reports is to some extent intuitive and to some extent based on psychological and psychometric tools. Those are rudimentary at the present time. Nevertheless, they are of some value. NATURE OF MATERIAL 77 The particularly distressing factor, as far as a judge such as myself is concerned or indeed anybody viewing this material - and that also applies to the police officers who are compelled to watch this sort of material - are the substantial number of images of actual or simulated violence to young children and particularly the images of bondage, bestiality and acts of violence. One has only to see the distaste and tremor on some of the faces of the young people forced to commit acts of intercourse while being filmed to appreciate that. 78 The images in which the offender viewed included a number of actual or simulated violence to children. The child pornography images in the possession of the offender had necessarily been obtained by the offender over an extended period of time dating back to 2005. It was his own computer, not accessed by anyone else. Those considerations must be viewed against the background of the authorities that I have referred to and that means that less weight is attached to prior good character for an offence of this nature. CLASSIFICATION OF MATERIAL 79 Taking into account the context of the material which is different in relation to each of the three counts; the numbers and ages of the children involved, the kinds of acts displayed, all of which are different, these offences come within the mid-range category, although I have to say that some of the images depicted are not the worst, but certainly amongst the most damaging I have seen. 80 The offender was not charged with the exchange of pornography, nor in the commercial trading of this material. Those matters, thus, do not arise for consideration. 81 The difficulty with the new activities and the training and counselling being pursued by the offender is that they postdate the offences. Again, those activities including the certificates that he has obtained were all obtained in the face of the sentencing proceedings. SENTENCING OPTIONS 82 The offender has been assessed as unsuitable for either a community service order or a periodic detention order. A subsequent periodic detention assessment (exhibit S9) was prepared assessing Mr Gibb as suitable for periodic detention, if he attended midweek periodic detention. In such an event he would be placed in a special program for all disabled detainees. 83 I do not think that a fine or a suspended sentence is an appropriate vehicle to indicate the community's disapproval of this offence nor indeed a community service order. That does not reflect the principles of general or specific deterrence. After some considerable deliberation, nor do I consider that periodic detention is appropriate, particularly given the offender's medical condition and his disablement, notwithstanding the difficulties and hardship he will have in gaol, his family support and my view that he is unlikely to offend again. However, the requirements of general deterrence, given the nature of the offences, mandate a sentence of fulltime custody. CONSIDERATION 84 In terms of my consideration as to the period which becomes relevant, the enormous number of images of child pornography possessed by the offender, depicting hundreds of different children, places the offender's conduct in a serious category of offending. The fact that the offender also had hundreds of videos of child pornography is also a matter that reflects the objective seriousness of his offence. 85 These are persons not known to the offender. Nevertheless, these are offences that have been frequently said to generate suffering; not only to the young children involved, but also to those with whom they are associated. My observation was that many of the young people involved seemed to be of Asian origin or mixed race backgrounds in situations of poverty. 86 Further, the use of this material only feeds the powerful addictions and commercial motivations of those involved with this insidious industry. However, I must specify here there was no commercial use or trading by this offender. 87 I have already indicated my finding on the mid-range category, but that includes matters that are both at the bottom and close to the top end as I have said earlier. NATURE OF MATERIAL 88 The nature and content of the pornographic material, including the age of the children and the gravity of the sexual activity portrayed, I have already referred to. On any view, the material was graphic, explicit and degrading. It involved substantial numbers of children engaged in actual and presumably simulated acts of grossness and depravity and there were many different kinds of material involved. 89 Again, I come back to the fact of the victims. These are not victimless crimes. The children involved were mainly pubescent and pre-pubescent, some were infants. The level of depravity involved in making images of children in these kinds of offences, let alone considering the long term and widespread likely emotional damage and worse, is something which must be the subject of condign punishment whenever the courts are called upon to impose sentences for offences of this nature. 90 The acts displayed included acts of bondage and cruelty and young girls being tied up. Whether those acts were simulated or real is not for me to determine, but the acts displaying children involved in oral sex, particularly with adult males, do not appear to be in my view other than real, graphic and disgusting. 91 The number of images involved is substantial and displays not only a careful process of acquisition, but also of storage, at least on his desktop, and access. It is unclear precisely how long these images were collected and received but the sheer volume of the images suggests that there was a substantial period of time involved - the counts indicate at least since 2005. The stories written, which were set out in exhibit 16, are matters of fantasy. Nevertheless, they are of a similar theme to those contained in some of the videos and images. OFFENDER'S USAGE 92 The range of images found within the offender's possession makes it clear that he had been collecting these images over a period of time. His collection was neither spontaneous nor impulsive. He says he tried to delete some of the material. I have some reservations about accepting this evidence given the totality of the images, items in his possession and the matters I have set out. 93 The content of these images and videos indicate that the offender has had a long-term voyeuristic interest in children in a sexualised sense. There is no evidence that that interest extends to any acts of actual physical abuse. 94 I do not consider on the evidence available to me that the offender's physical nor his mental and emotional condition was such as to reduce the moral culpability, save and except to indicate a reason why he started accessing the information in the first place. INCARCERATION OF THE OFFENDER: CIRCUMSTANCES 95 It was submitted that the incarceration of the offender in the NSW corrective system is likely to be harder than for the average prisoner, both by virtue of his physical circumstances and given the general nature of the offences. It may be that the offender will be placed in protective custody. 96 This is a difficult area given the state of the evidence and the realities of the correctional system and the offender's circumstances. The Court of Criminal Appeal has made it clear R v Totten [2003] NSWCCA 207, R v Kani [2004] NSWCCA 143, and R v Way [2004] NSWCCA 131 that protective custody, of itself, does not lead to mitigation of an otherwise appropriate sentence. Further, that, absent specific evidence, the courts should be wary of making an assessment that an offender's time in custody will be more onerous than would otherwise be the case for the general prison population. 97 The offender also has the significant health problems that he does, requiring constant medication and treatment. There is no evidence that that medication and treatment will not be available to the offender in the correctional system. Nevertheless, I am of the view that his period in gaol will be harder than would normally be the case for prisoners generally by virtue of his general medical condition. His condition will make his incarceration difficult and harder than for the usual offender in most aspects of his life. 98 It is a well established principle that a sentencing court will take into account, as a mitigating factor, such circumstances that make the incarceration of an offender more burdensome upon him than would be the case of an ordinary gaol inmate and that health conditions may represent circumstances of that nature. I regard that as appropriate in this instance. 99 In coming to the conclusions and sentences I will impose, I specify that I have taken into account in relation to the Commonwealth offences, the factors set out in section 16A of the Crimes Act 1914 (Cth), in particular, that I have imposed a sentence which is of appropriate severity in all the circumstances. In relation to the state offence, I have taken into account the factors set out in section 21A of the Crimes (Sentencing Procedure) Act 1999 and the matters set out above and in the course of submissions. SENTENCING FOR MULTIPLE OFFENCES: COMMONWEALTH AND STATE OFFENCES 100 Where sentencing for multiple offences where there are both Commonwealth and State offences, the preferable course is to fix an appropriate sentence for each offence and then determine whether to order the sentences to be served concurrently or cumulatively in order to arrive at the appropriate total sentence to reflect the criminality before the court: Pearce v R (1998) 194 CLR 610. However, in a suitable case, a sentencing judge may arrive at an appropriate result by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed as was set out in Johnson v R [2004] HCA 15. 101 These statements of general principle are complicated by the fact that a sentence for a Commonwealth offence requires a total sentence to be imposed and then the non-parole period. By contrast, the State sentencing procedure requires the nomination of the non-parole period and then the balance of the term or parole period. 102 The Crown urged, on instructions from the Commonwealth DPP, that this latter approach should be adopted. CONCURRENT/CUMULATIVE SENTENCES 103 The offences had features in common, were substantially contemporaneous and connected and substantially overlapping. The same images constitute more than one charge. Although there are different kinds of criminality reflected in the various charges, in my view, the sentences should be served concurrently. That was an appropriate and indeed, in my view, a proper concession to be made by the Crown. SPECIAL CIRCUMSTANCES 104 It was urged upon me by counsel for the offender that I find special circumstances based on the offender's age, his medical condition, the fact that he has no prior offences and the availability to him of a supportive family. I have no doubt that the family will ensure that he complies with any treatment plan or program recommended. The expert evidence appears to be that he has a low risk of re-offending. 105 In general in sentencing in relation to Commonwealth matters, an appropriate non-parole period falls between sixty per cent and sixty six and two thirds per cent, although this is not an absolute rule. The state ratio as prescribed by the Crimes (Sentencing Procedure) Act and in particular s 44 is seventy five per cent unless varied following a finding of special circumstances. For the purposes of that legislation I would make that finding and based on the offender's age, his medical condition and the absence of prior circumstances as well as the finding as to the prospects of rehabilitation. 106 Balancing all those factors, I indicate that the statutory and other ratios applicable in relation to each offence should be varied such that the non-parole period should be sixty per cent of the head sentence in the case. 107 As I have indicated, I have set out above that I have taken into account, as I am required to do, that I have taken into account the provisions of s 16A Crimes Act 1914 (Cth). COMMENCEMENT DATE 108 The offender has not been in custody on any of these offences and accordingly, the sentence will commence with effect from today, 18 September 2009. ORDERS 109 Mr Gibb, the sentence is as follows, the total effect of the sentence will be one of 27 months, which is two years and three months imprisonment to be served by way of a non-parole period of 16 months actually in prison with an additional 11 months to be served by way of parole thereafter. I will indicate those dates as follows. Count 1 You are sentenced to a term of imprisonment of 16 months commencing from 18 September 2009 and expiring on 17 January 2011 with an additional term of 11 months commencing 18 September 2009 and expiring on 17 December 2011, to be served concurrently. Count 2 You are sentenced to a term of imprisonment of 16 months commencing from 18 September 2009 and expiring on 17 January 2011 with an additional term of 11 months commencing 18 September 2009 and expiring on 17 December 2011, to be served concurrently. Count 3 You are sentenced to a fixed term of imprisonment of 12 months commencing from 18 September 2009 and expiring on 17 September 2010, to be served concurrently. 110 That means subject to requirements of good behaviour - and I am sure that will not be a problem as far as you are concerned, Mr Gibb - that you will be released from gaol and released to parole on 17 January 2011. The offender is to provide security in the sum of $100 on his release. 111 In terms of recommendations as to your treatment while you are being incarcerated, I would ask the Corrective Services officers to note this. It is my recommendation that the offender be processed quickly and that the Correctional authorities consider in terms of the offender's classification and location and the material set out in the reports of Dr Zeman, Ms Dougherty and Ms Yousef. 112 I am anxious that this be done quickly. What you may not know, but I would be grateful if you communicate this orally as well, that the offender suffers from cerebral palsy and walks on a walking stick which he needs. I direct that a copy of the reports of Dr Zeman, Ms Dougherty and Ms Yousef accompany the offender to whichever correctional centre he is allocated for consideration by Departmental officers in their assessment of the offender. 113 Mr Gibb I'll make these comments to you personally and to the members of your family. This may well come as a shock to you. Take a seat, although I'm grateful to your for the courtesy in standing up. I appreciate that causes you difficulty. 114 You will be aware from the cases that I've referred to earlier that in some cases, in particular involving a police officer, there were some years of sentence imposed. I did not think that appropriate here for the reasons I've set out, but I do think that in terms of all the matters I've specified that a sentence of imprisonment is not only warranted, but also required. 115 I hope things for you go better in the Correctional System than you fear and as your family legitimately fears for you and that's one of the reasons I'm taking the steps I am, to notify the Correctional Services officers of these materials. I only hope you can utilise the opportunities that will happen afterwards to try and get rid of this addiction, as you accurately refer to it. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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