District Court New South Wales Medium Neutral Citation: R v Craig McGREGOR [2012] NSWDC 265 Decision date: 17 February 2012 Before: Cogswell SC DCJ Decision: For conspiracy to manufacture a prohibited drug, methylamphetamine, 4 years and 9 months imprisonment. Non-parole period of 3 years. For possessing child pornography offence, 18 months fixed term imprisonment. Effective overall sentence 5 years and 9 months. Effective non-parole period 4 years. Catchwords: CRIMINAL LAW - Evidence - child pornography offence - no evidence as to ages of victims (children portrayed) or purpose in accessing - Sentence - general deterrence moderated by very serious mental health condition - amphetamine-induced psychotic disorder with delusions - relevant factors - manufacture prohibited drug offence aggravated by involving a series of illegal manufactures - significant criminal record for drugs - no prior criminality for child pornography - non-parole period - special circumstances - needs community support to continue drug addiction recovery. Legislation Cited: Crimes Act 1900 s 91H(2) Crimes (Sentencing Procedure) Act 1999 s 21A(2)(m), 21A(3)(i) Drug Misuse and Trafficking Act 1985 s 24(2), 26 Cases Cited: R v Dennison [2011] NSWCCA 114 Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Category: Sentence Parties: Regina (Crown) Craig McGregor (Offender) Representation: Counsel: M Barr (Crown) J Watts (Offender) Solicitors: Director of Public Prosecutions (Crown) Legal Aid Commission (Offender) File Number(s): DC 2009/45263 SENTENCE 1Craig McGregor was a man who already had convictions for drug offences. Not long after he finished his parole for earlier offences he got involved in an agreement with other people to manufacture methylamphetamine. Over a similar period whilst he was at home where the manufacturing occurred, he accessed child pornography on his computer. As a result of that activity he has been charged with two serious crimes. 2The first is conspiracy to manufacture a prohibited drug, methylamphetamine. That is an offence under s 24(2) and s 26 of the Drug Misuse and Trafficking Act 1985. Parliament has fixed a maximum of 15 years imprisonment to that crime. 3The second was possessing child pornography. That is made into a crime by s 91H(2) of the Crimes Act 1900. Parliament has fixed to that crime a maximum of 10 years imprisonment. 4So it can be seen that Mr McGregor has got himself involved in two very serious offences. 5He was arrested on 29 April 2009 and his sentence will date from then. 6It is important for a judge to set out briefly what happened which gave rise to the offences that a criminal has been charged with and convicted of, so that some assessment can be made of how serious examples of the particular crime the offences were. 7In a judgment I delivered on 5 December 2011, I found Craig McGregor not guilty of conspiracy to manufacture a commercial quantity of methylamphetamine. He had pleaded guilty before the trial - which was before me sitting alone - to the conspiracy to manufacture an indictable quantity of the same drug, which is the offence that I am sentencing him for now. In that judgment I gave a description of what he had been doing. 8He was engaged with two other people in a process of manufacturing methylamphetamine. This process occurred in Mr McGregor's unit. He was not only manufacturing methylamphetamine, a prohibited drug, but was engaged also in manufacturing other kinds of substances which were not illegal. When the police came to his unit and arrested him they found a large amount of chemical equipment and solutions and in fact one chemical process was under way when the police arrived. It itself was not an illegal process. It was a fairly chaotic scene and was like an amateur laboratory. 9When the police arrived they also got access to Mr McGregor's computer in his unit on the northern beaches. Some time later during an analysis of the contents of the computer they found child pornography images. They found 963 images of child pornography and a number of movie files depicting child pornography. The combined number of images and movie files was just over 1,000. 10There is a scale used to assess the seriousness of child pornography. It is called the COPINE scale. Level 1 is the least serious and depicts non-erotic sexualised pictures. The most serious category is level 10 and depicts sadistic images or images of bestiality or sexual images involving pain or animals. 11The files found on Mr McGregor's computer ranged over all categories. 12Amongst the 963 images found were images of children clothed and positioned in erotic poses and images of naked children. In addition there were images and movies of children performing sexual acts on other children and on adults, and images and movies of children being sexually assaulted by adults. Finally, there was included the most serious category of images of a child being sexually assaulted and in pain. The video files included the most serious category again of children being sexually assaulted and in pain, as well as being sexually assaulted by adults using foreign objects, causing pain and bleeding. There was footage of children engaged in self and mutual masturbation with other children and adults, and footage of children performing sexual acts on children and adults. 13They are brief descriptions of the two crimes that I am sentencing Mr McGregor for. 14It is also obviously important for a judge to take into account whether an offender has any previous record, particularly for the same or similar offences. Mr McGregor has no previous record for any offence involving child pornography but he has a record of some significance in respect of drugs. He has been convicted of possessing a prohibited import as well as possessing a commercial quantity of a prohibited import, as well as a prohibited drug. His effective sentence for those crimes, which was finally settled by the Court of Criminal Appeal, was some 8 years imprisonment with a non-parole period of 5 years. Those offences were committed in 1999 and in the same year he committed an offence of supplying a prohibited drug and received a concurrent sentence of some 6 months. 15A judge also has to take into account information and evidence which is personal to an offender. In this case Mr McGregor's solicitor, Ms Catherine Hunter, obtained a report from a clinical psychologist, Michelle Player, and Mr Jason Watts of counsel who appeared for Mr McGregor tendered it in evidence. It was dated 6 February 2012. It contained a good deal of personal information about Mr McGregor. 16Of significance is the fact that he started smoking cannabis when he was 15 and by the time he was 18 he was smoking every day. He was also taking LSD on a weekly basis until he was 19. He then started using ecstasy tablets. He abstained for a couple of years from 1996 to 1998 but then recommenced and started using ecstasy on an almost daily basis around the time he was committing the earlier offences on his record. After his earlier prison sentence he resumed using ecstasy on a fortnightly basis. He was also using another legal drug but said that he did not use other drugs such as cocaine, amphetamine or heroin. In 2008 he commenced smoking methylamphetamine, which is also known as Ice. That was in some way connected with his then partner going to gaol. 17He claimed that he developed drug-induced psychotic symptoms of a delusional nature from his daily use of methylamphetamine. His delusions included inventing a drug which would save the world. He thought it would be a miracle drug which would stop people doing bad things. He envisaged that the profits would go to a charity. He thought he was receiving special messages from the television or the radio. He explained to the psychologist that his possession of child pornography was in the context of his belief "that if he could understand the pornography, he would be able to change the world and cease such activity occurring". Ms Player said that both of Mr McGregor's offences: "seem best understood in the context of his drug-induced psychosis at the time as a result of daily amphetamine abuse". He told her that he was horrified by the fact that he had been charged with child pornography offences. The psychologist thought that his mental health problems met the criteria for an amphetamine-induced psychotic disorder with delusions. 18Mr McGregor has been in custody for over 2 years since his arrest. He told the psychologist that it has taken nearly all of that time of being drug free in custody for his delusional thinking to fully resolve. She thought that that recovery period: "suggests that he has an underlying vulnerability to developing a psychotic type illness". 19Ms Player made an assessment of Mr McGregor's risk of re-offending and concluded on balance that there was a low risk of him re-offending so far as sexual recidivism is concerned. She said also that that offending, namely the child pornography "seems best understood in the context of his delusional belief that he could cease child pornography around the world if he could gain an understanding of this material". The fact that he has been drug free both in the community and in custody, Ms Player thought, "indicates that Mr McGregor is capable of achieving long-term drug abstinence, provided he is suitably motivated and he refrains from re-establishing ties with his prior drug-using peer group". She thought that Mr McGregor's: "main recidivism risk is that he will relapse into drug use upon his release from custody". She recommended that he engage in certain programmes whilst he is in custody and that his: "main treatment needs will be upon his release in the community when his motivation to abstain from drugs will be significantly tested". She made certain recommendations which are contained in paragraph 37 of her helpful report. 20Mr McGregor himself wrote a letter of explanation to me, which became exhibit S2. He explained his involvement in drugs and the choices which he had made and the effect which a drug-free existence whilst in custody has had on him. He finds that he is once again a "reasonably high-functioning individual" who is no longer addled by drugs. He has had the opportunity to take drugs in custody but has declined those opportunities. He is looking to other things such as his fitness and artistic endeavours. He is looking forward to undertaking further rehabilitation when he is in the community and is determined to undertake that process. 21It seems that there is some lack of clarity in the custody records about whether or not Mr McGregor was on parole when he committed these offences. I am not satisfied beyond reasonable doubt that he was on parole. Mr M Barr of counsel who appeared for the Director of Public Prosecutions did not press a submission to that effect but both he and Mr Watts acknowledged that the offences were committed within a period of some months, perhaps about 6 months, of Mr McGregor's final release on parole. 22It is in these circumstances that I come to sentence Mr McGregor. I have been greatly assisted by submissions from both Mr Barr and Mr Watts. 23I should say that there was one witness called in the sentence proceedings. Mr David Owen is the partner of Mr McGregor's mother. He has known Mr McGregor for the last 18 years. He was fairly guarded in his evidence but made it clear that he and Mr McGregor's mother were prepared to support Mr McGregor in his efforts for rehabilitation once he is released into the community and those efforts would extend to some financial support in getting Mr McGregor re-established in accommodation and counselling. 24I will express some conclusions about some of the submissions which were put to me. 25Of marginal relevance is the fact that the drug offences were capable of being disposed of summarily. Mr Watts did not suggest that it was a matter of great significance, and I accept his submission. It is significant but only, as I said, in a marginal sense. 26Mr Barr argued that the condition of the unit being, as I said, an amateur laboratory with processes under way was an aggravating factor under s 21A(2)(i) of the Crimes (Sentencing Procedure) Act 1999 because it demonstrated that the offence was committed "without regard for public safety". I do not accept that submission as a submission that it is a specific factor which should aggravate the offence under s 21A of the Crimes (Sentencing Procedure) Act. I do put some weight on the fact that the condition of the unit was chaotic and that it would obviously have the potential for some risk to innocent persons but I do not elevate it to an aggravating factor. 27I do accept that the drug offence was aggravated by involving a series of criminal acts under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act. There were other chemical processes which Mr McGregor was undertaking at the same time which were not criminal but he was attempting to manufacture methylamphetamine using two different, well-known and illegal methods of engaging in that process. 28I accept that I can put some weight on the fact, as Mr Watts said, that his client, who is now 37, has more insight and maturity, which is confirmed by his client's letter. 29There is some remorse but not a lot. I accept that there is, so far as s 21A(3)(i) is concerned, some evidence of remorse but it is expressed to the psychologist and was not expressed to me in the witness box so far as the child pornography was concerned. I think there is room for more weight on remorse so far as the drug offences were concerned. 30Mr McGregor has pleaded guilty to both offences. It is accepted by the prosecutor that the plea to the child pornography offence was at the earliest available opportunity, and I will make an allowance in due course of 25 per cent. In other words, I will discount the sentence which I would otherwise have imposed for the child pornography offence by 25 per cent because Mr McGregor has saved the resources of the State a good deal by indicating his guilt for that crime and avoiding a prosecution. 31I accept Mr Watts' submission that the appropriate discount in respect of the drug offence should be in the order of 20 per cent. It was not a plea which was entered, as Mr Watts acknowledged, at the very earliest available opportunity but on 7 November 2010, about a year before the trial, Mr McGregor asked the prosecution to consider accepting a plea of guilty to the offence that I eventually found him guilty of and that offer was not accepted. 32As I said, a significant aggravating feature is his criminal record so far as the drug offence is concerned. 33I accept Mr Watts' submission that s 91H of the Crimes Act dealing with the child pornography offences covers a wide range of conduct. This is a case of possession. It is not a case of dissemination of child pornography material. 34Both Mr Watts and Mr Barr drew my attention to the Court of Criminal Appeal's decision in R v Dennison [2011] NSWCCA 114. Schmidt J, with whom Whealy and McCallum JJ agreed, reviewed the authorities on assessing the seriousness of child pornography. Her Honour referred to the recent decision of that court in Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 and extracted at [71] of her Honour's judgment in Dennison is a quotation from [94] of Hulme J's judgment in Minehan. 35There are a number of factors which Mr Watts draws my attention to because it is not possible to determine some of those factors unfavourably to his client beyond reasonable doubt. One of the factors which is relevant to assessing the seriousness of this crime is the age of the children. As Mr Watts says, in this case that is neutral because I have no information about the ages of the children. We do not know whether most of them were under 10 or close to 17. I do not say that to indicate that child pornography involving a 17 year old is more acceptable. I say it because obviously it is an even graver offence to commit such an offence which involves an infant. Both crimes are deplorable; one is even more deplorable than the other. 36Another factor is the number of different children who are involved. Once again, we do not know the number of different children who are involved and that factor must remain neutral. 37Another factor is the offender's purpose in accessing the child pornography. On the one hand it could be for their own use. On the other hand it could be for sale or sending to other people. This is important in this case because there is no evidence that Mr McGregor was selling this material or passing it on to anyone else. Indeed what he seemed to be doing in his drug-induced psychotic state was accessing it himself in order to further his delusional purpose. 38I should add, referring briefly again to Ms Player's report, that I accept the contents of her report. There is no evidence challenging it. 39I accept Mr Watts' submission that Mr McGregor's mental health is a relevant condition. The psychologist has diagnosed a very serious mental health problem. His delusional state was very relevant to his purpose in accessing the child pornography and that in turn will reduce the culpability or objective seriousness of the offence. It also means that general deterrence is moderated somewhat. 40I place a little less weight on that factor so far as the drug offences were concerned because the taking of illegal drugs itself brought him into that milieu and he was committing offences which were related to illegal drugs. But I do put some weight on that factor for the drug offences but less than for the child pornography offence. 41I accept that he is at low risk of re-offending so far as the child pornography offences are concerned but that there is obviously some risk so far as the drug offences are concerned. 42Mr Watts helpfully referred me to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 on the question of accumulation or concurrency. His Honour set out the relevant principle at [27] of that judgment. I have determined that the overall sentence which I will impose shortly will cover the total criminality. There will be some accumulation and some concurrency. 43Mr Watts urged me to find that there are special circumstances for disturbing the normal ratio between a non-parole period for a sentence and the full term. The standard relationship is that a non-parole period will be 75 per cent of the full sentence. It can be reduced from that 75 per cent if there are special circumstances. In this case Mr Watts argued that he needs the support in the community for his continuing recovery from drug addiction. On the other hand, he has been sentenced before for drug crimes. He has been drug free before and has relapsed and he committed these crimes within a relatively short period of the termination of his parole for previous drug offending. 44I propose to reduce the standard ratio to about 70 per cent in those circumstances. 45I do take into account Mr Watts' submission that the quantity of drugs which have been proved to have been manufactured by Mr McGregor was fairly low. 46I turn now to considering the sentences. I will consider the sentence first for the child pornography offence. 47Taking into account the various matters which I have referred to, including a good number of mitigating factors, I would regard an appropriate overall sentence for the crime committed against s 91H(2) of the Crimes Act as being 2 years imprisonment. Because Mr McGregor has pleaded guilty at the earliest available opportunity, I will reduce that sentence by 25 per cent. So his sentence for that crime will be 18 months imprisonment. 48I regard an appropriate sentence for the conspiracy to manufacture methylamphetamine as 6 years imprisonment. I will discount that - because of a slightly belated plea of guilty - by 20 per cent. So the sentence for the drug offence will be 4 years and 9 months imprisonment. 49The sentence for the child pornography offence will commence from the date when Mr McGregor was arrested, namely 29 April 2009. I will impose it as a fixed term for two reasons; one, it has already expired, and the second reason is that it is partly subsumed in the sentence for the other crime. That 18months penalty expired on 28 October 2010. 50The sentence of 4 years and 9 months for the drug conspiracy will commence a year after the commencement of the child pornography offence, namely on 29 April 2010. It will expire on 28 January 2015. 51For the reasons that I have said, I will set a non-parole period of 3 years. That will commence on 29 April 2010 and will expire on 28 April next year, 28 April 2013. The balance of the term will be 1 year and 9 months commencing 29 April 2013 and expiring on 28 April 2015. 52The overall effective sentence which I am imposing is 5 years and 9 months. It commenced on 29 April 2009 and expires on 28 April 2015. The effective non-parole period is 4 years commencing 29 April 2009 and expiring 28 April 2013. 53So Mr McGregor, they are the sentences which I impose upon you. I will explain them a bit more in a moment. The first date upon which it appears to me that you are eligible for parole is 28 April 2013 and that is a matter for the parole authority, not for me. HIS HONOUR: Two things, Mr Coles and Mr Kiely. One is whether I've made any factual or legal errors which can be corrected now. The second thing is the mathematics. Mr Kiely, there's one thing for you. Judges are told that it is of assistance to the Corrective Services department when an offender goes into custody for there to be sent to the Corrective Services section which deals with classification any psychological material and I have in mind that Ms Player's report, which I have a clean copy of as the exhibit, may well be one that I would send but I would do so only with your instructions to do so. KIELY: Mr McGregor instructs me that he had previously received some advice from his barrister that that not take place. HIS HONOUR: That not be done? KIELY: Yes. HIS HONOUR: That's fine. I won't do it. KIELY: Thank you, your Honour. HIS HONOUR: All right. COLES: Your Honour, so far as the two questions are concerned, I've read your Honour's decision on verdict and what's flowed from your Honour today seems to be consistent with that. HIS HONOUR: Thank you. COLES: Secondly, in relation to the mathematics, that seems to be correct, your Honour. HIS HONOUR: All right, thanks, Mr Coles. What about-- KIELY: Nothing from me, your Honour. HIS HONOUR: Okay. 54So Mr McGregor, two sentences. The child pornography, you have got 18 months. It would have been 2years but you pleaded guilty. That started when you were arrested, 29 April 2009, and expired on 28 October 2010. That has finished. 55The drug conspiracy sentence started a year after that one. It started on 29 April 2010. There has to be some, as we say, accumulation. So you have got to serve time separately for the child pornography offence. The overall sentence for the drug conspiracy is 4 years and 9 months, so that finally ends on 28 April 2015. Your non-parole period is of 3 years and that commenced on 29 April 2010 and will expire on, as I said, 28 April 2013, which is the first date it seems to me you are eligible for parole, subject to the Parole Authority, but you know the process there. 56The balance of that sentence is 1 year and 9 months commencing 29 April 2013 and concluding 28 April 2015. Your effective sentence overall was 5 years and 9 months. Your effective non-parole period is 4 years, which is about 70 per cent instead of the 75 per cent. KIELY: Just in relation to the finishing date for the balance of term, your Honour said it was 28 April 2015. HIS HONOUR: I'm wrong. It should be 28 January. I'm sorry. Thank you. 57The sentence for the drug conspiracy, 29 April 2010 to 28 January 2015. The balance of the term starts after the non-parole period on 29 April 2013 and finishes on 28 January 2015. So your overall sentence expires on 28 January 2015. You are eligible for parole on 28 April next year. 58Okay, Mr McGregor, you have heard what I said. It sounds as though you have made a good start on your recovery in custody. And so good luck. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2013