District Court New South Wales Medium Neutral Citation: R v Shelford [2013] NSWDC 102 Hearing dates: 1 March 2013, 19 April 2013 Decision date: 19 April 2013 Before: Berman SC DCJ Decision: Referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW - Sentence - Possess child abuse material - Use carriage service to transmit child pornographic material - Using carriage service to access child pornographic material - Fantasy stories involving no actual child. Legislation Cited: Commonwealth Crimes Act Category: Sentence Parties: The Crown Gavin Dean Shelford Representation: Director of Public Prosecutions - Cth Criminal and Traffic Law File Number(s): 2912/76115 SENTENCE 1HIS HONOUR: Today, I am sentencing Gavin Dean Shelford for offences involving child pornography. The first offence is a State offence of possessing child abuse material. The second offence is a Commonwealth offence of using a carriage service to transit child pornographic material, and when sentencing for that matter he asks that I take into account, on a schedule under s 16BA of the Commonwealth Crimes Act, an offence of using a carriage service to access child pornographic matter. The offences are interrelated in that the carriage service was used to access all the child abuse material that was possessed. 2Child pornography is a worldwide problem. The use of the internet means that geographic boundaries are largely irrelevant and so it was that in August 2011 the Australian Federal Police got information from police in The Netherlands about the use of an internet relay chat by a person with a user name "Perverted Dad". In that chat Perverted Dad inferred that he was having a sexual relationship with his nine year old daughter. Later investigations determined that the user of the name Perverted Dad was the offender. It was also determined that what he was speaking about, a sexual relationship with his daughter, was pure fantasy. Disgusting and degrading fantasy it was, but it was make believe. 3After getting the information from The Netherlands the Australian Federal Police went to the offender's premises on 8 March 2012. They searched, of course, the computers and electronic equipment present at the location. An initial examination revealed two images of child pornography. The offender was shown those images and he declined to comment. The material was seized and a forensic examination was conducted. 4It is important to bear in mind that there is, in objective gravity terms, a significant difference between chatting and fantasising about sexually abusing children and possessing images and videos showing children being abused. Of course, that is not to say that the former is not serious, of course it is. But one of the most important matters in determining the objective gravity of an offence involving child pornography is whether children were harmed in the creation of that material. If a person tells a story involving the sexual abuse of children and that is all that happens then no child is directly harmed. That is not the case where images and videos of real children being abused are possessed. 5The charge of possessing child pornographic material encompasses both forms of child pornography I have just mentioned, chats on the one hand and images and videos on the other. This is because the chat blogs remained on the offender's computer at the time he was arrested. They are simply disgusting. What the offender describes is perverted and disturbing. He is clearly engaged in sexually gratifying conduct with another person over the internet who also obtains sexual gratification from what is being described. Other parts of the possession charge do relate to images and videos where real children were harmed. I should interpolate here that two of the images were of a cartoon where equally no actual child was harmed. 6When this matter was first before me on 1 March, Mr Shelford, the offender, gave evidence. He admitted being responsible for the chats but gave evidence which he now admits is untrue as to many aspects of the images and videos. On an earlier occasion he claimed that he had not himself downloaded and saved any of that material. He said that it happened automatically as part of his involvement in the chat room. He now agrees that that is not true. He said on an earlier occasion that all he downloaded was material showing adult females masturbating, but he now admits that is not true as well because he downloaded images of girls as young as eight to ten or even younger masturbating. 7He said on the earlier occasion that he did not have a sexual interest involving children. He now agrees that is not true. He said on an earlier occasion that he only downloaded material involving masturbation, but some of the other images and videos showed much more serious forms of abuse of children. The offender now admits that he downloaded some of that as well. 8He gave evidence on the earlier occasion that at the time of his arrest he had been deleting material from the hard drive, something he has told his sister as well and she apparently believed it. But that was not true either. Very belatedly, Mr Shelford has decided to be honest with the Court and admit to the seriousness of what he did. 9Because of the need to differentiate between pornography involving fantasies and pornography which involves harm, I will say the following. There are 407 items covered by the possess child abuse material charge in categories 1 and 2 of the CETS classification. About one-third of those were chats. This means that a significant number of images and videos of children, each of whom would have been harmed, was in the possession of the offender. 10When we moved to the more serious categories, 3, 4 and 5, there were 272 items. The great bulk of those were chats, 216, so only fifty-four were images or videos of actual children. 11When this offence is compared to other offences of this kind the difference in numbers is significant. Some offenders, indeed most, possess thousands of images and videos, stored on various devices, sometimes catalogued. And so in pure numerical terms the offender's criminality is not as serious as those other offences. But that is not to say that the offender's conduct was not serious. 12I have grown tired of reading out in remarks on sentence the awful descriptions of some of the images and videos found on child pornographers' computers. Suffice to say, that in some instances the images and videos, which are the subject of this case, reveal high levels of abuse, high levels of harm and it is completely incomprehensible to any right thinking person how anyone could be sexually gratified by viewing items of that kind. 13The offender is forty-six. He has suffered from depression and what is described as an adjustment disorder for many years. He suffered a tragedy of losing his mother in circumstances where he was the one who discovered her dead body. He has experienced marital separation and, as part of the consequences of that, losing contact with his only child. His father is in a nursing home and his stepmother has been recently diagnosed with cancer. The offender said that in those circumstances he turned to alcohol and whilst intoxicated he turned to chat rooms which led to him committing these offences. 14Since being arrested he has taken steps to ensure that he will not reoffend. He has disconnected the internet and there is no alcohol in his home. His sister, who lives with him, helps by making sure that he follows those self-imposed rules. He is seeing a psychiatrist, Dr Mendez, and understands the need to be treated in order to avoid slipping back into the way he was leading up to his arrest. 15These offences occurred over a significant period of time, his transmission offence between April 2010 and February 2012 and the access offence between August 2010 and March 2012. For many months, therefore, the offender was doing something he knew was wrong and doing something he knew was causing harm and yet he continued. 16Another aspect of the offender's mental state is this. Of reasonably recent times he says that he has recovered a memory of being sexually assaulted. It seems quite likely that he was. The two men who he says sexually assaulted him were, it seems, well known within Mr Shelford's family of being the type of people who would sexually abuse many children within the family. The circumstances in which a person can recover memory, even events such as this was, are not well known and not fully accepted. I do not need to make a decision as to whether Mr Shelford really was sexually abused as he said he was, but I am satisfied that he believes that he was and that that has had a significant impact upon him, as might be expected. 17I mentioned the illnesses or the positions involving his father and stepmother. He provides his stepmother with assistance and visits his father one day a week, taking him out of the nursing home to give him an excursion on a regular basis. Mr Williams did not suggest the hardship that would be experienced by the offender's stepmother or his father as a result of the offender's incarceration was exceptional. I thus cannot take it into account, except as part of a general mix of subjective factors that I will consider. 18The offender pleaded guilty at an early stage and so I will acknowledge his willingness to facilitate the course of justice in the Commonwealth matter and the utilitarian benefit of his plea of guilty in the State matter by imposing ultimately sentences which are twenty-five per cent less than they would otherwise have been. On top of that, I am now prepared to accept the offender was remorseful. That was a finding I was not going to make until the offender gave evidence today admitting that he had lied and, thus, for what seems to have been about the first time, really accepting responsibility for his wrongdoing. 19I should make it clear in the offender's favour is that this change of heart did not come about because he became aware that the Prosecution had conducted a further forensic examination of his computer and could prove that what he said was untrue. No suggestion was made to Mr Shelford before he changed his mind and decided to tell the truth in the witness box. 20Mr Williams sought a non-custodial sentence but as a fallback position suggested that I would impose sentences of such a length that an intensive corrections order would be an available option. The Crown, recognising that there is no one sentence which is the correct one in any particular case, says that the offender should receive a sentence of full-time custody but acknowledges that an ICO is in the range of appropriate sentences. 21Were it not for the offender's evidence today in which he told the truth I would have sent him to gaol. I simply did not believe what he said on the earlier occasion and was prepared to reject it beyond reasonable doubt. In circumstances where the offender needed to have demonstrated to him the wrongfulness of his actions because he did not seem to accept how wrong they were, I would have imposed a sentence of full-time custody without giving any consideration of the possibility of there being an intensive corrections order. 22I am prepared, however, to make orders which may see the offender serving a sentence by way of an intensive corrections order. A custodial sentence of some kind is required. Even the fantasy stories contained within the chat logs are sufficiently serious, involving interactions with other perverted people throughout the world, that a custodial sentence of some kind is required for them. Possessing child pornographic material, especially possessing images and videos, having children harmed, some significantly, must also in this case be met with a custodial sentence of some form. 23Having made that decision and having decided that the length of the sentences will be such that an ICO is an option, I have decided to adjourn the matter so that Mr Shelford can be assessed as to his suitability of serving his sentence by way of an intensive corrections order. 24I will adjourn the matter to two o'clock on 7 June and continue Mr Shelford's bail until then and order that there be an ICO assessment performed upon him. 25ADJOURNED TO 7 JUNE 2013 AT 2PM FOR SENTENCE ********** 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: 15 July 2013