R v Smith [2015] NSWDC 373

District Court New South Wales

Medium Neutral Citation: R v Smith [2015] NSWDC 373 Hearing dates: 4 December 2015 Decision date: 04 December 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence – Using a carriage service to access child pornography – Possess child abuse material Category: Sentence Parties: The Crown Luke Daniel SMITH Representation: Solicitors: Director of Public Prosecutions (Cth) Turnbull Hill Lawyers - Offender File Number(s): 2015/45059

SENTENCE 1. HIS HONOUR: The internet has brought about many wonderful advances. We have available to us a vast amount of information. We are able to communicate instantly with people across the world. Our smart phones enable us to navigate through strange cities and identify songs on the radio. In so many ways our lives have been improved by this technological advancement. 2. But one thing the internet has undeniably brought about is a vast opportunity for evil people to profit from the sexual abuse of children in order to satisfy what is to me an amazingly inexplicable desire to view child pornography. 3. Presumably in the past, those interested in viewing child pornography found it difficult to do so. At a time when images were recorded on film and printed on paper, obtaining such images would not have been easy. Even more so would this be the case for moving images. But it would seem, now that such images are freely available to be transmitted throughout the world, that an enormous number of people, usually men, obtain their sexual gratification by viewing such images and videos. 4. Many times Courts have explained the reasons that offences such as the ones I am dealing with today are serious. The most obvious reason, but it is worth repeating despite its obviousness, is that by creating a demand for such images and videos, evil people will satisfy that demand, and every time they do, a child is harmed. Sometimes that harm will be enormous. Every time the harm will be singnificant. 5. The Crown today attempted to tender what it said was a representative sample of images. I refused to receive that, for reasons I expressed. One does not need to look at the images to understand how harmful it would be for a child to be used in the production of images and videos which show penetrative sexual activity between children, or adults and children, and, even more so, images and videos depicting sadism humiliation and bestiality. 6. Harm is also caused to children where they are depicted posing erotically, where there is non-penetrative sexual activity between children, or solo masturbation by a child, and non-penetrative sexual activity between adults and children. 7. It is primarily because of such harm that offenders who are discovered having downloaded and possessed such images and videos usually go to gaol immediately, and for significant periods of time. 8. The offender, Luke Daniel Smith, has pleaded guilty to two offences, using a carriage service to access child pornography and possessing child abuse material. He pleaded guilty at the earliest opportunity to such offences. He was arraigned today but he had earlier been committed for sentence to this Court following his pleas of guilty in the Local Court. I will take into account those pleas of guilty for the State charge as representing a utilitarian benefit to the criminal justice system and on the Commonwealth charge as demonstrating a willingness to facilitate the course of justice. In each case the sentence will be about 25 per cent less than it would otherwise have been. His pleas of guilty are also one of a number of factors which has led to me imposing a different form of sentence, or at least contemplating the imposition of a different form of sentence, from that I would otherwise have imposed. 9. These offences were discovered when police went to the offender's home. In his bedroom they found a computer and a number of hard drives. The computer was protected by a password, which Mr Smith disclosed to police so that they could access the contents of the computer and storage devices. Consistent with that co-operation he made immediate admissions to police. 10. What police found were in total, 1,511 images and 431 video files which were classified as being child abuse material. The victims depicted appeared to be in the age from about seven to about 16. The Crown facts note that there was a significant amount of duplication between the examined hard drives. Mr Smith gave evidence today that when he bought a new hard drive, he would simply dump all the contents of his old hard drive onto the new one, thus creating two copies of the same image or video. 11. Police estimated there were about 150 different victims depicted in the files. Mr Carney, who appears for the accused, has helpfully identified what proportion of the images and videos fall into which category using the categories identified under the child exploitation tracking system. It is important to understand that although those categories use the numbers 1 to 6, category 6 is not the worst category, category 5 is. Category 6 depicts animated or virtual depictions of children engaged in sexual poses or activity and so category 6 does not involve an actual child at all. For that reason, I will focus on categories 1 to 5. 12. There were a small proportion of images and videos in category 5, less than one per cent, but a significant number in category 4, about 10 per cent. The vast majority however, of images and videos appeared in categories 1, 63 per cent or 2, 20 per cent. 13. In assessing the objective criminality of the offender's conduct, I note that as matters go, this was a relatively small number of images and videos and most of them, the vast proportion, about 84 per cent indeed, were in categories 1 and 2. This is a significant factor which distinguishes Mr Smith's offending from many other offences of this type which come before the Courts. 14. Many offences involve vast numbers of images and videos extending into the tens of thousands with enormous numbers of images and videos in categories 4 and 5. Focussing on the harm caused to individual children for the moment, these offences which I am dealing with today are, when compared to many other offences, much less serious. That of course, is not to say that they are not serious offences. Indeed they are, for the reasons I have already identified. 15. There is one other unusual circumstance. The offender became involved in using the internet for pornographic purposes from a young age, as he explored his sexuality. As part of this, he began to communicate with others who exploited him. He was asked to and did in fact send images and videos of himself doing sexual things when he was 14 or 15 years of age. So in a very real sense, he has been a victim of the very offences for which he must now be sentenced. 16. The offender is of otherwise good character. He has been a hard worker for a supermarket chain. It is of some concern that he has not yet told them that he has pleaded guilty to possessing child pornography. Quite clearly, it is highly likely that he will lose his job once he does so. That is scarcely an excuse for not having done what he should have done some time ago. 17. His childhood had some areas of unhappiness. His parents separated and there has been conflict between the offender, his parents and his step-parents from time to time, including, most regrettably, when he told his mother that he was gay. 18. He appears to be a somewhat socially isolated person who has thus far occupied most of his time working. He is now in a relationship with another man and accepts the wrongfulness of what he has done. He has made attempts to obtain counselling but for various reasons has not, thus far, been counselled as regards his misconduct. 19. One issue that came up during the course of these proceedings concerned the question as to whether the offender had been complying with his bail conditions. One of those conditions was that he not use the internet, unless it was for purposes such as employment. A pre-sentence report tendered by the Crown suggested that the offender had breached that condition of bail by using the internet to access adult pornography. The offender denied doing so in Court and when I inquired of the Crown whether he wished to call the author of the pre-sentence report to resolve this dispute, the Crown said that he did not wish to do so. Accordingly, given the sworn evidence of the offender, I will not sentence him on the basis that he has breached his bail conditions. 20. Of course the number and type of images and videos is but one consideration, perhaps the most important, but still only one, in determining an appropriate sentence. I note that there is no suggestion that the offender disseminated anything. There was no suggestion of any profit motive, or that there was a risk of these images becoming accessible to anyone else. I also note the offender has also expressed his remorse. When he first saw images and videos, depicting sadism, bestiality or humiliation, he told me that he was somewhat aroused but disgusted at the same time. He now accepts that he should not have had that reaction. He now accepts the harm that production of such material caused. 21. It was Mr Carney's submission that although a sentence of imprisonment was required, he submitted that this was likely to be two years or less and accordingly his client should be assessed as to his suitability to serve his sentence by means of an intensive corrections order. 22. The Crown, in his written submissions, said that a sentence of imprisonment was required, but upon inquiry from me, confirmed that he would not speak in opposition to the imposition of an Intensive Corrections Order. As I explained to the parties, that does not necessarily mean that I would do what they jointly considered was appropriate. I made my own mind up. I am satisfied that this is one of those cases where full-time imprisonment may not be necessary. I have identified the unusual features of this case and they have persuaded me that, if acceptable, the offender is likely to receive a sentence of other than full-time imprisonment. Accordingly, I make the following order: 23. I continue the offender's bail to 26 February 24. I consider it is likely that the sentence of imprisonment to be imposed upon the offender is two years or less. I refer him for an assessment as to his suitability to serve that sentence by means of an Intensive Corrections order. 25. Mr Smith, it is a matter for you but I would have thought, as I expressed to you when you were giving evidence, part of your obligations now would be to tell your employer what has happened, consistent with someone who is prepared to accept responsibility for their own actions and that would include telling your employer what you have done and what is likely to happen.