District Court New South Wales Medium Neutral Citation: R v John Paul Lane [2017] NSWDC 116 Hearing dates: 6 April 2017 Decision date: 15 June 2017 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Limiting terms imposed. For orders see [56] Catchwords: Special hearing; Limiting terms pursuant to s 23 Mental Health (Forensic Provisions) Act 1990 Legislation Cited: Crimes Act 1900 s 91H(2) Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Minehan v R [2010] NSWCCA 140 R v Booth [2009] NSWCCA 89 R v De Simoni (1982) 147 CLR 383 R v Porte [2015] NSWCCA 1174 Category: Sentence Parties: Director of Public Prosecutions (Crown) John Paul Lane (Offender) Representation: Counsel: M Coates (Crown Prosecutor) W Walsh (Offender) File Number(s): 13/269530 Publication restriction: Nil JUDGMENT PURSUANT TO S 23 OF THE MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 Introduction 1. On 25 October 2016, following a Special Hearing pursuant to s 21 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"), I made findings in respect of two charges on the Indictment. The charges were: 1. That on 13 August 2013 at Lidsdale, in the State of New South Wales, did disseminate child abuse material pursuant to s 91H(2) of the Crimes Act 1900. 2. That on 5 September 2013 at Lidsdale, in the State of New South Wales, did possess child abuse material pursuant to s 91H(2) of the Crimes Act 1900. 1. I made findings that on the limited evidence available, the offender committed each offence. He was convicted of both offences on the Indictment. 2. On 6 April 2017, I heard submissions from the Crown and the offender in respect of orders to be made pursuant to s 23 of the Act. Section 23 of the Act provides as follows: ""Procedure after completion of special hearing 23(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court: (a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment; and (b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as "a limiting term", in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence. (2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings. (3) Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings. (4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence). (5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court: (a) after taking into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time, or (b) directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person. (6) When making a direction under subsection (5)(b), the Court is to take into account that: (a) a sentence of imprisonment imposed in a normal trial of criminal proceedings may be subject to a non-parole period whereas a limiting term is not, and (b) in a normal trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods (as referred to in section 47(4) and (5) of the Crimes (Sentencing Procedure) Act 1999). (7) If the Court indicates that it would not have imposed a sentence of imprisonment in respect of a forensic patient, it must notify the Tribunal that a limiting term is not to be nominated in respect of the person." 1. On 15 June 2015, Judge Yehia of this court held that Mr Lane was not fit to plead and referred the matter to the Mental Health Review Tribunal. On 20 November 2015, that Tribunal held that Mr Lane would not become fit to plead within the next 12 months, and on 1 February 2016, a direction was made by a Tribunal member for a Special Hearing to take place pursuant to s 21 of the Act. That hearing took place at Bathurst on 24 October 2016. Circumstances of the offending 1. The circumstances of the offences are set out in my judgment following the Special Hearing on 25 October 2016. I will not repeat all of the details here. The first offence involved the offender disseminating child pornography by way of an MMS message sent from his Apple Iphone on 13 August 2013 at 2:24:12 hours, attaching an image which fell within category 1 of the Child Exportation Tracking System, or CETS scale, (namely, "Sexually suggestive posing with no sexual activity"). The defence case, that there was no evidence that the offender had disseminated the material, was rejected. 2. The second offence concerned the identification by investigating police of 5,890 images and 54 videos of child pornography on the offender's Apple Iphone. It is relevant here to note that the child pornography material was classified according to the CETS scale as follows: 1. 4,596 images and 9 videos, totalling 4,605, fell within category 1 ("Sexually suggestive posing with no sexual activity"). 2. 270 images and 12 videos, totalling 282, fell within category 2 ("Non‑penetrative sexual activity between children or solo masturbation by a child"). 3. 242 images and 3 videos, totalling 245, within category 3 ("Non‑penetrative sexual activity between adults and children"). 4. 742 images and 28 videos, totalling 770, within category 4 ("Penetrative sexual activity between children or adults and children") and 5. 2 images within category 6 ("Animated or virtual depictions of children engaged in activity covered by categories 1 to 5") 1. Investigating police estimated that there were approximately 3,000 different victims comprised in the classified child abuse material. A sample of the material was tendered pursuant to s 289B of the Criminal Procedure Act 1986, which became Ex D on the Special Hearing. Having viewed that sample, I was satisfied that the material was as described by the investigating police. Evidence on the hearing pursuant to s 23 1. The Crown sentence summary became Ex A. It contained a summary of Crown facts, as outlined above. It also included the criminal antecedents of the offender, which included the following: 1. Commit act of indecency towards a person under 10. Sentenced to 12 months periodic detention commencing 2 May 1997. 2. Commit act of indecency towards a person under 16. Sentence to a recognisance pursuant to s 558 of the Crimes Act for a period of 3 years, to be supervised by the NSW Probation Service. 1. The maximum penalty for each offence is 10 years imprisonment. There is no Standard Non-Parole Period. The Crown sentence summary recorded that the offender had spent 15 days in custody following his arrest on 5 September 2013. 2. Exhibit B was a pre-sentence report by Ms D Buckley, dated 3 April 2017. The author recorded that the offender was a single man with no dependants, currently living with his elderly father in the Lidsdale area. He also had frequent contact with his mother, who lived nearby. He avoided and refused to discuss his interpersonal relationships with individuals or children. He also denied being socially isolated, stating that he had interests in pro-social activities and networks. 3. The offender had been employed as an assistant green keeper with the local golf club for approximately 8 years prior to his arrest. He left school after completing year 9 and had worked consistently in unskilled employment. 4. The offender declined to discuss either his prior or current offences and continued to assert that he had been previously wrongfully convicted. The author opined that he was "minimising his actions and refusing to take responsibility for inappropriate behaviours". 5. The offender was assessed as a medium-low risk of re-offending and his identified criminogenic needs are: * Education/employment * Leisure/recreation * Sex offending 1. When assessed, using the Static-99R, an actuarial instrument specifically designed to assess risk of sexual offending among adult male sex offenders, the offender was assessed as a medium/high risk of re-offending. 2. The author noted that there were a number of treatment options available should the offender be willing to access such interventions. Supervision by Community Corrections would include the following case management strategies: * Referral to Department psychologist to address sex offending and ongoing risk of management issues. * Monitoring of companions. 1. The offender was assessed as unsuitable for a Community Service Order. 2. Attached to the pre-sentence report was a case note prepared by Sang Cheung, forensic psychologist, dated 23 March 2017. Community Corrections had requested a forensic risk assessment for the purpose of the pre‑sentence report, however, the offender did not attend the appointment arranged for the assessment, and the current risk assessment was therefore based on a review of information provided and the Static-99R outcome. The author also reviewed the various psychological and psychiatric reports on the offender and noted that he still had held grievances towards the conviction of his prior sex offences. The author opined that his offending history indicated a sexual interest in children and that he had engaged in illegal behaviour to have this deviant sexual need met. The offender remained reticent regarding his sexuality and had avoided specialist treatment which added to the complexity in managing his risk of re-offending. 3. The Crown also relied on the following: Exhibit C – Report of Ms A Robilliard, forensic psychologist, dated 11 September 2014 Exhibit D – Report of Dr Adam Martin dated 2 December 2014, and Exhibit E – Report of Dr Stephen Allnutt dated 2 March 2015. 1. Each of the three reports had been adduced into evidence before Judge Yehia in her determination as to the accused's fitness for trial. Ms Robilliard's report assessed the offender as being on the boundary of low/average to average IQ, and his presentation indicated a provisional diagnosis of Autism Spectrum Disorder. Dr Martin made similar findings. He also opined as to a possibility of an underlying psychotic disorder such as schizophrenia, however, the offending behaviour and criminal history suggested an underlying paraphilic disorder, namely, paedophilia. 2. Dr Allnutt regarded the offender as unfit to stand trial because of his pathological fixation with his previous convictions. I referred to Dr Allnutt's assessment of that fixation in my judgment dated 25 October 2016. The offender's evidence 1. The offender tendered a document entitled "Offender Intake Data Form", the author of which was Ms Buckley, who also prepared the pre-sentence report. That document adopted, under the heading "Family Background", Dr Allnutt's report. 2. The offender also tendered as Ex 2 a transcript of the proceedings before the Mental Health Review Tribunal on 20 November 2015. In that hearing, the offender asserted he had a legal issue to be determined, namely, the irregularity referred to above concerning his previous convictions in 1997, and not a "mental issue". Crown submissions on sentence 1. The Crown relied on a written outline of submissions. It submitted that the objective seriousness of the offence of possession of child abuse material was reflected in the increase in the maximum penalty in 2008, from 5 years to 10 years imprisonment. The Crown relied on the following factors set out in Minehan v R [2010] NSWCCA 140, as being relevant to the objective seriousness for offences involving the possession and/or dissemination of child pornography: "(1) Whether actual children were used in the creation of the material. (2) The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. (3) The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. (4) The number of images or items of material – in a case of possession the significance lying more in the number of different children depicted. (5) In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1982) 147 CLR 383. (6) In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. (7) Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission. (8) The proximity of the offender's activities to those responsible for bringing the material into existence. (9) The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. (10) Whether the offender acted alone or in a collaborative network of like‑minded persons. (11) Any risk of the material being seen or acquired by vulnerable persons, particularly children. (12) Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. (13) Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) of s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence." 1. The Crown also referred to the Court of Criminal Appeal's judgment in R v Porte [2015] NSWCCA 1174, which contained an extensive review of the sentencing principles for the possession of child abuse material. It further referred to the judgment of Simpson J in R v Booth [2009] NSWCCA 89, where her Honour described possession of child pornography as a "callous and predatory crime, involving the exploitation and abuse of children and the profound damage done to those children". 2. The Crown submitted that the objective seriousness of the first offence of disseminating child abuse material was high. It involved sending a child pornographic image to another user via multimedia messaging service (MMS). The image fell within category 1 of the CETS scale, but involved sexual exploitation of a child. It was submitted that the offence involves another layer of criminality to that of possession of the material, namely, providing the material to another like‑mind person. Once the image was electronically sent, there was no control over the material and it could be distributed to countless other persons. 3. The Crown submitted that the objective seriousness of the offence of possession of child abuse material was increased by the volume of that material, which comprised 5,890 images and 54 videos, ranging from category 1 to category 6 on the CETS scale. A significant number of those were in the upper categories of the scale, and involved an estimated 3,000 different victims. It was submitted that the objective seriousness of the offending was very high, having regard to the factors set out in Minehan v R, supra. 4. The Crown submitted that the offences were of a type where substantial penalties and denunciation were paramount considerations, given that it was a callous and predatory crime. In cases of serious child pornography offences, the appropriate level of punishment is in the form of immediate incarceration, relying on R v Porte, supra. 5. The Crown also submitted that general deterrence is a key factor to deter like‑mind persons from committing similar offences. Here, the offender was unfit to plead due to his pathological fixation with his previous conviction, due to his possible Autistic Spectrum Disorder. There was no causal connection between any mental illness and the offending. It was submitted that the offender's condition did not impact upon his moral culpability in relation to possessing or disseminating child abuse material. He was aware of the criminality of possessing the images on his phone, which was exemplified when he lied to the police in telling them that he had lost his phone, whereas in fact it was in his possession. Thus, the Crown submitted that general deterrence still had an important role to play in the sentencing of the offender. 6. It was also submitted that there was a need for specific deterrence, given the large collection of child pornography that the offender had in itemised folders on his phone. The Court would also take into account his previous convictions for committing acts of indecency towards a person under 10 years and a person under 16 years. Despite those convictions, the offender had maintained an unhealthy sexual interest in young boys. 7. The Crown submitted that there should be a level of accumulation to reflect that the offences were separate and distinct, occurring on different occasions, and the need for distinct punishment for each offence to reflect the criminality and objective seriousness of each offence. 8. In oral submissions, the Crown highlighted the factors in Minehan v R, supra, that were relevant here. Whilst there was no evidence of cruelty or physical harm to children, there were acts of bondage, together with sexual acts performed. The Court would have regard to the large number of images and videos, and the level of planning and organisation involved. Although the offender appeared to be acting alone, he did disseminate one image to one other person. Further, the images were contained on a portable device, namely, his mobile phone, which made the material available at all times and at any place. 9. The Crown acknowledged that the image disseminated in the first offence was at the lower end of the CETS scale, but was still objectively serious offending. 10. The Crown rehearsed its written submissions in respect of the objective seriousness of the possession of child abuse material, the importance of general deterrence in the sentencing process, and its submissions relating to the pathological fixation of the offender with his previous convictions not being causative to the offending conduct. The Crown also referred to the reports of Dr Martin and Ms Robilliard, and submitted that whilst the offender was assessed as below average to average IQ, there was no failure by him to appreciate the material and the criminality of the material he was in possession of. 11. Finally, the Crown submitted that the Court would have regard to the principle of totality in sentencing in accumulating the sentence for both offences. The offender's submissions 1. Counsel for the offender referred to the offender's family and social circumstances as set out in the pre-sentence report (Ex B). The offender had been employed by his local golf cub for a period of 8 years prior to his arrest, and had been diagnosed as being on the Autism Spectrum. 2. It was submitted that the offender's antecedents would have limited impact in the sentencing process, having occurred 17 years prior to these offences. The offender had been in employment for most of his life. 3. The offender also submitted that the opinion of Ms Robilliard should be taken into account, namely: "If Autism Spectrum Disorder was then confirmed, it would have significant implications for his capacity and ability to understand social interactions, to appreciate another person's perspective, to adjust his behaviour appropriately, and to interact successfully with others, all of which are part of the symptom pattern of Autism Spectrum Disorder." 1. This meant the offender had limited insight into his capacity to interact socially, and lowered the moral culpability of his offending. 2. The offender submitted that his assessment as between low and low/average IQ should be taken into account. Otherwise, Counsel for the offender expressed general agreement with the Crown submissions, and submitted that if the Court ordered the offender to serve a custodial sentence, he should serve that sentence at the Long Bay Hospital, and not in the general prison population. Determination 1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 1. Section 5 of the Act provides as follows: "5(1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate." 1. In respect of the first offence of disseminate child abuse material pursuant to s 91H(2) of the Crimes Act 1900, I find that as the dissemination concerned one event only involving one image sent by MMS, the objective seriousness of the offence fell within the low range for an offence pursuant to s 91H(2). Because it was a single image only, it was within the lowest end of the range of objective seriousness. Notwithstanding that, it still constitutes serious criminal conduct 2. The second offence of possessing child abuse material pursuant to s 91H(2) of the Crimes Act 1900, is in a different category. This offence involved the offender having 5,890 images and 54 videos of child pornography on his Apple Iphone, a portable device. Whilst the majority of those images fell within category 1 of the CETS scale, a large number were within categories, 2, 3, 4, and 5, and two images were within category 6. Having regard to the factors set out above in Minehan v R, supra, and having viewed the sample material, I accept the Crown's submission that the objective seriousness of the offending in respect of the second offence was very high. The material involved approximately 3,000 children and there was a degree of planning and organisation employed by the offender in acquiring and storing the material. The fact that one of the images had been disseminated meant that there was a risk of the material being seen or acquired by vulnerable persons and/or a network of like-minded persons. However, I have been careful not to infringe the principle in R v De Simoni, supra, with respect to this aspect of the possession of the child abuse material. The material clearly involved the exploitation and abuse of children and I find that the objective seriousness of the offence fell towards the higher end of the mid-range of objective seriousness for an offence pursuant to s 91H(2). 3. I have had regard to the maximum penalty for an offence pursuant to s 91H(2) of 10 years imprisonment as a guidepost in the sentencing process here. 4. General deterrence is relevant to the sentencing process and a clear message must be sent to like-minded persons that the court will severely punish offenders of this type. The possible diagnosis of the offender suffering an Autism Spectrum Disorder was not causative of the offending here. I also take into account that the offender had previously been convicted of two like offences concerning children, however, those offences occurred in 1996, and therefore their importance is somewhat diminished. 5. Specific deterrence is also important here. The offender must understand that he will be treated severely if he maintains his sexual interest in young boys. 6. The offender's fixation on his previous convictions, and his misconceived assertion that the orders were irregularly obtained, as explained by me in my judgment on the Special Hearing, is not a relevant factor to take into account here. Section 23 of the Act requires me to indicate whether, if the Special Hearing had been a normal trial of criminal proceedings against a person who is fit to be tried for the offence which the person is found to have committed, I would have imposed a sentence of imprisonment, and further, where the court would have imposed such a sentence, I must nominate a term referred to as a "limiting term" in respect to that offence. The "limiting term" is the best estimate of the sentence I would have considered appropriate in those circumstances. 7. In arriving at a determination of whether a sentence of imprisonment would have been imposed following a trial, I take into account that the offender is 54 years of age, his low intellectual capacity, as evidenced by the assessment of his IQ, and his previous criminal antecedents. 8. Having regard to the principles of sentencing outlined above, and to the objective seriousness of the offending in each case, I indicate, pursuant to s 23 of the Act that if the Special Hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offences which the offender is found to have committed, the court would have imposed a sentence of imprisonment. 9. I further nominate, pursuant to s 23(1)(b) of the Act, the following "limiting term" in respect of each offence: 1. In respect of the first charge on the Indictment, a term of 4 months imprisonment; 2. In respect of the second charge on the Indictment, a term of 2 years and 3 months imprisonment. 1. Pursuant to s 23(4) of the Act, I take into account the period spent by the offender in custody, namely, 15 days, and therefore direct that the "limiting term" should be taken to have commenced, pursuant to s 23(5)(a), on 31 May 2017. 2. Section 24 of the Act provides as follows: "Consequences of nomination of limiting term 24 (1) If in respect of a person a Court has nominated a limiting term, the Court: (a) must refer the person to the Tribunal; and (b) may make such order with respect to the custody of the person as the Court considers appropriate. (2) If a Court refers a person to the Tribunal, the Tribunal must determine whether or not: (a) the person is suffering from mental illness; or (b) the person is suffering from a mental condition for which treatment is available in a mental health facility and, where the person is not in a mental health facility, whether or not the person objects to being detained in a mental health facility. (3) The Tribunal must notify the Court which referred the person to it of its determination with respect to the person." 1. Having regard to s 24 of the Act I refer the offender to the Mental Health Review Tribunal pursuant to s 24(1)(a). 2. Section 24(1)(b) of the Act provides for a discretion in the court to make such order with respect to the custody of the person as the court considers appropriate. This is necessarily an interim measure, subject to notification by the Tribunal of its determination pursuant to s 24(3), and the court's determination of the matter pursuant to s 27 of the Act which provides as follows: "27 Orders Court may make following determination of Tribunal after limiting term is imposed. If a Court is notified by the Tribunal of its determination in respect of a person under section 24(3), the Court may: (a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a mental health facility and that the person, not being in a mental health facility, does not object to being detained in a mental health facility – order that the person be taken to and detained in a mental health facility, or (b) if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a mental health facility – order that the person be detained in a place other than a mental health facility." 1. I will give the parties an opportunity to be heard in respect of that aspect of the matter. Orders 1. I make the following orders: 1. Pursuant to s 23(1)(a) of the Mental Health (Forensic Provisions) Act 1990, I indicate that if the Special Hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offences which the offender is found to have committed, the Court would have imposed a sentence of imprisonment for each charge on the Indictment. 2. Pursuant to s 23(1)(b) of the Act, I nominate the following terms for each offence: 1. In respect of the first charge on the Indictment, a term of 4 months imprisonment. 2. In respect of the second charge on the Indictment, a term of 2 years and 3 months imprisonment. 1. Pursuant to s 23(4) and 23 (5)(a) of the Act, I direct that each term to be taken to have commenced on 31 May 2017. 2. I refer the offender to the Mental Health Review Tribunal pursuant to s 24(1)(a) of the Act. ********** 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 June 2017