District Court New South Wales Medium Neutral Citation: R v Quinn [2018] NSWDC 362 Hearing dates: 18 May 2018 Date of orders: 18 May 2018 Decision date: 18 May 2018 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: See [22]. Catchwords: SENTENCING — Multiple offences – Commonwealth offences – Use carriage service to access child pornography – State offences – possess child pornography – produce child pornography Legislation Cited: Crimes Act (NSW) Crimes Act (Cth) Cases Cited: Burbridge v R [2016] NSWCCA 128 DPP (Cth) v D'Alessandro [2010] VSCA 60 Fitzgerald v R [2015] NSWCCA 266 Minehan v R [2010] NSWCCA 140 Pearce v The Queen (1998) 194 CLR 610 R v De Leeuw [2015] NSWCCA 183 R v Freedman [2017] NSWCCA 201 R v Porte [2015] NSWCCA 174 R v Zamagias [2007] NSWCCA 17 Xiao v R [2018] NSWCCA 4 XX (2009) 195 A Crim R 38 Category: Sentence Parties: Regina (Crown) Terry Quinn (Offender) Representation: Crown: Ms Burr Counsel for the Offender: Ms Cameron File Number(s): 2017/159699 Judgment 1. Terry Quinn who was born in 1970 was, in my view, accurately described by Ms Cameron, who appeared for him today, as an introverted loner and an unusual type of offender in this field. He pleads guilty to three counts and stands for sentence for an offence against the Criminal Code (Cth) under s 174.19 of using a carriage service to access child pornography which carries a maximum penalty of 15 years imprisonment, one count under s 91H(2) of the Crimes Act (NSW) of possess child abuse material carrying a maximum penalty of 10 years with no standard non-parole period and one further count under s 91H(2) of production of child abuse material which also carries a maximum penalty of 10 years. 2. He has no prior convictions and he has served no time in custody following his arrest on 27 May 2017. I must carry out the sentencing exercise having regard to the provisions of s 3A of the Crimes Act (NSW) and s 16B of the Crimes Act (Cth) to which I will refer in further detail. 3. The agreed facts demonstrate that police received information that he had child pornography on his computer and on 27 May 2017 they attended his home at Granville. He was cooperative and disclosed to police the presence of a number of devices on which child pornography was located. First, he took them to the rear bedroom of the address and he showed them an external hard drive. Investigators using the relatively new Interpol baseline characterisation reviewed 5,013 images, 300 of which were child abuse material. Of those 300 images, 130 were category 1 and 170 were category 2. That ultimate led to an estimate of 923 to 1,179 child abuse images being uncovered on the ASIS drive. 4. Police then turned to the WV hard drive and found 308 images out of 1,553 classified as child abuse material of which 76 were category 1 and 232 were category 2; with an estimate of between 1,800 and 2,400 child abuse images on that drive. There were also a total of 36 videos, one of which had child abuse material. 5. An Apple iPhone was examined and found to contain 5,182 images of which 1,101 were classified as child abuse, 82 being category 1 and 1,019 were category 2. A Nokia mobile phone which had a screen saver being a child abuse image showed 520 images, of which 220 were child abuse material, 16 being category 1 and 204 being category 2. 6. He co-operated with police throughout the search and participated in a recorded interview in which he admitted that all the devices belonged to him and he had exclusive use of them. He started collecting when he was 15. He accessed the material when he has had a hard day at work to de-stress. He only saved images of females who he found attractive and pretty. He did not masturbate while viewing the material and he believed that he would stop viewing and collecting in a few years as he felt he was no longer enjoying them. 7. In total there were between 2,800 and 3,400 child abuse images located on the five devices. He indicated that there were a number of duplicates as the hard drive was used to back up other electronic devices. There is no evidence that the offender was involved in file sharing on the dark web or similar networks. 8. In addition to the material contained in the Crown Bundle the Crown provided two folders of electronic evidence discovery reports which set out a sample of the category 1 and category 2 images, together with the New South Wales definitions of child abuse material and the Interpol characterisations. I have had regard to that material and have been assisted by the Crown in indicating what is said to be a representative sample of category 1 materials. 9. The evidence relied upon by Ms Cameron for the offender comprises a lengthy report of psychologist Dr Peter Powell, a number of medical reports in relation to both the offender and his brother, and a letter from the offender together with references and documents indicating the recent termination of his employment with Australia Post as a result of these offences being the subject of court proceedings. The offender saw Dr Powell at the Pastoral Counselling Institute on four occasions over a period from June to August 2017 and then commenced treatment in a group called Men Taking Responsibility. The group sets out a program of some two and a half years of treatment. Although the offender has not given evidence and adopted the history nor been subject to challenge on the history, it is in my view a reasonable basis for proceeding to sentence given that it is consistent with other material apart from the history set out in the report, including the mental health reports and the letters from the offender and others to which I have referred. 10. Dr Powell notes that there are no thoughts of suicidal ideation and he is relatively motivated to continue in a treatment program. He asserts, without in any way minimising the serious offending, that there is evidence of a depressive disorder linked to poor emotional attachment and identity relations for which he is currently taking appropriate medication. He asserts that it is likely that the offender was severely depressed at the time of his offending and has a co-morbid disorder along with a communication disorder lowering his sense of social responsibility and personal commitment to positive social values. He administered tests as to the adult autism spectrum, but while he displayed some traits there is no further diagnosis in that area. Dr Powell acknowledged that the risk assessment here is a complex process, but was of the view that his risk of reoffending was low to moderate. He said there is no conclusive evidence to demonstrate that he was a paedophile or someone who has tendencies in that area and there is no evidence to show that he was driven to cause harm to others. He recommends a treatment plan which has been partially carried out to date. 11. A mental health treatment plan is in evidence as a result of consultation with Dr Holly at Granville and I have regard to the medical reports in relation to the offender's brother, which demonstrate that his principal problem is multiple sclerosis. I accept that the offender plays a significant part in caring for his brother, although there is no submission that a term of incarceration would cause exceptional hardship for the family member. 12. The offender's letter to the Court expresses a deep remorse for what happened. It acknowledges that there was no excuse for his behaviour and that he has learnt from his involvement in the Men Taking Responsibility program that he should have been able to control his poor and illegal behaviour. He says, and this is supported by the absence of prior convictions, that he has always done the right thing in his life, other than this, and supported his family and others with help and financial care and that is supported by his sister in her reference. He has very little contact with his family. His mother passed away in 2008 and his father left when he was in primary school and he did not return. He rarely sees his father. He acknowledges, in part as a result of him having served on a jury in 2013, that the likelihood that he will go to gaol is something which scares him but although he is terrified of the prospect he is making efforts to change his ways. He says the computer was the centre of his life and the real world was not. As was pointedly put in the letter he is not someone who has a successful career and he sees younger people passing him by in terms of advancing to more senior positions during his 15 years with McDonalds. He then left to join Australia Post in 2007 where he has remained until his termination in last month. He again expresses his deepest apologies for the unbelievable behaviour in his conclusion. His sister Linda and his brother Terry both speak highly of the support that he has given them. 13. I have been greatly assisted by comprehensive written outlines of submissions prepared by the Crown Prosecutor and by Ms Cameron for the offender. To put it shortly, the Crown's ultimate submission is that the only appropriate penalty for the series of offending is a period of full time custody having regard to the nature and objective seriousness of the offence and the paramount need for general deterrence, as does the offender in his letter to the Court. Ms Cameron appears to acknowledge the inevitability of a term of full time imprisonment as being the appropriate sentence, however before coming to that conclusion it is necessary to record the factors which must be taken into account in the sentencing process. 14. In relation to sentencing for the Commonwealth offence I must, as I have said, take into account Part 1B of the Crimes Act (Cth) and the general principles relating to this type of offending summarised by Johnston J in R v De Leeuw [2015] NSWCCA 183 starting with the general proposition that unless exceptional circumstances existed an immediate term of imprisonment is ordinarily warranted. Having regard to the paramount public interest in promoting the protection of children, given that the possession of such material creates a market for the continued corruption and exploitation of children, the fact that an offender does not pay to access a child pornography website or does not get involved in the distribution or sale of such material does not mitigate the offending, noting that such offending occurs on an international level and is becoming increasingly prevalent. 15. I will deal with the question of objective seriousness when I turn to Ms Cameron's submissions. I take account of the contrition and early guilty plea in the light of the recent decision in Xiao v R [2018] NSWCCA 4 I take into account the utilitarian value of the guilty plea as well as the willingness to facilitate the course of justice, and thus a 25% discount on any term of imprisonment would be appropriate. I take account of his prospects of rehabilitation which could best be described as reasonable in the light of his engagement with treatment and counselling since his apprehension. I take account of his cooperation with the Police at the time of the execution of the search warrant and I note the authorities to the effect that in this type of offending the seriousness of the offence will often outweigh personal circumstances such as prior good character. I must take into account as the High Court said in Pearce v The Queen (1998) 194 CLR 610 questions of totality involving examination of accumulation and concurrency which will be necessary given that separate sentences must be imposed. The Crown submits that the offences are not identical and there is some degree of factual overlap between the two, that some degree of accumulation is therefore appropriate. 16. I have had regard to a number of cases referred to in the Crown's submissions including R v Freedman [2017] NSWCCA 201, Burbridge v R [2016] NSWCCA 128, Fitzgerald v R [2015] NSWCCA 266, R v Porte [2015] NSWCCA 174 and DPP (Cth) v D'Alessandro [2010] VSCA 60 and the limited guidance which such cases provide, bearing in mind the need to carefully consider the objective and subjective circumstances of each case. 17. Having regard to the evidence that there was some duplication of images and having regard to the agreed facts to which I have referred and the perusal of the material in exhibit B, and although it is unnecessary to fix a finding of objective seriousness as there is no standard non-parole period provided for any of the offences, I am of the view, as Ms Cameron submits, that these first two offences, the Commonwealth offence and the possess offence were below the mid-range of objective seriousness insofar as such assessment is of value. In making that assessment I have regard to the matters set out in Minehan v R [2010] NSWCCA 140, including whether actual children were used in the creation of the material. As to the produce child abuse material and the assertion that he carried out that by applying filters to existing child abuse material and did not use actual children to produce them I have regard to the nature and content of the material including the age of the children and the gravity of the sexual activity portrayed, the extent of any cruelty or physical harm that may be occasioned by perusal of the material, whether there was any dissemination of the material and the absence of any payment or any other material benefit, the absence of any evidence of links between the offender and those responsible for bringing the material into existence, the absence of evidence that he was engaged in any collaborative network of likeminded persons, the absence of evidence of the risk of the material being seen or acquired by vulnerable persons, the absence of risk of the material being seen or acquired by people susceptible of acting in the manner described or depicted and that he kept the devices within his home or on his person at all times and they were used by him only and, on the evidence, not shown to anyone else, on the evidence. 18. There are no aggravating factors apparent or asserted. Ms Cameron concedes that the children displayed in the images were vulnerable and the harm caused in the creation of the material is substantial. The mitigating factors have largely been addressed but they are conveniently summarised as; being that it was not part of a planned or organised criminal activity, he has no previous record, he is of previous good character, he is unlikely to reoffend, he has reasonable prospects of rehabilitation and he has shown remorse and entered a plea of guilty. 19. I accept that there is a limited basis for finding reduced moral culpability due to the diagnosed mental condition, to which I have referred, which makes it slightly less important to emphasise general deterrence in the sentencing process. Ms Cameron correctly points out by reference to R v Zamagias [2007] NSWCCA 17 the way in which the Court should approach the imposition of a sentence of imprisonment, by firstly considering whether there are any alternatives to the imposition of a sentence of imprisonment; secondly, determining the length of the term; and thirdly, considering whether there are any alternatives to full time custody. Ms Cameron concedes that the contemplation of an intensive corrections order would be a lenient result. Ms Cameron further does not positively submit that there are sufficient exceptional circumstances to take the matter out of the general principle from R v De Leeuw [2015] NSWCCA 183 to which I have referred. 20. I accept her submission that the sentences imposed for the use carriage service and possession offences should be wholly or substantially concurrent as the conduct arises from the same course of criminal conduct and the sentence for one offence can encompass the criminality of the balance of the offending, taking into account the well-known principle set out by Hall J in R v XX (2009) 195 A Crim R 38. 21. There is no challenge by the Crown to a finding of special circumstances in relation to the State offence. In light of his prospects of rehabilitation, the fact that this is his first time in custody, that there is a mental condition susceptible to treatment which will make his time in custody more onerous, and a consideration of the full constellation of subjective circumstances, a finding of special circumstances is warranted. 22. The orders that I make are as follows: 1. In relation to each offence the offender is convicted. In relation to the possess child abuse material charge: 1. I impose a sentence of imprisonment of 15 months to commence on 18 May 2018 and expiring on 17 August 2019. 2. I impose a non-parole period of nine months expiring on 17 February 2019; the offender is eligible for release to parole on that date. 3. I find special circumstances. On the Commonwealth offence: 1. I impose a sentence of 15 months imprisonment to commence on the same date that is 18 May 2018. 2. I order that the offender be released on 17 February 2019 after serving 9 months upon entering into a recognisance, self, in the sum of $100.00 on the condition that he be of good behaviour for six months, expiring 17 August 2019. On the produce child abuse material charge: I am not satisfied that a period of imprisonment is justified: 1. Pursuant to s 9 I order that he enter a good behaviour bond for a term of six months from today, 2. Conditions applying during the term of the bond are as follows: 1. To appear before the Court if called upon to do so and 2. To be of good behaviour. I do not propose to make any further orders in relation to that bond. 1. I find special circumstances. 2. I make a forfeiture order. Note – This is an ex-tempore judgment revised without access to the court file. ********** Amendments 06 December 2018 - Update coversheet. Decision paragraph number corrected. 13 March 2019 - Anonymised unique personal identifier on cover sheet and at [1]. 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: 13 March 2019