District Court New South Wales Medium Neutral Citation: Mark Anthony GINN [2019] NSWDC 892 Hearing dates: 27 September 2019 Date of orders: 27 September 2019 Decision date: 27 September 2019 Before: Judge W Hunt Decision: For State offences sentenced to an aggregate term of imprisonment consisting of a head sentence of 18 months with a with non-parole period of 12 months. For the Commonwealth offence sentenced to imprisonment for a period of 12 months and is to be released after serving six months upon Recognisance Release Order (Cth). Sentences are partially accumulated. Catchwords: CRIMINAL – Sentence – State and Commonwealth offences – Fail to reply with reporting conditions – Use carriage service to access child pornography – Possess child abuse material – On conditional liberty at time of offending -Specific deterrence – Depressive illness – Debilitating physical condition – Socially isolated. Legislation Cited: Child Protection Offenders' Registration Act, 2000 Commonwealth Criminal Code Act, 1995 Crimes Act, (NSW) 1900, Criminal Procedure Act, 1986 Crimes (Sentencing Procedure) Act,1999 Cases Cited: Callaghan v R [2006] NSWCCA 58 R v Gray [2018] NSWCCA 241 R v Porte [2015] NSWCCA 174 R v Thompson v Houlton (2000) NSWLR 383 Xiao v R [2018] NSWCCS 4 Category: Sentence Parties: The Crown Mark Anthony Ginn Representation: Ms E Burr – Crown Mr D Marr (cl) - Offender Solicitors: Director of Public Prosecutions Legal Aid File Number(s): 2018/121625 Judgment 1. HIS HONOUR: Mark Anthony Ginn is before the Court for sentence in relation to three offences. The first of these is a State offence in breach of s 17(1) of the Child Protection Offenders' Registration Act, 2000 that Mr Ginn failed to comply with his reporting obligations under a child protection offenders' registration order. The maximum penalty for that offence is five years imprisonment and/or a fine of 500 penalty units. The second offence is a Commonwealth offence in breach of s 474.19 of the Commonwealth Criminal Code Act, 1995 which is using a carriage service to access child pornography. The maximum penalty for which is 15 years. The third offence at sequence 3 is an offence in breach of s 91H of the Crimes Act, (NSW) 1900, accordingly is a further State offence, and that is an offence of possessing child abuse material. The maximum penalty for that offence is 10 years imprisonment. All the offences were committed in breach of conditional liberty, being parole. 2. There are no charges to be dealt with on either a schedule to s 16BA of the Commonwealth legislation or on a State Form 1. Similarly, there are no matters to be dealt with pursuant to s 166 of the Criminal Procedure Act, 1986. 3. These reasons for sentence are being delivered extempore on the day that I read the evidence for both parties, the careful written submissions of both parties and heard some supplementary oral submissions. 4. The Crown bundle at exhibit A includes not only the facts in relation to this matter and some written submissions but also provides both a table and original decisions of some other cases that are said to be potentially analogous and to assist in the Court's task of determining the appropriate range. Additionally, I have the facts in Mr Ginn's criminal record that relate to earlier offences of a similar kind, but more serious objective seriousness, in relation to which Mr Ginn was found guilty by jury and ultimately sentenced by Arnott DCJ. 5. Exhibit B is the sentencing assessment report. Exhibit 1 consists of, as well as Mr Marr's helpful written submissions, a report of Tim Watson-Munroe, forensic psychologist, and some extracts of some material in relation to the condition of hydrocephalus, which is a neurological condition that has the effect in Mr Ginn's case of rendering him wheelchair bound for about the last nine years. He has a shunt in his brain which has the effect of taking away extra fluid which as part of this syndrome pools at the top of his head and needs to be routed by tubing so that it can be expelled by his bladder. 6. In sentencing Mr Ginn I am obliged to have regard to s 16A of the Commonwealth Code and alert to the restraint provided by s 17A, that is the period of imprisonment should be one of last resort. Similarly, in relation to the State offences, I am obliged to have regard to all the purposes of sentencing for s 3A of the Crime (Sentencing Procedure) Act. 7. In this class of offence, general deterrence is an important consideration and in Mr Ginn's particular circumstances where he offended within a week of being released to parole in relation to his last matters. Although these matters are not as objectively serious as many the Court sees, the fact that he offended so quickly and in like manner to his original offences, means that specific deterrence has an important role to play. 8. In relation to all the matters I have regard to the maximum penalties as a guidepost or benchmark in the way contemplated by the authorities and in relation to the Commonwealth offence I take the maximum penalty into account in weighing the current offending against the worst possible case. 9. The facts are agreed between the parties and from them I extract this material. The offender in this matter is a registrable person under the Child Protection Offenders' Registration Act. 10. On 21 February 2018, the offender was issued with a child protection offenders' registration notice at Long Bay Correctional Facility. On 6 March 2018, he attended Wyong Police Station, where his obligations under that registration were explained to him. The offender was required to supply a number of details to police which were recorded. From now on, when he has his liberty, the offender is required to attend a police station annually to sign a Form 4 in which his details are confirmed as correct, and updated as required. In the interim he is required to update any details that change between those reviews. 11. The facts in relation to sequence 1 are that on 26 March 2018, police conducted a home visit check on the offender's residence on the central coast. Police asked for consent to enter and inspect the offender's premises, and any electronic devices that he possessed, and that permission was granted by the offender. The offender disclosed to police that he had a number of aliases for various state of accounts. For a YouTube account the username was Joe Blow, an Instagram account in the name of paul_benson69, and an email address of americandad1000@gmail.com, which was used for online gaming in World of Warcraft. The offender told police that he thought he may have told his case officer about these accounts. 12. When text messages on the device were searched it was found through text messages that the offender had asked somebody else, in fact his sister‑in‑law, to create a particular kind of account using her details. The login was shadow_hard_7@hotmail.com, with the password boobies7. 13. Those details had not been disclosed by the offender as part of his reporting obligations. 14. There was some level of covert activity in using somebody else to register the last matter. There is nothing to suggest that there was anything illegal in relation to either the Warcraft account or the Instagram account. The YouTube account was used to access matters that formed the criminality in sequence 2 and sequence 3. 15. The objective seriousness of that matter, although all breaches of that kind of protection regime are serious, the objective seriousness in relation to that matter falls towards the lower end of the range but not at the lowest end of the range of objective seriousness. 16. The facts in relation to sequence 2, which are the Commonwealth matter, are that the offender consented a police examination of his mobile iPhone. He unlocked the device for police and was seen to delete some items off the device before police asked for it. On an examination of the device a number of images and videos were located on his device that depicted young females below the age of 12 in sexually suggestive poses. These female people were clothed but the images and videos depict actual prepubescent children and the material is focussed on the genital and anal regions of the children, although clothed. Due to the length of some of the videos and the content located, police seized the offender's phone. He was cautioned and asked about the images in a handheld recording. The offender was not placed under arrest at that time given the pending investigations into the device. 17. The offender gave police a code for his mobile phone and stated that the video files on it were from his YouTube account of girls doing gymnastics. I will take into account the level of assistance that the offender rendered by providing passwords and access to material on his phone, which shows a desire to assist in the administration of justice over and above his pleas of guilty. 18. I have seen some of the images that relate to sequence 2 and principally to sequence 3. It is true that given the images and the video files all fall in the Interpol baseline category of 1 and 2, that the objective seriousness both in terms of the number of images and the nature of the images is of lower objective seriousness than cases that Courts have seen in other matters. 19. In R v Porte [2015] NSWCCA 174, for instance, which is one of the leading cases on possession of child abuse material, there was something like 124,000 images held by that offender, including some of much more serious ranking. Having said that, there is no doubt even though the images seem to have sourced from publically available YouTube stock, it is inescapable that there is sexual suggestiveness in the posing of the children, and some of the children seem to have been invited to pose in the fashion seen. 20. In relation to the Use Carriage Service offence, I rate the objective seriousness of the matter at the bottom of the middle-range, but not into the lowest range of objective seriousness. 21. Similarly, the facts in relation to sequence 3 are that data extraction was completed on the mobile device. Police found videos downloaded to the device from YouTube to be of girls approximately aged between 5 and 11 years of age. The files included Russian, Spanish and English. In some of the files the videos have the appearance of the female children being live streamed and reading comments typed to them on their devices and then posing or participating in activities that people viewing these live streams are requesting of them. 22. Many of the children are in fact dancing, performing gymnastics and generally playing. They are represented in various states of undress and some are depicted wearing underwear or a short top or skirt and show their genitalia and anal regions for extended periods. A number of the images from the videos have been saved as screenshots to the offender's phone. Similarly that matter falls towards the bottom of the midrange, but not into the lowest range of objective seriousness, given the limited number of images and the relatively benign nature of them. 23. After that review police contacted the offender and asked him to attend the police station in relation to the allegations and on 17 April 2018 he attended Wyong Police Station and was placed under arrest in relation to each of the three charges I have referred to. 24. At the time that he was interviewed he was cautioned and entered into custody. The offender agreed to participate in an electronically recorded interview. During that interview he admitted to accessing and downloading the videos on his mobile phone from a YouTube quick download application. He stated that at that time he did not think they were illegal as the children were clothed and available on YouTube. He stated he must have accidently taken the screen shots located on the device whilst viewing the video files. It is hard to accept that as being a reality. 25. The offender also admitted to having the various aliases, social networking account and email account for some years. He made an admission that he failed to disclose them to police consistent with his reporting obligations. He told police that he thought if they were not in use that he did not have disclose them, which was clearly wrong. The offender stated to police that he does not know why he views images such as those downloaded on his mobile phone, and he is currently seeking treatment for this. Given that the offender has previous and more serious matters of the same kind, and seems to have not received any treatment in custody, it is clear that he has a problem that he needs to address if he is not going to breach the law in this way repeatedly. 26. Obviously if he breaches the law again in relation to having child abuse material using a carriage service or failing to comply with his reporting obligations he is going to be in gaol for a very long time, notwithstanding some of the subjective difficulties that he has. 27. Given this is a matter in which I am to sentence State offences as well as for Commonwealth offices, I do not propose to slavishly deal with the matter under the various headings provided under s 16A as I normally might. 28. I have dealt with the nature and circumstances of the offending in what I have had to say about the facts, and my characterisation of the objective seriousness. It is a matter where the two State offences, the offender is entitled to a full utilitarian discount of 25% consistent with R v Thompson & Houlton (2000) NSWLR 383 and other authorities. 29. After Xiao v R [2018] NSWCCS 4, in the Federal arena, it is appropriate for the Court, if it elects to do so, to enumerate also a utilitarian discount having regard to the plea of guilty also as a manifest of Mr Ginn's determination to assist the administration of justice. I am going to accord him a 25% utilitarian discount in relation to that matter. 30. It is clear on the basis of Dr Watson-Munro's report, which I accept more readily than I would in some other cases, because there are some other objective material in relation to Mr Ginn that means that I can have confidence in what Dr Watson-Munro has to say. 31. It is clear that the offender suffers from a major depressive illness. It is clear that he suffers from a debilitating physical condition and I have had the experience of watching Mr Ginn being lifted from his seat in the Court into his wheelchair by Corrective Services offices. It is obvious that his time in custody is made much more uncomfortable and onerous than somebody that did not have his serious medical deficits. 32. I take into account that because of his serious physical deficits, and perhaps also because of his major depressive illness, that that too makes his time in custody more difficult and also means that he has become socially isolated and very reliant upon his family. He intends when he has his liberty to go and return to his mother, who is supportive of him, as are his siblings. 33. I take into account that he has got a congenital condition that makes his life very difficult but he is also likely to deteriorate. I accept from Mr Marr that he had an appointment to see a psychologist to start some work in relation to his subjective problems that was scheduled to be the day after his arrest by police. 34. The sentencing Mr Ginn is a complex matter, partly because of the interaction of two State matters and a Commonwealth matter, but also because he had been fairly recently admitted to parole in relation to his pre‑existing sentence. He served out upon parole being revoked all of the balance of parole period. What that means is that he has been in custody solely in relation to this matter for seven months and 23 days. 35. In assessing the objective seriousness particularly of the two matters that relate to either using the carriage service to access child pornography or possess child abuse material, the reason that neither of those matters fell into the low range of objective seriousness is because they were seriously aggravated by the fact that he was in breach of conditional liberty, that is parole, and parole for similar types of offences. He also committed offences while he was a registrable person under the Child Protection Offenders' Registration Act. 36. Given I have taken those matters into account as aggravating the objective seriousness of the offending, that means it is proper consistent with cases like Callaghan v R [2006] NSWCCA 58 and R v Gray [2018] NSWCCA 241 to consider the way in which I exercise my discretion in terms of a backdate of his sentence. I do take into account that Mr Ginn was bail refused in relation to these matters and that had the effect of making it more difficult for him to otherwise apply for a further release to parole. 37. I have ultimately determined, taking into account that there is no material that could persuade me that there is a causal link between his physical condition or his psychological problems and his offending, the issues of totality and discretion as to whether to backdate need be considered. Taking into account that even though I have some scepticism about the sentencing assessment report that assesses him as a low to medium risk of reoffending on an actuarial basis, because these offences and his past offences are what are known as "non-contract offences" it is harder to assessthe risk of future offences. 38. While Mr Ginn declines to examine why it is that he has a sexual interest in prepubescent children, principally girls, he will continue to offend in my view, and I am unable to form the view that he has reasonable prospects of rehabilitation. I am unable to find that he is unlikely to reoffend. 39. Having said that, his parlous physical condition, his stated intention to seek rehabilitation, and comply with any programs given him by Community Corrections when he has his liberty in relation to the State offences, I find special circumstances on those basis. 40. The approach that I have determined to take is first to deal with the State offences first, and to deal with them by way of an aggregate sentence. I propose to largely give a backdate but not a total backdate. The sentence in relation to the State matters will commence two months after he went into custody and so that there is a discrete and identifiable amount that relates to revocation of parole alone. I do so in the exercise of my discretion and that is intended. 41. Similarly, the sentence for the Commonwealth offence will be partially accumulative to and partially concurrent with the State sentence. It has been my intention in structuring the sentence that Mr Ginn not be over-sentenced in relation to these matters, but also have two years where he is able to get treatment in the community as recommended by Probation and Parole. Given the character of these matters, notwithstanding his pre-existing record, it is not appropriate that he serve a further three years, which is what is indicated it would take for him to have the treatment in custody. 42. Each of the matters have 25% utilitarian discounts factored into them. The indicative sentences have the utilitarian discount applied. 43. In relation to all three matters Mr Ginn is convicted. In relation to sequence 1, the fail to comply, the indicative sentence is one of nine months, the starting point sentence before discount would have been 12 months. In relation to sequence 3, the indicative sentence for the possess child abuse material is 14 months and would have been 18 and a half months with a little bit of rounding but for the discount. 44. The aggregate sentence in relation to those two State offences pursuant to s 53A is 18 months of imprisonment to date from 17 June 2018 and to expire on 16 December 2019. I set a non-parole period of 12 months which has expired on 16 June 2019, and that would have been the earliest date that Mr Ginn could have been considered for parole but for the effect of the Commonwealth sentence. As I have said, I find special circumstances in relation to the State matters. 45. In relation sequence 2, which is the Commonwealth matter, the offender is sentenced to 12 months imprisonment to commence on 17 April 2019. He is to be released after serving six months of that sentence on 16 October 2019, which will come around very shortly upon him entering into a Recognisance Release Order, self, in the sum of $100 without security, conditional: 1. That he be of good behaviour; 2. That he accept supervision of Community Corrections and undertake all programs as directed, including sex offender treatment; and 3. That he report to the officer-in-charge of Community Corrections at Gosford within three days of release. 1. It is normally seven days for you to report, Mr Ginn, but in your case you need - allowing that if you were released on a Friday you'd have to be there on the Monday. So I've taken into account three days so that if you're released close to the weekend you won't be in trouble. You need to be stringent about that. The whole sentence is that you did two months that related to revocation of parole alone. I then gave you a State sentence of 18 months with 12 months on the bottom. That non-parole period has already expired and then partially accumulative and partially concurrent on that is a Commonwealth sentence which is 12 months' imprisonment, six months to serve, to be released on 16 October, which is a little bit over two weeks, with 6 months further on supervision. ********** 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: 14 May 2020