STATE OF TASMANIA v MITCHELL THOMAS ADEY 24 SEPTEMBER 2020
COMMENTS ON PASSING SENTENCE BRETT J
Mr Adey, you have pleaded guilty to one count of possession of child exploitation material and one count of possession of a bestiality product.
The material was found in your possession by police when they executed a search warrant at your home on 22 July 2019. The material was stored on three devices, two mobile telephones and a computer tower containing two hard drives, which you kept in your residence. You reside in a bedsit contained in an outbuilding on a property owned and occupied by your parents and siblings. As I understand it, the bedsit was set up as an independent residence, with limited access by other members of the family. You had also put security measures on the computer to prevent other family members accessing it without your knowledge or permission.
The three devices contained a very substantial amount of child exploitation material and a substantial, but lesser amount of bestiality products. Most of the material was stored on the computer. The police analysis revealed that a total of 149,673 images and videos were stored on the computer. Because of the sheer quantity, police were only able to analyse 34% of that material. Of this sample, there were 21,944 items which constitute child exploitation material, and 483 items of adult bestiality. In respect of the child exploitation material, 1253 images and videos have been categorised within category four and 197 images within category five of the ANVIL system. The balance falls within other categories of that system. One of the mobile telephones also contained six images in category four and four images in category five. I have been asked to draw an inference that the approximate proportion of child exploitation material within the analysed sample can be extrapolated to the balance of the material found in your possession. Your counsel has conceded this, and pointed out that you have provided these instructions because of a desire to co-operate in the administration of justice and in an attempt to demonstrate your contrition. I accept your concession on that basis.
In addition to the large quantity of material, its nature generally and, in particular, its more serious aspects, are very concerning. Across all the child exploitation material, numerous children of all ages and both genders are depicted being subjected to various forms of sexual abuse. I do not want to dwell on the details because quite frankly the mere description of some of it is horrific and distressing. However, in order to properly understand how serious the material is, I need to record some aspects of it. I point out that I have not been asked to view the material myself but rely upon descriptions prepared by those who have had the misfortune and the duty to do so. The descriptions have been asserted by the prosecution and are not challenged by you.
(a) Firstly, more than one video in category five depicts newborn babies, estimated to be days or weeks old, being orally penetrated by the penis of adult males. In one case, the infant has both arms restrained while penetration takes place. In another video, the baby is penetrated for a prolonged period and ejaculation occurs into the infant’s mouth and/or throat. It is apparent from the video that this act has occurred to the point of asphyxiation. The viewer is able to determine this from the colour change to the infant’s face and the cessation of verbal distress.
(b) Secondly, a number of videos depict prepubescent children, as well as adults, engaged in oral and vaginal penetration with animals. The animals include cats, dogs, horses, a donkey, a fish and a goat. There are also a significant number of videos depicting pubescent and prepubescent females giving and receiving oral sex to and from dogs. In one video, a distressed prepubescent female with an estimated age of six years is shown strapped naked to a metal frame. A person off camera is manipulating a cat to eat something from the girl’s vagina. In another video, a puppy is engaging in sexual activity with a girl aged between five and seven years.
(c) There are hundreds of images and videos in category four depicting children between the ages of eight and 16 years, boys and girls, being sexually penetrated by adults. The penetration includes oral, anal and vaginal intercourse. On occasion, inanimate objects are used to penetrate the children.
(d) There are many other videos and images depicting children performing sexual acts on themselves or other children, including by the use of sexual aids, and also masturbating adults to ejaculation.
You downloaded the material by the use of software which facilitates mass downloads by way of peer to peer file sharing. While you are not charged with distributing the downloaded material, you admitted to police that you were a member of a chat group, and provided copies of links to others in the group as a condition of ongoing membership. There is some evidence of rudimentary organisation of the downloaded material in the sense that it has been arranged and stored in folders.
You were 22 years of age when this material was found, and you are now 23. You have no prior convictions at all. As already stated, you live with your parents and siblings on a remote rural property. You have had a good upbringing, achieved year 10 standard at school and have a solid employment history. You are currently employed as a trade’s assistant and have a good reputation with your employer. Your family is supportive.
Your counsel asserts that you are extremely remorseful and points to your plea of guilty and your co-operation with the authorities and the administration of justice. The co-operation included admitting your possession of material, identifying the devices on which it was held and assisting police with access to it, which included overcoming passwords etc.
Your counsel informs me that you started collecting this material when you were 19 years of age. In one respect, your young age when you became involved with this activity is mitigating. On the other hand, it is a matter of concern that you persisted with the collection and viewing of this material over a lengthy period, when the extent of its depravity must have been obvious to you. Your counsel says that you had only viewed 10 to 15% of the material, but that is still a large amount and a sufficient sample for you to be aware of what you were collecting and holding. A psychological assessment confirms that you are not afflicted by major mental illness, nor is there a diagnosis of personality disorder. The psychologist does identify some personality traits which may have predisposed you to downloading and possessing illegal material more as a response to its illegal nature, than because of a desire to achieve sexual gratification. The psychologist believes that these traits are a reflection of your developmental stage, in particular immature emotional development, rather than chronic dysfunction. Further, the psychologist opined that the collection of this material may also be related to the stress arising from your brother’s major mental illness, which has caused considerable ongoing stress within the family unit. This information helps explain your offending and informs an assessment of the risk of re-offending and the need for personal deterrence, but otherwise does not mitigate your moral culpability.
The collection of child exploitation material creates a market for and thereby encourages the production of such material, and, hence, the ongoing sexual abuse of children. In the production of the material which was in your possession, a large number of children, many of whom were very young and included newborn babies, suffered serious sexual abuse and in some cases consequent physical harm at the hands of adults. The level of depravity and brutality is very high and this has a direct relationship to the potential and actual harm suffered by these children. Your age, lack of prior convictions and psychological condition are all relevant factors in the sentencing process. In particular I accept that imprisonment at your age carries potential adverse risks. However ultimately the need to deter others from accessing and possessing such material is the predominant sentencing consideration. The premeditated nature of this crime, and the ease of access to such material facilitated by the internet, means that it is particularly susceptible to general deterrence. It must be made known to those who are inclined to possess such material, whatever their age, that they will incur severe punishment for doing so. Further, I regard your moral culpability in this case as relatively high. You downloaded a large quantity of this material and could not have been under any doubt or misunderstanding in relation to the depraved and harmful nature of it. However, I will take into account in your favour that there was a relative lack of sophistication, particularly in the sense that you did not try to cover up or disguise your Internet identity.
Having had regard to and having balanced all relevant considerations, I have decided that the only appropriate sentence is one of imprisonment. I will, however, suspend part of the sentence in order to reflect your age and lack of prior convictions, and your co-operation with the administration of justice. The suspension of the sentence will also provide an opportunity for supervision, which has been recommended by Community Corrections and is also consistent with the psychologist’s recommendations concerning ongoing psychological therapy. I agree with those recommendations.
Accordingly, the orders I make are as follows:
1 You are convicted of the crime and the offence to which you have pleaded guilty.
2 You are sentenced to a global term of 16 months’ imprisonment. The last 10 months of the sentence will be suspended for a period of 18 months on the following conditions:
(a) That you are not to commit another offence punishable by imprisonment during that period.
(b) That you will be subject to the supervision of a probation officer. You must comply with this condition for a period of 18 months. That period will commence from when you lawfully cease to be imprisoned under this sentence. The Court notes that the conditions referred to in s 24(5B) of the Sentencing Act apply to this condition. These include that you must report to a probation officer within three clear days of the day that you lawfully cease to be imprisoned under the sentence. In addition to the core conditions the order shall also include the following special conditions:
(i) you must, during the operational period of the order, attend educational and other programs as directed by the Court or a probation officer;
(ii) submit to the supervision of a probation officer as required by the probation officer;
(iii) submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
3 I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. Having regard to the circumstances of this case, I am not satisfied of that matter and, accordingly, must make an order. The maximum term of such an order is eight years. I do not think the maximum is necessary, particularly in light of the psychologist’s assessment of future risk. However, in my judgment, that assessment does not preclude a significant risk of reoffending, and accordingly, in my view, the order should be in place for a significant period. Accordingly, I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of four years commencing on the date of your release from prison.
4 I order that the two mobile phones and the computer tower seized by police on 22 July 2019 be forfeited to the Crown.