STATE OF TASMANIA v SHANE ROSS BONE 26 APRIL 2023
COMMENTS ON PASSING SENTENCE WOOD J
The defendant, Shane Ross Bone, has pleaded guilty to four charges contrary to the Criminal Code (Cth) concerning child abuse material: charges 1 and 2, contrary to s 474.22A(1), two offences of possess or control child abuse material obtained or accessed using a carriage service on 29 October 2020; charge 3, contrary to s 474.22(1)(a)(i) of the Code, using a carriage service to access child abuse material between 24 October and 26 October 2020; and charge 4, contrary to s 474.22(1)(a)(iii) of the Code, using a carriage service to transmit child abuse material concerning text messages sent on 31 March 2020.
On 29 October 2020, police executed a search warrant at the defendant’s home at Chigwell. Three USB sticks were found secreted under the bottom drawer of a bedside table in the defendant’s bedroom and a Lenovo laptop and Samsung mobile phone in his bedroom. The defendant was present and co-operated by providing access to his devices.
Charge 1 concerns child abuse material on the three USBs, involving a total of 16 images and 754 videos.
The files were categorised as category 1 and 2 child abuse material using the Interpol 4-Tier Categorisation System. Category 1 depicts real prepubescent children (under the age of 13 years, approximately) and the child is involved in a sexual act, is witnessing a sexual act, or the material is focussed on the child’s anal or genital region. Category 2 involves files that are illegal according to local legislation, either by way of age or content. In total, there were 16 category one images, and 614 category 1 videos, and 140 category 2 videos.
Charge 2 concerns the possession of the child abuse material that was located on the Lenovo laptop: 1625 videos were located, which involved 866 category 1 child abuse material and 759 category 2 child abuse material.
Charge 3 involves the defendant’s conduct in accessing child abuse material by using his laptop. Between 24 October 2020 and 26 October 2020, he accessed 1624 of the videos that were on his laptop.
Charge 4, transmitting child abuse material, involves direct messages sent by the defendant on the Instagram application on his Samsung mobile phone that was seized by police. One exchange was with an Instagram user using the username “creed_snow”. During a chat on 31 March 2020, the defendant discussed raping an underage male, how to go about it, and who to target.
The defendant was interviewed by police. He maintained that he accessed the material because he was “hunting paedophiles”, and that his purpose was to catch paedophiles and assist the authorities. As background, his motivation is said to relate to childhood abuse that he had been subjected to. This assertion about his purpose in accessing the material was maintained in the account he gave to his treating psychologist, Ms Desiree Taylor, and to a forensic psychiatrist engaged by the Court to provide a report, Dr Pandurangi. The defendant has denied having a sexual interest in the material. Both specialists declined to comment on the veracity of these assertions on the basis that that is a matter for the Court. The defendant has maintained this position in these proceedings and the plea in mitigation advanced by his counsel.
The asserted purpose in accessing the material was disputed by the prosecution and led to a disputed facts hearing. On 29 March 2023, I resolved the dispute and provided reasons for my determination. I rejected the defendant’s explanation for his conduct. I concluded that his motivating factor for committing these offences was sexual interest and sexual gratification in viewing the material. That is not to suggest that he deliberately misled the authorities and the Court through his counsel; it is feasible that there are grains of truth in what he has said and that he has convinced himself about the rest. It is not unusual in cases of inherently shameful conduct for offenders to seek to justify or legitimise their behaviour, or to see themselves as exceptions to the general run of offenders not able to face up to their wrong-doing. I have no reason to doubt he had a genuine desire that paedophiles generally be brought to justice because of his own child hood trauma.
I proceed on the basis that his motivation was sexual interest in the material. I take into account the content of the reports that I have from Ms Taylor and Dr Pandurangi, except for those aspects of the defendant’s assertions and history which are inconsistent with my conclusion about his motivation. This means I do not take into account some aspects of the opinions, particularly Ms Taylor’s opinions, because they are based upon the truthfulness of his assertions about his purpose in wanting to catch paedophiles. Having referred to that ruling about the defendant’s motivation, I consider in a little more detail the defendant’s criminal conduct.
The child abuse material in the defendant’s possession was on 4 devices. There are a total of 2395 items of child abuse material, being 2379 videos and 16 images, and he used the internet to access 1624 videos. While it is a significant number of videos, the Court does see cases involving much larger quantities. Relevant to sentencing is not just the volume of the material, but also the content of it. Here, mainly, the content involves videos of young children being sexually abused and raped by adults. The duration of these videos varies; many are a few minutes but some are longer, and one was as long as 39 minutes in duration. The content of them is depraved and shocking. With respect to charge 4, this is a particularly serious charge. I take into account that the transmitted material, the subject of count 4, involves an Instagram direct message chat, but also relevant is that the defendant also sent 15 Megalinks involving child abuse material. I accept what has been said on behalf of Mr Bone by his counsel, that the content of his messages were fantasy and not a genuine statement of intent, and were not based on a real experience of having abused children. However, the defendant took the lead in conversations that were disturbing. In a knowing way, he highlights the vulnerability of some children and portrays sexual pleasure in their abuse. The defendant’s messages could well have encouraged the other person to engage in sexual abuse of children. It cannot be said that no harm has been done to a child as a consequence of this charge.
The defendant is now 45 years of age. He is Aboriginal with a strong connection to culture. He was aged 42-43 at the time of offending. He has no relevant prior convictions.
Before he was remanded in custody, he was unemployed, receiving Centrelink benefits. He was studying at the University of Tasmania and enrolled in a creative writing course. He has interests in the performing arts and, after moving to Brisbane when he was 21, he completed study and work at the Aboriginal Centre for the Performing Arts. He has had a varied work history in performing arts, hospitality, tourism, cleaning, and gardening. He is a qualified ambulance attendant for St Johns.
He returned to Tasmania in 2005 when his mother was critically ill and stayed after her death.
He has been restricted in his employment in recent times because of a back condition involving a prolapsed disc. He is exempt from pursuing work in order to receive his Centrelink benefit because of his long-standing mental health condition; Post-traumatic Stress Disorder and depression.
Mr Bone grew up in a deprived family environment, marred by his parents’ heavy alcohol consumption, and violence was a feature of his home life. His mother separated from his father but they continued living together in the same house as his mother’s partner. Due to various factors, including the family living arrangements and Aboriginality, he experienced abuse in the community. School was very difficult and he was severely bullied.
He was repeatedly abused by a relative outside the family home from when he was approximately five to 14 years of age. He was disbelieved by his mother when he told her. As well as developing Post-traumatic Stress Disorder, he has experienced periods of depressive symptoms, and has attempted suicide on several occasions. He is prescribed anti-depressant medication. He used cannabis and alcohol in his teenage years and his alcohol use increased to heavy drinking. He was drinking regularly and using cannabis during the period of his offending. His father died in May 2020 in difficult circumstances. The defendant’s alcohol consumption and cannabis use increased significantly at this time and coincided with his period of offending. He would access the material when heavily intoxicated. Similarly, he sent the messages the subject of charge 4 when he was in a depressive state and under the influence of alcohol and drugs. This is not a mitigating factor in terms of his moral responsibility and the seriousness of his offending, however these matters have a bearing on his prospects of rehabilitation and, relevantly, he reports he has not been drinking alcohol since January 2021.
Mr Bone pleaded guilty at a very early stage, showing he has accepted responsibility for the crimes before the Court. This early plea has saved the expense associated with a trial. Mr Bone is disgusted with his behaviour. I note the Court process has been protracted and, in itself, has been a salutory experience. He has experienced retribution online for these charges and, while on bail, became reclusive.
His general practitioner referred him to his treating psychologist, Ms Desiree Taylor, and he has been seeing her approximately every fortnight since November 2020. Her diagnosis is Persistent Depressive Disorder, Post-traumatic Stress Disorder, and substance use disorder. She notes a cognitive distortion with respect to his inability to understand the long-term psychological impact of trauma upon children who are abused and, also, that viewing child abuse materials over the internet contributes to their abuse and promotes the industry in child abuse material. He has engaged in psychological treatment which focussed on addressing his past trauma, psychoeducation, and emotional regulation.
Ms Taylor describes Mr Bone as fully engaged in the therapeutic process, and notes that he recognises his judgment was poor and he appears to be remorseful.
Dr Pandurangi notes the physical, psychological, and emotional trauma of a serious nature suffered by the defendant over a prolonged period during his critical formative years. It left him vulnerable to developing various mental health conditions including depression, anxiety, and personality disorder. In his opinion, the defendant suffers from Complex Post-traumatic Stress Disorder.
In light of the finding I have made about the defendant’s motivation for offending, there is no suggestion that his personality difficulties and complex Post-traumatic Stress Disorder would have contributed to his offending. Further, there is no indication that his underlying mental health conditions would have affected his ability to understand the wrongfulness of his actions.
Dr Pandurangi notes that the nature and quality of the offences before the Court raises the suspicion of deviant sexual arousal to prepubescent children. However, on the information available to Dr Pandurangi, and the interview, he says it was not possible to definitively conclude that the defendant currently suffers from a pedophilic disorder.
Dr Pandurangi considers the defendant experiences emotional dysregulation and difficulties in managing conflicts or stressors and his symptoms related to past trauma. This is relevant to how he will manage in a custodial setting. Further, Dr Pandurangi considers it is quite possible the defendant’s mental health would deteriorate in prison, given the stressors in that environment. He recommends the defendant be referred to the prison mental health team for close monitoring of his mental state.
Dr Pandurangi has considered the defendant’s risk of reoffending. It is his opinion that the defendant poses a low risk of sexual recidivism.
Dr Pandurangi has considered treatment and regards psychological treatment and anti-depressant medication that the defendant is receiving as being appropriate. Further, in Dr Pandurangi’s view, he would benefit from individual psychotherapy, with a psychologist who has experience in working with sex offenders who have been sexually abused, to address his own childhood sexual trauma, resultant emotional difficulties, and the psychological circumstances that led to his offending. He considers this specialist psychotherapy as more beneficial than a sex offender treatment program. I note he is unlikely to have access to this specialist psychotherapy in prison.
Each of the four charges is serious and carries a maximum penalty of 15 years’ imprisonment. The applicable sentencing principles for these offences are well-established. The primary sentencing goal is general deterrence in order to protect children from being sexually abused. Accessing and possession of child abuse material creates and supports the insidious market in child abuse material. Children continue to be sexually abused in order to supply the market for this material. The nature of the internet means that images and videos may be published and stored around the world for many years. Child victims endure the terrible abuse that first occurs in producing such material, and then have to endure the knowledge that the abuse is being viewed potentially indefinitely by depraved individuals and paedophiles, resulting in their continuing degradation. Heavy penalties are needed to deter people from accessing this material. Denunciation is required. The community is rightly appalled by this involvement with child abuse material, and sentences imposed by courts must, in a measured and just fashion, reflect that response.
The sentence I impose today must reflect these objectives. A heavy sentence is required. I will give weight to your rehabilitation and your efforts to address your alcohol and substance use and psychiatric conditions which are linked to that alcohol and substance abuse. You are taking responsible steps and are actively engaged in treatment for those psychiatric conditions.
I note your vulnerabilities and I am conscious that the term of imprisonment I impose today will be, for you, a harsh punishment. I have taken into account your prospects of rehabilitation, and that there are signs you are motivated to not reoffend, in particular, that you are disgusted at the thought of your conduct in accessing this material. I have also given weight to the fact that you are someone who is actively engaged in treatment and it seems to me that there is at least a strong prospect that in that future engagement, you may gain further insight in relation to the wrongfulness of what you have done. These positive factors have been given weight in the sentence that I will impose. If it were not for these positive factors, you would not have the opportunity to be released part-way through the sentence, which is what I am going to do.
I record convictions. I impose a global sentence of 2 years and 6 months’ imprisonment, backdated to 6 April 2023. I will identify the sentences I would have imposed for each charge if I had imposed separate sentences for each offence. Before I do that, I will inform you that you will have to serve 7 months’ imprisonment, backdated to 6 April 2023.
If I had imposed separate sentences, those sentences would have been as follows:
Charge 1: 9 months’ imprisonment, backdated to 6 April 2023.
Charge 2: 9 months’ imprisonment, 5 months concurrent with the sentence imposed on count 1.
Charge 3: 9 months’ imprisonment, 4 months concurrent with count 2.
Charge 4: 15 months’ imprisonment, 3 months concurrent with the sentences on charges 2 and 3.
Pursuant to s 20(1)(b) of the Crimes Act 1914, I order your release after serving 7 months of the term of imprisonment, upon you giving security, by way of recognisance without surety in the sum of $3,000, to comply with conditions that you:
- must be of good behaviour for a period of three years; and
- must be subject to the supervision of a probation officer for a period of two years;
- must obey all reasonable directions of the probation officer;
- must not travel interstate or overseas without the written permission of the probation officer;
- must undertake such treatment or rehabilitation programs that the probation officer reasonably directs;
- must report to Hobart Community Corrections Centre located at 75 Liverpool Street within two clear working days upon release from custody;
- must report to, and receive visits from, a Community Corrections officer;
- must notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change;
I also order that you must comply with the following further conditions:
- submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;
- undergo assessment and treatment for drug dependency as directed by a probation officer; and
- undergo assessment and treatment for alcohol misuse as directed by a probation officer.
The effect of the sentence is that you have been sentenced to imprisonment for 2 and a half years but you will be released after serving 7 months of that term, subject to very strict conditions and your compliance with those conditions, including a condition that you must not reoffend for a period of three years from the date of your release. If you breach any of these conditions, in other words, breach the recognisance, and are not of good behaviour, or breach any of the other conditions, you may be required to pay the sum of $3000 but most significantly, a court may require you to serve the balance of the sentence.
Pursuant to s 23ZA of the Crimes Act 1914 (Cth), upon the application of the Director of Public Prosecutions (Cth), the following items are forfeited to the Commonwealth:
- Lenovo Ida Pad, serial number MP10K8BO
- Unbranded white USB – no serial number
- White Verbatim 64GB USB – serial number 17050924903260 TAAS
- Black Toshiba USB 32 GB USB – no serial number
- Samsung Galaxy A20 mobile phone, IMEI 356776101716178
I make the forfeiture order in the terms sought by the Commonwealth Director of Public Prosecutions.
Your name shall be placed on the register in accordance with the Community Protection (Offender Reporting) Act 2005. You are to comply with the reporting conditions as required by that Act for a period of 4 years after your release.
[Dr Prashant Pandurangi, Forensic Psychiatrist, Statewide Forensic Mental Health Service notes matters in his report and recommends that the defendant be referred to the prison mental health team for close monitoring of his mental state. I ask that the content of this report in that respect and what he has recommended in that regard be noted on the warrant that goes to the Director of Corrective Services so that is before the Director for immediate consideration.]