STATE OF TASMANIA v ALEXANDER JACOB BROOKS 31 JULY 2024
COMMENTS ON PASSING SENTENCE WOOD J
The defendant, Alexander Jacob Brooks, has pleaded guilty to three offences contrary to the Commonwealth Criminal Code: namely, use a carriage service to transmit child pornography contrary to s 474.19(c), an offence of possess or control child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1), and using a carriage service to access child abuse material contrary to s 474.22(1).
He also admits an offence which is to be taken into account in sentencing on charge 3 in accordance with s 16BA of the Crimes Act 1914 (Cth). For the purpose of sentencing, this extends the course of conduct by about a month and adds a small number of images to the access charge to be taken into account.
In September – October 2019, the Australian Federal Police received reports from the National Centre for Missing and Exploited Children which detailed concerns about an account in the defendant’s name involved in uploading child abuse material files to the Google Photos platform in 2019, and that an email account subscribed to him was storing child abuse material via a cloud storage medium.
Consequently, on 30 July 2020, Australian Federal Police officers executed a search warrant at the defendant’s residence and seized a Samsung S8 mobile phone and an Apple laptop computer.
It was discovered that the defendant had used his Apple laptop computer to transmit written child abuse material to an unknown user between 30 September 2016 and 8 October 2016. The written material involved a series of conversations and was classified as category 2 child abuse material using the Australian Child Abuse Categorisation Schema, also known as the Interpol Baseline Schema. Category 2 involves files that are illegal according to local legislation either by way of age or content.
The conversation involved the defendant paying another user to engage in sexualised “role play” chat with him. On 30 September 2016, the defendant and the other user engaged in a conversation in which he, the defendant, described in explicit detail the sexual and physical abuse of female children and bestiality involving children. In the chat the defendant portrayed an adult male and the other user portrayed child female victims. The chat related to children being “raped” orally, vaginally, and anally, being physically abused and “fearing for their life”. I have read a summary of the chat content and it is explicit and depraved. It included the defendant portraying the father of a 14-year-old girl and describing explicit penetrative sex, causing the girl to bleed and others including a child entering the room and engaging in the rape scene.
The chat resumed on 1 October 2016 after a new hourly fee of $40 for two hours of chat was negotiated by the other user. The defendant paid the fee and the pair commenced sexualised chat involving rape. A summary of this chat has also been provided. The chat included the defendant portraying himself as a father violently raping his young daughters, including a baby.
Between 2 October and 6 October 2016, the defendant tried to resume the chat with the other user. On 6 October, after price negotiations, the defendant sent $60 to the other user. The chat that followed involved the defendant portraying himself as raping his 14-year old daughter.
On the 8 October 2016, the chat resumed with the defendant telling the other user to portray having sex with their 12-year old sister. This chat did not take place. The user said the “time was up”. On the 5 January 2017, there was argument about the fact that the other user had been paid and yet had not continued the chat. The other user messaged in response saying they had surgery, and, “You know I have your phone number … and I can tell anyone you’ve ever met that you’re into raping babies…”.
The facts in relation to charge 3 and Scheduled Item A are as follows. Forensic examination of the defendant’s Samsung Galaxy S8 mobile phone revealed that he used the internet to access 24 child abuse material files between 6 April 2020 and 22 June 2020, namely 23 category 1 images and 1 category 2 image (charge 3). From 23 June 2020 to 24 July 2020, he used the internet to access five category 1 child abuse material files (Scheduled Item A). One category 2 image was located on his Apple laptop.
The 28 category 1 images comprised images of prepubescent females aged from approximately four to 13 years of age, posing nude and/or restrained and blindfolded, engaging in solo masturbation, engaging in sexual acts with adult females, performing fellatio on adult males, being digitally penetrated, and being anally penetrated by an adult male penis. One of the category one images was identified by police as featuring a known female child victim seen in several child abuse material videos in which the victim is anally penetrated by an adult male.
The two category 2 images were anime of young females naked from the waist down with the focus on genital area.
Referring again to the Interpol Baseline Schema, Category 1 images depict 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/concentrated on the child’s anal or genital region.
Charge 2 concerns the defendant’s possession on 30 July 2020 of the 30 items of child abuse material that he accessed using the internet, as well as the conversation contained on his laptop.
During the execution of the search warrant, the defendant participated in an audio-recorded conversation in which he stated he “absolutely” did not have any images of child pornography but they may find adult pornography.
Recent amendments to the Crimes Act, s 20(1)(b) are relevant. These amendments were brought about by the Crimes Legislation Amendment (Sexual Crimes against Children and Community Protection Measures) Act 2020 and apply to a Commonwealth child sex offences committed on or after 23 June 2020. These amendments include a requirement that if a recognisance release order is made, a defendant cannot be released immediately unless the Court is satisfied there are exceptional circumstances that justify release.
This amendment applies to charge 2 given the date of that offence.
The term “exceptional circumstances” is not defined but there is guidance to be found in authorities: see R v Bredal [2024] NSWCCA 75 at [58]–[65]. At [58] it is noted, “[t]he legislature must be presumed to have been deliberately non-prescriptive, beyond the words themselves [requiring exceptional circumstances]. The result is that it is left to the court to determine whether the circumstances of a particular case are, or are not, exceptional. That is, of course, not a license to ignore a statutory threshold for the imposition of a particular sentence.”
At [61] it said that a “combination of factors, each not in itself exceptional, may in combination demonstrate that the circumstances of the case are exceptional: Griffiths v The Queen 167 CLR 372 at 379; Tootell at [20] [R v Tootell; Ex parte Attorney-General of Queensland [2012] QCA 273] … The factors that combine to make a particular case exceptional will all be factors relevant to the determination of sentence more generally. The purposes of sentencing will remain at the forefront. It is the impact of the particular factors on those purposes that will make the case either exceptional or unexceptional.”
It is noted at [63] that “the changes brought about by the amending Act are both punitive and rehabilitative, both stemming from a concern to protect the community. The term ‘exceptional’ used in its present context thus requires the circumstances to be sufficiently ‘exceptional’ such that, despite a period of imprisonment being required, the offender should not be required to serve any part of that sentence in actual custody.”
Further, at [63] it is said, “whether the threshold is reached is not considered in a vacuum, but rather having regard to all the circumstances of the case. It is ‘based on an assessment of all of the usual sentencing criteria’: R v Jones [2022] SASCA 105 at [45]. To take the obvious example, the greater the objective seriousness of an offence the more difficult it will be to establish the case is relevantly exceptional.”
Finally, at [64] it is said that “the decision as to whether the circumstances are sufficiently exceptional for the purposes of s 20(1)(b)(iii) of the Crimes Act so as to warrant the complete suspension of the sentence is not to be thought of as a decision between a sentence of imprisonment and no punishment at all. Of course, a suspended sentence is significantly more lenient than one that is not suspended, but it involves real punishment, nonetheless.”
Each of the three charges is serious and carries a maximum penalty of imprisonment of 15 years. The applicable sentencing principles for these offences are well established. The primary sentencing goal is general deterrence in order to protect children being sexually abused. Accessing and possessing 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 with this material. 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. 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.
Whilst general deterrence is a primary sentencing consideration, the sentence must be proportionate to the nature of the offending. The punishment must fit the crime. I note, as referenced in the case of Bredal, that the objective of rehabilitation is also protective of the community.
In assessing the gravity of the offending in this case with respect to charge one, the level of depravity and violence involved in the chats must be taken into account. The defendant, it is noted, paid someone to engage in these communications.
The text messages do not relate to real children but it is serious conduct nonetheless because of the way in which it normalises and encourages the sexual abuse of children and its capacity to corrupt the parties to the communications or others who may be exposed to them.
The conduct in relation to charge 1 was not extensive, taking place over approximately a week. It is true that the defendant did not persist with his conduct, but that was because he had a bad experience and was threatened by the other person involved. It was, however, isolated and discrete offending which came to an abrupt ending, and there was a lesson involved.
In addition, it is apparent that in relation to charge 1 involving the text messages, he did not set out or plan to engage in child abuse messaging. He had in mind adult sexualised content but took up the opportunity when the door was opened to that kind of discussion. He was aware that his offending was morally reprehensible but did not know it was illegal. I do not find that difficult to accept and perhaps there is a need for greater awareness in the community about the illegality of this conduct and the reason why it is a matter of grave concern.
Charges 2 and 3 concern a relatively small number of 30 images. However, in determining the seriousness of the charge, it is not just the number of images that should be taken into account but the nature and content of the images which carries significance in fixing the sentence.
There are other matters regarding the circumstances of the offending which are relevant in an assessment of the seriousness of the conduct.
A significant factor in his favour with regard to charge 2 is that he was not seeking child abuse material. He accessed child abuse material and downloaded it recklessly rather than intentionally. He meant to access and download files that he understood contained other material, adult pornographic material. In doing so, he was, however, aware that there was the substantial risk that child pornography may be included in the content and he continued nonetheless to access that legal material regardless of that risk. The small number of images accessed and in his possession is consistent with this explanation of a large download of legal pornographic material with a smattering of child abuse material. This also bears on a proper assessment of another aspect of the seriousness of his offending. This is not a case where the offender was pursuing an interest in child abuse material.
This factor is significantly in his favour, not just in terms of his moral culpability but also in terms of his risk of reoffending and prospects of rehabilitation. Properly viewed in light of his culpability and recklessness, this second period of offending, captured in charges 2 and 3, should not be seen as a continuation and escalation of his earlier offending.
The defendant has no relevant prior convictions. He is presently 30 years of age.
In 2016, at the time of the first period of offending (charge 1), the defendant was then 22 and 23 years of age.
At the time of offending in 2016, he had recently been diagnosed with ADHD and the level of his medication at that time was excessive, and has since been reduced. The medication then affected him in various ways, adversely affecting, for example, his motivation. It did not have implications for his criminal responsibility, but rather was part of his circumstances at the time and the context for his offending. He was consuming large amounts of cannabis and spending a lot of time on-line in his bedroom, isolated from external positive influences. He was experiencing a period of loneliness and decided to become involved in text-based sexual activity.
From 2019, he has been seeking psychological and psychiatric assistance for his mental health. His treating psychiatrist, Dr Evenhuis, has provided a letter to Community Corrections dated 21 August 2023. He first reviewed the defendant in August 2019 in relation to his Attention Deficit Disorder and social anxiety. Subsequently, he presented with ongoing anxiety. His offending was first discussed in March 2023 and then at later appointments. At the March appointment, he reported that he had been discussing his offending with his general practitioner who had been providing psychotherapy for him. The treatment sessions have focussed on managing his ADHD and his experience of anxiety and low mood relating to the protracted court process.
Mr Brooks has now addressed his cannabis use and there has been a significant decrease. I note that Community Corrections recommend a period of supervision and that if such an order were made case management would put in place various interventions to mitigate any risk of further offending including addressing his cannabis use.
I turn now to consider the impact of his offending upon Mr Brooks. The police investigation and their search of his home was confronting and brought home immediately the criminality of his conduct. The investigation and court proceedings have been protracted and have had a very salutory effect upon him. He has experienced anxiety requiring specialist intervention, and he has experienced suicidal ideation over the course of time since his arrest while these matters have been outstanding. He was enrolled in a university course in order to qualify as a psychologist but he discontinued his study, appreciating that a conviction for these offences was going to preclude that career path. A conviction will mean that his career options will be much more restricted.
The defendant is genuinely remorseful. His remorse was mentioned by Dr Evenhuis in his letter to Community Corrections, and he notes the defendant has expressed considerable remorse and shame. It is also mentioned in the report from Community Corrections dated 13 October 2023. He feels that his offending has “placed a horrible burden” on his parents and even that his offending and the associated stress precipitated his father developing a serious health condition. He informed the author of that report that there are no excuses for his behaviour, and he feels terrible. He feels badly for the victims and appreciates that this type of offending creates a “supply and demand” situation, leading to more crime and more victims. It can be seen that he has good insight into the wrongfulness of his conduct and the seriousness of the crimes he has committed.
The defendant pleaded guilty at a relatively early stage after the final charges were filed in February 2023, and that is factor in his favour as well.
The offending in 2016 is now seven years ago and concerned a period when the defendant was a relatively youthful offender. The more recent offending is now some four years ago. The delay from the time of the Australian Federal Police being alerted to concerns in September and October 2019 to the execution of the warrant in July 2020 is not, in my view, particularly relevant because the charges do not concern that period and there is no suggestion that any material was found on his devices relating to that period.
The complaint was filed on 3 May 2021 and his first court appearance was soon after. He was then subject to strict bail conditions and they have remained in place since, for a period of approximately three years. He has lived in the shadow of court proceedings and the prospect of imprisonment for that period of three years.
He pleaded guilty on 19 June 2023. The facts were stated over a year ago on 3 July 2023. On 8 November 2023. the Commonwealth Crown articulated its position that an actual period of imprisonment was required.
He has experienced significant stress and anxiety associated with the pending proceedings. As mentioned, he has required psychiatric support to manage his anxiety. His vocational and career progress has stalled completely and future plans have been in abeyance while he awaits the outcome of these matters.
Recent delay during the sentencing process has arisen with number of appearances and time taken to obtain the psychiatric report, and this delay is also relevant. A Forensic Mental Health Services report was ordered on 14 November 2023 and the sentence was adjourned until 6 March 2024 for the provision of the report. It was thought in November that that would be more than enough time for the provision of that report. Thereafter, the sentencing hearing was adjourned on five occasions because the report had not been prepared and more time was requested. It was finally received by the Court on 21 June 2024. The defendant’s anxiety resulting from this further period of delay has been exacerbated by the fact that he is aware of the sanction that the Commonwealth are seeking, and for each court appearance he would have been expecting an imminent outcome and the prospect of imprisonment.
There is another aspect to the delay which is that the defendant has taken active steps to address contextual factors bearing on his offending and by addressing those, he will promote a more productive lifestyle and future for himself and his prospects of reform. I note the assistance he obtained in relation to his mental health generally and specifically concerning his offending.
I have taken into account a report provided by Dr Alexander Jasper, psychiatrist of Forensic Mental Health Services, dated 21 June 2024. It is a most comprehensive report and provides a lot of detail consistent with and expanding upon matters dealt with in the plea in mitigation.
It is noted that the defendant has demonstrated insight into his mental state and the pathway of his offending, and has demonstrated good judgement of the need to abstain from circumstances that led to his offending, such as abstaining from accessing internet pornography, as well as curtailing his use of marijuana. It is noted that during the period of offending, he met all of the criteria of cannabis use disorder and, at the time of his first offence in 2016, major depressive disorder. Dr Jasper considers ADHD to be the defendant’s only current mental disorder. His anxiety centres around his outstanding criminal charges and the impact on his future and prospects of employment, as well as on his relationship with his partner and especially his parents.
Dr Jasper assessed the defendant in terms of his risk of future offending. On an assessment tool for sexual interest in children (CASIC), there was no evidence of current sexual interest in children. In Dr Jasper’s opinion, the defendant is considered to pose a low risk for sexual recidivism.
Dr Jasper recommends that the defendant continues to be treated for ADHD by his private psychiatrist, Dr Evenhuis, and continues to engage with his psychologist for management of his ADHD and ongoing anxiety, further development of interpersonal and social skills, and for general psychological support.
This is a case where the circumstances as a whole, in combination, are exceptional. In particular, I note the defendant’s reduced moral culpability in relation to charge 2 and charge 3 and that this was a case of recklessness. I take into account that the number of images and files was a very low number, consistent with reckless rather than intentional conduct. I also note the significant delay and the adverse impact it has had on the defendant. His responsible attitude to his mental health and his insight and remorse are taken into account as well as the fact he poses a low risk of reoffending.
The exceptional circumstances test must take into account broader considerations such as the entirety of his offending and his earlier offending in 2016. However, as I have noted, that offending was discrete and the later offending was not a continuation of it.
In conclusion, I am satisfied there are exceptional circumstances that justify immediate release. My consideration of these factors reveal my reasons that warrant a suspended term of imprisonment. The nature of his offending is not so grave that notwithstanding the significant matters in mitigation, a term of actual imprisonment is required. The need for general deterrence which I have identified is appropriately reflected in the sentencing order and the imposition of a gaol term which will be, as I have said, wholly suspended.
Alexander Jacob Brooks, you are convicted of each charge.
In relation to charge 1, a term of 10 months’ imprisonment is imposed.
In relation to charge 2, I impose a cumulative term of 10 months’ imprisonment.
In relation to charge 3, I impose a term of 8 months’ imprisonment, 4 of which is a cumulative term to the sentence imposed on charge 2.
The result is a total sentence of imprisonment of 24 months. I order that you be released immediately (pursuant to s 20(1)(b) of the Crimes Act) upon you giving security by recognisance without surety in the sum of $3,000 that you will be of good behaviour for a period of three years and subject to the following conditions.
Your release will be subject to the conditions stipulated in s 20(1B) of the Crimes Act. You are to be subject to the supervision of a probation officer for a period of two years and the remaining obligations under that section are imposed, requiring compliance with directions of your probation officer.
I impose conditions that are necessary to give effect to those conditions such that you must report to the Hobart Community Corrections Centre located at 75 Liverpool Street, Hobart, within two working days; you must report to, and receive visits from a community corrections officer, or your probation officer; and you must notify such an officer at the community corrections centre of any change of address or employment within two clear working days after the change.
I make a forfeiture order pursuant to s 23ZD of the Crimes Act 1914 as sought by the Commonwealth, and the Samsung mobile phone and Apple computer as described in the draft order are forfeited to the Commonwealth.
I am not satisfied that you do not pose a risk of committing a reportable offence within the meaning of that term in the Community Protection (Offender Reporting) Act in the future, although I would characterise the risk as very low. I make an order directing that the Registrar cause your name to be placed on the Register, and that you comply with the reporting obligations under the Act for a period of three years.