THE KING v AXL LESLIE FLETCHER 13 NOVEMBER 2023
COMMENTS ON PASSING SENTENCE JAGO J
The defendant, Axl Leslie Fletcher, has been found guilty by a jury of four charges contrary to the Commonwealth Criminal Code concerning child abuse material. Charges 1, 2 and 3 relate to using a carriage service to access child abuse material. In essence they allege a course of conduct between 20 February 2019 and 30 November 2020, whereby the defendant used a carriage service to access child abuse material. It was necessary for the course of conduct to be reflected in three separate charges because of changes to the law which occurred during the relevant period. Charge 4 relates to possessing the child abuse material which he accessed.
On 2 December 2020, police executed a search warrant at the defendant’s home in Ulverstone. The defendant was present. His mobile phone was seized and later forensically examined. It revealed the phone had been used to access some 24 URLs relating to child abuse material. The forensic examination report tendered on the trial suggests the access was intermittent rather than constant. A total of 26,440 images and 283 videos were located on the phone. For occupational health and safety reasons, and in accordance with Australian Federal Police policy, 1,000 images and 50 videos were randomly selected and individually viewed by Australian Federal Police. The majority of the 1,000 selected images from the phone were child abuse material. All 50 randomly selected video files from the phone were child abuse material. Those images and videos were classified using the Interpol categorisation system. This system categorises material as category 1 where the material depicts real pre-pubescent children under the age of approximately 13 years, and the child is involved in a sexual act, is witnessing a sexual act or the material is focused or concentrated on the child’s anal or genital region. Category 2 material involves other illegal files. In respect to the images, 385 were category 1 and the balance category 2. In respect to the videos, 38 were category 1 and the remaining 12, category 2.
The material included images of real pre-pubescent child victims, posing nude, engaging in sexual acts with adult males, performing fellatio on adult males and being vaginally penetrated by adult males, both digitally and with their penis. A portion of the child abuse material was animated. Some of the animated material was nevertheless quite depraved, including images of babies being vaginally penetrated by adult male penises.
The defendant was interviewed by police. In essence, he claimed he did not know how the material came to be on his mobile phone. He maintained the same version of events when he gave evidence at his trial. Consistent with the jury verdict, I reject the defendant’s assertions.
His evidence at trial suggested he predominantly had a sexual interest in adult pornography, and in particular Hentai, which is a form of Japanese animated pornography. However, the nature of the child abuse material in the defendant’s possession, and the manner in which it was accessed and stored suggests he also has a sexual interest in such material, although I accept, most likely to a lesser extent. Whilst the quantity of videos and images in the defendant’s possession was certainly not insignificant, the Court frequently sees cases that involve much larger quantities. Relevant to sentencing however, is not just the volume of the material but also the content of it. Here, the content often involved videos of young children being sexually abused and raped by adults. The duration of the videos varies. Some are as long as nine minutes and 51 seconds, whilst others are only 40 seconds in duration. As noted, the content of many of them is disturbing and depraved. Even the content of the animated videos and images is quite shocking, and although of course, that does not involve real children, it is reflective of the defendant’s interest in the subject matter and his moral preparedness to view material where children are depicted as commodities of sexual abuse. I note there is no suggestion the defendant intended to distribute the materials further, nor is there any evidence of a sophisticated system of storage or classification was employed. I am satisfied it was inherently unlikely that anyone else would have accidentally accessed the material given the defendant’s living circumstances.
The defendant is now 29 years of age. He was between 25 and 27 when the offending occurred. He has no relevant prior criminal history. The defendant had a difficult upbringing. His father was a violent man. The defendant, his mother and siblings would often have to lock themselves into rooms in order to protect themselves from his outbursts. The defendant’s father left the family home when he was still quite young. Since then he has been raised by his mother, with whom he has a very close relationship. The defendant struggled at school. He was frequently bullied and struggled to form any meaningful friendships. He exhibited both behavioural and learning difficulties during his schooling. He left mainstream schooling at the end of Grade 7, but went on to complete Year 10 in what has been described as a “technical school”. He has never held any form of employment. He has limited literacy and numeracy skills. He has no interests outside of the home. The defendant lives a very isolated existence.
The defendant suffers from complex mental health conditions. I have received and considered two reports in this regard. The first is from Dr Georgina O’Donnell, dated 28 April 2023. The second is from Dr Meredith Gray, dated 28 September 2023. In Dr O’Donnell’s report it is noted that the defendant leads an exceptionally isolated life, spending most of his time in his bedroom, watching action and fantasy cartoons, including the Hentai material which I have mentioned. He does not have any friends or social connections outside of his mother and two nieces, who live at the residence. The defendant does not have the benefit of seeing any mental health professionals. His GP has, in the past, prescribed him with anti-depressant medication. In Dr O’Donnell’s report it is noted “Mr Fletcher’s demeanour during interview was deeply depressed……He advised that he has frequent nightmares… and feels fearful ‘all the time’“. Dr O’Donnell opines that the defendant presents with chronic depression and probable autism spectrum disorder. The diagnosis of autism spectrum disorder is described as “probable” as guidelines require a multi-disciplinary assessment before a formal diagnosis can be made. Nevertheless, Dr O’Donnell is of the opinion that the defendant presents with many characteristics consistent with that disorder. She also notes the footage of the home environment, taken by Australian Federal Police at the time of the search, suggests a dysfunctional, psycho-social living environment, again consistent with the defendant suffering from autism spectrum disorder. Dr O’Donnell notes in her report:
“Mr Fletcher’s chronic history of childhood trauma, depression, probable autism spectrum disorder and the past 15 years of social isolation in his bedroom reflect very poor psycho-social circumstances. It is in this context that his alleged online interest has developed and been maintained. The evidence based literature has identified that there is a cohort of males with autism spectrum disorder who develop paraphilic disorders due to the social and psycho-sensory impairments that are symptomatic of autism spectrum disorder. Preference can be directed to animated pornography as a mechanism for distancing oneself from sexual interactions with real human beings, which can be perceived as repellent by an individual with autism spectrum disorder. This is consistent with Mr Fletcher’s presentation. Hence, in my opinion there is a causal connection between Mr Fletcher’s symptom profile and the commission of these alleged offences.”
Dr O’Donnell also opines that Mr Fletcher presents with very limited coping strategies and would struggle to manage the challenges of a prison environment.
In Dr Gray’s report it is noted as follows:
“Mr Fletcher described being essentially housebound. His daily activities were described as limited to his bedroom, primarily watching movies and cartoons on television and playing a computer game. He reported that he leaves the house only for unavoidable appointments.
He reported high levels of anxiety when leaving the house….the fear is primarily centred on thoughts that he might be harmed by others, or that they might be laughing at him.”
Dr Gray also notes the considerable behavioural and learning difficulties that the defendant experienced during his schooling years. Dr Gray noted that whilst the defendant developed some friendships as an adolescent, and there was a very brief period of time when he moved out of home when he was aged 18, it did not last long and in the main, since leaving school, he has been cut off from friends and has essentially retreated to his room, living there all but continuously for the past 15 years or so.
Dr Gray opines:
“The description provided by Mr Fletcher and his mother of his formative years, indicates that his psycho-social function was limited from a young age, with difficulties relating to social skills, emotional regulation and communication. He appears to have had a range of underlying learning difficulties and did not cope in mainstream schooling…..These issues, combined with social skills and emotional reciprocity deficits, communication difficulties, hyper-sensitivity to his physical environment, rigidity in relation to changes in routines, obsessional thinking and restricted interests are all indicative of an autism spectrum disorder. While not formally diagnosed, based on the description of his schooling, he likely has an accompanying learning disability.”
Dr Gray further notes “A childhood marked by various forms of trauma, exposure to and victimisation by his violent father, bullying and isolation in the school setting, and a protracted period of isolation and depression…..have likely impacted on his personality development.” Dr Gray opines the defendant meets the criteria for a diagnosis of social anxiety disorder as well as the criteria for persistent depressive disorder.
Both reports indicate that the defendant has, for most of his life, used cannabis on a daily basis and additionally, has regularly used methylamphetamine. His cannabis and methylamphetamine use have been directly linked to his mental health difficulties. In more recent times, the defendant has ceased his intake of these substances. Dr Gray is of the opinion that the defendant’s previous use would have met the criteria for cannabis and methylamphetamine use disorders, although notes the defendant is now in the early stages of remission.
Dr Gray notes that “Broadly speaking, the defendant’s diminished interpersonal skills and marked isolation linked to a broader theme of him evidently feeling unable to form adult relationships, intimate or otherwise, coupled with his depressive symptoms, his anxiety, his presumed autism, are all likely to have impacted upon his judgment”.
Dr Gray also notes that given the defendant’s poor baseline mental health, his history of trauma and his underlying neurodiversity, it is likely that incarceration would be more burdensome on him than on another person, and it is possible that his mental health would deteriorate in custody. She also notes the defendant would likely struggle in any form of group programme and would benefit from individual treatment. I accept it is unlikely the defendant would obtain any individual treatment programmes within a custodial setting.
Each of the four charges is serious and each carries a maximum penalty of 15 years imprisonment. The applicable sentencing principles for these offences are well established. I have regard to the principles articulated in cases such as DPP v Latham [2009] TASSC 101. 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 creating the child abuse material. Children continue to be sexually abused in order to supply the market with 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 therefore needed to deter people from accessing this material. Denunciation is also required. The community is righty appalled by any level of involvement with child abuse material, and sentences imposed by courts must, in a measured and just fashion, reflect that response.
The sentence I impose must reflect those objectives, but equally, must take into account the defendant’s complex mental health conditions and his particular vulnerabilities. I am satisfied that those factors played a part in the defendant’s commission of these crimes. That is relevant to his level of moral culpability, and the weight to be given to principles of general deterrence. I note to the extent they have been raised the matters set out in s16A(2) of the Crimes Act (Cth). Whilst the defendant is not currently engaged with any mental health professionals, there are signs that he is motivated to better himself as evidenced by his cessation of cannabis and methylamphetamine use. It is also reasonable to infer that the defendant is motivated to not reoffend. These crimes were committed in 2019 and 2020. Nearly three years have passed since the commission of the crimes and there is no suggestion that the defendant has re-offended. These positive factors are, of course, relevant to sentence but must be balanced against the fact the defendant is not entitled to any discount on sentence that would have flowed from a plea of guilty, and the defendant has not demonstrated any remorse or insight in relation to the seriousness of his offending and the wrongfulness of the conduct in which he engaged. Relevant to the type of sentencing order that might encourage the defendant to not re-offend is the fact that I am satisfied the defendant fears the possibility of going to gaol, given his particular vulnerabilities, and has made improvements in his life in the hope of avoiding that outcome. These improvements have been sustained for some time now, and a sentence which encourages the defendant to continue with such improvements will be of benefit not only to him, but to the broader community.
With that in mind, I had the defendant assessed as to his suitability for a Home Detention Order. Whilst the defendant has suitable accommodation to allow for such an order to be made, the report received suggested the defendant was unsuitable because such an order would “not have the desired effect of a personal deterrent”. With respect to the author of the report, such a determination is a matter for the sentencing court. I note the Crown also submit a Home Detention Order would not be an appropriate sentencing response for similar reasons. Whilst, of course, not equivalent to actual imprisonment, I am of the view that a Home Detention Order can be fashioned in a manner that will still have a significant punitive effect upon the defendant. I note the comments in Director of Public Prosecutions v King [2020] TASCCA 8 at [52]-[56]: A home detention order has both punitive and rehabilitative aspects. It involves a substantial burden and a material deprivation of liberty. Home detention is far from a lenient punishment. It carries with it a considerable measure of deterrence and denunciation, and is therefore effective as a general deterrent. Whilst I accept the defendant chooses to live a solitary lifestyle, the fact that he will not, during the period of any Home Detention Order, have a choice to live his life otherwise, is in itself a punitive effect. Moreover, conditions can be imposed which will require the defendant to remain abstinent from illicit drugs. This will necessitate the defendant committing to a lifestyle which is very different to how he has lived in the past. Conditions can also mandate that the defendant engage with appropriate mental health professionals, something he has been reluctant to do previously. If the defendant fails to comply with the conditions I impose on the Home Detention Order, he faces the prospect of being returned to Court and resentenced. In all of the circumstances, I am satisfied it is appropriate to impose a Home Detention Order. Whilst the defendant’s actions are undoubtedly deserving of condemnation, given his mental health difficulties, traditional incarceration would, in my view, be particularly damaging to the defendant. He would be most vulnerable within a prison environment. A Home Detention Order is a form of imprisonment which marks the serious nature of the offending and the need to denounce and deter the same, whilst recognising the individual circumstances that are relevant to this sentencing exercise. A Home Detention Order may also allow the defendant to access an individualised treatment plan which accommodates his mental health and learning difficulties. There is no realistic prospect that this would be available to him if he were to be actually incarcerated.
I note the presumption in respect to imposing cumulative sentences when sentencing for multiple Commonwealth child sex offences which came into effect in June 2020, and therefore applies to Count 3 and 4. I consider it appropriate to impose a global sentence across all counts. Counts 1, 2 and 3 represent a continuing course of conduct and would have been charged as such, but for variations in the law which occurred. Count 4 is the product of the offending in Counts 1, 2 and 3 and is intimately linked to that course of conduct. In those circumstances, the overlap in the criminal conduct and the principle of totality is best reflected by the imposition of a global sentence. To the extent it is necessary, I record that I am satisfied exceptional circumstances apply here, namely the defendant’s mental health and learning difficulties and his particular vulnerabilities, such that the presumption of immediate imprisonment provided for in s 20(1)(b) of the Crimes Act is rebutted. I also record that I have given consideration to comparative sentences, but the individualised approach that, in my view, is warranted in this case, means the identification of any discernible sentencing range is of limited value, and any endeavour to strive for consistency in sentencing would, in fact, bring about an unjust and unfair result.
I make the following orders. I record convictions in respect to all crimes. I impose a home detention order for an operational period of sixteen months from today’s date. The order will include the following conditions, which will apply for the whole of the operational period: Mr Fletcher, you will be given a copy of these conditions in writing. They are:
- You must not commit an offence punishable by imprisonment.
- You must reside at [address redacted].
- You must be there at all times except when you are not there for a “relevant reason” as specified in s 42AB(4) of the Sentencing Act That includes going somewhere with your probation officer’s permission.
- You must permit a police officer, probation officer or other prescribed officer to enter those premises.
- You must permit a police officer to conduct a search of the premises and/or conduct a frisk search of you for any electronic devices. You must surrender any electronic devices in your possession to police and permit any such electronic devices to be physically and forensically examined. You must provide the PIN number or passcode to any electronic devices, or any applications installed upon those devices, to police upon request.
- You must permit a police officer to conduct a search of the premises, conduct a frisk search of you, and take a sample of any substance found on the premises or on your person.
- You must submit to electronic monitoring, including the wearing of or carrying of an electronic monitoring device.
- You must not remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
- You must not allow anyone else to remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
- You must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring device, including directions relating to the installation, attachment or operation of the device or system used for the purpose of electronic monitoring, if those directions are given to you by a police officer, a probation officer, another prescribed officer or any other person whose functions involve the installation or operation of a device or system used for the purpose of electronic monitoring.
- You must maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections, and be accessible for contact through that device at all times.
- You must not take any illicit or prohibited substances.
- You must not take any medication containing an opiate, benzodiazepine, bupropion hydrochloride or pseudoephedrine, unless you provide written evidence from your medical practitioner that you have been prescribed that medication.
- You must not consume alcohol and you must allow a police officer or community corrections officer to test you for the presence of alcohol.
- You must submit to medical, psychological, or psychiatric assessment or treatment as directed by a probation officer.
- You must engage in counselling as directed by a probation officer.
- You must undergo assessment and treatment for drug dependency as directed by a probation officer.
I order that you must attend Community Corrections, Devonport, by 10am tomorrow for the fitting of an electronic monitoring device and induction in respect to this order.
I warn you, Mr Fletcher, that if you fail to comply with any of the conditions I have imposed upon you, an application can be made that you be brought back to this Court and resentenced. It is most important, therefore, that you understand all of your obligations and comply strictly with them.
Pursuant to s 23ZA of the Crimes Act 1914, the following items are forfeited to the Commonwealth: Samsung Galaxy mobile phone IMEI 357673-08-054802-D.
I further order that the defendant’s name shall be placed on the Register in accordance with the Community Protection (Offender Reporting) Act 2005 and that you comply with the reporting conditions as required by that Act for a period of five years from today’s date.