STATE OF TASMANIA v AXL LESLIE FLETCHER 12 FEBRUARY 2025
COMMENTS ON PASSING SENTENCE PEARCE J
Axl Fletcher, you plead guilty to one count of use a carriage service to access child abuse material contrary to the Criminal Code (Cth), s s 474.22(1) and one count of use a carriage service to possess child abuse material contrary to s 474.22A(1). On 25 March 2024 the Australian Federal Police attended your home in West Ulverstone. They took a mobile phone and a laptop for analysis and discovered child abuse material on both devices. You already owned the laptop but had purchased the mobile phone on 17 January 2024. During the nine weeks or so between then and 25 March 2024, when it was taken, you used the phone to display 35 hentai comic books which were child abuse material. Even though they did not depict real children, they displayed sexual anime and manga images of infant children. Your phone had bookmarks to 129 websites which accessed the comic books. You downloaded 3270 child abuse material files onto the laptop consisting of 3218 images from hentai comic books, 45 anime images and 7 anime videos.
You are now aged 31. A significant matter in sentencing relates to your history of offending. On 13 November 2023 you were sentenced after having pleaded guilty to four charges under the Commonwealth Criminal Code concerning the accessing and possessing of child abuse material. That sentence was imposed for even more serious offending. Between February 2019 and November 2020 you used a mobile phone to access and store more than 26,000 images and 283 videos of child abuse material. The material included images of real pre-pubescent victims, posing nude and engaging in sexual acts with adult males including both oral and vaginal penetration. Some of the images were of a most disturbing nature. Part of the material was animated but nevertheless still shocking and depraved because it depicted images of babies being vaginally penetrated by adult males. At the time that sentence was imposed you were 29. You had no prior convictions. The sentencing judge made reference to your complex mental health conditions and drug use, to which I will refer later. Her Honour took into account the lapse of time between the crimes and the sentence, and that you seemed to be motivated to not re-offend. For very detailed reasons her Honour then expressed, she was satisfied of exceptional circumstances which displaced the presumption of immediate imprisonment and made a home detention order for a period of 16 months from 13 November 2023.
Now, because you have previously been convicted of a child sexual abuse offence the minimum penalty provisions in the Crimes Act, 1914 (Cth), s 16AAB, are engaged. The result is that for each of the crimes to which you have pleaded guilty I must impose a minimum sentence of imprisonment of four years. I may only reduce that term if I consider it appropriate to do so to take account of your plea of guilty or your cooperation with law enforcement agencies or both. If I do take that view I may reduce the sentence by up to 25% for each factor. Subject to the possible discount for the plea of guilty and cooperation, the statutory minimum sentence has the function of acting as a yardstick representing the least worst category of case for which a sentence of imprisonment is required against which this case is to be assessed. Thus, a reduction for your plea of guilty is appropriate only if the offending is at least close to the least serious circumstances. These provisions, introduced in 2020, reflect the objective of the Commonwealth Parliament to increase the proportion of Commonwealth child sex offenders sentenced to imprisonment and to longer terms of imprisonment overall.
In addition, by committing these new crimes you have breached the condition of the home detention order that you not, while the order was in force, commit an offence punishable by imprisonment. Having regard to the nature of the breach there could be no reasonable cause or excuse for it. In the circumstances, the only appropriate course is to revoke that home detention order and re-sentence you for the original offending, but taking into account that the order was made and the period of time you spent subject to it before going into custody on 20 May 2024. Thus you were subject to the home detention order for only about six months of the 16 month period it was to be in force, and it was during that period that you committed the crimes for which you are now to be sentenced.
The only appropriate course is a term of actual imprisonment. Your counsel did not submit to the contrary and, quite properly, her submissions were directed to the length of the term and parole. I will first determine the appropriate term for the current offending before I consider whether the terms should be discounted for the plea of guilty and cooperation. I will then consider the re-sentence on the home detention order.
In sentencing I am required to impose a sentence that is of a severity appropriate in all the circumstances of your offence and have regard to such of the matters set out in s 16A(2) of the Crimes Act as are relevant and known. I have outlined the nature and circumstances of your offences. The period of your offending was limited to a period of just over two months. The images you accessed and downloaded were not of real children. Cartoons depicting child abuse are still serious however because they have the tendency to normalise exploitative sexual activity involving children. The devices you used were solely for you and there was no chance of access, inadvertent or otherwise, by another person. There was no sophisticated classification or filing system and no further distribution. There was, compared to some cases, not a large number of images, but the content is of more importance. All of those factors put the objective seriousness of the offences towards the lower end of a scale of seriousness. However it is by no means the least serious circumstances. The period of offending was short but it only ceased because your devices were seized by the police. There were a considerable number of images and your crimes were significantly aggravated by having been committed while you were subject to a home detention order imposed only about two months before you began to re-offend.
Your mental health remains an important sentencing consideration. I was given two reports prepared by a forensic psychologist, Dr Georgia O’Donnell. The first is dated 28 April 2023 and concerned the first offending. The second is dated 14 November 2024 and was prepared for this sentencing hearing. Dr O’Donnell did not have full access to your medical history for either report but the information she did have suggested that you suffer chronic depression and probable autism spectrum disorder. You have lived with your mother for most of your life. A brief attempt to live independently proved unsuccessful. From your early teens you largely confined yourself to your bedroom from where you watched animated pornography. To help you cope with depression you used cannabis and methamphetamines rather than appropriate medication. You have been on a disability support pension since you were 16, but have not engaged with the NDIS or other community supports largely because your mother thought that you were coping without it. Dr O’Donnell referred to a cohort of males with autism who develop paraphilic disorders and she referred to your autistic fixation on hentai. She thought that your symptom profile was causally linked to the commission of the offences for which you were sentenced in 2023 and referred to a dire need of multi-disciplinary support in the community and psychological intervention. Little or none of that occurred between when you were sentenced in November 2023 and the time you went into custody on 20 May 2024. There is some prospect that such intensive treatment may result in rehabilitation, but that factor is still be regarded as having less weight that the primary sentencing factors of deterrence and denunciation.
I am satisfied that the same causal link exists in relation to the new offending, and that your moral culpability is somewhat reduced. It seems plain that you appreciated the wrongfulness of your conduct, but had less ability to resist your fixation with the material. Of course, that is also a factor which suggests a continuing risk. In addition, I accept that you have limited strategies to cope with the prison environment. You are vulnerable to exploitation and abuse, and there is a real risk of self-harm and deterioration in your mental health as a result of imprisonment.
The result of the application of the foregoing factors is that, in each case, I am satisfied that the appropriate sentence for each count, before application of a reduction for the plea or cooperation is, in each case, imprisonment for four years and six months. There is a statutory presumption that the sentences should be cumulative. However I accept your counsel’s submission that cumulation of the sentences would result in an aggregate sentence which would be disproportionate and inappropriate in all the circumstances. There is substantial commonality in the relevant sentencing factors. The charges involve the same content and were committed at the same time. You accessed the child abuse material using the phone and then possessed the accessed images on the laptop. However there should be a sensible degree of cumulation such that for those offences the appropriate aggregate sentence is imprisonment for five years. I would allow the maximum 25 per cent discount for your plea of guilty. I would accept that it was entered on the earliest opportunity once the prosecution had determined the charges to be pursued, and after an even earlier indication that the charges would resolve without the need for a trial. However I do not consider that any discount for cooperation is appropriate. I accept that you provided the police with the devices and the PIN and passcodes. You admitted that you owned the devices, created the bookmarks to the websites and were the only person who accessed them, but you had an obligation under the conditions of the home detention order to do all of those things anyway. The result is that the appropriate sentence on the indictment is imprisonment for three years and nine months.
It remains to consider re-sentencing on the home detention order. It is not necessary to re-state all of the circumstances of that offending but it was most serious and involved disturbing images of real as well as cartoon children. You were subject to the order for only six of the 16 months and you used some of that time to re-offend. I do not share the same level of optimism about the prospects of your rehabilitation as were expressed by the sentencing judge but I take into account the order her Honour made and the intention behind it. In the circumstances I would impose a term of imprisonment of nine months. I have reduced the sentence I would otherwise have imposed by three months to allow for totality but the term but, because it involves separate and very serious offending, should be served cumulatively to the sentence for the new offending.
I must consider conditions about your rehabilitation or treatment, and, when determining the length of the sentence or non-parole period, to include sufficient time for you to undertake a rehabilitation program. The only condition I consider appropriate is to allow for your parole. I am required to fix a single non-parole period. I have not been informed of any appropriate rehabilitation or treatment programs which will be available to you in prison. It is not likely that you will have the type of rehabilitative services and treatment you need available to you until you leave prison. However, as well as your rehabilitation, the non-parole period must also reflect the gravity of your offending and the need for protection of the public.
Axl Fletcher, 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 2005 in the future. 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 eight years from your release. You are sentenced to imprisonment for four years and six months from 20 May 2024. I fix a non-parole period of two years and six months.