STATE OF TASMANIA v GCP 25 AUGUST 2022
COMMENTS ON PASSING SENTENCE PEARCE J
GCP, you plead guilty to six counts of indecent assault, four counts of producing child exploitation material, three counts of distribution of child exploitation material, one count of rape, and one count of possessing child exploitation material.
You are now aged 31. You have three sons. From about 10 years ago, when you were 21, and before you had any children, you sold sexualised photographs and videos of yourself on line. You advertised the images through messaging or sharing services and provided the images on request in return for payment. Some of the images included some fetish style content. There is nothing unlawful about such conduct or such images and you used the payments you received to supplement your income. In around 2016 or 2017, when you were pregnant with your first child, you decided to take advantage of the fetish market for sexualised images of you while pregnant or lactating. There is nothing unlawful about that type of content either.
However, a year or two later, when you were pregnant with your second child, you started to receive requests for images of a sexual nature involving your children. You initially resisted. However, in mid-2018, you agreed to a request from a person to create and provide a video of you performing sexual acts on your second son when he was about three months old. On your phone you filmed his exposed penis and scrotum and you filmed yourself touching and rubbing his penis with your fingers as if masturbating it. You sent the images to the person who requested them in return for a payment of somewhere between $500 and $1000. You did not know the identity of the person to whom you sent the video. That video was then deleted from your phone.
Before long knowing of the market for child exploitation material, you also decided to seek out and sell other such material not involving your own children. Your aim was to make more money. You obtained ten video clips. The content was described to me. All are short in duration. The shortest is about 11 seconds and the longest is just over a minute. However they include child exploitation material of a most serious character. Five different children are depicted, all aged between about 2 and 4. Some are the subject of more than one of the videos. One child is forcefully anally raped. Another is vaginally raped. The others are all subject to abusive sexual acts and in some cases the children show signs of distress. Over the course of a period of about three years you sold these images on line to somewhere between five and ten people. You received between $500 and $1000 for each transaction and did not know the identities of any of your customers.
All but one of the remaining counts concern your youngest son. In October 2021, when he was about five months old, you agreed to an on-line request to provide sexualised images of him. On two separate days you used your phone to film yourself with him. On the first day you made two videos, one about a minute long and the other 18 seconds. The images include you exposing his penis and scrotum and touching and fondling his penis with your fingers, including rubbing his penis as if to masturbate it and using your tongue to lick his penis. Although you produced those images, which were later found on your phone, you did not send them to anyone. About two weeks later you made another video, this time about four and a half minutes. The images depict conduct of the same nature as the earlier videos but this time also include you lactating onto his penis and putting his penis in your mouth for about three seconds. That latter act amounts to the crime of rape. You then transferred the images you produced to the person who had asked for them in return for a payment of $600. You did not know the identity of that person.
Your husband knew nothing of what you had been doing. Your offending was discovered in November 2021 through monitoring conducted by the National Centre for Missing and Exploited Children. It was reported to the Australian Federal Police who referred it to Tasmania Police. Your phone was seized on 15 December 2021. Later analysis disclosed that it contained 18 videos which were child exploitation material. Three were the videos you made of your youngest son to which I have just referred. The remainder were the 10 videos of the unidentified children I earlier referred to, and some duplicates of those videos. As I have already mentioned, the video of your second son had been deleted. However, in the case of the videos of both your sons, once the images were sent they were beyond your control and likely to be widely disseminated on the internet in a way which can never be reversed.
When you were interviewed you made extensive admissions and gave the police a very full account. The information you gave them included information they would not otherwise have known about. The principal example of that is the offences committed against your second son about which there was no longer any evidence. You also admitted that you sought out the videos of the children which you then sold on, and that you actively marketed all of the material from which you were making money. The fact that you gave the police such a full account, and entered a relatively early plea of guilty, indicates your acceptance of responsibility. I would also accept that you now have a genuine appreciation of the seriousness of what you did and a wish to make amends. However your repeated conduct over time indicates that the remorse you now experience arose only after you had been apprehended and the terrible consequences became clear. Your plea of guilty also serves to facilitate justice.
A psychological assessment conducted by Dr Georgina O’Donnell confirms that your offending was not contributed to by any psychiatric, psychological or other medical condition, intellectual disability, learning disability or any other capacity related issue. You deny any sexual gratification from marketing images of yourself or from participating in acts of a sexual nature with children. The motivation was financial gain, although some further explanation is necessary to convey the full picture. As your family grew, financial pressures arose. You later told the police that your family could have survived without the extra money. However you felt pressure to maintain an idealistic image of what a family should be and wanted your children to have the best of everything. In a way which could hardly be more contradictory to your criminal acts, you were trying to create a social media following by promoting a gentle and eco-friendly parenting style, and holding yourself out as a model parent. The image you were projecting required purchase of expensive clothing and food items and for the most part that is what the money was spent on. You justified this to yourself by thinking that your sons were too young to know what was going on. Dr O’Donnell referred to these contradictions as “cognitive distortions”. In summary, in return for what was a modest financial gain, you decided to make and send images of two of your own infant children for the sexual gratification of persons you did not know. Images were only sent twice, in each case to a single person, but they were sent in a way which resulted in a situation in which the images may be further distributed, thus serving to sexually gratify a potentially unlimited number of persons with an interest in material depicting the abuse of children.
The overwhelming sentencing consideration for all of your offending is the protection of children. The prohibition of sexual offences against children is founded on the presumption of harm. In the absence of expert evidence it is impossible to determine whether children of the age your sons were at the time would have, or would ever have, a direct appreciation of what happened to them and the wrongfulness of it. Some of the conduct was out of the ordinary only by its intent, but other conduct went beyond any normal physical interaction between mother and baby. But that question becomes somewhat academic in this case. From 15 December 2021 all three of your sons were removed from your care and contact with them was prohibited. Because they remained in the care of their father that meant breakdown of the family unit. They are probably still too young to understand what has happened and why and there is likely still a strong emotional bond to you. The loss of a parent, particularly loss of maternal attachment if that occurs, is terribly damaging in itself but is a consequence of your offending. Moreover I am told that the child protection authorities, who are in the best position to judge such things, will require that the children be told what happened when they are at an appropriate age and level of maturity. Such disclosure, even if in the best long term interest of the children, will inevitably carry a further risk of psychological harm. Whether there may be future contact between you and the children, and if so when, will be determined independently of these proceedings.
You have a good deal of support from members of your family. I have letters written by your grandmother, mother and younger sister all expressing their pride in and affection for you. To their observation you were a caring and loving parent. I have no reason to doubt that this was so, except to the extent that it is quite inconsistent with the way you behaved towards two of your children on these occasions. The obvious conflict between your love and care for them and the conduct which resulted in these charges makes clear your very grave breach of trust. You breached the trust of your two sons who, by reason of their age, were in your complete control. Their age and that they were subject to your care, supervision and authority are aggravating factors. The breach of trust extended to your husband and other son, and to your extended family.
The significance of the possession and distribution of the other child protection material should not be overlooked. The number of images was not large, but the content of some of it was of the most serious type, and the images were sold on multiple occasions. You claim not to have looked at the material yourself, but deciding to sell it regardless of its content does not make your conduct any less serious. You actively marketed their sale for no other reason than to obtain money, and without regard to the welfare and interests of the children depicted. The reason that offences involving child exploitation material are serious have been explained on many occasions. The children shown are real children. In this case they were extremely young and were subjected to appalling physical and psychological abuse and harm. The collection and sharing of such material is likely to encourage those who produce it, resulting in harm to more children. Distribution encourages and risks the corruption of others, although those you sent images to were already corrupted, at least to some extent.
I think that the risk that you may offend in this manner again, certainly against your own children, is low. Nevertheless, the sentence I impose must serve not only to punish you, denounce your conduct and vindicate the victims, but to send a message to others about the likely result of crimes of this nature. The aim is, as far as it is possible for a court to achieve, to thereby deter others from similar crimes for fear of the consequences.
I should mention the charge of rape. It is a crime which carries the implication of particular seriousness. However the nature and circumstances of this crime was such that it carried, in my view, no greater risk of harm than any of the other assaults. None of the offences against your own children carried any risk at all of physical harm. It is the potential for psychological harm which is significant.
You are convicted on each count. I order that the Samsung Z Fold mobile phone seized by the police be forfeited to the State. I assess, in accordance with the Crime (Confiscation of Profits) Act 1993, s 22, the value of the benefits derived by you from the commission of the offences in the sum of $6,100 and order that you pay to the State a pecuniary penalty equal to that sum. I may only allow 28 days to pay but you may enter into a repayment arrangement. I make an order under the Community Protection (Offender Reporting) Act 2005 directing that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under that Act for a period of ten years from your release.
I will impose a single sentence to reflect what I regard to be a just and appropriate measure of your total criminality, taking into account the circumstances of the offences and your own circumstances. I am required by the Sentencing Act, s 11(3) to identify the sentence that would have been imposed for each child sexual offence had separate sentences been imposed. As the term is defined in the Code, the charges of indecent assault, producing child exploitation material and rape are child sexual offences. It is simpler to indicate a separate sentence for every count tailored to achieve the result which I will announce shortly. I would have imposed the following terms:
On count 1, imprisonment for 6 months from 12 August 2022, the date you went into custody;
On count 2, imprisonment for 12 months also from 12 August 2022;
On count 3, imprisonment for 12 months also from 12 August 2022;
On count 4, imprisonment for six months to be served concurrently with the term imposed on count 5;
On count 5, imprisonment for 12 months, six months to be served concurrently with the terms imposed on counts 2 and 3 and the balance to be served cumulatively;
On count 6, imprisonment for six months to be served concurrently with the sentence imposed on count 5;
On count 7, imprisonment for 12 months to be served concurrently with the sentence imposed on count 5;
On count 8, imprisonment for 12 months to be served concurrently with the sentence imposed on count 5;
On count 9, imprisonment for six months to be served concurrently with the sentence imposed on count 5;
On count 10, imprisonment for four months to be served concurrently with the sentence imposed on count 5;
On count 11, imprisonment for 12 months to be served concurrently with the sentence imposed on count 5;
On count 12, imprisonment for 18 months to be served cumulatively to the sentence imposed on count 5;
On count 13, imprisonment for 18 months to be served concurrently with the sentence imposed on count 12;
On count 14, imprisonment for 15 months, three months of which to be served concurrently with the term imposed on counts 12 and 13, and the balance to be served cumulatively;
On count 15, imprisonment for six months to be served concurrently with the term imposed on count 14.
For each of those terms I would have ordered that you not be eligible for parole until expiration of half of the term.
The result is this. You are sentenced to imprisonment for four years from 12 August 2022. You are not eligible for parole until you have served two years of that term.