THE QUEEN v BRADLEY COLIN HAY 6 NOVEMBER 2020
COMMENTS ON PASSING SENTENCE PEARCE J
Bradley Hay, you plead guilty to one count of possessing or controlling child abuse material obtained or accessed using a carriage service. The charge is brought under the Commonwealth Criminal Code, s 474.22A(1).
The crimes came to the attention of the Australian Federal Police on 1 January 2020 as a result of a report from the National Centre for Missing and Exploited Children that you had uploaded a video file considered to be child abuse material. Your home was searched on 20 January 2020 and your laptop was seized. When it was reviewed on 18 March 2020 an internet based cloud drive was found to contain two videos and four still images which amounted to child abuse material. All were categorised according to the Australian National Victim Image Library as category 1, the least serious category, which includes depictions of children with no sexual activity but which were sexually suggestive or sexual in nature. The videos last a total of about 17 minutes. They depict the same pre-pubescent female, in sexually suggestive clothing and poses. The photographs are of a similar character, all of a single but different child.
You are now aged 61. You are single and receive a disability pension for depression. You have two prior convictions which the Commonwealth asserts are relevant. However I accept the submission of your counsel that they are offences of a different character and carry little weight for sentencing purposes. Both arose when you were manager of an adult store in Launceston. From time to time you were responsible for ordering stock, much of which was legal adult pornography, mostly imported. In 2005 you were fined for selling three unclassified films contrary to the Classification (Publications, Films and Computer Games) Enforcement Act 1995. In 2008 you were given a short suspended sentence for similar breaches of the same legislation. None of the films were child pornography. In between those two sentences, in 2007, you were fined for importing a prohibited good contrary to the Customs Act. The prohibited good was a German arthouse film depicting children. It was one of 11 films imported from the US and was the only illegal one. You did not view or distribute the film. You pleaded guilty on the basis that the importation was reckless rather than intentional.
I take into account the matters under s 16A(2) of the Crimes Act (Cth) to the extent that they have been raised. I have described the nature and circumstances of the crimes. There are no relevant family impacts. You complied with the warrant which required you to provide access to the computer. You entered an early guilty plea. It indicates contrition and acceptance of responsibility and facilitates the administration of justice. It is not suggested that you shared the material and there was no chance that any other person would inadvertently obtain access to it. You say that you viewed the material once but did not return to view it again. Compared to some other cases there is a very small number of images and the number of children involved is limited to two.
In all cases involving child pornography material, there is a strong need to impose a sentence which adequately punishes offenders and has the effect of deterring the offender and others who may be inclined to engage in similar conduct. Those factors are recognised in the heavy maximum penalties provided for by the parliament and by the introduction of minimum penalties, although the new penalty provisions do not apply to you. Child pornography offences put children everywhere at risk of sexual abuse by encouraging the creation of child pornography to meet the market and demand for it. This material was in the lowest category of seriousness but all such material is serious and has the capacity for harm.
For these reasons, factors of general and personal deterrence are generally predominant. No sentence other than a sentence of imprisonment is appropriate. However I do not consider that the nature and content of this material and the number of images, requires, in your personal circumstances, actual imprisonment. I will make orders which result in your immediate conditional release. The offence to which you have pleaded guilty was created relatively recently. For whatever reason it is not, unlike almost all of the other offences created by subdivision D of Part 10.6 of the Commonwealth Criminal Code relating to use of carriage service for child abuse material, a reportable offence under the Community Protection (Offender Reporting) Act 2005. However, by s 7 of that Act I may nevertheless make an order if I am satisfied that you pose a risk of committing a reportable offence in the future. Because you downloaded this material, and displayed interest in it, I am satisfied that you do pose a risk of committing a similar offence in the future. For that reason I will make an order.
Bradley Hay, you are convicted. I make a forfeiture order as to the ACER 615-52 laptop seized by the police. I make an order directing that the Registrar under the Community Protection (Offender Reporting) Act 2005 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 from today.
You are sentenced to imprisonment for seven months. I order that you be released forthwith, without being required to serve any of that term, upon you giving security by recognizance without surety in the sum of $2,000 that you will be of good behaviour for a period of two years from today. The purpose of the order is to provide an incentive for you not to re-offend and to encourage your rehabilitation. If you fail to comply with a condition of the recognizance, for example by committing some further offence, you may be called upon to pay the sum of $2,000, and a court may order that you serve all or part of the term in addition to any other term you may be required to serve.