J P R

STATE OF TASMANIA v J P R                                5 SEPTEMBER 2019

COMMENTS ON PASSING SENTENCE                        PORTER AJ

 The defendant, Mr R, has pleaded guilty in the Magistrates Court to one charge of producing child exploitation material and one count of possession of child exploitation material.  I am also dealing with his pleas of guilty to summary charges of accessing child exploitation material, and possessing a bestiality product in the form of a number of images.  These offences came to light in the following way.  On 16 May 2017, the defendant leased a commercial secure storage unit.  In that unit he put all his personal property which included two laptop computers. He was then moving to the Northern Territory. The lease payments on the unit, which were left for his father to attend to, fell into arrears.  The defendant was notified but without response. As a result, his property was put up for auction, and in June 2018 all of the property was sold to a couple.  When one of the laptops was turned on, child exploitation images and written stories were found.  Additionally, there was a relevant 3½ page handwritten story in a suitcase.  The items were surrendered to police.  When forensically examined, both computers were found to contain child exploitation material and bestiality images involving adults.  By this stage the defendant was back in Tasmania.  On 4 December 2018 police went to his home with a search warrant.  The defendant surrendered an iPad and a mobile phone which were later examined.  The producing child exploitation material charge relates to the period from May 2015 to May 2017. Examination of one of the laptops revealed 11 very sexually explicit written stories comprising 100 pages.  This predominantly referred to a sexual relationship between the accused and his daughter, whom he named.  There were also references to sexual acts between the defendant’s son and ex-wife.  These stories were extremely depraved, and graphic and explicit in their detail.  They described the defendant committing many sexual on children, including his own children, when they were between 1 year and 12 years old.  Many and varied sexual acts are described, including ones of bestiality.  There is also the handwritten story in the suitcase which was written by the defendant, and which describes him having oral, anal and vaginal sexual intercourse with his 12-year-old daughter.  The defendant told police that the written stories were his own masturbatory fantasies.  The possession charge alleges possession of relevant material on 16 May 2017.  A total of 545 child exploitation images were found on the two laptop computers.  Classification according to the CETS/ANVIL system is as follows.  There were 371 category 1 images – no sexual activity but sexually suggestive in nature; 4 category 2 images – solo masturbation by a child or non-penetrative sexual acts between children but including penetrative use of sex toys; 12 category 3 images – non-penetrative sexual activity between adults and children; 16 category 4 images – penetrative sexual activity between children only or adults and children; two category 5 images – sadism, bestiality, humiliation, torture or child abuse; 140 category 6 images – anime cartoons, computer-generated graphics, drawings etc.  The images were predominantly of female children between the ages of 8 and 12, although there were some males depicted in that age range.  Some of the images involved females as young as 5 or 6.  The female children are fully naked or naked from the waist down, and there is a focus on breasts and vaginas.  A large proportion of the images depicted a father having anal, oral and vaginal sexual intercourse with a purported daughter.  Examination of the operating systems of the computers showed that the bulk of the images which were on one computer were downloaded somewhere between December 2011 and May 2016, with the lesser amount on the other computer having been downloaded in a 24 hour period in December 2005.  The accessing charge relates to the period from May 2015 to December 2018, and involves use of one of the laptops from May 2015 to May 2017, and the iPad and mobile phone from then until the police search in December 2018. Forensic examination of the devices revealed that they were used, with varying degrees of regularity, to search the internet, and access child exploitation material.  Such material in the form of a written story was also found on the mobile phone. The defendant later told police that it was not written by him but that he had downloaded it. The material accessed bore graphic titles and largely related to sexual activity between father and daughter.  In addition, police found a total of 32 images of adult bestiality on the laptops.  These depicted women mostly being anally or vaginally penetrated by horses and dogs.  When interviewed, the defendant admitted to police being “sick”, and that he could not explain his compulsion. He said he had never touched anyone inappropriately, including his own children. He said he would search for child exploitation material often and this would involve father-daughter sexual themes.  He said he had deep sense of shame and self-hatred over what he had done.  I make it quite clear that police investigations confirmed that no sexual activity had taken place between the defendant and his children at any time.  The stories were written when they were adults.  It was put on the defendant’s behalf without dissent that he has not had, nor has, any sexual attraction to them.  There is no suggestion at all that he has ever acted on any of these fantasies.

The defendant is now 48 years old.  He is a single man and now without any employment.  He has some driving related offences including three drink driving matters but nothing of any direct relevance.  He has an excellent work record as a carer and nurse in aged care.  He worked his way up to a senior position with co-ordination and supervision responsibilities. The defendant had been separated from his wife for some 20 years.  She unfortunately died in 2015.  This caused distress to the defendant and upheaval in his life. At the same time, the nature and extent of his work was causing him great stress.  The combination of these things saw him drinking very heavily.  He had previously had some problems with alcohol abuse but had managed to overcome his difficulties.  His circumstances saw him relapse into alcohol abuse.  He wrote the stories while intoxicated.  When he sobered up he was disgusted with what he had done.  Counsel described a cycle of drunken writing and consequent self-loathing when sober, although why he did not immediately destroy what he had written was not explained.  He was able to take stock of what he was doing and so left to work in remote areas and travel to address his issues.  He was able to stop drinking to excess and stop offending in this way, at least to a very large extent, the more recent conduct relating only to infrequently accessing material.  I am told that the possession of images from 2005 came about when the defendant was looking for adult pornography. His production and acquisition stopped before the discovery of his activities. He is acutely ashamed of his conduct, and since being apprehended he has attempted to commit suicide on two occasions.

It should be noted that the crime of producing child exploitation material is not dependent on proof of distribution or an intention to do so. There is a separate crime of distribution.  The production of child exploitation material ordinarily involves the abuse of real children and is to be utterly condemned, with very stern deterrent measures required.  This case, although not unique, involves written stories about real children, the defendant’s own, but the stories are completely fictitious. They were written at a time when the children were many years older than as described. What the defendant expressed was in his imagination. No doubt the revelation of their father’s conduct has caused them stress and embarrassment, but they were not otherwise harmed by the acts of production. In relation to the possession of child exploitation material, the evils involved are well documented.  The downloading of the material provides a market for those who make and distribute it. The children depicted are further exploited with each distribution and viewing.  Interest in the material encourages those who produce it.  Widespread collections of the material has a tendency to normalise the conduct of the initial perpetrators from their own perspective.  I add that the making of bestiality images often involves the exploitation of vulnerable persons and, it should not be overlooked, disregard for animal welfare.  Having said all of that, in some respects this is an unusual case and the defendant’s conduct needs to be put in some perspective.  The material he produced was for his own purposes.  He did not in fact distribute it and there is no suggestion he intended to. The problem though with producing such material in those circumstances is that it may lead to an escalation in offending behaviour. A further problem is that it can fall into the wrong hands, as is shown by this very case. Fortunately it found its way to responsible people.  Next, the number of images possessed was relatively small compared with cases that often come before this Court involving thousands or tens of thousands of images.  Further, 362 of the 545 images are in the lowest category of seriousness, while 140 of them are of the anime or cartoon variety, a type of child exploitation material which is generally regarded as less serious because it does not depict actual children, although it is true such material has a tendency to degrade and incite.  I take into account the defendant’s early pleas of guilty entitling him to a discount and the fact that he fully co-operated with police.  I also take into account that this offending would mean that his previous career is no longer available to him.  More broadly, there is no doubt he would find it generally difficult to find employment.  A matter that operates in his favour is that he was able to rehabilitate himself in terms of his alcohol abuse, and from early 2017 substantially curtailed his online activities, with only limited offending in the form of accessing material since that time to the time of the police search in December 2018.  I accept that he has insight into the nature of his wrongdoing and is deeply remorseful.

Mr R, I have set out what I see to be the relevant considerations in your case, some of which of course are conflicting.  Sexual abuse of children is a matter of a high level of concern for the community.  The fictitious stories were highly depraved.  That they were about your own children was disrespectful of them in the extreme, and I have already mentioned the hurt that the disclosure of the material must have caused. You kept the stories notwithstanding the realisations when sober, that you should not be writing them.  Writing them carries the risks I have identified.  Your possession and acquisition do not fall into the most serious categories but the associated effects and risks remain the same.  I have given your case careful consideration.  In all of the circumstances, I think a term of imprisonment is necessary but there is justification for a significant degree of relief from you immediately serving the whole of the term, including the fact that I will be ordering that your name be placed on the Community Protection Register.  You are convicted of all matters and sentenced to 15 months’ imprisonment to commence on 19 August 2019, the execution of 12 months of which is suspended on condition you commit no offence punishably by imprisonment for a period of three years.  The law requires me to order that your name be placed on the Register under the Community Protection (Offender Reporting) Act, unless I am satisfied that you do not pose a risk within the meaning of that Act.  I cannot be satisfied that there is no risk.  Your name will be placed on the Register and you will have to comply with the reporting obligations for a period of five years from your release.  I order the forfeiture of the Acer and Asus laptops, the iPad and Samsung phone.