STATE OF TASMANIA v DAMIEN KOZAKIEWICZ 23 MARCH 2022
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant, Damien Robert Kozakiewicz who was 31 years of age at the time of the offending has pleaded guilty to one count of penetrative sexual abuse of a child and one count of possessing child exploitation material.
The male complainant, to the penetrative sexual abuse charge was aged 12 years old at the time of the incident.
In 2021, the complainant and the defendant began exchanging messages using Snapchat and told each other that each was homosexual. The messages were friendly and “flirty” in nature. The complainant told the defendant he was 14 years of age. The defendant did not tell the complainant his age, although the complainant was under the impression the defendant was aged in his 20s.
The defendant suggested that he and the complainant meet up. The complainant understood that there was likely to be sexual activity of some nature which would occur during this meeting, believing that the defendant wished to “make out”.
On a day in April 2021, the defendant and the complainant both attended Glenorchy Central but found it too crowded. They arranged instead to go to Northgate where they entered a unisex toilet.
The complainant removed his t-shirt and jumper, and lowered his pants to his ankles. The defendant lowered his trousers. The defendant and the complainant kissed each other to the mouth and held each other. The defendant touched the complainant to the area of his torso. The defendant brushed past the complainant’s genitals with his hand but the complainant indicated he was not comfortable with that. The complainant knelt on the floor in front of the defendant and the defendant penetrated the complainant’s mouth with his penis. Oral intercourse continued for a period of a few minutes.
Following this, the defendant used his finger to penetrate the complainant’s anus, before attempting to penetrate the complainant’s anus with his penis. The complainant indicated that this hurt him, and the defendant desisted. There was further kissing between the defendant and the complainant and the defendant masturbated himself to ejaculation.
On Tuesday 17 August 2021 items were seized from the defendant’s home pursuant to a warrant. These items were a Corsair computer tower, containing a Samsung drive, and a Samsung, a Western Digital and a Hitachi hard drive and an LG G3, an LG G6 and a Samsung Galaxy S20+ mobile telephone.
Subsequent forensic examination was undertaken of the defendant’s computer tower and telephones. Child exploitation material located on the defendant’s computer and telephones were classified according to the Interpol Baseline Classification System, which provides for two categories of child exploitation material and two categories of other that is non-illegal material. The table contained in the categories is set out in the Crown papers and was published as part of the Crown facts.
The computer tower, in total, contained files in Categories 1 to 3 of the following nature:
- Category 1 – 302 images and 124 videos
- Category 2 – 42 images and 53 videos
- Category 3 – 297 images, 4 videos and 1 PDF file.
The videos and images in Categories 1 and 2 most frequently depicted pubescent and pre-pubescent children, mostly male, engaged in oral and anal penetration by children and other adults, or solo or mutual masturbation by children or other adults.
The defendant’s Samsung mobile telephone contained one video of child exploitation material, which was analysed to be Category 1 and depicted anal penetration of a young boy by an adult male whose face is not depicted, concluding in the ejaculation of the non-depicted adult male.
Section 11A of the Sentencing Act provides that it is an aggravating circumstance in this case that the complainant was a child under the age of 13 years.
The decision of Director of Public Prosecutions v Latham [2009] TASSC 101 which was referred to with approval in Taylor v The Queen [2015] TASCCA 7, outlines the principles relevant to sentencing for crimes involving child exploitation material.
In respect of those factors, the following matters are pointed to by the State:
- The images and videos located depict males and females as young as 8 years old and up to the age of 16 engaging in penetrative sexual acts, including with adults.
- A total of 344 images and 178 videos located were found to contain child exploitation material.
- The defendant’s level of interest in the material was high, evidenced by the amount of material found, the fact that it was consistent with internet search and web history, and its consistency with the substantive charge of penetrative sexual abuse of a child and the age of the complainant involved.
Pursuant to s 130F(2) of the Criminal Code, the Crown seeks an order that the computer tower (and associated soft state drives and hard disk drives) containing child exploitation material set out in the Crown statement of facts be forfeited to the State of Tasmania. I make that order.
Section 6 of the Community Protection (Offender Reporting) Act 2005 applies. I make an order under that section for a period of 10 years.
The defendant was born in Hobart and is the second oldest of three siblings. He lived in the family home until aged 25. He now resides alone in rented accommodation. His home life was stable. He was quiet, nervous and anxious and although a good student, had only a small number of friends and avoided engaging in extracurricular activity. He completed high school at Kingston High and year twelve at Hobart College before taking up employment at a bottle shop.
The defendant later commenced a Bachelor of Information and Communication degree part time at the University of Tasmania. He continued his employment concurrently with his studies, taking five years to graduate.
Prior to graduation the defendant was accepted into a graduate position with Hydro Tasmania, which he commenced after graduating in 2019. The defendant held that position until mid-February, 2022 when he was dismissed due to ongoing absences. This was because the defendant informed his employer that he had been involved with the police (without specifying the crimes) and stated his intention to resign. His supervisor did not accept the resignation and wanted the defendant to maintain contact and update them with any issues. The defendant avoided that contact as he could not face going to work and that led to his dismissal.
The defendant pleaded guilty to complaint 90967/21 on 6 January 2022. Although that was his fifth appearance, it was his second appearance with Counsel. He had attempted to plead guilty, unrepresented on 6 December 2021 however the magistrate declined to accept a plea until the defendant had obtained legal advice.
The defendant when interviewed by police, denied the premise that he had forced the complainant and then made admissions to the conduct now the subject of the Crown facts on the complaint which went beyond the original complaint. That is, the defendant made full and frank admissions which the State has accepted as the true position.
I am satisfied that the defendant made the admissions despite knowing that he was admitting very serious conduct because he believed it was the only choice he had and he felt it was the right thing to do. He also admitted that Police would find child exploitation material on his electronic devices and gave them the passwords and pins.
Properly considered, the defendant assisted the investigation, made full admissions and pleaded guilty at an early opportunity. Each is relevant to remorse.
The defendant has no prior convictions of any nature.
Counsel for the defendant accepts the aggravating factors put forward by the State but notes that there was no force or coercion of the complainant and submits, as is factually correct, that without diminishing the effect of the provisions of the Code as to age and the complainant’s ability to lawfully consent, the defendant did not engage in any act which the complainant did not agree to and desisted from specific conduct when the complainant indicated that certain acts were not welcomed.
As to the child exploitation charge it is also accepted by the defendant that the offending is aggravated by the matters raised by the State as to the age of the children depicted and the conduct portrayed.
It is submitted on behalf of the defendant that the number of images and videos was at the lower end of the range for crimes of this type, that the material was not catalogued or organized and, apart from one video on one of the three telephones, the material was saved only on the computer tower. The defendant lived alone and his electronic devices were password protected so that there was no risk of accidental viewing by others.
I accept the submissions as to aggravation made by the State and I accept the submissions in mitigation and as to lack of other aggravation made on behalf of the defendant.
As to the charge of penetrative sexual abuse of a child it is clear however that the complainant was unable to legally consent to what occurred and that the law also serves to protect him from his own inability at the age of 12 to make mature choices as to sexual acts with older persons. Even if the defendant thought the complainant was 14 and no matter how old the complainant thought the defendant was, this was a serious case of predation by the defendant on a child.
As to the charge of possessing child exploitation material enough has been said by judges of this Court as to how appallingly children suffer in the making of the images involved, for the community to understand that possessing them will in most cases lead to sentences of imprisonment.
I accept the Latham submissions made by the State and while the number of images may have been low, relative to other cases, many were category 1 and a number involved children as young as eight years old. It is also apparent that the defendant progressed from voyeurism to acting on his attraction to young boys.
The defendant is convicted of both crimes and I impose a single sentence of 2 years and 9 months imprisonment from today and order that the defendant not be eligible for parole until he has served half of that sentence, that is to say 16 ½ months.
The Community Protection Reporting order is to commence on the defendant’s release from prison.