STATE OF TASMANIA v ANTHONY KENNETH LAY 16 OCTOBER 2020
COMMENTS ON PASSING SENTENCE PEARCE J
Anthony Lay pleads guilty to one count of using a carriage service to transmit indecent communication to a person under 16 years of age contrary to the Criminal Code (Cth), s 474.27A(1), and once count of using a carriage service to transmit child pornography material contrary to the Code, s 474.19(1)(a)(ii). The crimes were committed by the defendant between 9 and 13 June 2018 from his then home in Queenstown in Tasmania and involved a single complainant. On 9 June 2018 the defendant searched the internet application YouTube by using sexualised terms. He was actively looking for videos of females aged between 7 and 16. He had linked to YouTube and to another application Snapchat through his Gmail email address using the name John Zombie. As a result of the search he located a channel called Kitten Cat which had been created by an 8 year old girl in another part of Australia. The channel contained videos of that child partly dressed, defecating and urinating into a plastic bucket.
Having found the videos, the defendant used his email to make direct contact with the child through the email account she had linked to her YouTube channel. In his email the defendant asked the girl to provide him with sexualised videos including of her masturbating. She responded to the request by sending 3 videos and 11 images of herself either in a sexually suggestive position, naked, or depicting a sexualised act. Following the email communication, the defendant made contact with the girl via Snapchat and they began to communicate. The defendant requested more sexualised videos and, in response, she sent 6 videos of herself either in a sexually suggestive position, naked, or depicting a sexualised act. The videos and images she sent were child pornography material. By causing the child exploitation material to be transmitted to him the defendant committed the crime under s 474.19.
In the course of the communications he initiated, the defendant sent the girl two videos of himself via Snapchat depicting him masturbating himself. By transmitting those indecent communications he committed the crime under s 474.27A.
The defendant’s offending came to light when the child’s father found the material on her iPad and approached the police. The defendant’s email address was located on the iPad and his identity was established from the internet provider. The defendant’s criminal conduct continued only for a few days. There were only a relatively small number of child pornography images and videos and they were in the lowest category of seriousness. Two videos and 11 images were in category 1, in that they were sexually suggestive or sexual in nature, but did not depict sexual activity. One video was category 2 in that it depicted solo masturbation by a child. The videos he first found had already been placed onto YouTube by the girl before the defendant’s involvement. This is, nevertheless, a serious case for a number of reasons. The defendant actively searched for child pornography on the internet and, having found by chance a girl whose pre-pubescent age was apparent from the images, he targeted her for direct contact and expressly requested more images. When interviewed the defendant told the police that he thought that the girl was aged 10. He knew that he was acting unlawfully and used a false name to try to keep his identity secret. He told the girl that he was older, but not how old. He admitted requesting use of Snapchat rather than Gmail because it reduced the risk of discovery. He displayed a high level of interest in the material. When some came he asked for more. He told the police that the material he was sent did not give as clear a view of the parts of girl as he had hoped to see. His repeated requests for images from her and the transmission of indecent material to her greatly increased the risk of the child of such an age being permanently harmed. When, in March 2019, the phone in his possession was seized, no other unlawful images were found on that phone. It was however a different phone than the one he used at the time of the crimes and the device he then used has not been located.
The defendant is now aged 26. He was 24 when the crimes were committed. He has no prior convictions, though that factor is of less weight for crimes like this. Mitigation arises from his early plea of guilty. His plea and his admissions are some indication of contrition. However, whilst he presented himself for interview, he shaved his hands before he did so hoping to conceal his guilt. Moreover, what he said to the police about the images not being as good as he had hoped indicate to me a lack of immediate remorse and reduced insight into the seriousness of his conduct. Such factors suggest an ongoing risk. That view is confirmed by the contents of a Community Corrections assessment report which points to an above average risk of sexual recidivism. His remand in custody has served to interrupt an addiction to on-line pornography. He will benefit from participation in the sex offender treatment program or other psychological counselling. My duty is to impose a sentence that is of a severity appropriate in all the circumstances of the offence. The dominant sentencing consideration is the protection of children. The internet provides a highly effective opportunity for contact with, and then sexual exploitation of, children who commonly have unsupervised internet access. Offending of this nature is difficult to detect and damaging. Children all over the world are abused and traumatised by production of child pornography. The victim in this case was very young. The protection of victims is advanced by imposition of sentences which strongly punish offenders and serve to deter the offender and other persons. The seriousness with which parliament, on behalf of the community, views such crimes is reflected in the maximum penalties provided for in the legislation.
I have set out what I see to be the relevant features of this case and the considerations to be taken into account. Given the nature of the offending and the principles which I must apply, I am satisfied that imprisonment, some of which is to be actually served, is the only appropriate order in the circumstances. It is to be combined with a home detention order which will, in addition to forming part of the punishment, enable the prospect of the defendant’s rehabilitation to be addressed. He has been assessed as suitable for such an order. There is some risk that he will commit a sexual offence while the order is in force, but because he will be living with his mother and because the order will be in force, I do not see the risk as significant.
Anthony Lay, you are convicted on each count. 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 of five years from your release. On count 2, the charge of using a carriage service to transmit child pornography material to yourself, you are sentenced to imprisonment for 15 months from 4 September 2020. I order that you be released after having served eight months 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 your release. 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 remaining term in addition to any other term you may be required to serve.
On count 1, the charge of using a carriage service to transmit indecent communications, I make a home detention order. The operative period of the order is six months from your release from custody. I specify the premises at which you are to reside during the operational period of the order as [home detention premises]. I order that immediately upon your release you report to the office of Community Corrections in Hobart, for induction into this order, and a further explanation as to its full terms. The order will be subject to all of the core conditions set out in the Sentencing Act 1997, s 42AD(1). They will be set out in the order that you will be given, but include that you will submit to electronic monitoring and must, during the operational period of the order, if directed to do so by a police officer, probation officer or prescribed officer, submit to a breath test, urine test, or other test, for the presence of an illicit drug. I specify that you must be at the home detention premises at all times unless for a relevant reason. In short, that means that you must be at those premises unless there is a need for urgent medical treatment, there is a serious risk of death or injury, or you already have the approval of a probation officer to be absent. It will be for the probation officer to determine what to approve so as to allow for treatment or rehabilitation, for employment, or for any other purpose. The conditions will include that you not commit another offence punishable by imprisonment and that you comply with all directions given to you by your probation officer. I impose special conditions that:
- you must submit to the supervision of a probation officer as required by that officer;
- you must not take any illicit or prohibited substances. Illicit and prohibited substances include any controlled drug as defined by the Misuse of Drugs Act 2001, and any medication containing an opiate, benzodiazepine, bupropion, hydrochloride or pseudoephedrine, unless you provide written evidence from your medical professional that you have been prescribed the relevant medication;
- you must submit to any rehabilitation or treatment program as directed by a probation officer;
- you must submit to a medical, psychological, psychiatric or physical or mental health assessment or treatment as directed by a probation officer;
- you must maintain an active mobile phone service, provide the contact details to Community Corrections and be contactable at all times.
This order, assuming no relevant change in circumstances, will come into effect immediately upon your release from custody. You must understand that if you do not comply with the conditions, imprisonment is likely. If you breach the order by committing another offence, the order must be cancelled unless there are exceptional circumstances, and in that case imprisonment would be highly likely. In the event that one or both of the sentencing orders I have made are breached, it will be for a judge dealing with the breach to determine how the re-sentencing orders are structured.