STATE OF TASMANIA v NATHAN VICTOR LOCKLEY WOOD J
COMMENTS ON PASSING SENTENCE 4 NOVEMBER 2019
Nathan Victor Lockley has pleaded guilty to one count of indecent assault, two counts of possessing child exploitation material and one count of accessing child exploitation material.
On Sunday 3 September 2017, Ms R invited a friend to her home for a drink. The friend asked if the defendant could also join them, and Ms R agreed, having known the defendant for approximately six months. Ms R lived at her home in the Hobart region with her two young children, one of whom is her son, the complainant, who was then 5 years of age.
The children were in bed when the visitors arrived and during the evening, Ms R and the men consumed alcohol. At the end of evening, the defendant was affected by alcohol. Ms R told him he could stay and folded out the sofa bed in the lounge room.
Shortly after everyone retired for bed, the complainant was heard to be crying. Ms R went into his bedroom and found him distressed and he told her that someone had touched his “doodle”. He said the “bad man did it” and it hurt. The defendant was told to leave the house.
The next day, the child’s penis was sore, there were spots of dried blood in his underwear and he was taken to the doctor. A medical examination revealed an area of redness to his penis, and an area of abrasion on the foreskin around the urethral opening that may have been caused by rubbing.
The defendant pleaded guilty to the charge of indecent assault on 15 August 2019. This plea was entered at a very late stage of the proceedings, after the complainant and his sister had given evidence at a pre-recording on 13 June 2019. There is a utilitarian value in the plea of guilty which is taken into account as a modest discount in the sentence.
I have a victim impact statement from the complainant’s mother, Ms R, dated 23 August 2019. The crime has had a significant impact upon the complainant. He suffered physically, with the pain subsisting for a week. He was affected in other ways. Since the offence, he has regularly suffered from nightmares and needs a night light. It was six months before he could sleep in his own bed. He was previously outgoing but he is now shy and fearful of people, generally anxious, and he gets emotional easily and does not adapt well to change. He was particularly nervous before giving evidence and was scared that he might see the defendant. This is a crime which has also affected the complainant’s family generally, including the child’s mother and his sister.
As noted, the defendant has also pleaded guilty to one count of accessing child exploitation material and two counts of possessing child exploitation material.
The defendant was employed in February 2016 and August 2017. He was provided with a mobile phone and a desk top computer. In August 2017, his employment was terminated due to a matter regarding his alcohol consumption. Before handing in his phone, he conducted a factory reset. He tried to delete items from his computer but was prevented from doing so. Police investigated the hard drive and found 5 backups of mobile phones and from one iPad. The backups from three of his phones contained child exploitation material. These were stored on a personal cloud storage service.
In total, there were 6277 images classified according to the Child Exploitation Tracking System and Australian National Victim Image Library scheme as follows:
- 1 2269 images in category one, this category captures depictions of children with no sexual activity, but which were sexually suggestive;
- 2 146 images in category two, this category depicts and captures images showing solo masturbation by a child or sexual acts between children in which no penetration occurs, although the category includes penetrative use of sex toys by the victim;
- 3 159 images in category three, capturing non-penetrative sexual activity between adults and children and may include mutual masturbation;
- 4 272 images in category four, which includes penetrative sexual activity between children or adults and children;
- 5 13 images in category five, which includes images depicting sadism, bestiality, humiliation, torture or child abuse;
- 6 3418 in category 6, which is anime, cartoons, comics, computer generated graphics, audio and text depicting or describing children engaged in sexual poses or sexual activity.
There were another 8253 images which were not illegal material, although they were related to child exploitation material. The illegal and non-illegal images predominately showed boys.
Some of the images were duplicated on a mobile phone that was seized by police from his home.
As noted the defendant’s employment was terminated on 14 August 2017 and his computer and his work phone were taken. This was three weeks before the indecent assault. On the morning of 4 September 2017 he was arrested for the indecent assault and a mobile phone that he had possession of at that time was seized. It was locked and the defendant refused to provide the PIN code. The phone was accessed by police and examined by police forensics. The examination showed that the defendant had accessed 11 internet sites approximately three hours after the indecent assault and these included 10 images of young boys, one of which was an illegal image, involving a cartoon in category 6. On this same phone there were 3477 images, all duplicates of the images earlier found that I have referred to, involving boys between 5 and 13 years of age. These included images of adult males penetrating prepubescent males orally and anally as young as 5-8 years of age; boys aged 9 -13 years of age masturbating and engaging in mutual masturbation and pre-pubescent males ranging from babies to 5 years of age posing sexually with particular focus on the genitals and anus. The second charge of possessing child exploitation material relates to his possession of these duplicate images on 4 September 2017.
The crimes of possession and accessing child exploitation material are seen in a very serious light. Such material can stimulate people with pederastic inclinations to commit related crimes. This is a case where the defendant’s accessing of internet sites was contemporaneous with his indecent assault of a young boy. The production of child pornography involves exploitation and corruption of children, and accessing and collecting such material is likely to encourage those who produce it. The fact that there is a market for this material provides an incentive to those who produce it: (Director of Public Prosecutions v Latham [2009] TASSC 101 at [33] per Porter J.)
Here most of the images were either anime or virtual images, and thus not depicting real children or, fell in the least serious category. However, the child exploitation material accessed and possessed by the defendant involves harm, promotes harm, and involves and promotes the exploitation and corruption of children. I note the images were not organised or categorised in any way. And I note too that there is no suggestion that the defendant distributed any of the material, and the material was not kept in a way that would be likely to give rise to accidental exposure to others.
I take into account the defendant’s relatively early plea of guilty in relation to the child exploitation charges.
The indecent assault is a serious crime, committed upon a vulnerable sleeping child in his own bed. As the child’s mother has accurately said: “this was an invasion of a child’s safe space in their own home, the place where it is most important that they feel safe”. The touching of the child was rough, resulting in physical pain. It goes without saying that the defendant’s act was an appalling breach of trust as a guest in someone’s home.
The defendant has no memory of his conduct relating to the indecent assault due to his state of intoxication. During the day he had been drinking alcohol to excess as a coping mechanism using a combination of his anti-depressant medication and alcohol. It was Fathers’ Day, a day he finds particularly emotionally difficult as he has not had any contact with his three children since he and his wife separated in 2015. He had then and continues to have significant longstanding mental health issues suffering from major depressive disorder and anxiety disorder. His abuse of alcohol at that time was long standing and habitual. However, his intoxicated state is no excuse for his conduct and does not in reduce the seriousness of his culpability. His lack of memory does explain the lateness of his plea of guilty. I note he pleaded guilty after a forensic report was disclosed to him which unambiguously pointed to his guilt. Unfortunately, that report was not disclosed until after the preliminary proceedings.
The defendant accepts his responsibility for this crime and has expressed remorse, when confronted with the indecent assault he stated he was “totally disgusted” in himself.
He is 36 years of age and has a sound industrial record. He has no prior convictions for the kind of offending before the Court today. I note he has a conviction for an offence of drive while exceeding prescribed alcohol limit in 2014 and another in 2018.
The defendant has had a paedophilic tendency since his late adolescence. His reason for accessing and possession of child exploitation material is driven by that disposition and the prohibited nature of the material.
I take into account that he tried to seek help while in the community for that tendency and has been referred to psychiatrists but did not pursue psychiatric assistance as he faced very long waiting lists and significant consultation fees. He did not have good advice about the option of accessing psychiatric assistance under a mental health plan.
He is assessed as a risk of reoffending, and requires meaningful intervention in structured programs to decrease that risk. It is a significant factor in his favour that he is motivated to engage in such programs. Since his remand in custody he has had counselling on a regular basis and has found that helpful. Once he is sentenced he will have access to specific programs such as the Sex Offenders Rehabilitation Program, and the New Directions program. He is motivated to engage in the programs that are available to him. Indeed, he is relieved to learn that there is assistance available to him for his paedophilic tendency, he is someone who wants to be free of that. For the first time, he is positive about his future and rehabilitation prospects.
I also note the progress he has made in relation to his alcohol problem. Prior to his incarceration he had addressed his alcohol abuse, and has not had an alcoholic drink since the end of 2018. I note too that he was compliant with supervised probation that was imposed in November 2018 for a drink-driving offence.
The sentence must reflect the defendant’s remorse, and attitude to his offending and that he is motivated to do all that he can to rehabilitate. However, it must also reflect the seriousness of the crimes before the Court, and be effective in deterring others who may be inclined to commit crimes involving sexual abuse of children or with respect to child exploitation material. Mr Lockley, you would understand that the Court’s duty to children is paramount in these cases.
Significant terms of imprisonment are required. The mitigating factors I have referred to have been taken into account by me in fixing the overall length of the sentences and in my view also warrant the imposition of the minimum non-parole periods.
Nathan Lockley, you are convicted on each count. I impose 20 months’ imprisonment for the crime of indecent assault to commence on 2 September 2019, the date that you were remanded in custody. You will not be eligible for parole until you have served half of that sentence. I impose a total of 10 months’ imprisonment for the three remaining crimes, two counts of possessing and one count of accessing child exploitation material. That sentence is to be served cumulatively to the 20 months I have imposed, making a total of 30 months. In relation to the term of 10 months, you will not be eligible for parole until you have served the minimum non-parole period of half of that term.
I also impose a Corrections Correction order, as recommended in the pre-sentence report. This is to be in place for an operational period of 18 months from release. You must not, during that period, commit an offence punishable by imprisonment. You must report within 24 hours of his release, to a probation officer and comply with all other mandatory conditions. Special conditions which apply during the whole of the operational period of the order of 18 months are as follows:
- You must, during the period of the order, submit to the supervision of a probation officer as required by the probation officer.
- During the operational period of the order of 18 months, you must undergo assessment and treatment for alcohol dependency as directed by a probation officer and;
- You must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer.
I make a forfeiture order for the mobile phone, iPhone 7, seized by police on 4 September 2017
I am not satisfied that in the future that you do not pose a risk within the meaning of the Community Protection (Offender Reporting) Act. So I order that the Registrar appointed under s 42 place your name on the register under that Act, and that you comply with the reporting obligations for six years from your release.