THE QUEEN v ALEC McGEARY                                                       7 DECEMBER 2021

COMMENTS ON PASSING SENTENCE                                                       PORTER AJ

 Mr McGeary, the defendant, appears for sentence having pleaded guilty in the Magistrates Court to one count of using a carriage service to access child exploitation material contrary to s 474.22(1) of the Commonwealth Criminal Code, and one count of possessing child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1) of that Code. These charges arise out of a search of the defendant’s home in New South Wales on 8 May 2020. Police found four mobile phones and a hard disc drive. When reviewed by investigators, files and downloaded links containing child abuse material were discovered. On an iPhone X there was a link saved in ‘Notes’, which link provided access to a Dropbox account where there was a folder entitled “Boy Gulag”. In turn, that contained several videos, two of which were child abuse material. Using the ANVIL scheme of classification, these videos were put in Category 4: “penetrative sexual activity between children or adult(s) and child(ren)”. Both videos are of a few minutes in duration and both show anal penetration of a prepubescent boy.  The review of another phone, an iPhone Pro Max, again led to the location of a link saved in ‘Notes’, the link providing access to a Dropbox account with a folder entitled “grupo 5” which contained several videos, two of which were found to contain child abuse material. One was classified as Category 3: “non-penetrative sexual activity between adult(s) and child(ren)”; the other was Category 4. The first was of about half a minute duration and showed an adult male having his erect penis against the lips of a sleeping male child about 8 to 10 years old, while the second was about two minutes duration showing a naked adult male with an erect penis masturbating and penetrating the anus of a male child about 3 years old. Those matters are the subject of the first count. As to the second count, nine files containing child abuse material were stored in various locations on the iPhone X. There were three files in Category 1: “sexually suggestive posing or nudity with no sexual activity”. There were two videos in Category 4 and four in Category 5: “sadism, humiliation or bestiality”. One of the Category 4 is of nearly five minutes duration and shows penile penetration of a boy between 7 and 9 years old. Another, of about 30 seconds, shows a boy in the same age range, being orally penetrated. The iPhone Pro contained 459 files of child abuse material stored in various locations. There were 311 files in Category 1, six in Category 2: non-penetrative sexual activity between children, or sole masturbation by a child, 8 in Category 3, 115 in Category 4, and nine in Category 5. One video is nearly nine minutes in duration, and involves a male boy between 2 and 5 years old. There was an unsuccessful attempt at anal penetration which ceases when the male ejaculates. On a Samsung phone there were 42 files, 14 in Category 1, one in Category 2, three in Category 3, 23 in Category 4, and one in Category 5. Anal penetration of different boys in the age range of 6 to 13 is involved, with one involving a forceful penetration creating visible distress. The hard drive was found to contain 714 videos containing child abuse material. There were 357 in Category 1, 159 in Category 2, 36 in Category 3, 156 in Category 4, and 6 in Category 5. The theme of these videos seems to be basically the same. One is a little over 45 minutes in duration, and is a compilation of 12 videos of adult males and females penetrating male and female children between 12 months and 3 years old. One of these videos depicts a female child between 12 and 24 months old. A male effects oral penetration and attempts penetration from behind, before licking her genital area. In respect of count 2, the total number of items is 1,224 with 318, or about 25%, being in the highest two categories – most in category 4 – with about 55% being in the lowest category. When interviewed, the defendant made admissions including that he had been looking at this sort of material for around two or three years, most of it had been sent to him by one other person, he had watched it the night before the search, and that he would masturbate when watching it.

The defendant is now 22 years old; 20 at the time of his arrest. He has no recorded history of offending. I have the benefit of detailed submissions of the defendant’s counsel, along with some other material including letters of support and a lengthy report from Dr Rodriguez, a psychologist in New South Wales where of course the defendant was living when the offending occurred. I also have a Community Corrections report dated 29 November 2021. The defendant moved there in April 2019 and moved back to Tasmania in June 2020 after his arrest, and is living with his mother and her current partner both of whom are supportive. He is undertaking an engineering course at UTAS but because of these matters he is excluded from campus and must work online. At the time of his offending he was working for an IT firm and living in shared accommodation. Relevant points from the psychological report are as follows:

  • The defendant had a fairly normal childhood, with no history of sexual abuse and no evidence of engaging in antisocial behaviour.
  • He realised he was gay from a young age when he started to watch gay pornography, his first sexual experience being when he was 16 years old when he started a long-term online relationship with another young man, but they met only on four occasions.
  • The defendant reported a high level of sexual activity including group sex, and admitted having practised S&M with trusted partners, and masturbating to masochism.
  • While in Sydney, he met a man online who sent him child exploitation material of very young children engaged in sexual activity, and he acknowledged that he masturbated to those images.
  • The paraphilic interest appears to have been brief; the defendant described the development of sexual arousal to young boys for the last two years but this has not progressed to actual sexual behaviour.
  • It seems he has managed a paedophilic interest by viewing child exploitation material, and it is unclear whether this sexual interest is merely a phase or persistent
  • Between grades 4 and 6 at school, the defendant experienced anger issues and attended a psychologist, with a possible diagnosis of Asperger’s syndrome. The defendant reported difficulties in interpersonal relationship and other attributes which are consistent with an autism spectrum disorder
  • There are risk factors for sexual offending present. Due to the possible autism spectrum disorder, he had demonstrated deficits of self-awareness and social naivety, and there is evidence of sexual deviance in the form of paedophilic interests
  • However, the defendant falls into a group of offenders who are at low risk for contact sexual offending, and there is a moderate to low risk of committing further offending similar to this. In Dr Rodriguez’s view the risk is modifiable with treatment.

Dr Rodriguez also reports that being charged has resulted in the development of insight regarding online activity, and an understanding that possession is illegal. Dr Rodriguez feels that it is unlikely the defendant would re-offend but this can only be tested in time; his prospects of rehabilitation are encouraging; he does not appear to currently abuse alcohol; he is completing his university degree and has family support. Lastly, Dr Rodriguez says he seems to be remorseful and committed to a law abiding lifestyle. The defendant’s counsel put a number of matters that, it was submitted, operated in the defendant’s favour. Given that the primary focus is on the nature of the material, counsel noted that a substantial number of the items fall within the lowest category. There was no suggestion of payment for any of the material, the possession was for his own personal use, there was no sophisticated storage and there was no risk of the material falling into the wrong hands. Counsel highlighted the early pleas of guilty, noting that this is part of the evidence of general remorse. In that respect, I note the letter written by the defendant to the Court in which he says that he is deeply regretful for his actions and the impact that they have had on himself and others. In demonstrating the insight spoken of by Dr Rodriguez, the defendant says that at the time he did not feel as though his actions were doing others harm and was unaware of the broader impact, but now has a far greater understanding of the ways his conduct has affected others and potentially encouraged others involved with similar material. Counsel also highlighted the defendant’s cooperation with the authorities; that extended to making admissions that he had been looking at this type of material for around 2 to 3 years. Counsel accepted the consequence that the present offending cannot be viewed as isolated, but suggested it does mean the interest developed when he was a youth, and then unlikely to have the maturity and capacity to “fully understand the true abhorrence and gravity of the material he was viewing”. That may be a fair point, but by the age of 20, in my view, the defendant ought to have known full well that this type of material was utterly unacceptable. The defendant’s prospects of rehabilitation are said to be good; he has been seeing a psychologist for assistance with stress anxiety and low mood, and is currently seeking a psychologist specific for the purposes of addressing issues surrounding the offending.

The evils of accessing and possessing child exploitation material have been stated many times. The production of such material involves the exploitation and abuse of children somewhere in the world. The damage done is often profound. Possession and viewing exacerbates and extends the abuse and exploitation. Access and possession tends to create a demand for its production. Collecting and viewing may have the effect of normalising the activity and desensitising all those involved in the whole process. Although not shared or intended to be shared in this case, I cannot say there was no risk of it falling into the wrong hands; it seems to me that there is always some risk. It is well established that denunciation and general deterrence are prominent factors in determining the appropriate sentence. I have had the misfortune of being obliged to look at representative still image samples of the material. As to its extent and nature of, although the overall number of items is not as large as in many that come before the courts, which may involve tens of thousands, the nature of about a quarter of this is particularly grave and disturbing.  Some of the videos are lengthy. Of concern is the defendant’s high level of interest in and sexual arousal by this material; it is not as though he was extremely immature and/or just idly curious. I accept that about a half is at the very lowest level of seriousness but that does not mean it should be overlooked. Even images and videos in the lowest category can be viewed as offensive and depraved, and nothing, of course, is known of the circumstances or events surrounding the production. At the same time, I take into account the defendant’s age, and the way in which this offending seemed to have developed from adolescence. I take into account the early pleas of guilty. I accept that the defendant is generally remorseful. He did not pay for the material nor stood to gain financially. I take into account the matters set out in s  16A of the Crimes Act to the extent of their relevance. I note that s 17A of that Act prevents me from ordering imprisonment unless I am satisfied that no other sentence is appropriate in all the circumstances.

Mr McGeary, I have set out the facts of the case and what I see to be the relevant features and considerations to be taken into account. I note that you spent six days in custody before being bailed, and I take that into account. Ordinarily this level of offending might result in a period of imprisonment; often though, with early release on conditions. In your case, I am satisfied that there should be a sentence with an immediate impact on you. That can be achieved by way of an alternative to imprisonment in the ordinary sense, although it still involves considerable restrictions on your freedom. There should also be a lengthy period of supervision. I consider it appropriate to impose one penalty on the whole of the complaint. You are convicted of the two counts. Subject to your consent, I make a home detention order, the operational period of which is 6 months. The statutory core conditions are those contained in s  42AD(1) of the Sentencing Act, and they will include electronic monitoring under par (g), and accordingly subss (1)(h) and (5) apply.  All conditions will be set out in writing for you. I specify the home detention premises as [address]. The first special condition of the order is that you attend Community Corrections at 114 Bathurst St Hobart by 10.00am tomorrow for induction. Further special conditions are as follows and apply to the operational period of the order:

1          In addition to the core conditions relating to electronic monitoring you are not to allow anyone else to tamper with, or damage or disable, the device used for the purpose of electronic monitoring.

2          You must not:

(a)        take any controlled drugs or substances within the meaning of the Misuse of Drugs Act 2001;

(b)        any medication containing an opiate, benzodiazepine, bupropion or pseudoephedrine without such medication having been prescribed or recommended in writing by a pharmacist, and you must on request provide written evidence of such prescription or recommendation. I pause to observe that this condition comes as a recommendation of Community Corrections and seems to be standard in relation to home detention orders.

3          You must remain at [the address] at all times unless otherwise approved by a probation officer.

4          You must maintain in operating condition an active mobile phone service, provide the details of that to a probation officer or prescribed officer, and be accessible for phone contact at all times.

[The defendant then consented to the making of the order.] I make the home detention order in those terms.

Further, as has been recommended, I also make a community correction order. That will be for a period of 18 months from today. The core conditions of that order will be put in writing, but I note that one is that you commit no offence punishable by imprisonment during that period.  If you do that, you can be dealt with for the breach. Special conditions of that order are that you submit to the supervision of a probation officer as required, that you attend educational and other programs as directed by a probation officer, and submit to psychological or psychiatric assessment or treatment as directed by a probation officer. I have to order that you report to a probation officer for the purposes of this order; so the date, time and place is as for the detention order. Lastly, I must make an order under the Community Protection (Offender Reporting) Act unless I am satisfied there is no risk of you reoffending. I cannot be so satisfied. I direct that your name be placed on the register and that you comply with the reporting conditions under the Act for a period of three years.