STATE OF TASMANIA v KIRK RUSSELL MCKAY 19 AUGUST 2020
COMMENTS ON PASSING SENTENCE PEARCE J
Kirk McKay, you plead guilty to two counts of involving a person under the age of 18 in the production of child exploitation material contrary to the Criminal Code, s 130. I will also deal with your plea of guilty to the summary charge of possessing child exploitation material contrary to the Classification (Publications, Films and Computer Games) Act 1995, 7A.
Your first victim was a girl aged 11 who I will call J. At the time you were aged 25. On 5 August 2020 you sent her a friend request on the social media platform Snapchat. Snapchat allows communication of videos, photographs or text with other users who agree to a “friend” request. You used an anonymous user name but she accepted your request. Once you started communicating she was coy about her age, but you told her that you guessed she was 14. Throughout your communications with J on that day you asked her to send you nude photographs of herself. She made excuses until you threatened to do something to her and her family and that you knew where she lived. She became alarmed. She took photographs of herself naked and sent them to you. The photographs included depictions of her breasts and the front of her vagina. You asked her for photos of herself in various positions and instructed her to include depictions of her face. Having received those photos you had a further indication of her age. She became unwell at school the following day and, for the following week, at your request, she sent further photos of the same nature, she said “too many to count.”
You told her that you would be away and the communications stopped until you contacted her again about two weeks later on 29 August 2020. You asked for more images. When she did not respond you threatened to publish the photos she had already sent. Fortunately, at this point, J told her older sister what had happened. Through a series of measures she managed to make a record of your communications and persuaded you to send an image of yourself, thereby identifying you as the perpetrator. The police were notified. It was not until 1 June 2021 that your home was searched and your phone was seized.
Analysis of your phone revealed evidence of your second victim. There were 108 images of a young woman I will call S. She is almost exactly the same age as J. The images were taken some time before 31 January 2021, thus when she was 11 or 12, and depict her with various items of clothing removed. They were taken at your request. Of those images, 50 are child exploitation material in the category of depictions of S which are sexual in nature although with no sexual activity. One is of her body between her naval and thigh with your name written across her groin in black marker pen. That image evidences a request that she write your name on herself to show that the photographs were of her and taken as you had asked. The charge of possessing child exploitation material relates to the 50 images of S found on your phone. The other 58 are not child exploitation material although are related to it. They do not form part of the charges you face, but they are relevant to sentence in that they further suggest a sexual interest in children. You were interviewed by the police and made some limited admissions.
I take into account the aggravating factors referred to in s 11A of the Sentencing Act 1997. Two apply. Both girls were under 13. Secondly, in relation to J, you resorted to an implied threat of force to achieve your aim of having her send you images of herself.
You are now aged 27. You have no prior convictions for child sex offences but you have convictions for other offences. You have a considerable record for dishonesty, violence, breaches of orders and driving offences, including for alcohol and drug related driving. You have received a number of wholly suspended sentences and actual terms of imprisonment. The offending against both girls occurred while you were subject to suspended sentences although they have since been activated for other offending. The offending against J also occurred while you were subject to the supervision of a probation officer. Your plea of guilty is the only mitigating matter. By pleading guilty you have facilitated justice. It is some indication that you are sorry for what you did although I give that little weight in light of the repeated nature of your offending. More importantly, the complainants became aware at an early stage that they would not be required to suffer the anxiety, indignity and humiliation of having to give evidence or fear that they would not be believed. The number and nature of images is not as serious as is seen in some cases involving possession and accessing child exploitation material. However it the predatory nature of the conduct which led to the creation of this material which makes the crimes so serious. It is not contended that you sent any of the images sent to you to anyone else. If you had done so you would have committed a different offence. There was a small chance that the images may have been seen by two of your friends who had access to your phone. The nature of Snapchat images is such that they disappear after a limited period. Steps may be taken to preserve the images but usually a notification is sent to the sender if that occurs, and in the case of J no such notification was given. None of the images of J were found to have been preserved on your phone. However it is to be recalled that you threatened to publish those images, thereby giving the impression to J that you somehow had the ability to do so, and thereby adding significantly to her trauma. Of course, you did keep the images of S.
For offences of this nature protection of children is the paramount consideration. In my view the court has a duty to mark the seriousness of crimes of this nature not only as punishment for you, but as a signal to others of the potential consequences for anyone who may be tempted to act this manner in the hope of deterring them from doing so. Such crimes are difficult to detect because they are inherently and intentionally committed in secret, and are insidious. Victims, who are vulnerable by reason of their age and lack of maturity, are targeted. Very often they are in what should be the privacy of their own homes, out of sight of the persons, parents or carers, friends or siblings, who might otherwise be able to protect them. As counsel for the State correctly points out, laws like the one which prohibit involving young persons in the production of child exploitation material are in place to not only protect victims from the actions of offenders, but also from themselves. Once images are provided, victims are trapped. Faced by threats that, without compliance, images will be disseminated on the internet or of some other consequence, their lives become a misery. Such crimes may well lead to self-harm and even suicide.
There is a presumption of harm to victims from crimes of this nature. I have no victim impact statements from either girl, but there are very real signs of the anguish they must have experienced and continue to experience. J immediately felt ill about her situation. It kept her away from school. When the requests for images resumed her feelings of being unwell returned. Both girls are now almost 14. J refuses to talk to her parents about what happened. She is now not attending school. The material before me does not establish with clarity the means you used to persuade S to take and send images of herself. There is no evidence of threats to her. She will not talk to her parents about it either. She is no longer living at home. When, at the time, her parents became aware that something was happening they sought help from the police and from her school but to no avail. For both girls there may be other factors at play, but the type of dislocation and alienation I have described is the sort of impact which may be expected to result from crimes of this type.
The difficulty of detecting such crimes is part of the reason they are so serious. Had it not been for the resourcefulness and quick thinking of J’s sister your offending may never have been discovered. The nature of this offending is such as to indicate an ongoing risk even though I am told that you now have reflected on and realise the seriousness of your crimes. For ease of understanding and clarity I will impose a single sentence. However I am required to identify the sentence which would have been imposed for each offence. On count 1 on the indictment I would have sentenced you to imprisonment for two years and three months. On count 2 I would have sentenced you to imprisonment for one year and three months to be partially concurrent with the sentence imposed on count 1. On count 3 on complaint 33291/21 I would have sentenced you to imprisonment for three months to be served concurrently with count 2 on the indictment. The orders for partial concurrency would reflect totality, and that there is some common criminality in the offending, but also a need to reflect the separate criminality and harm to each victim. I will allow eligibility for parole but only after a term which sufficiently addresses the need for punishment and deterrence.
Kirk McKay, you are convicted on each count. I order that item 1 listed on Tasmania Police property seizure record 183849, the LG mobile phone and case, is forfeited to the Crown. I make an order under the Community Protection (Offender Reporting) Act 2005 directing that the Registrar cause your name to be placed on the Register and that you comply with the reporting obligations under that Act for a period of eight years from your release. You are sentenced to imprisonment for two years and nine months from 17 August 2022, the day you were remanded in custody. I order that you not be eligible for parole until you have served one year and nine months of that term.