PJR

THE QUEEN v PJR                                                                                         25 MARCH 2021

EDITED COMMENTS ON PASSING SENTENCE                                                PEARCE J

 You plead guilty to nineteen child pornography offences under the Criminal Code (Cth) and child exploitation material offences under the Criminal Code 1924 (Tas). I will refer to the legislation respectively as the Commonwealth Code and the State Code. The Commonwealth charges relate to illegal use of a carriage service, by means of the internet, to engage in sexual activity with a child, to access child pornography material and child abuse material on-line, to possess child abuse material obtained on-line, to solicit child abuse material and to producing child pornography material for use through a carriage service. In all there are fourteen Commonwealth charges, each of which carry a maximum sentence of 15 years’ imprisonment. In addition, I am to take into account when sentencing for one of the counts on the indictment, pursuant to the Crimes Act 1914 (Cth), s 16BA, that you admit three other Commonwealth offences, one count of accessing child abuse material and two counts of possessing child abuse material. The remaining five counts on the indictment are brought on the State Code and involve production and possession of child exploitation material. I also agreed to deal with your plea of guilty to the summary charge of possess a bestiality product contrary to the Classification (Publications, Films and Computer Games) Enforcement Act 1995, s 74.

One of the charges arose from conduct in 2010. Most of the remaining criminal conduct commenced in 2013 and continued for almost seven years until coming to light on 21 November 2019 when, as a result of information received by Canadian authorities, your home was searched and you were arrested and charged. Even then, as I will explain, your offending persisted. It did not cease until just before you were taken into custody on 25 June 2020.

It is necessary to briefly refer to some background material. You were born in 1978. You are now aged 42. You had an unremarkable upbringing and held consistent employment for more than 20 years until that employment was lost as a result of these charges. You have no relevant prior convictions. Until you were first arrested you were living with your partner, Ms Y, and her three daughters. You have one teenage son from a previous relationship with whom you maintained contact. During your life you have been involved in a number of age appropriate sexual relationships.

When your home was searched the police seized a number of electronic devices. Some of the offending material was immediately apparent and more emerged following analysis of the devices during the following months. I have found it helpful to first refer to the more specific aspects of the offending, in chronological order, before returning to that of a more general character.

On 1 May 2010, and again on 4 May 2010, when you were aged 32, you participated in the on-line live stream of a female child engaged in solo masturbation. She was known as Lakeisha Marie. In the course of the live stream you communicated with her and she can be seen to respond. You made, saved and kept three video recordings of her on an Audiosonic tablet. At the end of each video is a chat screen capture of her profile. This conduct constitutes the crime of using a carriage service to engage in sexual activity with a child contrary to the Commonwealth Code, s 474.25A(1). It is count 1 on the indictment.

On 25 June 2018 you created an account on the social media platform called Kik. It is a free messaging application which allows members to form groups for private communications, including the sending and receiving of files. It was discovered that you were a member of a group using the platform to share child abuse material online. On 22 July 2018, using a Motorola smartphone, you recorded two images of your own lower torso reclined on a lounge. Both images show Ms Y’s daughter, V, at the far end of the lounge. She was then aged 12. You regarded her as your stepdaughter. In the first image you are wearing jeans. The second image depicts you holding an erection through shorts. On 10 September 2018 you up loaded the first image to your Kik account as your profile photo. It resulted in 23 new friends to your account. During the latter half of 2018 you also uploaded the second image. It is category 3 child pornography material. Conversations on a different application made clear that your purpose in taking and uploading the image was to serve the interest of yourself and others in child pornography. Your conduct in producing the second image for use on the Kik account constitutes the crime of producing child pornography for use through a carriage service contrary to the Commonwealth Code, s 474.20(1). It is count 5 on the indictment.

On 10 August 2019 you produced four videos which you knew or ought to have known constituted child exploitation material contrary to the State Code, s 130A. They explicitly depict you and Ms Y engaging in a range of sexual activity while she pretended to be V. V is expressly identified by name, age, by her school and as her daughter. The role play and discussion of V is an integral part of your sexual gratification. At times Ms Y wore V’s school uniform. Although no child is involved, the audio and images are child exploitation material because they describe or depict a child involved in sexual activity. A further video of the same nature was made a week later on 17 August 2019. The conduct is the subject of counts 16 and 17 on the indictment. It is not alleged that the audio or images were transmitted to any other person.

On 26 October 2019 you engaged in a conversation on the Snapchat application using your Motorola phone with a female child named “Chelle.” You falsely told her you were 27. In the course of a lengthy conversation you sent highly sexualised and explicit messages to her, asked her for explicit images of herself and sent images of yourself. She sent images of her torso and naked genitalia. At your encouragement and after sending images including of your naked penis, she sent further images of herself wearing a G-string and another close up of her genitals. She identified herself as aged 13 and her appearance on the images is consistent with her being a pre-pubescent female. At one point in the conversation there is a break for an interruption, indicating that she was concealing what was happening, following which you sent further highly sexualised messages to her, asked for an image of her 10 year old sister, and sent at least one highly sexualised message about her sister. Your conduct constitutes two counts of using of a carriage service for child abuse material contrary to the Commonwealth Code, s 474.22(1), at counts 8 and 9 of the indictment, by respectively soliciting material from her and transmitting material to her.

On 11 November 2019 you hid a camera in the bathroom of your home for the purpose of covertly recording images of V in the shower. You took some trouble to set up and adjust the camera so as to achieve your aim. You used a device on your Motorola phone to view and save the images, which show her naked in the shower and depict her partially developed breasts, stomach and the top of her pubic area. The length of the video capturing V is more than seven minutes. The conduct amounts to production of child exploitation material contrary to the State Code, s 130A and is count 19 on the indictment.

When the police searched your home on 21 November 2019 they seized seven devices: the Motorola phone and its SD card which was found on your person, the Audiosonic tablet, a Lenovo laptop, two external hard drives and a Sandisk Micro SD. By 12 December 2018 it had already been discovered that your Kik account contained child abuse material and it was suspended. It was linked to an email address created at about the same time on an account called Mega, which is an encrypted online communication and storage platform.

Both hard drives, one with the micro SD card, the Kik and Mega accounts and the Motorola phone and its SD card were used by means of a carriage service to access child pornography material. The first hard drive was used for about five and a half years between 17 July 2013 and 25 January 2019. The second hard drive was used between 1 April 2018 and 19 August 2019. The Kik account (before it was suspended) and Mega account were used between 25 June 2018 and 18 August 2019. Those acts respectively constitute the crime of using a carriage service for child pornography material contrary to the Commonwealth Code, s 474.19(1) and are the subject of counts 2, 3 and 4 of the indictment. The Motorola phone was used to access child pornography material between 31 August 2019 and 20 September 2019 contrary to the Commonwealth Code, s 474.19(1), being count 6 and (to reflect a legislative change) to access child abuse material between 21 September 2019 and 16 November 2019 contrary to the Commonwealth Code, s 474.22(1), being count 7.

All of the devices, as well as the Kik and Mega accounts, contained child abuse material. There are four counts of possessing child abuse material contrary to the Commonwealth Code, s 474.22A(1), all committed on 21 November 2019, the day of the search. Count 10 relates to the Motorola phone and its card. Count 11 relates to the first hard drive on which some files were downloaded from the internet and some were downloaded through peer to peer programs. Count 12 relates to the second hard drive and its card. That hard drive contained the greatest volume of material. Count 13 relates to the Audiosonic tablet. By possessing child exploitation material accessed through the Kik and Mega accounts between 25 June 2018 and 18 August 2019, which are the subject of count 4 on the indictment, you breached the State Code, s 130A. They are the subject of counts 15 and 18 on the indictment.

When sentencing you for count 3, one of the Commonwealth accessing counts, I am also to take into account three other admitted offences. You used the hard drive in a computer tower to access child abuse material between 10 October and 19 October 2019, and you were found in possession of it on 21 November 2019. Another laptop contained child abuse material files created between September 2011 and 10 November 2019 which you were in possession of on the day of the search.

To understand the gravity of your offending, some detail is required of the nature and extent of the material found in your possession. All of the material was classified according to the ANVIL scale. In all, on the devices the subject of the indictment, there were 9,138 images and videos across categories 1 to 6. There were 3,672 images and videos in category 1, 1,313 in category 2, 852 in category 3, 2,800 in category 4, 456 in category 5 and 45 in category 6. Although you are not to be sentenced in relation to it, there was also a large number of category 7 images and videos, mostly on the first hard drive, which were non-illegal material but related to child abuse material. Accessing and then possessing child exploitation material involves related but separate criminality. A very significant proportion of the unlawful images in your possession are of the most depraved, vile and disturbing nature. It is not necessary to describe it in detail. Female children of all ages, from babies to prepubescent girls, are shown being subjected to forcible anal, vaginal and oral rape, with penetration by adult male penises, as well as other objects. Some of the victims are bound or restrained or in other even more serious circumstances of appalling cruelty and torture. Some are subject to bestiality. In one instance the young female child appears to have been violently killed before or as a result of being subject to sexual intercourse in a bath perpetrated by an adult male.

Some of the material in your possession was saved in folders and sub-folders titled according to the category of material it contained, indicating that you had taken time and trouble to organise the saved material for later access. Your offending continued over a period of six and a half years although seems to have escalated in the final two years or so.

Some of the images are of a different nature and character, and serious for another reason. They show the children in your own home, or children from their school. In addition to the images of V to which I have already referred, there is a video taken in the bathroom while Ms Y’s other two daughters step over a filming device showing up their school skirts to their underwear. There are other category 1 images of Ms Y’s children. There are other images and a series of videos of you masturbating outside the children’s bedroom, or into children’s underwear or near a school uniform.

You are not to be convicted of the three offences which are to be taken into account under s 16BA. However when sentencing for count 3, I will increase the sentence which would otherwise be appropriate. The number of images and videos was relatively modest in comparison and at least some of the more serious images were duplicates of images found on other devices.

Amongst the images stored on the second hard drive were 1,578 bestiality files in addition to the child abuse material, mostly depicting sexual relations between adult females and animals, mostly dogs. That material is the subject of count 3 on complaint 70083/2020.

You were charged and bailed when you were first arrested in November 2019. On 30 January 2020, after further analysis of the devices, you were arrested, charged with more offences and again bailed. On 5 June 2020 your home was searched again. On this occasion, in addition to other items, the police seized another mobile phone, a Vivo phone. Analysis of that phone showed that it had been used to access the internet to search for and view sexually explicit videos, including child abuse material, since you had been arrested and charged. Overnight between 26 May 2020 and 27 May 2020 you accessed lawful pornographic material but also one child abuse video depicting a female child aged 12 to 14 engaged in solo masturbation with an object. The phone browser history showed searches for child pornography sites. Two search engines attached to an email address you created were installed on the phone. The browser history of the search engines on the phone were analysed. One history had been deleted between 28 April 2020 and 6 June, apparently after seizure of the phone. Later analysis of the other search engine showed extremely high volumes of child abuse material search activity between 21 June 2020 and 23 June 2020. By accessing the material on 27 May 2020 you used a carriage service for child abuse material contrary to the Commonwealth Code, s 474.22(1). It is the subject of count 14 on the indictment. The subsequent conduct demonstrates the absence of remorse, the flagrant nature of the offending, and is relevant to the risk of re-offending and the prospect, or lack of it, of rehabilitation.

In connection with the Commonwealth offences, I take into account the matters under s 16A(2) of the Crimes Act (Cth) to the extent that they have been raised. I have described the nature and circumstances of the crimes. You were involved in a course of conduct over many years, particularly in the years immediately prior to your apprehension. I will refer to the victims and the type of harm they may suffer in a moment. There are no relevant family impacts. You made no relevant admissions to the police. However you did plead guilty. You are entitled to mitigation from the plea. It facilitates justice and indicates some acceptance of responsibility. It avoided the need for a trial at which, it is at least possible, that Ms Y and V would give evidence. I am informed that V is not presently aware of the crimes committed against her. Your plea reduces the chance that she will become aware of what you did, and the shame and humiliation which would accompany that, although that possibility always exists. Your plea was made in a relatively timely manner. However it is little evidence of remorse or contrition. Your conduct over time, and the continuation of your conduct even after being arrested and while on bail, is a more accurate indication of the absence of remorse and indicates an indicates an increased risk of re-offending. I will take the other offences into account as indicated. No relevant matter arises from disclosure. It is not suggested that you profited in any material way from your offending.

The Sentencing Act (Tas), s 11, applies to the three State charges under s 130A of the Code. None of the aggravating factors apply to counts 16 and 17 which involve you and Ms Y. Count 19 is the most serious and involves V. That she was in your care and supervision and was under 13 are aggravating factors.

In cases of this nature, there is a very strong need to impose a sentence which adequately punishes you and has the effect of deterring you and others who may be inclined to engage in similar conduct. The seriousness with which at least the Commonwealth legislature regards such offences is reflected in the significant maximum penalties for all of the Commonwealth crimes to which you have pleaded guilty. Your conduct involved several types of separate and distinct criminality all of which should be reflected in the sentence: both the accessing and possession of child pornography, your conduct towards your stepdaughter and other children in your home, and the direct on-line contact you had with other children. It is now well recognised that child pornography offences put children everywhere at risk of grave sexual abuse by encouraging the creation of child pornography to meet the market and demand for it. The children depicted in the material you accessed are real victims. The nature of the material you accessed and possessed makes this a very serious case. Although all of the material had the capacity for harm, much was the highest category of seriousness. The children depicted suffered appalling abuse and are likely to have been seriously and permanently damaged. I do not think it an overstatement to describe a significant part of the material in your possession as evil. You not only added to the demand for such child pornography but you acted to meet the demand. By making and transmitting images of V you encouraged pederastic thoughts in others about her and increased the chance of the dissemination of her images. Your conduct constituted a very grave breach of the trust of the children in your care. You actively sought out other on-line sexual interaction with female children. Your interactions with Lakeisha Marie in 2010 and Chelle in 2019 are examples of the type of online conduct which is difficult to detect, and which create a particular risk to children everywhere. It was a single incident, but the communications with Chelle in 2019 were predatory in nature, especially as you so strongly encouraged her and sought to involve her younger sister.

I have been given a report prepared about you by Dr Michael Jordan, a forensic psychiatrist. It does not suggest that you have any mental condition, impairment or disorder which is causally related to this offending or which is in any way mitigating. Although you continued to declare that you had no pervasive sexual interest in prepubescent children, in Dr Jordan’s opinion you displayed features of paedophilic disorder in your activities during the two years prior to your apprehension. He indicates however that you do not display more pervasive paedophilic tendencies. I take into account the objective of your rehabilitation. I have considered the need for treatment options and rehabilitation programs. He suggests some nuanced and considered psychological intervention which I am satisfied can be addressed either in custody if resources are available or following your release. In any event, I think that those sentencing factors are outweighed here by the need for punishment, condemnation and deterrence.

Apart from the context, I do not regard the videos involving you and Ms Y as, at least in relative terms, particularly serious. No children were involved and you did not intend to produce or disseminate child exploitation material. I accept that your access to child pornography was sporadic at the beginning of the offending period, increased in 2013 and concentrated in the two years or so leading up to 2019. I also accept that some of the material was in your possession as a result of being part of significant but indiscriminate downloads, but that does not significantly lessen your culpability. You contend that you were not sexually aroused by all of the material, but some of it clearly had that effect. The offences involving the children in your home did not involve actual physical contact, and were without their knowledge. The risk of harm arises, as I have said, from the possibility of future disclosure.

On 16 April 2020 you were sentenced to imprisonment for 14 days from 5 March 2020 for breaching a bail condition that you not approach Ms Y’s three children. On 30 October 2020 you were sentenced to three months in prison from 29 May 2020 for further bail breaches and other offending. You have been in custody since then. The result is that any term I impose should commence on 17 August 2020. Unless I am 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 must make a reporting order under that Act. This is clearly a case in which an order is required for a lengthy period.

The only appropriate sentence is a lengthy term of imprisonment. Formulating the sentences involving a multiplicity of Commonwealth and State charges is an unnecessarily complex task, especially when there is overlap between the criminality involved in various aspects of your offending across both jurisdictions. In particular there is some overlap between the Commonwealth and State possession charges, and the Commonwealth and State charges which relate to V. I am required to impose sentences for each of the Commonwealth charges and, bearing in mind the effect of the sentences imposed for the State offences, make orders for the concurrency or accumulation of the sentences to obtain a just result. It will involve some artificiality.

PJR, you are convicted on each count on the indictment and on count 3 on complaint 70083/2020. 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 15 years from your release. I will deal firstly with the crimes under the State Code.

On count 19, concerning the video of V in the shower, you are sentenced to imprisonment for six months from 17 August 2020. I order that you not be eligible for parole until you have served three months of that term.

On counts 16 and 17, production of the videos of you and Ms Y, I impose one sentence. You are sentenced to imprisonment for one month from 17 August 2020. That term is to be served concurrently with the term imposed on count 19.

On counts 15 and 18, the State possession charges, I impose one sentence. You are sentenced to imprisonment for 18 months cumulative to the term imposed for count 19. I order that you not be eligible for parole until you have served nine months of that term.

On count 3 on complaint 70083/2020, the bestiality charges, you are sentenced to imprisonment for four months to be served concurrently with the sentence imposed on count 19.

The total effect of the State sentences just stated is a total term of two years from 17 August 2020 with eligibility for parole after one year.

I turn to the Commonwealth Code counts. Counts 1, 8 and 9 concern on-line interaction with female children:

• for count 1 you are sentenced to imprisonment for six months to commence on the date upon which you become eligible to apply for parole after having served one year of the total terms imposed under the State Code;
• for count 8 you are sentenced to imprisonment for 12 months also to commence on the date upon which you become eligible to apply for parole after having served one year of the total terms imposed under the State Code;
• for count 9 you are sentenced to imprisonment for 8 months to be served concurrently with the term imposed for count 8.

Counts 2, 3, 4, 6 and 7 are the accessing counts relating to use of the various devices and platforms. In dealing with count 3 the schedule offences are taken into account:

• for count 2, the first hard drive, you are sentenced to imprisonment for two years. That term is to commence on the date upon which you become eligible to apply for parole after having served one year of the total terms imposed under the State Code;
• for count 3, the second hard drive and SD card, and taking into account the scheduled offences, you are sentenced to imprisonment for two years to be served concurrently with the term imposed for count 2;
• for count 4, the Kik and Mega accounts, you are sentenced to imprisonment for two years to be served concurrently with the term imposed for count 2;
• for count 6, the Motorola phone and Micro SD card, you are sentenced to imprisonment for one year. Six months of that term is to be served concurrently with the term for count 2 and the remaining six months is to be served cumulatively;
• for count 7, also the phone and SD card, you are sentenced to imprisonment for one year to be served concurrently with the term for count 6.

Counts 10, 11, 12 and 13 together are the possession counts relating to the various devices seized on 21 November 2019:

• for count 11, the first hard drive, you are sentenced to imprisonment for two years. One year of that term is to be served concurrently with the sentence imposed on count 6 and the balance is to be served cumulatively;
• for count 10, the Motorola phone and SD card, you are sentenced to imprisonment for one year. That term is to be served concurrently with the term imposed on count 11;
• for count 12, the second hard drive and its SD card, you are sentenced to imprisonment for one year to be served concurrently with the sentence imposed on count 11;
• for count 13, the Audiosonic Tablet, you are sentenced to imprisonment for three months to be served concurrently with the term imposed on count 11.

For count 5, which concerns the uploaded photo of V, you are sentenced to imprisonment for six months to be served concurrently with the sentence imposed on count 1.

For count 14, which concerns accessing on the Vivo phone, you are sentenced to imprisonment for six months to be served cumulatively to the term imposed on count 11.

My intention is that the total effective term for the Commonwealth offences is imprisonment for four years from the date you become eligible to apply for parole after having served one year of the total terms imposed under the State Code. I would order that there be a non-parole period in respect to the Commonwealth offences of two years.

The total effective term you will be required to serve under both the State and Commonwealth offences is five years from 17 August 2020, with eligibility for parole after having served three years of that term.

I order the forfeiture of the following devices to the Crown pursuant to s 23ZD of the Crimes Act 1914 (Cth):

Motorola Moto Z smartphone (IMEI 358212072727372) and Micro SD Card

Audiosonic brand Tablet Model T22B Serial No 58921521

Seagate External Hard Drive Serial No NA4L42CD

Seagate External Hard Drive Serial No NA8X621P

Lenovo Yogo Laptop Serial No PZ0157GC

San Disc Micro SD 32gb

Seagate Internal Hard Drive inside computer tower Serial No Z6EEZM2Z

Vivo smartphone Model 1904 (IME 1: 863232049922292 and IMEI 2: 863232049922294