STATE OF TASMANIA v LUKE CHRISTOPHER JOSEPH TEMBY 7 DECEMBER 2023
COMMENTS ON PASSING SENTENCE BLOW CJ
Mr Temby has pleaded guilty to a charge of possessing child exploitation material and a charge of possessing prohibited visual recordings. I am dealing with the second charge under s 385A of the Criminal Code.
On 17 May 2022 police officers conducted a search at Mr Temby’s home, looking for child exploitation material. On his computer they found a total of 1967 images and videos that constituted child exploitation material. About a third of them (538 images and 72 videos) depicted pre-pubescent children engaged in sex acts, witnessing sex acts, or with a clear focus on genitalia or the anus. The other material (1150 images and 207 videos) mainly depicted pre-pubescent girls, some of them in sexual acts with adults, three of them depicting girls being urinated on by men, and others in sexualised poses with an emphasis on their genitalia.
These videos and images had been sorted into folders. They were stored in a location that was accessible by the user of the computer. No such files appeared to have been deleted, but there was no evidence of any files having been further distributed. The folders may well have been created automatically during the downloading process. The computer was in a part of the house that was accessible to Mr Temby’s wife and children, but the computer was password protected. If the computer was logged in, the material would have easily been accessible to people other than him, and there was therefore some risk of accidental exposure to the images and videos. However there is no suggestion that anybody other than Mr Temby saw any of this material.
The second charge relates to four video recordings made by Mr Temby from a position in a toilet at the Fortescue camping ground. The toilet was adjacent to a change room that included a shower and toilet. Mr Temby recorded people getting changed, using the shower, and using the toilet. None of the people would have been aware that recording was in progress. They were filmed from below the groin area, with the camera pointing upwards. The police officers found those recordings during the search on 17 May 2022.
Mr Temby was 39 years old at the time of the police search and is now 40. He has no significant prior convictions. He is married, with children aged 11 and 13. He works full-time as a software programmer. It is quite likely that convictions for these offences will interfere with his career.
For sentencing purposes, his counsel provided me with a detailed report by a clinical psychologist. It appears that Mr Temby habitually watched adult pornography on his computer for years prior to the police search. He told the psychologist that he once downloaded “a big torrent” which included “thousands of everything”, including the child pornography files found by the police. He has consistently maintained that he had no sexual interest in children, except that he had a curiosity about young female development. He reportedly kept the files out of curiosity and because of the thrill of doing something bad. He reportedly filmed the people at the Fortescue camping ground because of the thrill of doing something bad, and not for the purpose of watching the footage. Having read the psychologist’s report, I have no reason to disbelieve his assertions as to his motives.
The psychologist concluded that he had been suffering from a persistent depressive disorder for years, with only mild symptoms. He was not ever suffering from a major mental illness. He has suffered from anxiety as a result of the police search and the pending charges. However he has ceased watching pornography, is receiving ongoing assistance from another psychologist, and has changed his routines for the better in various ways in the last 6-12 months. He understands the harm that is done to children for the purpose of creating child exploitation material. He is very remorseful as a result of what he has done.
The police search and the charges have put a strain on Mr Temby’s marriage, but he is now spending more time with his wife in the evenings. He used to coach the soccer team of one of his sons, but he has had to stop doing that because of these charges. He has also stopped playing soccer.
There seems to be little likelihood of reoffending but I cannot rule that out and I am therefore going to have make an order under the offender reporting legislation. I see it as very significant that he retains the support of his wife and he remains in contact with his treating psychologist.
A probation office has reported that he is a suitable candidate for court ordered community service and for a community correction order and I have therefore decided to act on those recommendations.
Luke Christopher Joseph Temby I convict you and make a community correction order for an operational period of 12 months from today with special conditions that during the operational period of the order:
- You must submit to the supervision of a probation officer as required by the probation officer;
- You must satisfactorily perform and complete 100 hours of community service as directed by a probation officer or a supervisor; and
- You must submit to psychological of psychiatric assessment or treatment as directed by a probation officer.
I order that that the Registrar appointed under s 42 of the Community Protection (Offender Reporting) Act 2004 place your name on the register under that Act and that you comply with the reporting obligations under that Act for 5 years.
I order that the items seized by the police on 17 May 2022 be forfeited to the State of Tasmania.