STATE OF TASMANIA v ANDREW PHILLIP JOHN THOMPSON 8 SEPTEMBER 2022
COMMENTS ON PASSING SENTENCE PEARCE J
Andrew Thompson, you plead guilty to three child abuse material offences under the Criminal Code (Cth): using a carriage service to access child abuse material contrary to s 474.22(1)(a)(i), using a carriage service to transmit child abuse material contrary to s 474.22(1)(a)(iii) and possessing child abuse material obtained or accessed using a carriage service contrary to s 474.22A(1). In sentencing I must have regard to the matters specified in the Crimes Act 1914 (Cth), s 16A, so far as they are relevant.
On 16 July 2021, authorities in Australia received information from an organisation in the US that child abuse material was being uploaded to two email accounts associated with you. On 1 September 2021, the AFP executed a search warrant at a hotel room in which you were present with your girlfriend. They found two mobile phones. One, a Samsung Galaxy A112, was unlocked by you and found to contain child abuse material. No such material was found on the other phone, but the Kik Messenger App was downloaded on both. Kik Messenger is a free smartphone application similar to Facebook Messenger which allows registered users to share text, pictures, videos, webpages and other content. Groups can be created within Kik Messenger for people who have common interests to communicate privately with each other.
The initial examination of the Samsung phone revealed an image of three naked pre-pubescent girls aged between 6 and 12 with their genitals exposed. There was another image, part of a known child abuse material series, of a female aged between 12 and 14 exposing her breasts and genitals. On 12 August 2021 you had sent a child abuse video to your girlfriend’s phone via the Kik app. It depicted a female aged between about 13 and 15 engaged in penetrative sexual activity with an adult male wearing a balaclava.
On 6 September 2021, the Samsung Galaxy phone was forensically analysed. In addition to the video 22 child abuse material files were located and saved within the Google photos section of the phone. There were 21 images and one video. The video was a duplicate of the one already referred to. Including the video and images already referred to a total of 20 females and two males were depicted. Of the multiple victim’s identified all except one appear to be under 15 years of age. Ten of the images show prepubescent victims. Five images depict victims aged between 4 and 10 years old being subjected to penetrative activity, two of those depicting anal penetration. One image showed was of a female toddler’s genitals with an adult’s penis held on the victim’s labia. I have considered the full description of all of the images which was provided to me.
The material just described form the basis of the possessing and accessing charges. They were in your possession at the time of the search on 1 September 2021 and were accessed between 2 and 14 August 2021. On 12 August 2021 you sent 10 files to your girlfriend’s phone via the Kik Messenger App. All but one were lawful adult pornography, but one was the child abuse material video to which I have referred. That is the basis of the transmitting charge.
You are now aged 57. You have no prior convictions for this type of offending. However your record in Tasmania and Victoria includes anti-social offending, some drug and alcohol related offending, driving offences and some dishonesty. You have served some relatively short terms of imprisonment. Most recently on 5 January this year you were ordered to term a total term of about four and a half months from 16 September 2021, which included activation of a suspended term of three months imposed in 2019, for alcohol and drug related driving offences, and bail and firearm offences. You were due to be released on 5 January 2022 but remained in custody on these matters only until 10 February when you were admitted to bail. Those additional 36 days are to be taken into account in determining the sentence and its commencement date. You were effectively homeless following your release, and hence you and your partner were in a hotel at the time of the search. Your situation was such that you stole a pair of shoes for which you were recently fined. You are no longer in a relationship but you have managed to obtain social housing which you will lose if you are imprisoned. I accept your counsel’s submission that the possibility of your rehabilitation will be badly affected without stable housing.
It is in your favour that you pleaded guilty at an early stage. The plea not only indicates acceptance of responsibility but also avoids the need for a trial at a time when the pandemic imposes additional demands on the administration of justice. The period over which you accessed this material was limited to 13 days, and occurred mostly on two of those days. The number of images is relatively small compared to most cases, but the nature of it must be considered. More than 20 children are depicted and some of the images including the video you transmitted are of a high level of seriousness. The prosecution does not dispute that you did not search for, request or pay for this material, and it was sent to you in a bundle. Kik Messenger is properly used for innocent and legitimate communication. However you also took the trouble to save the images to the phone on which they were found. You then sent the video to your girlfriend, although that too was part of a bundle of images which were otherwise lawful. That you saved images and transmitted one to your girlfriend suggests a sexual interest in the images. It was submitted by your counsel that this was not the case. However that contention was not accepted by the prosecution and is not supported by evidence either from you or from an expert. I would thus sentence you on the basis that I could not be satisfied that you were not sexually interested in the child exploitation material.
The evils of accessing and possessing child exploitation material have been stated many times. Production involves the exploitation and abuse of children somewhere in the world. Children depicted in the images and movies suffer terrible physical and psychological harm. Accessing and possessing the material is likely to create a demand for its production, thereby encouraging those who produce it and resulting in harm to more children. Possession and viewing exacerbates and extends the abuse and exploitation. General deterrence, punishment and denunciation are the primary sentencing considerations. For those reasons a sentence of imprisonment is required. However, taking into account the period of custody you have already served, your early plea of guilty, the absence of similar prior convictions, and to encourage your rehabilitation I have decided to order your release without having to serve the balance of the sentence provided you comply with conditions. The nature of the offending is such that I cannot be satisfied that you present no material risk of re-offending.
You are convicted on each count. 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 five years from today. You are sentenced to a term of imprisonment of 12 months commencing 3 August 2022. I order that you be released forthwith, without being required to serve the balance of that term, upon you giving security by recognizance without surety in the sum of $2,000, and on conditions that you:
- be of good behaviour for a period of two years from today;
- be subject to the supervision of a probation officer while the recognizance is in force;
- obey all reasonable directions of the probation officer;
- not travel interstate or overseas without the written permission of the probation officer; and
- undertake such treatment or rehabilitation programs that the probation officer reasonably directs;
- report to the office of Community Corrections, Cameron Street Launceston, within two clear working days of today;
- report to and receive visits from a Community Corrections officer or officers; and
- notify an officer at Community Corrections in Launceston of any change of address or employment within two clear working days of the change.
Mr Thompson, the purpose of the order is to provide an incentive for you not to re-offend and to encourage your rehabilitation. The effect of it is that you have been sentenced to imprisonment for 12 months, but you will not be required to serve any part of it other than the 36 days you spent in custody earlier this year provided you comply with the conditions I have stated, most importantly that you do not commit any further offence. If you fail to comply with a condition of the recognizance, for example by committing some further offence, failing to comply with a direction or failing to attend a rehabilitation program, you may be called upon to pay the sum of $2,000, and a court may order that you serve all or part of the term in addition to any other term you may be required to serve.