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THE SUPREME COURT OF
THE NORTHERN TERRITORY
SCC 21712274
THE QUEEN
and
PM
(Sentence)
RILEY AJ
TRANSCRIPT OF PROCEEDINGS
AT ALICE SPRINGS ON FRIDAY 23 MARCH 2018
Transcribed by:
EPIQ
HIS HONOUR: PM, on 12March2018, you pleaded guilty to five counts of offences of a sexual nature relating to children. On that day, submissions were made and then the matter was adjourned to enable further reports to be obtained. The matter to which you have pleaded guilty were as follows.
Counts 1 and 2 relate to you using a child from the production of a pornographic or abusive performance contrary to the NorthernTerritory CriminalCode. The maximum penalty for each of these offences is imprisonment for 14years.
Counts 3 and 4 are against the Commonwealth CriminalCode. Count3 relates to using a carriage service for child pornography material. The maximum penalty for this offence is imprisonment for 15years. Count 4 is the offence of using a carriage service in a way that reasonable persons would regard as being offensive. The maximum penalty for that offence is imprisonment for 3years.
Count 5 is an offence of possessing child abuse material contrary to the NorthernTerritory CriminalCode and the maximum penalty for the offences is imprisonment for 10years.
The offending occurred between March2015 and March2017. Since 2005, you had been living and working as a gardener and a maintenance person on a cattle station in the Barkly region. You had your own separate accommodation.
Your victim was between the ages of 6 and 8years during the period of the offending. She is now 9years of age. She had lived with her family on the station since 2011 and her father held a management position.
Your duties as gardener caused you to spend a large amount of time in the yard surrounding the main residence where your victim lived with her family.
Sometime between March2015 and May2016, you were in the garden of the main residence and you asked your victim to help you with the gardening. She did so and spent time squatting down and bending over to weed the garden. You took a series of photographs of her while she was squatting down and bending over. The photographs concentrated on her buttock region and were taken from behind with the images being zoomed into highlight her bottom.Other photos were taken from the front, showing her squatting with the photographs zoomed in on her genital region. At the time, your victim was wearing a short dress and a pair of knickers. She also climbed a tree and you took further photographs of her buttock region, which clearly showed the buttocks, which was slightly exposed. Those matters constitute Count 1.
On 18August2012, you registered an account with a particular website. Nearly four years later, on or about 20May2016, you uploaded these images onto the website, using the account name, “Rusty 123.’ You titled the album, “She helps me in the garden” and you labelled the photographs with the word “Love,” followed by the name of the child.There were 22 images in total uploaded to the album.
The images were shared with other people who made comments such as, “Very yummy butt,”“Would love to see more,”“Very pretty and cute,”“How do you get anything done with that bum helping?”You responded to some of the comments by observations such as, “I so wanted to. I was going to help as she was climbing a tree” and “She knew I had my phone out” and you promised to place further photographs on the website with the comment, “I will put more of her here soon. Have good shots of her bending over a fish tank in shorts but wearing no panties.” Those matters constitute Count3.
Sometime later, you took photographs of the victim and two other children leaning over a wall. The victim was wearing shorts but no underwear. All photographs were from behind, including some where she or the other children were climbing onto the wall and placing one leg up in the process. Those matters constitute Count2.
You uploaded these photographs to the same site entitled, “Happy times with the kids.” The album contained eight photographs of two girls and a boy. Against one image, you wrote, “The one in the middle is my boss’ daughter. She wasn’t wearing panties.” Those matters constitute Count4.
You uploaded 30 images to the website and you accessed that website on approximately 500 different occasions. The images you uploaded are considered to be category 1 on the Oliver Scale.
Police became aware of your conduct and executed a search warrant at your residence on 8March2017. They seized 16DVD movies depicting children in a sexualised manner. Of further concern, they also found a pair of little girl’s underwear under the pillow of your bed. A masturbation toy was found on the bedside drawer on top of a child’s drawing by your victim, entitled, “Brave Pete the Gardener.”
The movies were analysed and revealed child abuse material, where three of the video contained images that were category1 on the Oliver Scale, seven were category2, three were category3 and three were category4. The DVD titles had children as their main characters or a storyline about children. Fourteen of the DVDs contained naked children, six contained partly naked children or a storyline which appeared to be a grooming attempt or sniffing of children’s underwear. Those matters constitute Count5.
At the same time, an unsecured firearm was located in your bedroom and two boxes of ammunition. In a nearby cupboard, there were a further 13boxes of unsecured ammunition. You have been charged on complaint in relation to this matter and you pleaded guilty before this Court. The maximum penalty is a fine or imprisonment for 12months. So that is the matter dealt with on complaint.
You were arrested on 8March2017 and granted bail on 16March2017. You have been on bail ever since. The conditions of bail included electronic monitoring and recording as well as restrictions upon your movement and your associates. Although, in your circumstances, these restrictions were not onerous, I take it into account when determining your sentence.
I have a Victim Impact Statement from the parents of the child in which they talk of the upsetting attack upon what they thought was the safe haven of their home in the remote location. You were trusted as a friend of the daughter and you abused that trust. Your conduct has had a very unsettling effect upon the parents.
There has been significant delay in the matter being dealt with largely as a result of your ill health. At one point, you were admitted to the Intensive Care Unit in AliceSprings. You have suffered by bilateral inguinal lymphadenitis, nonHodgkinlymphoma, which is conservatively managed, and from depression, which is controlled by an antidepressant medication. You are said to be asymptomatic at present.
On 9October2017, you took an overdose in an effort to take your own life, but you then panicked and called an ambulance. You were hospitalised for one week.
You are now aged 66years. You were raised in country Victoria and your parents are now deceased. You were married at the age of 24 and that relationship continued for 25years until you were divorced in the year 2000.You have two children, both of whom reside in Bendigo and you have one grandson. You have continuing contact with the children but they are not aware of these proceedings.
You left school at the age of 16years and took work as a packer, then in the post office and as a timber assessor. In 1972, you family took a working holiday around Australia. You took work as you went and ended up in Darwin, working in mapping. You were there when Cyclone Tracy struck. Since that time, you have worked in Gladstone in Queensland, Bendigo in Victoria and Rockingham in WesternAustralia.You moved back to Victoria, where you lived at MountBeauty. You were caught up in a large bushfire in that region and that caused you emotional trauma and caused you to leave your job with the ForestryCommission. In 1994, you moved to Darwin where you managed a shopping centre for some time and then you returned to Bendigo, where you had several jobs. As I have mentioned, you were divorced in 2000 and you then moved to HerveyBay to join your brother. You worked there with the local golf club. You then took a position as the gardener in the cattle station to which I have referred. You remained there until your arrest.You have had a full working life and when you are free to do so, you intend to keep working. You have not been able to work since your arrest due to your reporting conditions and, of course, the proceedings hanging over your head. When the proceedings are completed, you intend to continue to live here in AliceSprings.
You do not have any criminal history and there is nothing to suggest that you have been other than of good character until this offending emerged. You always intended to plead guilty and you have now done so. By doing so, you have saved the children the trauma of having to be interviewed with a view to giving evidence. You are entitled to credit for your actions.
Of concern is the fact that the DVDs included those in category3 and category4 of the Oliver Scale and indicate your sexual interest in children. You registered with the particular internet site, which also indicates such an interest. You did that back in 2012. You later went so far as to upload the images to the site and these were accessed by others.
I have received evidence this morning from DrAntonellaVentura who is a psychiatrist and who has seen you in the past. When asked about the prospects of your re-offending, she observed firstly that you need psychiatric assistance and then expressed the opinion that the risk of your reoffending in a noncontact way is medium to high. The risk of you reoffending in a contact way is low to medium but closer to medium.
DrVentura told me that there are a number of potential risk factors in relation to you and they are mainly concerned with mental illness, depression and substance abuse. DrVentura, who is familiar with the situation in AliceSprings, advised that there are limited treatment options for you in the AliceSprings Prison and that you would be best treated in the community rather than in prison.It was her view that you should be managed by a psychiatrist and possibly, you should also have involvement with the drug rehabilitation people here in AliceSprings.
I have also received a report from a probation and parole officer confirming that you are suitable for supervision. The report notes that you have been under supervision as part of your bail conditions and that you have complied with the requirements, you have been subject to electronic monitoring conditions with 35exclusion zones, you have not breached your order and you have complied with all conditions.You indicated to the person who made that report that you are remorseful for your conduct. You have demonstrated a capacity to comply with Court orders.
There is room for doubt about your prospects for rehabilitation and I have concern in that regard. You have a long-standing sexual interest in relation to children and that has only emerged in recent time, in the sense that the psychiatrist, having received further information, has changed her opinion to reach that conclusion. The particular offending with which I am concerned only came to an end because of the intervention of police. The psychiatric evidence enables me to make an informed assessment as to your future conduct and I adopt the findings of DrVentura. I assess your prospects for rehabilitation as being problematic and the risk of reoffending being as she described.
The offending was serious, albeit at the lower end of the scale of seriousness. It was deliberate and it was sustained over a significant period of time. It only came to a halt when police intervened. It involved a gross breach of trust in your relationship with the child and her parents. Not only did you capture the images but you shared those images online with other people and in so doing, breached the privacy of the child and her family.Those images are now on the internet and beyond your control. The images will remain available to others. Your child victim is not aware that her images are on the internet, however, her parents are aware. The images may resurface at any time and that is a course for concern and a matter for distress for the parents.
There are some matters that diminish the gravity of the offending. It is to be noted that all times, your victim was wearing clothing and there was no exposure of her genitalia. The photographs were taken without your victim being required or encouraged to pose or even being aware of what was occurring. The images of her were category1 on the Oliver Scale. The offending was not for monetary reward.
As has been commented upon in other cases, the fact that you and others like you are prepared to possess child abuse material and create such material encourages a market for children to be corrupted and exploited. It is all the more serious when a person collects and possesses child abuse material and further distributes it, as you did. The effect of sharing child abuse material can put other children at risk because it can be used to rationalise such conduct as a normal sexual preference. You had no control over how far this material will be distributed by others and where it would end up.
It is well established that denunciation and general deterrence are important factors in determining an appropriate sentence. In addition, you need to be punished for what you have done. Personal deterrence is, of course, a significant element of an appropriate sentence.
I have been referred to and have had regard to the factors identified by the NewSouthWales Court of Criminal Appeal in R v De Leeuw (2015) NSWCCA183 and also to the guidance obtained from s16A of the Commonwealth Crimes Act.
I turn to sentence you.
You will be convicted on each count on the indictment and on the matter of complaint. The sentence of imprisonment must be backdated for 9 days from the day you were taken into custody, being 12March2018, to reflect the time you have previously spent in custody in relation to these matters. I backdate you sentence to 3March2018.
I have reduced each sentence by around 25percent to reflect the credit due to you for the plea of guilty. I have endeavoured to fashion a sentence consistent with the advice of DrVentura that your best prospects for rehabilitation are in the community.
It seems to me to be in your best interests and in the best interests of the community that you have the best opportunity of obtaining rehabilitation. However, you must spend some time in custody to reflect the need for general deterrence and personal deterrence and as punishment.
In relation to Count1, the offence of having used a child for production of a pornographic or abusive performance, constituted by the photographs taken in the garden, I sentence you to imprisonment for 8months.
In relation to Count2, the same offence but relating to the photographs taken of the children on the wall, those photographs being less offensive, I sentence you to imprisonment for 6months.
In relation to Count3, the offence of publishing the photographs referred to in Count1, I sentence you to imprisonment for 6months.
In relation to Count4, which is the use of a carriage service in a way that reasonable persons would regard as being offensive and which related to the photographs referred to in Count2, I sentence you to imprisonment for 5months.
In relation to Count5, which is the offence of possessing child abuse material, I sentence you to imprisonment for 12months.
In relation to the matter on complaint, the firearms offence, I sentence you to imprisonment for 1month.
Some concurrency is called for. The offending all arose out of a course of conduct. The photographs that were the subject of Counts1 and 2 were the same photographs involved in Counts3 and 4. Count 5 related to different material and was of a different nature but occurred in the same course of conduct as the other counts.
I direct that the sentence in relation to Count2 be served cumulatively upon that in relation to Count1 to the extent of four months, giving a combined sentence of imprisonment of 12months for those offences. That sentence is deemed to have commenced on 3March2018.
I direct that the sentence in relation to Count5 be served cumulatively upon that sentence to the extent of 8 months, giving a head sentence of 20months.