IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 21-01413

THE QUEEN		
		
v		
		
CHRISTOPHER HODGSON		

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD	
WHERE HELD:	Latrobe Valley	
DATE OF HEARING:		
DATE OF SENTENCE:	24 February 2022	
CASE MAY BE CITED AS:	DPP v Hodgson	
MEDIUM NEUTRAL CITATION:	[2022] VCC 215	

REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---

APPEARANCES:
	Counsel	Solicitors	
For the Crown	MS K. HOLDSWORTH	Commonwealth Director of Public Prosecutions	
			
For the Accused	MR L. WAUGH	Slater & King Lawyers 	

HIS HONOUR:  
1	Christopher Robert Hodgson, you have pleaded guilty to one charge of using a carriage service to access child abuse material, and one charge of possessing or controlling child abuse material obtained using a carriage service.  Each of those are Commonwealth matters, and each has a maximum penalty of 15 years.   
2	You are 27 years of age and still relatively young.  You pleaded guilty at an early opportunity and expressed appropriate remorse and, in my view, shame.  You must of course get the utilitarian benefit of that plea of guilty.   
3	You pleaded guilty in the time of COVID, and a jail sentence in COVID circumstances is much more difficult than it is in different circumstances.  I am also well aware of the decision of Worboys, in terms of there being a noticeable discount for a plea of guilty in these circumstances that we live in.  
4	You have no prior convictions.  As I understand it, you have nothing pending.  As it will be clear from the brief summary that I give, the offending is serious.  General deterrence has to play a large part in this sentencing process, and there must also be proper acknowledgment of specific deterrence, denunciation, and obviously, in the end result, punishment.   
5	Because of the nature of the offending, you will be placed on the Sex Offenders Register, and I advise you that the reporting period will be for eight years.  And what I will do there is, that will be sent to your lawyers, and they can forward it to you.   
6	The summary of the matter is that in February 2021, police officers attended a caravan park on the Katamatite-Shepparton Road, for the purpose of executing search warrants.  You were present, and your mobile phone was seized.  You were arrested and taken to Shepparton police station. 
7	The phone was then subject to forensic analysis.  The report was produced on that phone, and indicated that you had accessed child abuse material on 28 January 2021, 12 February, 13 February, 17 February, and 18 February 2021; accordingly, over roughly a three-week period.   
8	Further analysis of your phone revealed that there were 140 such images filed, and 49 video files, all of which constituted child abuse material.  As I understand the situation, that material was obtained on the dates that I have already referred to, and accordingly, is part and parcel of the same offending.    
9	I understand and accept the Crown's submission that they are different offences.  But at the same time, were there to be a custodial sentence, very significant, if not complete concurrency in my view would be appropriate.    
10	I do not think I need to go through the various categories of all the images.  They are well-known.  There were a number of images in category 2 in this situation, as well as other categories.  It is a simple situation that child pornography is an evil trade.  Those who ply it are extremely evil, and those who access it and use it and abuse it provide a market for those who ply that trade.   
11	One has to look at the circumstances of it being a situation with very different individuals involved in this, and I will be referring again to this very shortly.  But sometimes in these circumstances, one is sentencing people who are sophisticated, who have locks on their doors, early alarm systems while they watch, and are clearly deviant.  
12	In other circumstances, you get people – men, obviously; nearly always – who, in certain stages of their life in certain circumstances succumb to the lure of it all, I suppose, which I had explained to me by a psychologist once as simply going into a different world; a bit like pokie machines.  
13	In any event, it is a situation where offending such as this in the normal course of events would attract an active custodial sentence.  And whilst I know a number are dealt with in the Magistrates' Court and do not attract such a sentence, it still must be regarded, as I have already indicated, as serious.  	
14	The alternatives here are either an active sentence with an adjourned period after that, or a community corrections order.  I had you assessed for a community corrections order, as I would have in any event, and you were found to be acceptable for that.  
15	I then look at determining what the appropriate sentence here will be.  I am well aware of the provisions of the various regimes.  Insofar as you are concerned, on your behalf there were some very helpful submissions from your counsel, as well as a report from a psychologist, Ms Lechner. 
16	I also had helpful submissions from the Crown, which referred me to some comparative cases, and particularly one of Sykes, which, having now had the opportunity of reading, I agree with the Crown that that is an appropriate matter to look at here, for a number of reasons.  
17	I start with the proposition that this matter was dealt with firstly three months ago.  I took the view that I wanted a full CCO report on you, rather than the normal brief one.  And accordingly, you have had three months with this hanging over your head, knowing that you face the prospect of active custody, and I take that into account.    
18	I then turn to the matters put before me on your behalf, and I will be referring to your history very briefly from the report of Ms Lechner.  In summary, your counsel puts on your behalf that you are relatively young; that you do come from a disadvantaged background.  
19	He points out your previous good character and the early plea, which I have already mentioned.  He also points out that you now have insight into the offending, and remorse, and I accept that that is very much the case in your particular situation.  	
20	He points to your mental health issues over the last few years; the aspects involving the burden of custody, including COVID; and your prospects of rehabilitation, which I think in this situation are important.   
21	The decision of Sykes is a very helpful one in these circumstances, and I am not going to go into analysis of these things.  Often, comparative sentences are simply a guide.  The logic of them appeals on occasion; on other occasions, it does not.  	
22	But the first thing from Sykes is – perhaps I will just quote the description of the evilness of child pornography, 
		The production of child pornography for dissemination involves the exploitation and corruption of children, who are incapable of protecting themselves.  The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted, and who recruit and use those children for the purpose of recording and distributing the results.  The offence of possessing child pornography cannot be characterised as a victimless crime.  The children in the end are the victims.
23	I am quoting from that decision, 'In my opinion, a sentence of immediate imprisonment was called for.'  That is clearly a correct statement of the factual circumstances.  I then look at the individual circumstances.   
24	The facts were relatively similar.  In Mr Sykes' case, there was a modest number of images, but they had been obtained over a period of some months.  There was not a large number of images collected, though the figures in these matters are sometimes misleading.  	
25	The nature of the images was looked at by the court in that matter.  And in the end, the Queensland Court of Appeal found that an active sentence of six months was within range.  In that decision, essentially summarised, was that the applicant there on appeal relied on a number of factors, that is, the plea of guilty; he had remorse and cooperation with administration of justice, both matters which apply here; a good prior work history and no prior criminal history, which applies here.  	
26	On the differences I think is that in Sykes, there was minimal evidence before the sentencing judge, however, of the applicant's prospects of rehabilitation.  The applicant had undergone limited counselling after being charged, and the letter from the counsellor did not offer any insight into the benefits the applicant gained from that counselling or his future prospect for successful rehabilitation. 
27	It is clear to me on the report of Mr Lechner and the conduct of the accused since this offending came to light that he does have excellent prospects of rehabilitation, and I think that is a significant difference to the matter of Sykes.  
28	Also in this situation, the accused has the Worboys discount running in his favour, plus the added difficulty of COVID if he was to be incarcerated.  I think, therefore, for all those reasons, singly, or certainly in combination, there is a distinction to be drawn so far as Sykes was concerned.   
29	In Sykes, it was not held that it is mandatory to go to jail.  Essentially, the summary of it was that, on the material before the sentencing judge – and I have already mentioned rehabilitation – it was open to the sentencing judge to require the applicant to serve some of his sentence of imprisonment in actual custody. 
30	The sentences that were imposed were not beyond the standard exercise of the sentencing discretion.  I accept the Crown's submissions in regard to that case, but I think this is a set of circumstances where, when I look at the Commonwealth provisions in regard to sentencing, a CCO is within range.  
31	I do not think I need to go through all the matters listed in s16A to D of the appropriate legislation.  Obviously, I look at the nature and circumstances of the offence.  I look at the – well, there are other victims, obviously – the degree to which there has been contrition, including the plea of guilty and the like; the deterrent effect of the sentence as needed.  
32	I think in his situation, this man's situation, specific deterrence are no longer really necessary.  And I have already indicated the need for adequate punishment.  The matters put before me by Mr Waugh, that is, the character antecedents, age, means, and all those matters regarding the actual accused here; the prospects of rehabilitation, which I have already refereed to; and the effect on family would not really be a consideration.  
33	What it seems to me to come down to is the discretion limitation, as it is called in Antanovic by s17A(1), which said, 
		A court shall not pass a sentence of imprisonment on any person for a federal offence, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.   
34	As I indicated prior to the sentencing, I am not going to go through some great discourse, but it seems to me that the appropriate disposition here, looking at all the options in all the circumstances, is one of a community corrections order.    
35	The report of Ms Lechner is on file and has been tendered.  It basically describes that at the time this offending occurred, you, Mr Hodgson, were using amphetamine, and it would appear to have been hypersexual arousal, as you were not thinking straight, effectively; you were not 'in the right mind,' as you described it.  
36	She accepted that you are now sober; that the material disgusted you.  She found – and I accept this – that you are at a low-to-moderate risk of reoffending.  She said that you are likely to benefit from further assessment by specialist offenders assessment and treatment services, and I accept that those aspects of treatment will be very much available even in these times, under a community corrections order.  
37	You were found to have attention deficit hyperactivity disorder when you were very young, and you were prescribed dexamphetamine, which, in my experience, often leads effectively to amphetamine use later in life.  You struggled at school.  You had few friends.  You were bullied.  And at secondary college, you were bullied again. 
38	In Years 9 and 10 you went better, and Year 11, you started to work.  You had a background – I do not need to go through all the aspects of it – of difficulty, and at around about this time you had been rejected by the Air Force, because of medication that you were on.  	
39	You went downhill after that, and that is when the drug use commenced.  You worked since then occasionally in fruit picking.  At the time of seeing Ms Lechner, you were picking apricots.  You came across to her as being of low average intelligence, and that report is on file.  I do not think I need to go into any more detail.  		
40	It is clear that you have engaged with some AOD counselling subsequently, but because of COVID, that regular access had been difficult, and confined to telephone counselling.  As indicated, she pointed out that you are likely to benefit from more a robust intervention style, and I agree with her assessment of all that.  	
41	Taking all those matters into account, I think that, as I have indicated, a CCO is the appropriate disposition.  You have been in recent times reporting severe distress, extreme levels of depression.  A lot of that, I would imagine, has to do with this particular offending and the potential consequences.  And you impressed her as being socially and emotionally immature. 
42	Accordingly, if you agree, you will be placed upon a community corrections order.  That community corrections order will be with conviction, which is a punishment in itself.  It must be a community corrections order of significance for general deterrence, and to show the public's denunciation and abhorrence, put it that way, of this type of offending.          
43	It will be for a period of three years.  It will be with 250 hours.  I will direct that any time for any hours spent doing programs can be deducted from that work component.  The conditions will also include assessment for drug use and dependency; assessment for alcohol use and dependency; a mental health assessment; other treatment and rehabilitation programs to reduce reoffending; and my anticipation will be that that will include the quite strenuous sex offenders program.   
44	In all those circumstances, I think that the protection of the community is effectively covered.  You are given a chance to resurrect your life, if I can put it that way, and this sorry business can be brought to an end.  In these circumstances – you agree to that, do you, Mr Hodgson?  
45	ACCUSED:  Yes, I do.   
46	HIS HONOUR:  Yes, all right.  I will be signing that.  6AAAs in this situation are very, very difficult to determine, because it changes the whole the nature of the offending.  I will simply say that but for your plea of guilty in these circumstances, you would have been sentenced to a period of imprisonment, of which I would have directed that you serve six months before being released.  
47	All right.  Are there any other orders I need to make, Ms Holdsworth or Mr Waugh?  I do not think there are any other orders I need to make, are there?  
48	MR HOLDSWORTH:  No, Your Honour, other than a sex offender registration order.  
49	HIS HONOUR:  Well, it is not an order.  I am just told that will be sent to him.  That has been done.  I am just telling him what his reporting – are.  Was there any – I am just trying to think.  This was up in Shepparton, but was there any disposal orders for the mobile phone or anything like that?  I just cannot remember.    
50	MR HOLDSWORTH:  That has been dealt with by consent, Your Honour.  
51	HIS HONOUR:  Yes, all right.  Thanks for that.  All right, thank you for that.  Thanks, Ms Holdsworth.  Thanks, Mr Waugh.    
52	MR WAUGH:  Thank you, Your Honour.  
‑ ‑ ‑