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

CR-21-01743

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
MICHAEL WINTER		

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS	
WHERE HELD:	Melbourne	
DATE OF HEARING:	21 February 2022	
DATE OF SENTENCE:	2 March 2022	
CASE MAY BE CITED AS:	DPP v Winter	
MEDIUM NEUTRAL CITATION:	[2022] VCC 227	

REASONS FOR SENTENCE
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Subject:			CRIMINAL LAW - Sentence
Catchwords:		Plea of guilty – Accessing child abuse material using a carriage service – Poor physical  health – COVID-19 pandemic.
Legislation Cited:		Crimes Act 1914 ss 16A, 16BA, 20(1B).
Cases Cited:		R v De Leeuw [2015] NSWCCA 183; R v RLP [2009] VSCA 271; R v Sykes [2009] QCA 267; Worboyes v R; [2021] VSCA 169; Attorney General’s Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) 56 NSWLR 146; Cluett v R [2019] WASCA 111; DPP (Cth) v D’Alessandro [2010] VSCA 60; DPP v Garside [2016] VSCA 74;
Sentence:		Imprisonment for a period of 8 months, to be released forthwith upon giving a recognisance with conditions.
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms C. Nicholson	Office of Public Prosecutions	
			
For the Accused	Ms M. Brown	Victoria Legal Aid	

HER HONOUR:
1	Michael Winter, you have pleaded guilty to one charge of, between 4 and 5 June 2020, accessing child abuse material using a carriage service.  The maximum penalty for the offence is 15 years' imprisonment. 
2	In addition, there is one offence to be taken into account pursuant to s16BA of the Crimes Act.   You admit the offence and ask the court to take it into account in passing sentence on you which I will do.  The offence which is to be taken into account is as follows:  (1) between 4 June 2020 and 21 July 2020 you accessed child abuse material using a carriage service.
Circumstances of the offending
3	The full circumstances of your offending are set out in the summary of prosecution opening marked as Exhibit A on the plea.
4	In brief, on 10 June 2020 the Australian Centre to Counter Child Exploitation received a report that a Facebook user had been identified as transmitting child abuse material.  The associated email address for the Facebook account was linked to you.  On 11 August 2020 police attended your home and executed a search warrant. An iPad and laptop computer were seized and subsequently analysed.
5	You were interviewed by the police and made a number of admissions.  You admitted to being part of a Facebook group in which you received and sent the two videos which is the subject of Charge 1.  You described the videos and what they depicted.  You admitted to sharing them back to the same Facebook group and when asked why you did this you said, 'I've got no idea …  I just clicked on it and … then sent it and then deleted it'.
6	On subsequent analysis the two videos you described containing child pornography were located on your iPad and were accessed by you on 4 and 
5 June 2020.  The content was consistent with the information you provided.  The first video went for one or two seconds and depicted a Chinese girl, who looked about 13 or 14, fully naked near a mirror posing and dancing around.  The second video was also about two or three seconds long and depicted another girl around the same age naked on the bed filming herself using a dildo, inserting and taking the dildo out of her vagina.  You admitted to enjoying the videos when you watched them.
7	In relation to the admitted offence your laptop was also analysed and between your iPad and laptop a total of 34 images and video files were located on them. Material classified as child abuse material was classified according to the Interpol baseline four-tier categorisation system as follows - category 1: 6 images and 3 videos; category 2: 23 images and 4 videos; and category 3: 3 images.  I note that category 1 captures material of children under 13 that would have previously been categorised within categories 1 and 5 under the Australian National Victim Image Library (ANVIL) System.  Category 2 includes material, including of children between 13 and 17 years of age that is illegal, but that does not fit within category 1.  A description of the images located on your devices is referred to in the statements of Officer Chappell as contained in the depositions.
8	During the examination of the iPad the following websites were identified as being accessed on that device:  nakedteenie.world and nakedteenporn.xyz  During the examination of the laptop the following website was identified as being accessed:  freehotteen.com.
9	In your interview with the police they also asked you if you ever looked at sites or videos involving children and you said, 'Um yeah.  Well, not actually pornographic ones, no'.  You indicated that you searched for ‘teen models’ on the internet and viewed images of 11 to 13 year old children wearing clothes, swimsuits or dresses.  You said that your ex-wife, with whom you live, has seen you looking at teenagers online and 'goes off at [you] for looking … at porn and says you'll get into trouble'.
Arrest and procedural history
10	As noted, you were arrested in relation to these matters on 11 August 2020.  On 13 August 2021 a contested committal hearing proceeded, where digital forensic experts were cross-examined ultimately leading to your case resolving in its current terms.  On 17 September 2021 your case resolved and on 6 October 2021 you were arraigned on the plea indictment.
Nature and gravity of the offending
11	The maximum penalty for the charges signifies, Mr Winter, how seriously the community views this offence.  As properly acknowledged by your counsel, Ms Brown, this is serious offending.  The trade and exchange of child abuse material supports an industry founded on the exploitation of children.  The children in the videos and images accessed by you have been exploited and harmed.  These children have the right to live safe lives free of exploitation.  I must denounce  your offending on behalf of the community and deter others from accessing such material.  The courts have recognised that those who possess child pornography help fuel the demand for it and that deterrence is required to protect children from sexual abuse and exploitation.
12	Pursuant to 16A of the Crimes Act, in passing sentence on you I must take into account a number of matters, including the nature and circumstances of the offence.  The prosecutor, Ms Nicholson, referred the court to the case of 
R v De Leeuw for its relevant principles. In your case the following can be found by reference to the factors referred to in that case:
a)	While not in any way intending to minimise the inherent objective gravity of accessing child abuse material, Charge 1 relates to two videos of very short duration.  Each video depicts a girl that looks approximately 13 or 14 years of age.  In the first video that girl is naked and posing and dancing in a sexual manner, and in the second video the girl is naked and has penetrated herself with an object.  
b)	The material was not for the purpose of sale and it is not suggested that you were to profit in any way.  While I note that you did share the material, it appears you shared it back to the same Facebook group who had originally sent it to you.  I also accept that there was a degree of unsophistication to your offending. The material was accessed on a Facebook site as opposed, for example, to the dark web where two-way anonymity software is often used cloaking the IP address of the host or user.  
c)	As noted above, you accessed the material on two individual days.  
13	Your counsel submitted, and I accept, that, taking into account all relevant matters, your offending is a lower level example of an inherently serious charge.  I note the prosecution accepts that the volume of material and the images are at the lower end of the scale for such offending.  
14	As for the admitted offence, it is not a separate charged act and I must not impose a separate punishment.  I am to take into account the offence with a view to increasing the penalty that would otherwise be appropriate for this particular offence.  This is effectively a product of the court giving weight to the need for specific deterrence and the community's retributive entitlement. In respect of this offending, applying the factors outlined in R v De Leeuw, in particular having regard to the volume of material, I also assess this offending as falling within the lower category.  
15	In your interview with the police you admitted to watching the videos the subject of the charged offence and enjoying them.  I note that psychologist Simon Candlish in his report of 20 November 2021 diagnoses you with a number of conditions, including a Paedophilic Disorder (Exhibit 1).  I will return to his report shortly. 
Plea of guilty and remorse
16	On your behalf, Mr Winter, it was submitted, and I accept, that you have entered an early plea of guilty.  I also accept that there is an additional utilitarian value to your plea of guilty due to the delays and disruptions of jury trials occasioned by the pandemic.  On your behalf it was further submitted that you have shown a degree of contrition for the offending and that you cooperated with the investigation.  You provided a full interview and answered questions accurately and truthfully, without seeking, it was submitted, to minimise the content of the material you had accessed.  You were blunt and forthright about the circumstances in which you had received and sent the material.  I accept that you were candid during your interview and that this is relevant to remorse and, further, to considerations of specific deterrence and your rehabilitation.
Personal circumstances
17	In terms of your personal circumstances I take into account your background as contained in the report of Mr Candlish. 
18	You are currently 66 years of age and you suffer from a range of medical conditions.
19	Your mother passed away when you were only very young and you have two sisters.  Your father worked as a bricklayer and is described by you as a violent alcoholic.  You left home at the age of 15 or 16 and described your childhood as ‘hell’ due to your father's substance abuse and aggression.  
20	It appears that given your chaotic circumstances you spent time at the Salvation Army Boys' Home.  You report that you were accommodated there for some two and a half years and you were also sexually abused 'quite a few times'.  You told Mr Candlish that you are unsure if this has affected you in any way.  
21	You left school at the end of Year 7 as your father wanted you to start working.  You had struggled at school as your family moved around often and you had to start over again and struggled to keep up.  You started working in labouring and factory jobs.  In the early 1990s you worked as a foreman and injured your back and you have been in receipt of a Disability Support Pension ever since.
22	After you left home at around the age of 15 - 16 you were raped by an adult male whom you had met while you were hitchhiking.  You reported to Mr Candlish that you 'don't think about’ this incident.  
23	Throughout your adult years you have abused alcohol on a daily basis.  In more recent times your medical conditions have forced a change in your drinking habits and you now only drink several glasses of wine every few months.
24	You met your wife at the age of 21 and separated at the age of 35.  In the context of your alcohol abuse you were verbally and physically aggressive towards her. Notwithstanding, you have remained good friends. After separation you initially lived separately and resided in a bungalow for several years, but in more recent years you have resumed living with your ex-wife.  You have four children, three daughters and one son.  
25	You have been dealt with and served prison time for sexual offending. In relation to your offending, Mr Candlish asked if you could identify what contributed to your decision-making.  You stated you were unsure, indicating, amongst other things, that you were abusing alcohol at the time, drinking something along the lines of ‘a cask of wine per day.’  
26	You also reported to Mr Candlish that you have avoided using computers or phones with internet capabilities and that you previously would masturbate whilst using pornography.  When asked what it was like to have stopped you responded, 'It has been good.  And it's like an addiction, you get hooked on it'.
Prior criminal history
27	You have several prior criminal matters. Of particular relevance on 
31 July 1992 you were convicted of sexual penetration of a child under 10 years of age, incest and attempted incest.  You received a sentence of 23 months' imprisonment wholly suspended for 24 months and a community based order.  On 27 January 1994 you were convicted of two counts of indecent assault and sentenced to four months' imprisonment on each count to be served concurrently. On 30 May 1994 you were convicted of breaching the suspended sentence and the community based order imposed in 1992.  You were resentenced to 23 months' imprisonment with a minimum of 10 months' imprisonment.  
28	You also have a history for other matters, including driving and dishonesty offences.  Your last appearance for such matters was heard on 16 October 1996, which is now approximately 25 years ago.  
29	Your prior criminal history, involving as it does contact sexual offending against a child, is clearly relevantly, particularly to specific deterrence and rehabilitation.  However, I do take into account that this offending is dated and there has been no further suggestion of any contact offences since the early 1990s.  Also, I take into account that you have not reoffended since you were arrested and charged for the current matters.
Physical health
30	You come before the court aged 66 with a number of debilitating medical conditions, including chronic obstructive pulmonary disease, emphysema, back pain and an enlarged prostate.  You have reduced mobility, are on several medications and also have poor sleep due to severe sleep apnoea.  You report that your health has deteriorated significantly over the last five years.  
31	The court was provided with a bundle of medical material from your Patient Health Summary file (Exhibit 3).  The material contains further information concerning your health and conditions and medications.  The material indicates that on 21 September 2021 a lung capacity test showed that your lung function was operating at 46 per cent capacity and your ability to breathe was significantly restricted.  Apparently the results of the test were exactly the same as two years earlier. On 22 to 26 June 2021 you were admitted to hospital in the intensive care unit with an infected exacerbation of your pulmonary disease.  There has been discussion as to how best to monitor and manage your condition, but, as your counsel submits, your condition is ultimately one that will become progressively worse and there is no cure.  Your counsel indicated that during conferences your ability to communicate was interrupted by constant wheezing, hacking, coughing and shortness of breath.  During the plea hearing I note that you required at times the use of an oxygen mask to regulate your breathing and control your coughing.
32	In sentencing you, your ill-health is clearly a relevant consideration and in your case I regard it as an important one.  However, I note that it cannot be used to justify the imposition of an unacceptably inappropriate sentence or to displace the primary sentencing consideration of just punishment, proportionality and general and specific deterrence. In your case I accept that your ill-health would mean that immediate imprisonment would be a greater burden on you.  
33	In his report Mr Candlish diagnoses you with the following conditions:  alcohol abuse disorder (severe, in early remission) and persistent depressive disorder (moderate).  As I have already noted he also diagnoses you with Paedophilic Disorder.  He considers that your alcohol abuse and depression has contributed to your social isolation and undermined your ability to manage your sexual deviance.  He offers the opinion that your older age depressive symptoms and significant health issues are likely to impact on your ability to cope with prison.  He also opines that your depressive symptoms might worsen with imprisonment particularly in light of your complex health issues.  
34	In sentencing you, Mr Winter, I take into account your circumstances and the opinions expressed by Mr Candlish in his report.  I also note in relation to the prospect of imprisonment that an immediate sentence would involve additional concerns and challenges to you because of COVID-19 and the ongoing restrictions in custody.  
Prospects of rehabilitation
35	As I have already referred to, Mr Candlish has diagnosed you with paedophilic disorder, however, he assesses your risk of reoffending as low.  He formally assessed your risk using a number of well-known tools and he expressed some of the following opinions.  
a)	Taking into account the actuarial outcome and structured professional judgment approaches, you were considered to fall into the low risk category for sexual offending of the nature outlined in the RSVP risk scenario section.
b)	Your sexual offending occurred in the 1990s with no further contact sexual offending detected since this time. Your possession of child abuse material suggests some underlying deviant arousal to children.  You appear to have some capacity to manage such interest and you also appear sexually aroused to adults.  Your advanced age and health issues were also taken into account in the assessment of risk. 
36	Mr Candlish also makes a number of helpful recommendations as outlined in his report at paragraph 97, including that you would benefit from exploring your own cognitive distortions and in developing risk management strategies.  In terms of risk management he also suggests that you should avoid any online communication and social media associations with any females under the age of 18.  
37	In terms of your prospects of rehabilitation, I also take into account matters I have already referred to, including your acceptance of responsibility and cooperation, the dated history of your prior criminal offending, your recent compliance with bail and your current circumstances.  The court was told that given your various health issues you hardly drive any more and you only really leave the house to attend medical appointments or for short trips into town for groceries.  
38	In all the circumstances I accept that your risk of reoffending is low, but I also consider that your prospects for rehabilitation will be further enhanced by appropriate psychological and/or pyscho-educational interventions.  
Sentencing principles
39	I am required to impose a sentence, Mr Winter, that is of a severity appropriate to all the circumstances of the given offence.  I note that the requirement of an immediate custodial sentence does not have application in your case due to the commission date of the offending.  In any event, I accept that as a general principle ordinarily persons who plead guilty, or are found guilty of this offence, can expect an immediate term of imprisonment be imposed. This is especially so where there is a relevant prior criminal history as there is in your case.
40	The sentence I impose must also give effect to the principles of just punishment, general and specific deterrence, denunciation and protection of the community.  As I have already stated, general deterrence is a paramount consideration in such matters.
41	I must also have regard to current sentencing practices for offences of the kind that you have committed.  The prosecution has provided the court with a table of comparative cases.  I have carefully considered these cases.  Of course there are some differences in them.  For example, in the cases of R v Guise and R v Edwards there were a greater number of images found and the offence of using a carriage service was committed over a longer period of time. You were charged with accessing the relevant child abuse material on two days, that is, 4 and 5 June 2020.  Every sentence involves the exercise of discretion and should be the product of an instinctive synthesis.  Consideration of current sentencing practices ensures fairness and a system promoting consistency of approach.  When those sentences can be seen to fall within a range that range informs, but cannot determine the appropriate sentence in a particular case.
42	Your counsel submits that in your case all of the sentencing purposes can be met through the imposition of a recognisance release order that allows for your release forthwith.  She accepts that, given your history of contact child sex offending, an immediate custodial sentence would ordinarily be expected.  However, she submits that such an expectation is displaced in your case principally because of the nature and gravity of the offending itself and your physical health, both matters which I have already canvassed. The prosecution position is that an immediate custodial sentence is within range, however, if the court were not minded to impose such a sentence the appropriate disposition is one that includes a supervision and treatment order for an extended period.  Further, Ms Nicholson, on behalf of the prosecution, indicates that it was accepted that your medical issues, combined with other relevant matters, including your early plea of guilty, may warrant a non custodial sentence, but that the circumstances necessitate a treatment and supervision order condition. 
43	In all the circumstances, and given your complex medical issues, I considered it appropriate to have you formally assessed for a community correction order. You were assessed as suitable for such an order.  You also indicated to the author of the report your remorse for the offending.  Given the nature of the offending, an offending behaviour program condition for assessment and participation in the Specialised Offender Advice and Treatment Services (SOATS) was recommended.  To facilitate this a community correction order of at least 
18 months in duration was recommended.
44	Taking into account a range of matters, including the nature of your offending, your criminal history, your plea of guilty and remorse, your personal circumstances, along with the relevant sentencing principles and your admitted offence, I sentence you as follows:  
45	So, Mr Winter, I'm just arriving now at the actual sentence I'm going to impose.  Do you understand?
46	ACCUSED:  Yes, Your Honour.
47	HER HONOUR:  All right.  On Charge 1, I sentence you to a term of eight months' imprisonment and, pursuant to s21B of the Crimes Act, I direct that you be released forthwith upon giving a recognisance in the amount of $2,000 and to be of good behaviour for a period of two years.  
48	I further impose the following conditions:  namely, that during the two-year period you're to undergo assessment for programs, including sex offenders programs, to reduce the risk of reoffending and to undertake any such programs as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee.  So that is the first condition that you undergo assessment for programs, including sex offenders programs.  
49	You must report to, and receive visits from, a Community Corrections officer or officers.  You must notify an officer at the specified Community Corrections Centre of any change of address within two clear working days after the change. I'll direct that your legal representatives explain to you the consequences of breaching such an order, but can I indicate this, Mr Winter, so that you can hear and understand.
50	I've ordered that you be released forthwith and that for a period of two years that sentence will be hanging over your head and you're required to be of good behaviour.  
51	ACCUSED:  Yes.
52	HER HONOUR:  Do you understand?
53	ACCUSED:  Yes.  Yes, yes.
54	HER HONOUR:  You must not commit another offence punishable by imprisonment within that two-year period.  Otherwise you may be ordered to serve the period that I've imposed, that eight months, and forfeit as well the recognisance amount of $2,000 that I've referred to.  So you are also required to comply with the conditions that I've imposed.  And, Mr Winter, those conditions really are supervision.  You've got to report to Corrections and I understand that the first report is by telephone and you'll be given their contact details.  
55	So within two days you have to contact Corrections.  For that two-year period you have to be under their supervision and accept any visits and contact that they have with you and you need to tell them about a change of address.  They are conditions that you also must comply with.  If you don't then again you're at risk of being and you would have breached your recognisance order.  Do you understand that?
56	ACCUSED:  Yes.  Yes, Your Honour.
57	HER HONOUR:  I'll indicate that but for Mr Winter's plea I would have sentenced him to 13 months' imprisonment, to be released on a recognisance order after serving that period and the order would have been for some two and a half years with conditions.  .
58	Mr Winter has pleaded guilty to one class 2 offence and by reason of his prior criminal convictions for three class 1 offences his reporting period under the Sex Offenders Registration Act is mandatory and it's mandatory that it be for life and I, therefore, make that order.  So, Mr Winter, you'll now be on the sex offenders registration and you are required to report for life and there are positive obligations that are imposed on your through that scheme.
59	All right. There's a number of them including an initial contact, annual reporting and an obligation on you to, for example, advise and tell them of any changes to a range of different things, including such things as phone numbers, addresses..  You'll be given paperwork that clearly explains to you what your obligations are, but I just need you to understand that the order has been made today and that the period of reporting is for life.  Do you understand?
60	ACCUSED:  Yes.
61	HER HONOUR:  Ms Nicholson, Ms Brown, again thank you both for your assistance in this matter.  Mr Winter, I'll leave the link on.  You'll be able to speak to Ms Brown.   
62	MS BROWN:  As Your Honour pleases.
63	HER HONOUR:  All right.  Thanks very much.  We'll adjourn the court.
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