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District Court 19 August 2011

R v Peter Francis STATHAM

[2011] NSWDC 128

Sexual offences
CRIMINAL LAW SENTENCE POSSESS CHILD PORNOGRAPHY GOOD CHARACTER AND EMPLOYMENT HISTORY GENUINE REMORSE

Citation: R v Peter Francis Statham [2011] NSWDC 128
Court: District Court of New South Wales
Date: 19 August 2011
Judge: Cogswell SC DCJ

Background

Australian Federal Police received information in October 2008 linking the offender, a 55-year-old man with a lengthy and stable employment history, to child pornography. A search warrant was executed at his home, and computers were seized and analysed.

The analysis revealed approximately 2,600 images and video files depicting child pornography. The material showed children aged between six months and fifteen years, and spanned all five categories of the Oliver Scale, ranging from erotic posing at the lowest end through to sadism and bestiality at the highest. The offender had also forwarded images via email, constituting the "making available" offence.

The offender was charged with two Commonwealth offences and one State offence. He was arrested in October 2009 and had spent no time in custody by the time of sentencing.

  • Whether the objective seriousness of the offending, including the volume and nature of the material and the act of forwarding images, required a sentence of full-time imprisonment.
  • Whether the offender's considerable mitigating circumstances, including good character, genuine remorse, and voluntary engagement in a sex offenders program, were sufficient to justify an alternative sentencing option.
  • Whether an Intensive Correction Order (ICO) was an appropriate and lawful sentence given the offender's assessed suitability and the available work and programs.

Decision

The court accepted that a term of imprisonment was necessary. The prosecution submitted that only full-time custody was appropriate, pointing to the number and nature of the images, the transmission of material to others, and the importance of general deterrence given the increasing prevalence of online child pornography offences.

The court acknowledged that general deterrence carries significant weight in offences of this kind. However, it weighed against full-time imprisonment a constellation of mitigating factors: the offender's previously unblemished character, 21 years of responsible employment, cooperation with police, deep and genuine remorse expressed in his own letter to the court, strong character references from people who knew of the offending, and ongoing health concerns.

Particularly significant was the offender's voluntary and sustained engagement in a sex offender treatment program, which he had commenced before sentencing and was continuing to complete. His treating psychologist assessed him as a committed, motivated, and insightful participant who had gained considerably from treatment. The court was satisfied that his prospects of rehabilitation were strong and that full-time custody would likely expose him to a more harmful environment.

The court ultimately imposed a sentence to be served by way of an Intensive Correction Order, a form of imprisonment served in the community under strict supervision and conditions, rather than full-time gaol. The court also explained to the offender that any serious breach could result in the order being revoked and the sentence being served in full custody. The three sentences, one for each offence, were ordered to run concurrently.

Orders Made

  • Sentence imposed by way of an Intensive Correction Order (ICO) in respect of all three offences.
  • The three sentences ordered to run concurrently.
  • Consent orders made for forfeiture of the computers seized during the investigation.

Key Takeaways

  • The District Court confirmed that a term of imprisonment is necessary for child pornography offences involving large volumes of material across multiple severity categories, including the transmission of images to others.
  • Even where full-time custody is warranted in principle, an Intensive Correction Order remains available where the offender demonstrates genuine rehabilitation efforts, strong mitigating personal circumstances, and assessed suitability under the relevant legislative framework.
  • Voluntary pre-sentence engagement in a sex offenders treatment program, sustained over many sessions and positively assessed by a treating psychologist, was treated as a significant mitigating factor going beyond what courts ordinarily see.
  • General deterrence carries substantial weight in Commonwealth and State child pornography offences, particularly given the increasing accessibility of online material, but it does not automatically foreclose community-based sentencing options.
  • Under the ICO framework, breach of the order is dealt with not by the sentencing court but by the Commissioner of Corrective Services or the Parole Authority, with revocation resulting in the offender serving the full term in custody.

Legislation and Cases Referenced

Legislation:

  • Criminal Code Act 1995 (Cth), ss 474.19(1)(a)(i) and 474.19(1)(a)(iv) (using a carriage service to access, and to make available, child pornography material)
  • Crimes Act 1900 (NSW), s 91H(2) (possession of child pornography)
  • Crimes (Administration of Sentences) Act 1999 (NSW), ss 88 to 91 (Intensive Correction Orders)
  • Crimes (Administration of Sentences) Regulation 2008 (NSW), r 175(b)
  • Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7 and 71(1)

Cases cited: No cases were identified in the text provided.