SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Daniel (a pseudonym)

Citation:

[2024] ACTSC 128

Hearing Date:

5 April 2024

Decision Date:

30 April 2024

Before:

Baker J

Decision:

See [31].

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service for child abuse material – act of indecency on child aged under 10 years – offender published video of naked child on her private Tik Tok – material not available to other users of TikTok – video not intended to be viewed by anyone other than child’s mother – no requirement to vindicate harm – no requirement for protection of the community – non-conviction orders imposed – good behaviour order and recognizance release order imposed.

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT) s 86(1)

Crimes (Sentencing) Act 2005 (ACT) ss 7, 17

Crimes Act 1900 (ACT) s 61(1)

Crimes Act 1914 (Cth) ss 16A, 19B, 19B(1)

Criminal Code Act 1995 (Cth) s 474.22

Family Violence Act 2016 (ACT) s 6

Cases Cited:

Cobiac v Liddy [1969] HCA 26; 119 CLR 257

DPP v Chen [2023] ACTSC 154

Sabel v R; R v Sabel [2014] NSWCCA 101; 242 A Crim R 49

R v TW [2011] ACTCA 25; 6 ACTLR 18

Parties:

Director of Public Prosecutions ( Crown)

Ellen Daniel (a pseudonym) ( Offender)

Representation:

Counsel

D Swan ( Crown)

G Le Couteur ( Offender)

Solicitors

ACT Director of Public Prosecutions

Legal Aid ( Offender)

File Number:

SCC 237 of 2023

BAKER J:

Introduction

  1. The offender, Ellen Daniel (a pseudonym) comes before me for sentence on one charge of using a carriage service for child abuse material, contrary to s 474.22 of the Criminal Code Act 1995 (Cth) (CAN2023/1394) (the Commonwealth offence), and one charge of committing an act of indecency on a child aged under ten years, contrary to s 61(1) of the Crimes Act 1900 (ACT) (CAN2023/1392) (the Territory offence).

    2. Background

  2. In May 2022, Ms Daniel flew from Nepal to Australia to stay with her daughter, her son-in-law and her two year old granddaughter. Ms Daniel is a Nepali citizen.
  3. On 24 January 2023, Ms Daniel gave her granddaughter a massage whilst the child was in her care. Such massages, which involve rubbing the naked child’s body with oil, are common in Nepal. It is believed that the massage will make the child strong and healthy and assist in the child’s overall development. It is common for grandmothers to perform such massages. There is no suggestion in the evidence that Ms Daniel’s massage of her granddaughter constituted an offence, or that the massage was in any way inappropriate.
  4. Immediately after the massage, and whilst her granddaughter was still naked, Ms Daniel used her mobile phone to record a video of herself and her granddaughter. In the video, the child and Ms Daniel are on a bed, smiling at the camera. Ms Daniel then taps the child’s lower stomach and pelvic region with her hand, before raising her granddaughter’s right leg, exposing her genitals and moving the camera closer to the child’s vaginal area.
  5. Ms Daniel saved the video in the Tik Tok application, which had the result of publishing the video on the Tik Tok servers. However, of critical importance for present purposes, the video was only saved to Ms Daniel’s personal account. This meant that the video was not publicly available on the TikTok platform. Other TikTok users could only see the video if Ms Daniel sent them a link.
  6. Ms Daniel sent a copy of the link to the Tik Tok video to her daughter via Facebook Messenger. She did not send a link to the video to anyone else.
  7. Upon receiving the video, Ms Daniel’s daughter immediately called her mother, and told her to delete the video. Ms Daniel ‘unsent’ the Facebook Messenger message with the link to the Tik Tok video she sent to her daughter. Ms Daniel is not particularly tech savvy. She believed that unsending the video would have the effect of deleting the video from the Tik Tok application. It did not. In fact, the video remained on the application, although it could not be seen by other TikTok users.
  8. On 26 January 2023 (two days after the video was taken), TikTok identified the video as Child Abuse Material and reported its upload to the National Centre for Missing and Exploited Children (NCMEC). The situation escalated quickly. Tik Tok banned the account the video was uploaded from. The NCMEC also notified the Australian Federal Police (AFP) of the video.
  9. On 27 January 2023, members of the AFP Child Protection Triage Unit viewed the video and confirmed that it constituted “child abuse material”. On 4 February 2023, police obtained search warrants for the apartment where Ms Daniel was staying with her daughter, son-in-law and granddaughter. Police executed the search warrant on 5 February 2023. They identified Ms Daniel and her granddaughter as the adult and child who could be seen in the video that was uploaded to TikTok.
  10. Ms Daniel does not speak English. Police attempted to conduct a digital record of conversation using an interpreter over the telephone. The dialect of Nepalese that is spoken by Ms Daniel is different to the formal Nepalese typically used by interpreters, which caused difficulties in the interview. Police instead executed the search warrant in English with Ms Daniel’s daughter and son-in-law.
  11. Following the execution of the search warrant, Ms Daniel was arrested and charged with the offences set out at [1] above.
  12. Upon her arrest, Ms Daniel was taken by police to the ACT Watch House, where she remained in custody until she was granted bail one day later on 6 February 2023. In total, she spent two days in custody.
  13. Ms Daniel subsequently entered pleas of guilty to both offences in the Magistrates Court on 15 September 2023.

    14. Determination

  14. The maximum penalty for the Commonwealth offence of using a carriage service for child abuse material contrary to s 474.22 of the Criminal Code is 15 years’ imprisonment. The maximum penalty for the Territory offence of committing an act of indecency on a child aged under 10 years, contrary to s 61(1) of the Crimes Act 1900 (ACT) is 12 years’ imprisonment.
  15. The seriousness with which the community views sexual offences committed against children is clear from these significant maximum penalties. Generally speaking, the sentence to be imposed for such offences, particularly when committed by a caregiver, must meet the strong need for denunciation, punishment and deterrence (both general and specific): see R v TW [2011] ACTCA 25; 6 ACTLR 18 at [21], citing Fisher v The Queen (1989) 40 A Crim R 442 at 446. For this reason, offences of the kind in issue in the present case typically attract significant prison terms. Further, the Territory offence is a family violence offence within the meaning of s 34B of the Crimes (Sentencing) Act. Section 34B of the Crimes (Sentencing) Act requires the Court, to promote the accountability of perpetrators of family violence: see s 6 of the Family Violence Act 2016 (ACT).
  16. However, the present case is highly unusual. The prosecution accepts that the offending was not committed for the purpose of sexual gratification, or for profit. The prosecution further accepts that Ms Daniel did not intend the video to be viewed by any person other than the child’s mother. Although the child’s mother properly recognised that it was not appropriate for the video to remain on the TikTok application (even in a private form), she was not distressed by it, nor did Ms Daniel intend that she would be distressed by it.
  17. Ms Daniel’s legal representative submitted that there would be no purpose in formally convicting Ms Daniel of either offence, and submitted that non-conviction orders should be imposed for both offences. The prosecution accepted that it is open to the Court to proceed in this way. I agree.
  18. The determination of the sentence to be imposed must be informed by the purposes of sentencing, as set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT)(in respect of the Territory offence) and s 16A of the Crimes Act 1914 (Cth) (in respect of the Commonwealth offence). I can discern no purpose that would be served by the imposition of a conviction for either offence.
  19. The gravamen of both offences was in the making and posting of the video. As noted above, the video was not taken for sexual gratification, or for profit. The video was not intended to be seen by any person other than the child’s mother. Other than law enforcement officials involved in the present investigation, there is no evidence that the video was in fact seen by any person other than the child’s mother.
  20. Ms Daniel is a 51 year old woman from rural Nepal. She ceased all formal education when she married her husband at age 15. She did not appreciate that her conduct constituted criminal offences under Australian law; cf Sabel v R; R v Sabel [2014] NSWCCA 101; 242 A Crim R 49 at [201]. Ms Daniel is remorseful. She now fully understands and accepts that the taking and posting of the video is unlawful in Australia.
  21. In assessing the sentence to be imposed, I have also taken into account that, upon her arrest, Ms Daniel spent two days in custody. This experience would have been extremely stressful for Ms Daniel, who does not speak English.
  22. There is no need for the sentence to be imposed to protect the community from Ms Daniel. Ms Daniel has remained living in the apartment with her daughter (the child’s mother), her son in law (the child’s father) and her granddaughter since she was released on bail. She has fully complied with her bail conditions. She has no prior criminal history. Character references speak of her as an “honest, sincere and friendly person and very loving mother and grandmother”. The likelihood of her reoffending is non-existent.
  23. Nor is there any need for the sentences to vindicate any harm caused to a victim or a victim’s family. The child’s mother provided a victim impact statement, in which she described how difficult it has been to see her mother in “that situation” and the distress that she (the child’s mother) has experienced as a result. The child’s mother informed the Court that she and her siblings have a “normal, healthy and loving relationship” with their mother and that they “understand the context of the incident”. She explained “we are just hoping for the best so that we can restore peace in my family”. The prosecution confirmed that the distress that the child’s mother describes in her Victim Impact Statement is a reference to the impact of the present legal proceedings, rather than the impact of the offending itself.
  24. Both Commonwealth and Territory legislation provide for non-conviction orders in appropriate cases: see ss 19B(1) of the Crimes Act 1914 (Cth) and s 17 of the Crimes (Sentencing) Act. Such orders may be made even where the offence charged is serious and carries a heavy maximum penalty: see similarly Cobiac v Liddy [1996] HCA 26; 119 CLR 257 at 268; DPP v Chen [2023] ACTSC 154 at [66] – [67] and the cases cited therein.
  25. A non-conviction order (with or without a recognizance) may be made in respect of a Commonwealth offence if the Court is of the opinion that “it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation”, having regard to:

(i)      the character, antecedents, age, health or mental condition of the person;

(ii)     the extent (if any) to which the offence is of a trivial nature; or

(iii)    the extent (if any) to which the offence was committed under extenuating circumstances.

See s 19B(1)(b) of the Crimes Act 1914 (Cth).

  1. Similarly, in deciding to whether to proceed without convicting an offender under Territory legislation, the Court “must consider”:

    (a)    the offender’s character, antecedents, age, health and mental condition;

    (b)    the seriousness of the offence;

    (c)    any extenuating circumstances in which the offence was committed.

    See s 17(3) of the Crimes (Sentencing) Act.

  2. Taking into account Ms Daniel’s prior good character, lack of prior convictions and age, as well as the very unusual circumstances of both offences, I am satisfied that this is an exceptional case in which it is appropriate to make orders under each provision. I am satisfied of the criteria under each provision. Both non-conviction orders will be accompanied by a one year good behaviour order (or recognizance, under the Commonwealth legislation).
  3. For completeness, I note that s 19B(1A) of the Crimes Act 1914 (Cth) prohibits the Court from taking into account any cultural practice “as a reason for … excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates”. There is no such prohibition under Territory legislation. Whilst the cultural massage was the context in which the child became undressed, it did not form part of the offences alleged. As noted above, the offences arose from the filming and posting of the video that was taken by Ms Daniel after the massage occurred. In these circumstances, the determination of the sentence to be imposed does not raise any question about cultural practices.
  4. I have taken into account Ms Daniels’ pleas of guilty to both charges in determining the appropriate sentence to be imposed for each offence. I do not accept the prosecution’s submission that the prosecution case in respect of the Territory offence was overwhelming. (In particular, it would not have been straightforward for the prosecution to demonstrate the element of offensiveness in circumstances where the video was only intended to be sent to the child’s mother.) I am satisfied that there was significant utilitarian value in both pleas.
  5. The criminality involved in the Territory offence is almost entirely subsumed in the Commonwealth offence. In these circumstances, the sentence to be imposed for the Commonwealth offence will be entirely concurrent with the sentence to be imposed for the Territory offence. I am satisfied that concurrent sentences will result in sentences that are of a severity appropriate in all the circumstances: s 19(6) of the Crimes Act 1914 (Cth).

    6. Orders

  6. For the above reasons, the following orders are made:

(1) I find both offences proved.

(2) For the offence of using a carriage service for child abuse material, contrary to s 474.22 of the Criminal Code 1995 (Cth), without convicting the offender of the offence, I make an order under s 19B(1)(d) of the Crimes Act 1914 (Cth), discharging the offender, upon her entering into a recognizance, with the payment of security of $500, without surety, to be of good behaviour for a period of one year, to commence on 30 April 2024.

(3) For the offence of committing an act of indecency on a child aged under 10 years, contrary to s 61(1) of the Crimes Act 1900 (ACT), without convicting the offender of the offence, I make an order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) requiring the offender to sign an undertaking to comply with the good behaviour obligations under s 86(1) of Crimes (Sentence Administration) Act 2005 (ACT) for a period of one year, to commence on30 April 2024, with supervision only for the period deemed necessary by ACT Corrective Services.

 

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker

Associate:

Date: 30 April 2024

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