THE KING v TROY LEIGH CRACKNELL 20 DECEMBER 2024
COMMENTS ON PASSING SENTENCE PORTER AJ
Mr Cracknell has been committed to this Court on his plea of guilty to one count of possessing child abuse material accessed using a carriage service, contrary to s 474.22A(1) of the Commonwealth Criminal Code. The facts are as follows. The charge is that on 20 February 2024, he possessed or controlled child abuse material obtained or accessed in that manner. The facts are that on that day, police officers executed a Commonwealth search warrant at his home in Glenorchy. Five mobile phones were seized. Forensic examination of one phone showed that it contained 242 images in the Downloads folder, downloaded between 13 January 2021 and 29 April 2021.. Included in the material is an image of a female child about seven years old, lying on her back and engaged in a vaginal penetrative sexual act with an adult. There is an image of a prepubescent child aged about five holding an adult male’s erect penis with a child’s mouth being covered in semen. A second phone was found to contain 284 images and one video of child abuse material in the Downloads folder. These files were downloaded between 17 March 2021 and 1 December 2021. There is an image of a naked female about nine years old sitting on an adult male’s crutch and erect penis. There is an image of two prepubescent children aged about five and seven years old with the five year old being orally penetrated by an adult male penis, while the other child is lying on the man’s leg. A third phone was found to contain 1,553 images and 226 videos of child abuse material in four separate folders. These files were downloaded between 26 February 2023 and 19 February 2024. The material included a naked female child about eight years old, spreading her legs and opening her vagina with fingers. There is an image of a female child aged about eight years old lying on her back wearing a top which is lifted to her chest and being vaginally penetrated by an adult male. The fourth phone contained 69 images of child abuse material, located in Pictures and Downloads. These files were downloaded between 10 February 2024 and 14 February 2024. The material included an image of a naked prepubescent child, aged approximately eight, lying on her belly, with an adult holding the child’s head and inserting his penis into the child’s mouth. There was a second image of a naked female child, aged approximately 10. She was lying on the ground, her legs were being spread by adult hands and she was being anally penetrated by the adult. The fifth phone contained wallpaper depicting child abuse material. When interviewed on that day, the defendant made admissions and was cooperative. He admitted owning all of the electronic devices in his bedroom, and having explicit images and videos depicting children. He said that he was the only one who had access to them, that they were PIN protected and no one else knew the codes. He also said that he had been looking for and downloading child abuse material for four to five years, he likes looking at the images of young girls and he sometimes masturbates while he looks at the material. The Crown case is that the images described were representative of the bulk of the material on the phones. It is also the Crown’s case that although the charge relates to possession, the charge represents episodes of criminal activity for about three years.
The defendant is now 53 years old. He has relevant offending history although it is of some age and it is the only matter on his record. On 22 June 1998 he was convicted of two counts of maintaining a sexual relationship with a young person under the age of 17 years. Two young girls were involved, one aged between six and seven years; the other between nine and ten years during the 11 months over which the offending occurred. He was sentenced to 12 months’ imprisonment. That conviction brings the defendant within s 16AB of the Crimes Act. That means that there is a mandatory minimum head sentence of four years imprisonment. For less than the mandatory minimum sentence to be imposed, a court must consider that adequate recognition cannot be given to an offender’s plea of guilty or cooperation, without having to go below that mandatory minimum: see s 16AAC(2) and (3) of the Crimes Act.
The defendant is a single man with no dependents. He is presently unemployed but he does have a good industrial record, having held employment as a traffic controller for some 13 odd years to February this year when he lost his employment as a result of being charged. He was part of a close knit but reclusive family and has felt socially isolated for much of his life. He has difficulty in forming relationships. He was educated to year 12 but suffered heavily from bullying. He attempted tertiary education, but this was frustrated by his previous conviction. After that he found difficulty in finding employment. He found work in the cleaning/maintenance area but remained in the family home even beyond finding work as a traffic controller in 2010. In April 2022 he moved to private rental accommodation. His counsel informed me that the defendant struggled to make sense about any catalyst for this offending. He began to feel more and more isolated. He had shown no interest in this sort of material between when he was released from prison and this offending when it started in 2021. He has some concerns about his mental health; feeling depressed, which he feels has been undiagnosed and gone without treatment. He accepts that he ought to have sort appropriate assistance. He knew what he was doing was criminally and morally wrong and is greatly ashamed of his behaviour. I was told that being arrested and charged has been a significant shock for him. I was told that he has full insight into the issues surrounding child abuse material and clearly recognises the criminality involved. After some initial doubt as to the nature of the charge to be pursued, he pleaded guilty to the present complainant, there never having been any issue about acknowledging possession and the means of access. He has been in custody since 18 September 2024, not having applied for bail after his prompt plea of guilty. He has some family concerns; his mother is in poor health and his younger sister is her carer.
The grave evils of accessing and possessing child exploitation material have been stated many times. These are not victimless crimes. The production of such material involves the exploitation and abuse of children somewhere in the world. The damage done is often profound. Possession and viewing exacerbates and extends the abuse and exploitation. Access and possession tend to create a demand for its production. Viewing can have the effect of normalising the depicted conduct and desensitising the viewer. Offending is hard to detect, and images are very difficult to remove from the internet once made available. The deterrence of others from this sort of conduct and condemnation of it are paramount considerations. In terms of this offending, the number of images is significant, although not anywhere near as large as some cases that come before the courts. I accept that there is an absence of some factors which, although not mitigatory, often aggravate this type of offending. There is no distribution or sharing, or financial gain. The material was not paid for. It is said to have been unlikely to have fallen in the wrong hands, although there is always a degree of risk of that occurring. I take into account the defendant’s general personal circumstances, including the loss of his employment as a result of the charge. I take into account that there seems to be some prospects of rehabilitation given the expressed insight and I think remorse can be inferred from the plea and the acceptance by the defendant of his custody status as indicating remorse. It seems I am required to settle on a head sentence before considering the effect of the plea of guilty and cooperation: Hurt v The King [2024] HCA 8, 98 ALJR 485. In my view, this case does not fall within the description of the “least serious circumstances.” (Hurt at [54]). I then take into account the plea and cooperation as discounting what I would see to be the appropriate starting point. That discount is significant.
Mr Cracknell, I have set out the facts, your personal circumstances and all of the factors that I need to take into account. I would highlight again the evils of child abuse material. I have taken into account your personal circumstances, your plea and your cooperation of the police, along with the fact that that I think you are not completely without prospects of redemption. You are convicted and sentenced to four years and nine months’ imprisonment to commence on 18 September 2024. I am satisfied that parole eligibility is appropriate, and I order that a non-parole period of two years and three months. As to an order under the Community Protection (Offender Reporting) Act, although an indefinite period is available to me, I take the view that a 15 year period is adequate. I order that your name be placed on the register and that you comply with the reporting conditions for that period to commence on the date of your actual release from prison. I order the forfeiture of the ZT Blade A5 mobile phone IMEI 869183040014221.