The Court: Ballarat Magistrates Court
The Lawyer: Benjamin Smith
The Charges:
The Allegations:
The client was accessing child abuse material on the dark web and was downloading the images. Police became aware of the child abuse material being downloaded by the client and subsequently executed a search warrant at the client’s address and seized his computers, iPhone and iPad. A considerable quantity of child pornography was found on the devices.
The client was then charged with Possessing Child Abuse Material and was bailed to appear in court.
At Court:
Our solicitor obtained the brief of evidence in the matter and noted that the police summary read that “There were 10,600 images located, we estimate this is only 10% of the material on the devices”.
Our solicitor attended a case conference with the prosecutor and indicated that the client was prepared to plead guilty to the offence, but requested that the above line be removed, as it was a matter being led that could not be satisfied unless the computer was thoroughly analysed by the police, which it was not. The police prosecutor, who was conducting case conferencing that day, indicated that he would not remove the line.
This was a problem that had to be dealt with delicately. Following discussions with the client, it was clear that we did not want to force the police’s hand and have the entire device analysed. However, we could not also allow the prosecution to ask the Magistrate to sentence on matters that had not been proven beyond a reasonable doubt.
Our solicitor made it clear to the prosecutor that we had concerns that the Magistrate may order the balance of the computer to be checked, and this was noted so that if that possibility was raised and the matter had to be adjourned, our solicitor would be seeking costs against the police.
The Outcome:
Fortunately, the client had attended our office promptly after being charged, so our solicitor had time to arrange for him to seek specialist treatment for many months. Before the court hearing, our solicitor arranged for several reports to be prepared by forensic psychologists who had assessed and treated our client. Following careful preparation of the matter and extensive submissions by our solicitor, the Magistrate imposed a two-year Community Correction Order. The Magistrate also convicted the client of the offence.
In nearly all other circumstances, a defendant would serve some term of imprisonment for the possession of this quantity of images. A combination of thorough preparation, the seriousness of the images being on the lower end of the scale and a Magistrate prepared to listen resulted in this unusually positive outcome.
