DPP (Cth) v Amarasinghe [2022] VCC 200 (2 March 2022)
Ranpati Dewage Shavindu Nimanthana Amarasinghe was charged with using a carriage service to cause child pornography material to be transmitted to self and many more related charges. The Court, in determining the sentence to be imposed, considered how there were false identities used in offending and how the offending conduct was objectively very serious.
Facts:
The Commonwealth Director of Public Prosecutions (CDPP) tendered a Prosecution Opening Upon Plea dated 17 January 2022, which Ranpati Dewage Shavindu Nimanthana Amarasinghe's counsel told the Court it could treat as a statement of agreed facts. In April 2020, the Australian Federal Police (AFP) Victorian Joint Anti-Child Exploitation Team (JACET) commenced an investigation after receiving referrals from the United States of America (USA) and the United Kingdom (UK). Each referral was in relation to separate female victims under the age of 16, who had engaged with him online. The offending occurred between 1 November 2018 and 11 June 2020 ( a period of some 19 months) and involved you using various social media platforms, including Kik, Instagram, Omegle, Chat For Strangers and Snapchat with the usernames I will refer to as ‘JL’, ‘JH’, ‘EL’ and ‘SL’.
During the period of your offending, you encouraged your victims to send images and videos of themselves naked and performing sex acts via these social media platforms. The images and videos are classified as child abuse material. During the period of offending, you told the victims to send further child abuse material with the threat that you would disseminate their other images and videos to friends and family if they did not comply. You followed through with these threats, transmitting child abuse material to the friends and family of the victims that did not comply.
On 11 June 2020, you were arrested and charged. On this day, you were found in possession of child abuse material. On 20 November 2020, one of your victims, gave a statement that you made use of a carriage service to cause child pornography material to be transmitted to self (Charge 1). On 26 May 2020, one of your victims, ‘LB’, gave evidence that you also made use of a carriage service to cause child pornography material to be transmitted to self (Charge 2). On 6 November 2019, participated in a VARE and gave evidence that in November 2018, that you likewise made use of a carriage service to cause child pornography material to be transmitted to self.
These instances were repeated with BW, SL, AJ, KR, DM, TK, CT, BT, CC, JL, MR, an unknown and unidentified Instagram user, KM, KY, AB, IR, AH, JG, and MS (Charges 3-22). Another two charges relates to you committing an aggravated offence involving private sexual material – use a carriage service to menace and cause offence (Charge 23 & 24). Lastly, on 11 June 2020, a search warrant was executed at your residence pursuant to your possession of child abuse material (Charge 25).
Issue:
The appropriate sentence for the offending.
Applicable law:
Crimes Act 1914 (Cth) (‘the Act’) s 20(1)(b)(ii) - provides that the Act requires a court to be satisfied that exceptional circumstances exist before a person being sentenced for a Commonwealth child sex offence can be released immediately on a recognizance release order.
Crimes Act 1914 (Cth) s 16A(1) - where the Commonwealth Director correctly observed, that section does not displace the requirement that the sentence must be of a severity appropriate in all the circumstances of the offending.
Sentencing Act 1991 (Vic) ss 5(3) - provides that the Court shall not pass a sentence of imprisonment on you for these offences unless, having considered all of the available sentences.
Rodriguez v DPP (Cth) [2013] VSCA 216; (2013) 40 VR 436 - provides that delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.
R v Miller [1995] VicRp 60; [1995] 2 VR 348 - provides that where no victim impact statement is relied upon, a sentence may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim and their immediate family.
Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361 - provides that the law presumes harm to child victims in circumstances such as the present, and consent, or ostensible consent, of a child to such conduct with an adult is not a mitigating factor.
R v Richard [2011] NSWSC 866 - relied upon in holding that the criminality involved in each of these charges is greater than with a charge involving only one episode of criminal conduct.
R v Oliver [2003] 1 Cr App R 28 - provides that wide-scale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles, and by reference to the shame and degradation to the original victims.
The Queen v Madex [2020] VSC 145 - where it was held that an offender is at a higher risk of contracting COVID–19 if they are incarcerated (presuming an outbreak in custody).
DPP v Bourke [2020] VSC 130 - provides that the inherent utilitarian value of a guilty plea is greater during the pandemic.
Brown v The Queen [2020] VSCA 60 - provides that the pandemic is causing additional stress and concern for those incarcerated and their families, as it is for every member of the community.
D’Alessandro; Smith; DPP (Cth) v Guest [2014] VSCA 29 - provides that a person being sentenced for the present offences can expect a term of imprisonment to be imposed.
Analysis:
Your offending conduct is objectively very serious. You fall to be sentenced for 25 discrete offences. The overall offending involved five distinct and separate offence types, namely transmitting, publishing, and possessing child abuse/child pornography material, using a carriage service to menace and cause offence by transmitting private sexual material and causing child pornography material to be transmitted to yourself. There are six female victims of the overall offending, five of whom were children.
You used four false identities to conceal your identity when communicating with victims, including using two female usernames. It is not relevant that a child may be seeking to explore their sexuality or enjoys the attention of the offender via the internet. This is no reason to relax any protection for children in that sphere. Your offending was protracted, planned, organised, prolific and involved threats.
This is a particularly cruel example of your offending conduct and demonstrates the depths of depravity into which you had fallen. The impact of this obscene conduct on your young innocent victim is beyond imagining.
Conclusion:
The Court is of the opinion that the only appropriate sentences necessary to achieve the purposes for which these sentences are imposed are immediate sentences of imprisonment and a total effective sentence involving a period of immediate imprisonment with a non-parole period. The Court sentenced a total effective sentence of 13 years’ and six months’ imprisonment for the defendant.
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