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[2002] WASCA 209
Court of Appeal (WA)
2002-08-07
Malcolm CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : ASSHETON -v- THE QUEEN [2002] WASCA 209
Criminal law and procedure - Sentencing - Knowingly importing prohibited goods in the form of pornographic literature - Two counts of acts of indecency involving two boys aged 11 and 9 in his care - Gross breach of trust - Three counts of possession of child pornography - Cumulative sentences of 1 year for the importation, 3 years and 2 years for the acts of indecency and 1 year concurrent for each of the three counts of possession of child pornography but cumulative on the other sentences not manifestly excessive - Totality principle not infringed by total sentence of 7 years
Crimes Act 1914 (Cth), s 50BC(a)
Customs Act 1901 (Cth), s 233BAB(5)
Application for leave to appeal against sentence refused
Respondent : Mr R E Cock QC for the Crown in the right of the State
Mr P N Bevilacqua for the Crown in the right of the Commonwealth
Respondent : State Director of Public Prosecutions for the Crown in the right of the State
Commonwealth Director of Public Prosecutions for the Crown in the right of the Commonwealth
1 MALCOLM CJ: This is an application for leave to appeal against sentence. On 28 November 2001 the applicant was convicted on his plea of guilty to an indictment which alleged that on various dates between 17 May and 30 September 2001 at places known and unknown he was responsible for 12 counts of knowingly importing prohibited goods, contrary to s 233BAB(5) of the Customs Act 1901 (Cth). On the same date the applicant also pleaded guilty to two counts the subject of a second indictment which alleged that on various dates between 9 June and 17 June 2001 in Indonesia he committed acts of indecency on two persons under the age of 16 years contrary to s 50BC(a) of the Crimes Act 1914 (Cth). He also pleaded guilty to three counts on a third indictment that:
(a) On 30 June 2001 at Kalgoorlie he possessed child pornography, namely footage of a videotape;
(b) on the same date and at the same place he possessed child pornography, namely, images contained on a floppy disk; and
(c) on the same date and at the same place he possessed child pornography, namely, images contained on a computer hard drive.
2 Each of these offences was alleged to be contrary to s 60(4) of the Censorship Act 1996 (WA).
3 The offences the subject of the second indictment were that between 9 and 17 June 2001 in the Republic of Indonesia the applicant, an Australian citizen, while outside Australia committed an act of indecency on a person who was under 16 years of age, namely an 11-year-old boy, contrary to s 50BC(a) of the Crimes Act 1914 (Cth). Count 2 on that indictment alleged that between 9 and 17 June 2001 in the Republic of Indonesia the applicant, an Australian citizen, while outside Australia committed an act of indecency upon a person who was under 16 years of age, namely a 9-year-old boy, contrary to s 50BC(a) of the Crimes Act. Section 50BC appears in Div 2 of the Crimes Act which deals with sexual offences against children overseas. Section 50BC is specifically concerned with sexual conduct involving a child under the age of 16 and provides that:
"(i) a person (the first person) contravenes this section if, while the first person is outside Australia:
(a) the first person commits an act of indecency on a person who is under 16."
4 The applicant is an Australian citizen who was born on 25 January 1962. On 30 June 2001 Customs officers and Western Australian Police officers executed search and seizure warrants on the applicant's residence at 2/20 Egan Street, Kalgoorlie. During the search the officers seized, among other things, a Sony video camera containing videotape. The footage on the videotape depicted scenes of pornography between the applicant and two boys aged 11 and 9 years respectively at the time the footage was taken. The footage, 6 minutes in duration, depicted the applicant engaging in sexual acts with the two boys in a room at the Hotel Santika Beach in Tuban, Bali, Indonesia. The applicant and the two boys shared a room together at that hotel for six of the seven nights from 9 June 2001 to 16 June 2001. The footage on the videotape was taken between 9 and 17 June 2001 during the applicant's vacation in Bali.
5 At the relevant time the applicant was on vacation with the boys' family. The applicant had travelled to Bali in a party of 12 persons, including five adults, of whom the applicant was one, and seven children. The two boys depicted on the videotape were the children of an old school friend of the applicant. The applicant was a good friend of the family and had previously gone on holidays with the family. The applicant travelled from Adelaide to Denpasar on Flight GA 725 on 4 June 2001. He returned to Adelaide from Denpasar on Flight GA 724 on 17 June 2001. On 3 June 2001 the applicant had purchased a Sony Digital Camera and accessories from City International Duty Free in Adelaide.
6 The applicant had told the 11-year-old boy words to the following effect:
7 On 27 August 2001 Australian Federal Police officers attended the applicant's premises and conveyed the applicant to the Kalgoorlie Police Station. The applicant refused to participate in a videotaped record of interview that day. No statement was signed by the applicant. In the result, however, the applicant pleaded guilty to the two offences under the Crimes Act by way of the fast-track procedure. The maximum penalty for an offence against s 50BC is imprisonment for 12 years.
8 The applicant also pleaded guilty to each of 13 charges that, on or about 17 May 2001 at Newburn in Western Australia, he knowingly imported goods which were Tier 2 goods, namely, various books the importation of which was prohibited under the Customs Act 1901 (Cth) without approval, and at the time of the importation approval had not been obtained contrary to s 233BAB(5) of the Customs Act which provides that:
"A person is guilty of an offence against this subsection if:
(a) the person knowingly or recklessly imported goods; and
(b) the goods were Tier 2 goods; and
(c) their importation:
(i) was prohibited under this Act absolutely; or
(ii) was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained."
The maximum penalty provided for an offence against s 233BAB(5) was a fine not exceeding $250,000 or imprisonment for 10 years, or both.
9 There were 13 books involved in the importation. On 17 May 2001 a parcel addressed to the applicant at a box number at the Kalgoorlie Post Office was intercepted by Customs officers at Postal Control in Newburn. The applicant was the box holder of the relevant post box. A Visa Card slip inside the parcel indicated that the parcel had been sent from Intermale Gay Book Store, Amsterdam in Holland and that it was in response to a "mail order" from the applicant. The parcel contained seven books and a catalogue in respect of each of which the Office of Film and Literature Classification had not issued the applicant with approval to import any of the books, or the catalogue. Customs officers from the Australian Customs Service, Commerce Prohibitions and Restrictions Group, examined the books and catalogue. It was noted that all of the seven books and the catalogue, except the book The Night Listener by one Armistead Maupin, were prohibited imports under reg 4A(1A)(b) of the Customs (Prohibited Imports) Regulations, 1956 in that they contained items of child pornography.
10 When a search warrant was later executed at the applicant's house, other restricted books which had been imported without approval were found. The applicant said that he did not realise he needed approval to import them. As to that material, the learned Judge commented that:
"The indictment involving the importation was not the subject of me having to examine any of the material and counsel relied on the particulars supplied to your counsel and that's included in the full statement of material facts and in the correspondence, but it can be summarised to say that much of the material involves encounters between adult males and young boys of a graphic and disturbing kind.
While much of that material is apparently available in shops which deal with such matters in Australia, those shops must ... obtain Customs approval to import them and they're not available for private importation."
11 In relation to the third indictment, the applicant pleaded guilty to three counts of offences under s 60(4) of the Censorship Act 1996 (WA), namely:
(1) On 30 June 2001 at Kalgoorlie the applicant possessed child pornography, namely footage on a videotape;
(2) On the same date and at the same place the applicant possessed child pornography, namely images contained on floppy disks; and
(3) On the same date and at the same place the applicant possessed child pornography, namely images contained on a computer hard drive.
12 Each of these offences was contrary to s 60(4) of the Act which provides that a person who possesses or copies child pornography is guilty of a crime and is liable to imprisonment for 5 years.
13 By s 3 of the Act "child pornography" is defined as follows:
" 'child pornography' means an article that describes or depicts, in a manner that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a person under 16 years of age (whether the person is engaged in sexual activity or not)."
An "article" is defined in s 3 to include a computer programme and associated data, which would include images contained on floppy disks or a computer hard drive.
14 As a result of the search on 30 June 2001 the computer hard drive was seized along with numerous other items, including 123 floppy disks. Some 73 of the disks were concealed in the airconditioning vent of a spare room at the premises. All of the items were seized pursuant to Federal search warrants. The applicant was taken to the office of Kalgoorlie Detectives where he participated in a video-recorded interview. He was released pending examination of the computer hard drive and floppy disks. Examination of the floppy disks was undertaken by the Australian Federal Police. As a result 3019 images of child pornography in various forms of presentation were located. The assistance of the Computer Crime Unit of the Western Australian Police Service was obtained in relation to the examination of the material on the seized computer hard drive. As a result of the examination a total of 2563 unlawful pictures were located. Of these, 2309 were deleted and 254 were not. Five hundred and two unlawful movies were located. Of these, one had been deleted and 501 were not. The present charges were preferred on 13 August 2001.
15 In passing sentence on the applicant Healy DCJ said:
"The offences on the indictment dealing with the Customs Act and the indecent dealing can be seen in each case to be part of a course of conduct. There was more than one importation and more than one indecent dealing. Although one indecent dealing with each of the boys. The circumstances of the victims of the offences against the Crimes Act have been outlined to me in the material forwarded, which I have read. ...
It's important to record what you have done and to note that what you have done has had a devastating effect on ... this family, who were your friends, and their children, who looked upon you as their uncle. The father looked upon you as a brother and you were in receipt of complete trust of him and his wife as far as their boys were concerned, and you have grossly abused the trust by what you have done. One hopes that the effect on the children will not be long-lasting, however, whilst the memory of what you did to them may fade, I don't think it will ever be forgotten by them for however long they live.
In relation to the offences against the Customs Act, when dealing with child pornography courts have said that if there wasn't a market for people who wanted to consume such material there would be no need for the exploitation of young children to feed that market, and that's why the courts have said there is a great need for deterrence of the consumers of such material. I am fully aware of what your counsel submitted to me, that this material is available through Australian booksellers, but that isn't the point. It's illegal to import such material without approval and you didn't have approval, whether it's available from big Internet bookshops is irrelevant. If it's ordered and then imported without approval then that's the offence and that's what you have pleaded guilty to.
The injury and loss and damage was only for the offences I have just referred to."
16 His Honour went on to note that he took into account the applicant's contrition, the fact that he had entered a plea of guilty at an early stage and had co-operated with the authorities. He also noted that remorse had been expressed not only by the applicant's plea of guilty, but also by what he had said to the author of the pre-sentence report, the psychologist and the psychiatrist who had reported on him. It was significant that the applicant had pleaded guilty on the fast-track system. His Honour also took into account the fact that the applicant came from a relatively small community to which he was unlikely to be able to return because of the widespread knowledge of what he had done. His Honour noted that it was important to impose a deterrent sentence.
17 His Honour went on to recount the applicant's personal circumstances, family background and work history and also noted the applicant's expression of shame and remorse, as well as his acknowledgement of the need for treatment. At the time of sentencing the applicant had already begun counselling sessions in July 2001 before coming to Court in November. The applicant had no prior convictions. Referees gave details of the applicant's employment as a mine surveyor between 1990 and 1997 and the high regard in which he was held by fellow workers and clients who commented that his work standards were always of the highest professional quality. Various referees referred to the applicant's contribution to sport and recreation in the Kalgoorlie area, including his work as a basketball coach, referee and member of the Board of Directors. This was the subject of a number of references. His Honour also took into account the humiliation which the applicant had suffered since being charged with the offences, as well as the applicant's family background and involvement in a wide range of community organisations.
18 The learned Judge also had before him a medical history which showed that the applicant had a life-long history of maladaptation in inter-personal relationships for reasons associated with his family and his own situation. There was no evidence of sexual deviation or paedophilia. The view was expressed that the applicant's choice of adolescent males was a reflection of his stage of social maturity. In the psychiatrist's view, the applicant's conduct with the children was trying to establish a social relationship rather than controlling predatory behaviour, as was evidenced by the applicant's use of pornography downloaded from the Internet.
19 The psychiatrist was of the opinion that the applicant was open to education and re-orientation concerning the inappropriate age group in which victims were selected and that the depression from which the applicant was suffering would need ongoing management. It was indicated that the applicant had an attraction to young boys which was "entrenched and long-standing". It was also noted that, if his tendencies to paedophilia were not addressed, they would continue to be manifested. The applicant was assessed as being of a medium to low risk of re-offending. In this context the learned Judge noted that:
"However, one must take into account the long-standing and entrenched interest in fantasies about young boys which may mean that your risk of re-offending is significantly higher than the model might suggest and that may be addressed by you participating in appropriate programmes for many reasons not the least is that at present you don't seem to exhibit great empathy for the children whose images you were viewing and that's particularly so in relation to the children who were with you in Bali, both of whom had known you for their whole lives and were the children, after all, of your best friend.
You don't have any dependants and there are no dependants therefore to be affected. That's not to say that your family hasn't been affected by your actions. There is a need in these matters for general deterrence and for the community to see the courts protecting the interest of children."
20 The learned Judge rejected a plea on the applicant's behalf by his counsel that any sentences of imprisonment be suspended on account of the early pleas of guilty, the applicant's expression of remorse, his concern for the harm caused to others, his good social antecedents and prior record, and the damage that he had suffered by the social stigma, ostracism and vilification in the relatively small community he had come from, together with his undertaking of counselling, his prospects of rehabilitation and the low risk of re-offending if he continued counselling.
21 As to the offences under the Crimes Act, the learned Judge concluded that no sentence other than a sentence of imprisonment was appropriate in all the circumstances of the case. In this respect I am of the opinion that the learned Judge was entirely correct. The indecent dealing was too serious to be dealt with by any other means and there were no circumstances which would suggest that the sentences should be suspended. His Honour went on to say:
"In reaching the appropriate sentence, I have taken account of all of the mitigating factors that I have already mentioned. Because of the nature and the seriousness of the offences, in my opinion, immediate imprisonment is appropriate and there are no sufficient reasons why the sentences should be suspended. Dealing with the two offences, the commission of the acts of indecency outside of Australia, I bear in mind all the matters that I've mentioned that I'm required to take account of."
22 The learned Judge concluded that the sentences should not be concurrent because they involved different children. His Honour noted that both involved a gross breach of trust which the parents and the children had in the applicant and involved conduct, whilst not of the worst possible indecent dealing that could be imagined, was "of a high order". The sentence imposed on count 1 on the relevant Commonwealth indictment was imprisonment for 3 years and on the second count, imprisonment for 2 years to be served cumulatively.
23 As to the offences under the Customs Act, the learned Judge imposed a sentence on count 1 of imprisonment for 1 year to be served cumulatively. In relation to the balance of the counts on that indictment, a sentence of 1 year was imposed in each case to be served concurrently, making a total sentence of 6 years for the Commonwealth offences. An order was made that the applicant be eligible for release on parole after serving a minimum term of 3 years. These sentences were directed to be served before serving the sentences in relation to the State offences. The sentences were backdated to 27 November 2001 when the applicant was taken into custody.
24 As to the State indictment, the sentences imposed for the offences under the Censorship Act were imprisonment for 1 year in respect of the possession of child pornography, namely, the videotape of the indecent dealing offences the subject of the first indictment, to be served concurrently. The sentence for count 2 on that indictment relating to possession of the pornographic images on the floppy disks was imprisonment for 1 year to be served cumulatively. The sentence for count 3 on that indictment relating to possession of the pornographic images on the computer hard drive was imprisonment for 1 year to be served cumulatively.
25 In relation to the possession of the videotape filmed in Indonesia, the learned Judge concluded that there was:
"No reason why the penalty for possession of the footage the subject of the first count should be concurrent. Although there was no suggestion you were going to distribute it, having regard to your possession - having it in your possession for your own use indicates a willingness to exploit the children for your own gratification with no thought as to their welfare. Unlike many of the offences which come before the court, the video wasn't of anonymous children. The images on the video were of children who had known you since birth.
In relation to the other two counts, again, there was no suggestion you were going to distribute the material further. The starting point in relation to the first offence was two years but because of your early pleas and taking into account totality of sentence when one considers the sentence [sic sentences] imposed for Commonwealth offences, on the first count you're sentenced to 1 year imprisonment to be served cumulatively with an order for eligibility for parole.
In relation to the second and third counts, each of those will be 1 year imprisonment to be served concurrently with each other and I also order that you be eligible for parole. I don't see any sufficient reasons to suspend the State sentences just as I don't see any reason to suspend the Commonwealth sentences."
All of the sentences were backdated to 27 November 2001.
26 The application for leave to appeal against sentence is made on the grounds that:
(a) The sentences imposed in respect of the two acts of indecency contrary to s 50BC(a) of the Crimes Act of imprisonment for 3 years on count 1 and 2 years on count 2 to be served cumulatively were "manifestly excessive having regard to all the circumstances".
(b) Ground 2 was that, in relation to the 13 counts of importing goods without approval contrary to s 233BAB(5) of the Customs Act, the imposition of sentences of imprisonment "was not an appropriate sentence having regard to all the circumstances".
"In relation to the totality principle of sentencing the total sentence, being 7 years' imprisonment, was manifestly excessive having regard to all of the circumstances."
27 Each of the grounds is based on a contention that the relevant sentence was so excessive as to manifest error. It is not contended that the learned Judge made an error of fact or principle or overlooked, undervalued or underestimated or misunderstood any salient feature of the evidence: cf Goodvinn v The Queen, unreported; CCA SCt of WA; Library No 950358; 2 June 1995 at 4 per Malcolm CJ. It was not contended that the approach of the learned sentencing Judge involved any breach of or departure from the principles of sentencing which were stated by the High Court in Wong v The Queen [2001] HCA 64; (2001) 76 ALJR 79 in relation to the Commonwealth offences. As to these offences, the learned Judge specifically indicated that he adopted the intuitive approach. While it was submitted that the same approach should have been adopted in relation to the State offences, a question necessarily arises whether, in the end, the relevant sentences were so manifestly excessive as to indicate an error in the exercise of discretion. An indication by the learned Judge of the discount applied on account of a plea of guilty does not appear to me to be inconsistent with the intuitive synthesis approach: cf R v Suarez-Mejia [2002] WASCA 187 per Murray J at [10] - [16] and per Parker J at [49] - [53] with both of whom Miller J agreed at [81]. In the end, of course, the question on any appeal against sentence is whether the sentence imposed falls within the range encompassed by a sound discretionary judgment. In any case, the Court cannot interfere with a sentence imposed unless the Court is persuaded that a different sentence should have been imposed: s 689(3) of the Criminal Code.
28 Each of the grounds upon which the applicant relies is based upon a contention that the sentences, whether looked at individually or collectively, were so excessive as to manifest error. As has been made plain by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15] by Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ:
"The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass [(1993) 72 A Crim R 561] and R v Clarke [[1996] 2 VR 520]. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic [House v The King [1936] HCA 40; (1936) 55 CLR 499]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice."
29 While there are other considerations which are relevant in the context of a Crown appeal as distinct from an application for leave to appeal against sentence, the same principles also apply in the present case. So far as count 1 on the first indictment was concerned, it is not possible to characterise the offence as a "single act" that involved "only touching" as counsel for the applicant submitted. The applicant masturbated the boy's penis. He also touched the boy's thigh, stomach, scrotum and buttocks, asked the boy to clench his buttocks and spread the boy's buttocks to show his anus. The learned trial Judge rightly considered that the offence "involved extensive touching and examination of his private parts".
30 The activity involved in the commission of the offence the subject of the first count took some 5 minutes. The applicant continued to indecently deal with the boy despite the boy repeatedly asking the applicant if he was finished. The fact that the offence did not involve penetration is not relevant to offences contrary to s 50BC(a) of the Crimes Act. Offences involving penetration constitute a separate offence under s 50BA of the Crimes Act which carries a maximum penalty of imprisonment for 17 years. In my opinion, appropriate consideration and weight was given by the learned Judge to the applicant's prior good character and remorse as well as his prospects of rehabilitation. There can be no quarrel with the assessment of the applicant as having a medium to low risk of re-offending.
31 As to the second count of indecent dealing involving the younger of the two boys, the learned Judge said:
"Your actions in relation to the younger child were not as intrustive as with his brother, but you were seen inter alia smacking him on the bare buttocks and hearing on the video the words that you were using to describe what you were doing ... The indecency with the younger child, as I said, was not as gross but it still involved touching in an indecent manner."
32 These two young boys were put in the hotel room with the applicant on the basis that he was a long term trusted family friend. It follows that at the relevant time the complainants were under his care and supervision. He abused that trust by sexually interfering with them in the manner described and compounded the seriousness of the offences by videotaping the proceedings to satisfy his salacious appetites later. The breach of trust was serious as the father of the boys was the applicant's best friend. The offences were clearly premeditated and the videotaping of them created a permanent record of what the applicant had done.
33 In my view, the sentences imposed were within the appropriate sentencing range: cf R v ARC, unreported; CCA (NSW); No 60256 of 1996; 28 August 1996; Goodvinn v The Queen, supra; and Walker v The Queen, unreported; CCA SCt of WA; Library No 960619; 31 October 1996. The offence the subject of count 2 on the indictment was not as gross as the offence the subject of count 1. Although it might be said that the sentence imposed in relation to the second count was towards the higher end of the appropriate sentencing range, I consider it was within discretion, particularly taking into account the fact that the offence was videotaped by the applicant, the gross breach of trust involved and the fact that the offence was committed in the presence of the boy's older brother after the commission of the offence the subject of count 1. In my opinion, the sentences imposed properly reflected the seriousness of the offences and it was open to the learned Judge to direct that the sentences on counts 1 and 2 should be served cumulatively as they involved different children. There was no question of the end result infringing the totality principle in respect of those two offences. Counsel for the applicant submitted that the sentences imposed on the applicant for the two sexual offences were excessive having regard to the sentences imposed by this Court in The Queen v Hough [2002] WASCA 42. Given that many of the offences involved in that case were committed by the offender while he was a juvenile and that the sentences imposed by this Court were in the context of a Crown appeal where the issue of double jeopardy and other considerations arise, I do not consider that the sentences imposed in that case provide any assistance in this case, whether in relation to the length of the individual sentences or the application of the totality principle.
34 So far as the offences under s 233BAB of the Customs Act are concerned, this provision was introduced by an amendment which came into force on 3 April 2000 by the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000. Section 233BAB created special offences relating to what were referred to as "Tier 1 and Tier 2 goods". When introducing the Bill, the Commonwealth Attorney General said:
"Shielding the community from injury and protecting children from exploitation are two essential responsibilities of a just society. While each member of society should uphold public safety and protect children from harm, governments and parliaments have a unique role in establishing laws which can ensure the protection of the community and deter crime and anti-social behaviour.
Last year the Minister for Justice and Customs, Senator Vanstone, launched a landmark report that explored several causes of crime in young lives and suggested some pathways to prevention. The government is continuing to support this important research, which emphasises the need to provide stable and safe environments to nurture the young people who will contribute so much to Australia's future.
Prevention of harm is crucial. Deterrents for those who would cause damage to our community are equally vital. This Bill will provide for increased penalties for a range of import and export offences under the Customs Act 1901 ... By any standard, these are serious penalties to address serious offences."
35 It is apparent that the maximum penalty for an offence contrary to s 233BAB(5) of the Customs Act reflects the seriousness of the offence. The offence is of a nature that, in the context of sentencing, general deterrence must be the paramount consideration given the prevalence and availability of child pornography, particularly on the Internet. As Kennedy J said in Jones [1999] WASCA 24; (1999) 108 A Crim R 50 at 51:
"In recent times the insidious impact of child pornography has come to be better understood. The problem is an international one, which has been significantly aggravated with the advent of the Internet."
36 It needs to be borne in mind that the importation of child pornography, whether in the form of literature or photographs, is not a victimless crime. The capacity of child pornography to deprave and corrupt individuals is an accepted result of such importation as is demonstrated in this case. The psychiatrist, Dr Tanney, expressed the opinion that the applicant's exposure to child pornography may have led him to misinterpret perfectly normal behaviour by the boys the subject of the counts under the Crimes Act. When addressing the Court during his plea in mitigation, counsel for the applicant conceded that the Crimes Act offences were the "sort of culmination, if you like, of the obsessiveness in relation to these matters [child pornography] that led to that happening". It was also conceded that the applicant's interest in child pornography had commenced approximately 2 years prior to the detection of these offences and that the applicant had developed an obsession with child pornography. Consequently, the subject importations could not be seen as isolated incidents. The publications depicted encounters between men and young boys of a very graphic and disturbing kind.
37 In my opinion, it is not to the point that some of the books which were imported may be purchased on an Australian book company's Internet site. Nor is it correct that the relevant books were "freely available" in Australia. While the books were available on a major publisher's Internet site listing 1.2 million titles, six of the 11 books the applicant was convicted of importing were listed on that site as available from databases in the United Kingdom and United States. I accept that one of the reasons for the application of deterrent sentences in this context is precisely because such items are available on the Internet.
38 In my view, it was also irrelevant that the applicant purchased five of the 11 books from Amazon.com. The applicant admitted in his record of interview that, when purchasing from this site, he chose literature involving young males and conceded that the website contained descriptions of the contents of the books. The remaining books which were imported by the applicant were purchased from the "young gay" section on the Internet site of a bookstore in The Netherlands. In all the circumstances, there is nothing to suggest that any of these matters entitled the applicant to any leniency. The imposition of a term of imprisonment for 1 year was an appropriate penalty to be served cumulatively on the sentences imposed in respect of the offences under the Crimes Act.
39 For these reasons there is no substance in ground 2.
40 It was contended in support of ground 3 that the total sentence of imprisonment for 7 years was manifestly excessive, having regard to all of the circumstances, and contrary to the totality principle. In my opinion, given the nature and the seriousness of the offences involved under the Crimes Act and taking into account the nature and seriousness of the
offences under the Customs Act and the Censorship Act, and taking into account all of the matters referred to in the relevant reports and other matters of mitigation, it is not possible to conclude that the totality of the sentences imposed was in any way excessive. Indeed, in my view, the sentences imposed, while toward the upper end of the range, constituted an appropriate punitive response having regard to the seriousness of the offences involved.
41 For these reasons I would refuse leave to appeal against the sentences imposed by the learned Judge.
42 MURRAY J: I agree with Malcolm CJ that, for the reasons given by his Honour, leave to appeal should be refused in this case.
43 STEYTLER J: I have had the advantage of reading the reasons for decision of Malcolm CJ. I agree with them and with the conclusion that leave to appeal should be refused in this case.
# Assheton
The Queen \[2002\] WASCA 209
(1999) 195 CLR 665
(1936) 55 CLR 499
(2001) 76 ALJR 79