Badcock v White [2004] TASSC 59

Sentencing Act 1997 (Tas), s7, 9, 10, 58.

Attorney-General v Smith [2002] TASSC 10; Jones [1999] WASCA 24; (1999) 108 A Crim R 50, considered.

1 In a court of petty sessions at Launceston on 2 March 2004, the applicant was convicted and fined $2,500 following his pleas of guilty to two offences:

1 On 5 May 2003 he possessed a child abuse product, in that he possessed a computer on the hard drive of which were 55 still pictures and five video clips depicting children as young as 11 years engaged in sexual acts with adults and other children and in sexually explicit poses, contrary to the Classification (Publications, Films and Computer Games) Enforcement Act 1995 ("the Act"), s74(a), (incorrectly named in the complaint as the Classification (Publications, Films and Video Games) Act 1995; and

2 At the same time he possessed a bestiality product, in that he possessed a computer on the hard drive of which were three video clips depicting adult women engaged in sexual intercourse with dogs, contrary to the Act, s74(b).

2 His motion to review the sentence is based firstly on the ground that the learned magistrate imposed a penalty that was manifestly excessive and secondly on the ground that the learned magistrate erred in recording a conviction. His counsel explained that his main concern is the removal of the conviction. If it is removed the fine will also be removed, because the Sentencing Act 1997, s7, does not authorise the imposition of a fine without the recording of a conviction. The maximum penalty prescribed for each offence was a fine not exceeding $5,000 or imprisonment for a term not exceeding 12 months, or both.

3 The facts stated by the prosecutor were the following. Just after midnight on 19 April 2003, a police officer detected that a computer, which it turned out was being operated by the applicant, was connected to an Internet relay chat room or channel dedicated to pornographic activity and the like. At about 5.10pm on 20 April, and at 10.38pm and 11.39pm on 23 April, he was again detected in similar chat rooms. Many of the channel names he had accessed indicated that they concerned the discussion and trade of pornography such as images, movies and text stories and including incest, bestiality, child pornography and illegal pornography. (I am not sure what the reference to "illegal pornography" meant.) The subscribers to the telephone line used by the computer were his parents. As a consequence, on 5 May 2003, police executed a search warrant at his parents' home, which was also his home. The computer and various disks were seized. Found stored on the hard drive were the child pornography pictures and movies and bestiality movies that are the subject of the charges, among legal adult pornography. The applicant had moved the files into several sub-directories and had caused them to be hidden so that other family members would not be aware of their presence if they used the computer. On 6 May he presented himself to the police. He made a fairly brief written statement in which he admitted that he was the Internet user and that he had been the primary user of the computer at his parents' home for some four years. He admitted having downloaded a quantity of pornographic pictures and video clips and saved them at various locations on the hard drive. Children of both sexes were involved and the minimum age of them was roundabout 11 years. He had also used the computer for other purposes, that were legitimate.

4 He was 20 years of age at the time with no record for offences. In a plea in mitigation, his counsel explained, with verification from a medical report, that he had suffered from severe acne and took two six-month blocks of Roaccutane to clear his skin. He had formerly been sociable and affable, but during that time he became mildly depressed, going out less and spending more time at home. He was often alone and spent a considerable amount of time on the Internet. He visited a chat room called Sex Chat and that led to him visiting other sites. Counsel said that the 55 pictures and eight video clips formed a small portion of material he had kept. He did not pay for them and there was no suggestion that he sent or showed them to anybody. Counsel submitted that a distinction could be drawn between a young offender who downloads a "quantity of material that is not particularly significant" and "mature men who store huge amounts of this material". (I mention Knight v McDonald [2002] TASSC 81 by way of contrast. The offender in that case had sorted the offending graphics under headings such as "ultrateens" and "nubile - little".) Counsel said that there was no "explicit violence" in the material retained by the applicant.

5 He still lived with his parents. He had three siblings. None of them had any prior dealings with the police or courts. All members of the family had employment. He was a leader and exceptional student at secondary school, a house vice-captain and then prefect and member of the student representative council. He earned a number of academic prizes and his TCE results placed him in the top 10 percentiles. He had performed exceptionally well in five sports. He earned an income from employment while in Grades 11 and 12 and had continued to do so while attending university, where he obtained a degree of Bachelor of Human Movement at the end of 2003. He had specialised in sports science. Because of the quality of his results, he was offered participation in an honour's course for 2004.

6 A report from his medical general practitioner, who had known him and his family since 1992, attested to him being a keen and conscientious student, well behaved, honest, reliable, dependable and punctual. She said that during the two six-month blocks of treatment for severe acne he had become mildly depressed, going out less and spending more time at home. Since being charged with the offences he had become very depressed and withdrawn, spending long periods of time in his bedroom. The doctor believed that he was "truly remorseful for his actions, and will not reoffend".

7 Counsel submitted that immaturity and social isolation had played a role in the applicant's offending, along with inexperience and a sheltered background. Shame and remorse had swiftly followed police intervention. Counsel said:

"He's obviously not visited any site or seen any materials of this sort or even remotely similar to this sort or even pornographic legal materials at all since police raided his home. His, on my instructions from a number of members of his family, he has suffered what or has undergone what they would call an almost personality change. He has for a period of perhaps three to four months he is reported to have absolutely entirely retreated into himself and he completely socially isolated himself from the members of his family. He did not play sport. He rarely went to university. He lost weight. He did not sleep and his family became extremely concerned about his situation. He did, however, openly discuss what he had done with his family and admitted to them what he had done. They whilst strongly disagreeing with his conduct continued to support him and indeed most of his immediate family is present in Court to day. He saw a counsellor on a number of occasions and clearly in my submission felt extremely remorseful about what he had done. Importantly your Worship he had significant serious suicidal ideations over a period of a number of months following his detection. That I think underlines the sense of remorse and embarrassment and shame that he felt. He is in my submission and would be viewed at law as being a young offender, 20 years at the time of the commission of these offences. The offending occurred over and within a discrete period of his life, and whilst I accept that that was brought to an end by a police search, I think his reaction since and his actions since would indicate that it can properly be viewed as a discrete period. He comes before the Court with no prior convictions whatsoever and from a family with no involvement with police or the Courts. His prospects for rehabilitation in my submission must be viewed as excellent. In my submission it can be properly said that this offending can be viewed for this young man as being entirely out of character."

8 At the instigation of his parents, he saw a professional counsellor three times. A report from the counsellor was tendered. The applicant had expressed disappointment at himself and upset about possible ramifications for his family. His parents were very supportive of him and very concerned about the emotional impact on him of his situation. Prior to the charges he was running, playing cricket and cycling to keep fit and was freely associating with school friends and fellow students undertaking similar courses at university, the counsellor said. Following the charges he appeared to have lost considerable motivation in physical sporting activities. He had not been able to confide in his friends out of embarrassment and peer judgment. He was confused about his academic future and had considered deferring his course of study. It is not clear from what was said to the learned magistrate, but it appears that the applicant may have deferred his honour's year.

9 Counsel for the applicant closed his plea in mitigation with a submission that a conviction should not be recorded. It was argued that at the very least a conviction would have a serious adverse affect on his life. The submission concluded:

"His young adult life to date has been directed towards employability in coaching in relation to sport, to work in rehabilitation hospitals and facilities for injured people, to work in medical facilities, to assist in that sort of area. A conviction would essentially your Worship make him unemployable in that area, and I can make that submission your Worship not on the basis of some speculation about what he might do, but clearly in relation to the qualification that he has already obtained, so it's real and present now for him. In my submission bearing in mind his antecedents, and including the nature of the offence, that your Worship could consider sentencing options pursuant to s7(d) and 7(f) of the Sentencing Act, that is without proceeding to conviction, make a probation order, or under s7(f) require him to enter into a suitably worded undertaking."

10 The comments on passing sentence of the learned magistrate were the following:

"I take into account what has been said on your behalf. You have pleaded guilty to two offences under the relevant legislation involving your possession of products of child abuse in which there were 55 pictures and 5 video clips I gather depicting children as young as 11 engaged in actual sex acts with adults and with other children. You've also pleaded guilty to possessing products of bestiality involving mature women engaged in sexual intercourse with dogs. I regard the first of the offences, that is, the children as young as 11 as the more serious matter. The thing about it is this, these are not just pictures you know, they involve real people, real children. Real children who one would think have not had the advantages that you've had in your own childhood. You had the advantage of a caring and protective set of parents who were interested in you, your development, your growth and your linking into society in a decent and worthwhile way so that you could fulfil your life and get on with it. One has to wonder about these children who were as young as 11 you know, who for whatever reason but no doubt because of appalling family situations, end up engaging in sexual activity, actual sexual activity with adults and with other children as well. Just imagine what their life must be like, how appalling it must be, how dreadful it must be. The sort of scares and frights that they must have to experience from time to time. You've had all the advantages and I don't imagine they've had any.

You looked at these images out of no more than a prurient interest and then hid them so that your activities would not be discovered by your parents. Now a healthy (sic) in sex is one thing, everybody of course no doubt has it and should have it, a healthy interest. Even an interest in pornography involving more mature people, that's not condemned by society. But what is condemned by society and by this legislation in particular is where you are looking, no doubt out of a prurient interest and for your own gratification and pleasure, at images of children as young as 11 when one wouldn't imagine that they would get any delight or pleasure or stimulation or thrill from what is being done to them. It's a torment one would imagine, their life, certainly not a pleasure.

Gaol is certainly available as an option and in many cases it will be an absolutely appropriate penalty to impose given the competing interests that are involved in a case such as this, that is, in endeavouring where possible to impose a penalty that will turn people away from viewing these sorts of images and hopefully thereby to offer some protection in some measure to these young children. There's a tension between that and your own claims for individualised treatment. Certainly those claims do not extend to this Court being able to say that a conviction should not be imposed. It should for reasons that I hope I have made clear.

I do not believe it would be, however, appropriate to impose a custodial sentence upon you, but there should be a penalty that is sufficiently significant to demonstrate not only to you but to those who may be minded to look at these sorts of products, that consequences and significant consequences will follow.

You are convicted upon the complaint and upon the complaint as a whole you are fined $2,500. You will pay the costs of $39.00.

I did on a previous occasion issue a warning, it was some months ago, to a person in a similar situation as you, who had accessed products of child abuse and bestiality as well I think, that the next time around gaol would be appropriate. I reissue that warning and I think it will have to be the case that from now on the Courts will increasingly lean towards imprisonment as the appropriate response in cases such as these."

11 Under the Sentencing Act, s7, certain orders punishing an offender may only be made if a conviction is recorded. They include fines, sentences of imprisonment and community service orders. Paragraphs (d), (f) and (h) authorise sentencing courses without requiring the recording of a conviction. They are:

(f) an order adjourning the proceedings for a period not exceeding 60 months and, on the offender giving an undertaking with conditions attached, an order releasing the offender;

(h) an order dismissing the charge for the offence.

12 By s10(1), a finding of guilt without the recording of a conviction is not to be taken to be a conviction for any purpose, except as may be statutorily provided otherwise. Nevertheless, as I pointed out in Attorney-General v Smith [2002] TASSC 10 at par22, there is no reason why a court that later deals with the offender for a subsequent offence, may not consider him or her to have been found guilty of the earlier offence. In other words, a failure to record a conviction does not amount to a failure to find the offender guilty.

13 As with almost all sentencing options, a court has a discretion whether or not to record a conviction. By the Sentencing Act, s9, it is provided that "in exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including - (a) the nature and circumstances of the offence; and (b) the offender's antecedents and character; and (c) the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects." Obviously, all three of those paragraphs were particularly relevant in the circumstances of this case and I will deal with them in due course.

14 The section to which I have just referred, s9, deals with the exercise of the discretion whether or not to record a conviction. Section 58 deals with the exercise of the sentencing discretion whether or not to make orders pursuant to s7(f) and (h), to which I referred earlier, and (g) (an order discharging the offender in conjunction with recording a conviction). It is in these terms:

"58 - An order under section 7(f), (g) and (h) may be made for such one or more of the following purposes, as is relevant in the circumstances, as the court thinks fit:

(a) to provide for the rehabilitation of an offender by allowing the offender's sentence to be served in the community unsupervised;

(b) to take account of the trivial, technical or minor nature of the offence committed by an offender;

(c) to allow for circumstances in which it may be inappropriate to record a conviction against an offender;

(d) to allow for circumstances in which it may be inappropriate to inflict any punishment other than a nominal punishment on an offender;

(e) to allow for the existence of other extenuating or exceptional circumstances that may justify the court showing mercy to an offender."

15 If a court determines that it is inappropriate to record a conviction, par(c) specifically authorises the making of an order under s7(f) or (h).

16 When considering whether to record a conviction, a court must weigh up the public interest, and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. Regard must be had to all the circumstances of the case, including those specified in s9, and to the purposes specified in s58. If the nature and circumstances of the offence are relatively serious, the court may feel compelled to record a conviction. Attorney-General v Smith (supra) at par26.

17 Ordinarily the nature and circumstances of the offence will loom large as relevant matters. In that regard it is to the actual conduct constituting the offence and the actual circumstances in which it was committed that the court must have regard, rather than to the offence in the abstract. Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 577 and 595. The fact that imprisonment is a sentencing option or that the offence could be committed in grossly serious circumstances in some cases, is not determinative. By way of illustration, I note that in the criminal courts of this State since the commencement of 2003, five offenders have been dealt with under s7(f) without the recording of convictions for crimes for which imprisonment for 21 years was prescribed. Their respective crimes were four aggravated burglaries and seven stealings; aggravated sexual assault; forgery, uttering and stealing; burglary and stealing; and indecency. In Queensland, in R v Brown, ex parte Attorney-General [1994] 2 Qd R 182 the Court of Appeal refused to intervene in a case of dangerous driving causing two deaths, where a conviction had not been recorded pursuant to the application of a statutory discretion requiring consideration of circumstances similar to those in s9.

18 Assistance concerning the evil to which the creation of the child pornography offence charged in this case is directed, can be found in Jones [1999] WASCA 24; (1999) 108 A Crim R 50, although I note that the nature and circumstances of the offence in that case do not bear comparison, for the 43 year old offender had in excess of 162,000 offending images, of which over 82,000 were separate, if allowance was made for duplicates, that were alphabetically organised into a series of directories. At 52, Kennedy J said:

"The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims."

19 The purpose of the legislation is to protect children from exploitation and corruption. "If the courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place." R v Stroempl (1995) 105 CCC (3d) 187 at 191.

20 It is also thought that paedophiles use child pornography in ways that put children at risk. In Ontario (Attorney-General) v Langer (1995) 97 CCC (3d) 290 at 304, McCombs J said:

"The evil of child pornography lies not only in the fact that actual children are often used in its production, but also in the use to which it is put. Although behavioural scientists disagree about the reliability of scientific studies, there is general agreement among clinicians that some paedophiles use child pornography in ways that put children at risk. It is used to 'reinforce cognitive distortions' (by rationalizing paedophilia as a normal sexual preference); to fuel their sexual fantasies (for example, through masturbation); and to 'groom' children, by showing it to them in order to promote discussion of sexual matters and thereby persuade them that such activity is normal."

21 The Court of Appeal in R v Fellows [1997] 2 All ER 548 at 599, considered "that heavy deterrent sentences must be imposed when serious offences, which are not always easy to discover, come to light".

22 The applicant's offences cannot be classified as serious examples of them. The number of offending items was not great. It is not suggested that he had showed or intended to show the images to anyone else. He had not paid for what he had downloaded from the Internet. I do not understand it to be challenged that his offending commenced when he moved away from viewing legal pornography. He was a young man like many other men, if not most of them, and particularly those who may be described as young, who was attracted to viewing pornographic pictures in private. In the course of responding to that attraction he committed the offences, and it is not claimed that he did so because he is a paedophile. The disparity between his age and the age of the children in the images is much less than in the case of a much older offender.

23 He has displayed deep remorse for his offences. Everything about his antecedents compels a conclusion that he is of good character and unlikely to significantly offend again. He has shown through study and application and by qualities to which his medical practitioner attested, that he is likely to lead a life rewarded by success through striving and good character and one that should contribute to the well-being of society in general. His youth and antecedents should be regarded as substantial mitigating factors.

24 The impact of the convictions on his economic and social well-being and employment prospects could well be considerable. Being charged with the offences caused him to withdraw socially and he will need determination and resolve to reinstate himself in that regard. His antecedents show that he is capable of achieving that. As was submitted by his counsel, the convictions could well make him unemployable in the field towards which his three or four years of tertiary studies have been directed.

25 The conclusion I have come to is that the circumstances of this case cried out for compassion for a young first offender and for leniency. He should have been given a chance to redeem himself without punishment, and with the utmost respect for the views of the learned magistrate, the recording of convictions amounted to errors in the sentencing process. His Worship spoke with understandable passion and feeling when he condemned those who exploit and corrupt children, but he placed too much emphasis on condemnation of the exploiters and corruptors and paid insufficient regard to the particular offender who was before him, the nature of what he had done and the circumstances surrounding his offences.

26 For these reasons the recording of the convictions will be set aside and the fines will be quashed. Having regard to the purposes for which such an order may be made, which are prescribed by the Sentencing Act, s58(c), (d) and (e), there will be an order, under s7(f), adjourning the proceedings for 30 months and on the applicant giving an undertaking that (a) he will appear before the Court during the period of the adjournment if called on to do so, and (b) he will be of good behaviour during the period of the adjournment and in particular will not commit either of the offences again, it will be ordered that he be released.