Buddle v R [2011] TASCCA 11

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Accessing and possessing child pornography material - Whether sentences manifestly excessive.

Respondent: Director of Public Prosecutions (Cth)

Judgment Number: [2011 TASCCA 11

2 Sentence on count 1 of 18 months' imprisonment, and order permitting release on recognizance after serving 12 months of that sentence, quashed.

3 On count 1, appellant sentenced to nine months' imprisonment with effect from 4 March 2011, concurrently with the sentence of 12 months' imprisonment on count 2.

4 The appellant is to be released after serving six months of that sentence upon giving security without sureties by recognizance in the sum of $1,000 that he will be of good behaviour for two years after his release from prison.

5 The appellant is to be eligible for parole after serving six months of the sentence of 12 months' imprisonment imposed on 4 March 2011 on count 2.

1 I agree with the reasons for judgment of Blow J and with the proposed orders.

2 The appellant is appealing against sentencing orders that were made by Tennent J after he pleaded guilty to two charges relating to child pornography.

3 Count 1 was a charge of using a carriage service (the internet) to access child pornography material, contrary to the Criminal Code (Cth), s474.19, between 15 November 2005 and 25 November 2009. On that charge the appellant was sentenced to 18 months' imprisonment. The learned sentencing judge made a recognizance release order under the Crimes Act 1914 (Cth), s20(1)(b), permitting him to be released after serving 12 months of that sentence.

4 Count 2 on the indictment was a charge of possessing child exploitation material, contrary to the Criminal Code (Tas), s130C, on 25 November 2009. That was the date of a search of his home by officers of the Australian Federal Police ("AFP"). On that charge the appellant was sentenced to 12 months' imprisonment, concurrently with the sentence on count 1. No order was made permitting parole.

5 The appellant contends that his sentences were manifestly excessive. Also, he contends that the learned sentencing judge made an error in imposing a heavier sentence on count 1, the accessing charge, than on count 2, the possession charge, when the possession charge was the more serious charge.

6 In a case like this, when an offender views child pornography material on the internet, downloads it, and retains possession of it for the purposes of personal gratification, keeping possession of the downloaded material is generally regarded as more serious criminal conduct than accessing it: R v Oliver (2003) 1 Cr App R 28 at par[12]; Colbourn v R [2009] TASSC 108 at par[33]; R v Talbot [2009] TASSC 107 at par[9]. Counsel for the respondent rightly conceded that the possession charge was the more serious charge in this case. However the question this Court has to decide is whether, in relation to either or both of the appellant's sentences, a less severe sentence is warranted in law: Criminal Code, s402(4). Even though the sentence on the less serious charge is longer than the concurrent sentence on the more serious charge, neither of those sentences should be set aside unless it is manifestly excessive, there being no suggestion in this case of any identifiable specific error in the sentencing process.

7 The appellant used his personal computer at his home to access the internet to obtain child pornography material over a period of about four years, from 15 November 2005 to 23 November 2009. He transferred the material, along with other photographic images, onto an external hard drive. The images were saved in sub-folders identified according to their subject-matter.

8 The appellant's offending was detected as the result of a British website having been accessed from an email address that was attributed to him. On 25 November 2009 the appellant's home was searched, and computer equipment was seized. Some 420,000 images were found on his hard drive. Of those, 140,000 images, about one third of the total, were examined by an AFP officer as a sample. Of the images examined, 21,025 (about 15 per cent) were identified as child pornography material.

Child pornography material is commonly categorised according to five different levels of seriousness. This classification system was used by the English Court of Appeal in R v Oliver (above). The appellant had no material in the worst category, and more than 99 per cent of his material was in the least serious category. In ascending order of seriousness, the categories are as follows:

i Images or movies depicting erotic posing by children with no sexual activity.

ii Images or movies depicting sexual activity between children, or solo masturbation by a child.

iii Images or movies depicting non-penetrative sexual activity between adults and children.

iv Images or movies depicting penetrative sexual activity between adults and children.

9 The appellant had no pornographic movies, and no images of girls. Of the images examined, only six were in the fourth category, involving penetrative activity. From the facts stated by the prosecutor, it seems that two of those might have involved penetration of an adult by a child, that being arguably less serious than penetration of a child by an adult. Of the images examined, there were only 29 in the third category and 140 in the second category. It was not suggested that the sample of 140,000 images was other than a representative sample of the total of about 420,000. It follows that the appellant must have had something like 60,000 child pornography images, but that less than 1 per cent of them were outside the least serious category.

10 The learned sentencing judge, after viewing a sample of the images, concluded that the children appeared to range in age "from 9 or so to early teens". It seems clear that she sentenced on that basis.

11 The size of the appellant's child pornography collection is not unusual for this sort of case. Child pornography enthusiasts are able to download tens of thousands of images from the internet. An usual feature of this case is that very little of the pornographic material depicted sexual activity, as distinct from still erotic poses. As I have said, there were no movies, and less than 1 per cent of the images depicted any sort of sexual activity.

12 In Director of Public Prosecutions v Latham [2009] TASSC 101, Porter J, with whom Evans J agreed, quoted with approval some comments made by Alisdair Gillespie in Sentences for Offences Involving Child Pornography [2003] Crim LR 81 at 86, where the learned author said:

"A difficulty in this area is that the media will report how an offender has a vast quantity of material and this is undoubtedly an issue in terms of seriousness and the type of offending. However it is also very difficult to decide what is a substantial quantity of images any more. The internet has created a situation where a collection of tens or even hundreds of thousands of images is not unusual."

13 It appears from that article that Britain's Sentence Advisory Panel had advised the Court of Appeal that it was appropriate to treat the type of pornographic material as more important than the quantity. In my view that approach is appropriate.

14 A number of aggravating factors were absent in this case:

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The appellant had no contact with any abused child.

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The appellant's activities were not undertaken with a view to profit or any material benefit.

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The appellant did not pay for any of his child pornography material.

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The appellant did not possess any such material with a view to providing it to anyone else, or making it available to anyone else.

15 The mitigating factors that were put to the learned sentencing judge, and my comments in relation to them, are as follows:

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The appellant was 41 years old, single, and living alone.

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Because he lived alone, there was no risk of anyone accidentally discovering the child pornography material on his computer.

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He had no relevant prior convictions. However that is very common in cases of this nature.

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He was a medical practitioner, and had been engaged in general practice, but he voluntarily ceased practice at the time of the AFP search. He had been out of work for over 14 months by the time he was sentenced, and had consequently suffered a loss of income in the vicinity of $100,000 per annum. The future of his medical career was very much in doubt.

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Although the appellant had been exclusively attracted to pubescent boys ever since adolescence, he had never acted on that attraction because he realised that to do so would be unethical and illegal. He had never been involved in an intimate relationship. He had been careful not to be left alone with adolescent boys in the course of practising medicine. There had been no complaints about sexual misbehaviour in the course of his work.

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Except for his child pornography activities, he was a person of excellent character. A number of character references were tendered. Some were unsolicited. Each of their authors spoke very highly of him.

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The appellant co-operated with the police, and made some informal admissions.

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He pleaded guilty to both charges in the Magistrates Court. He did so at a very early stage, on his second appearance.

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He was so distressed on the day of the search that AFP officers took him to hospital.

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He obtained treatment in relation to his behaviour following the police search. This began on the day of the search when he saw a psychiatrist, Dr McArthur. He was still a patient of Dr McArthur at the time of his sentence. His general practitioner had referred him to a clinical neuropsychologist, Associate Professor Skilbeck, for an assessment. He had also received treatment from another psychologist, Dr O'Donnell, in late 2010.

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In the words of the learned sentencing judge, the appellant displayed "a number of indicia consistent with Asperger's Syndrome". He had an obsessive nature, demonstrated by a love of collecting and the organisation of his collections. The learned sentencing judge made no finding as to whether or not his behaviour was a product of Asperger's Syndrome, and did not accept that he had a diminished level of responsibility as a result of any mental condition. However her Honour accepted that his obsessive nature "very likely contributed" to the manner in which he stored and catalogued the images found by the police. His retention of over 300,000 non-pornographic images tends to confirm that conclusion.

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At least by the time of sentencing, the appellant had demonstrated significant shame and remorse. In a report dated 13 December 2010, Dr O'Donnell stated:

"Dr Buddle has expressed motivation and engagement in treatment and a strong sense of victim empathy. He has expressed deep remorse regarding his behaviour and any child exploitation he has contributed to by accessing ... internet pornography ...".

16 Because of the harm done to the children who are exploited for the gratification of child pornography enthusiasts, imprisonment is the only appropriate penalty for these crimes. Prison sentences should deter others from committing similar crimes. So far as count 1 is concerned, it is significant that the appellant accessed child pornography material for a period of about four years. However it is also particularly significant that his child pornography collection consisted almost entirely of still images that did not depict any sexual activity. There is no suggestion that the material he accessed was worse than the material he downloaded. It is also significant that, through the impact on his career, it was highly likely that he would ultimately pay a very high price for his offending, whatever prison sentence was imposed. Having regard to the nature and duration of his offending, and of the mitigating circumstances referred to above, I think it is clear that a head sentence of 18 months' imprisonment was manifestly excessive for the charge of using a carriage service to access child pornography material. In my view the head sentence on that charge should have been in the vicinity of nine months' imprisonment, and a recognizance release order should have been made so as to permit his release after he had served a substantial proportion of that sentence.

17 In relation to count 2, the possession charge, I consider that a concurrent head sentence of 12 months' imprisonment was quite appropriate, having regard to all the circumstances of the offending and of the offender. However it is very significant that no order permitting parole was made in relation to that sentence. It was open to the learned sentencing judge to make an order that the appellant was eligible for parole after serving half of that sentence, or some greater part of it: Sentencing Act 1997, s17. It is common, in a case involving a first offender, for an order to be made permitting parole after the shortest possible non-parole period. See, for example, Johnstone v Tasmania [2011] TASCCA 9. See also Prehn v R [2003] TASSC 55, in which this Court made a recognizance release order permitting an offender who had been sentenced to a total of six years' imprisonment to be released after having served three years thereof. A non-parole period is "a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such detention": Power v R [1974] HCA 26; (1974) 131 CLR 623 at 628. The non-parole period must bear a proportionate relationship to the crime, but the perceived prospects of rehabilitation, and the perceived danger to the community, should make a significant difference to it: Bugmy v R [1990] HCA 18; (1990) 169 CLR 525 at 532. Having regard to those principles and all the relevant circumstances relating to the appellant and his pornography collection, I consider that the sentence of 12 months' imprisonment, without provision for parole, was out of proportion to the seriousness of the charge, to such an extent as to be "unreasonable or plainly unjust": House v R [1936] HCA 40; (1936) 55 CLR 499 at 505. In my view the sentence on count 2 should stand, but an order should be made whereby the appellant will be eligible for parole once he has served six months of that sentence.

18 For the reasons stated, I would allow the appeal; set aside the sentence of 18 months' imprisonment and the recognizance release order relating to count 1; substitute a sentence of nine months' imprisonment with effect from 4 March 2010, concurrently with the sentence on count 2, and a recognizance release order permitting the appellant to be released after serving six months of that sentence upon giving security without sureties by recognizance in the sum of $1,000 that he will be of good behaviour for two years after his release from prison; and, without making any order disturbing the head sentence of 12 months' imprisonment on count 2, order that the appellant is to be eligible for parole after serving half of that sentence.

19 I agree with the reasons for judgment of Blow J and with the proposed orders.