Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Possession of child pornography - Whether sentence manifestly excessive - Whether the appellant's post traumatic stress disorder caused his offending behaviour

Classification (Publications, Films and Computer Games) Enforcement Act 1966 (WA), s 60(4)

Criminal Appeals Act 2004 (WA), s 27(1), s 27(2)

Chan v The Queen (1989) 38 A Crim R 337

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Furber v The Queen [2008] WASCA 233

Gok v The Queen [2010] WASCA 185

Hill v The State of Western Australia [2009] WASCA 4

Hutchins v The State of Western Australia [2006] WASCA 258

R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29

R v Liddington (1997) 18 WAR 394

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

The State of Western Australia v Cunningham [2008] WASCA 240

1 McLURE P: I agree with the reasons of Mazza J.

2 MAZZA J: This is an application for leave to appeal against sentence. The principles which apply to such an application are well known. Leave to appeal is required on each of the grounds of appeal: s 27(1) of the Criminal Appeals Act 2004 (WA). This court must not grant leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding: s 27(2) of the Criminal Appeals Act. To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].

3 The appellant entered fast-track pleas of guilty before Groves DCJ in the District Court of Western Australia to six counts of possession of child pornography contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (the Act). Each of those offences was alleged to have occurred on 22 November 2009. On 2 June 2010, his Honour imposed sentences of 2 years' immediate imprisonment on each count to be served concurrently. The sentences were backdated to commence on 1 June 2010. In addition, the appellant pleaded guilty to two offences of possession of an indecent or obscene article pursuant to the Act. He was fined in respect of these two offences. This appeal only concerns the offences of possession of child pornography for which he was immediately imprisoned.

4 The appellant's proposed grounds of appeal, omitting the particulars which accompany them, are as follows:

1. The sentence is manifestly excessive.
2. The sentencing judge erred in law in his assessment of the level of seriousness of the Appellant's offending behaviour of being 'so serious', which thereby precluded him from ordering suspension of the term of imprisonment.
3. The sentencing judge erred in law by emphasising general deterrence through his imposition of a sentence of immediate imprisonment, as the Appellant was not an appropriate vehicle for general deterrence due to in [sic] his untreated complex post traumatic stress disorder condition that he had over the period of his offending behaviour and which caused that behaviour.
4. The sentencing judge erred in law or fact by stating that the Appellant's mere possession of child pornography provides a ready

market for this material, resulting in children continuing to be exploited.

5 The facts of the appellant's offending are as follows. On 22 November 2009, the appellant's de facto partner went to the office area of their home to use the laptop computer. While doing so, she found pornographic images of children. She reported the matter to the police.

6 The appellant's de facto partner handed a number of items, amongst which was the appellant's laptop computer, an external hard drive and a universal serial bus (USB) flash drive, to police, who seized the items. These items were analysed by the police computer crime squad who discovered large quantities of pornography. A significant proportion of this material constituted child pornography, both as images and video clips. The amounts of child pornography, which the parties agreed, for the purposes of sentence on each count, were as follows:

7 In total, the appellant possessed 84,663 images and 24,477 videos.

8 His Honour viewed a sample of the material. There is no need to repeat in detail what he said about it because no challenge has been made to his descriptions. His Honour's unchallenged conclusion was that it depicted 'the worst category of child abuse imaginable'.

9 There was evidence, which his Honour accepted, that the appellant had accessed the material from the internet via websites, the names of which indicated clearly that their content was child pornography.

10 The appellant admitted that he had accumulated the material over a period of four or five years, although he had not paid for it. He admitted using material which depicted teenage girls as a masturbatory stimulant. He was aware that it was illegal to possess child pornography and because of this stopped accumulating the material for a period of time, but later resumed collecting it.

11 The appellant was, at the time of his sentencing, 41 years of age. He has a university degree and a good record of constant employment. He has no prior criminal history. His Honour received and acknowledged a number of character references which spoke well of him.

12 The appellant had, in his early life and then into his teenage years, a number of episodes of physical and emotional trauma. When he was 18 months old he was severely burnt in a household accident. As a result, throughout his childhood, he was in hospital for skin grafts and other treatment. When he was in year seven, his left eye was damaged as a result of a dog bite, which left him with some degree of disfigurement. He was bullied at school. His grandparents, who had played a major role in his upbringing, died during his mid teens.

13 Later, as an adult, during a chemistry course he was undertaking, he saw a compulsory occupational health and safety video presented by a person who was badly burnt as the result of an industrial accident. It was said that as a result of this, the trauma associated with his scalding as a child returned. In particular, he suffered frequent nightmares, to the point where he tried to avoid sleep. It was said that one of the ways he did this was to download masses of material from the internet at night. Some of this material was completely innocent in nature, but some of it was pornographic, including material that constituted child pornography.

14 It was said by his counsel, in his written and oral submissions before this court, that the appellant suffered from post-traumatic stress disorder and that the appellant's attempts to ward off his nightmares caused by this disorder, along with the 'obsessive' nature of his personality, led to his offending.

15 His Honour had before him reports from a psychologist Ms Daniela Barbuzza, dated 14 April 2010, Dr Adam Brett, a psychiatrist, dated 29 March 2010, and the psychologist whom the appellant had regularly consulted for psychological treatment after his arrest, Mr Peter Dunlop, dated 28 May 2010.

16 Ms Barbuzza reported that psychometric testing of the appellant suggested he was 'an emotionally troubled man'. In her opinion, the appellant minimised his offending behaviour and demonstrated very little insight into it. She noted that the appellant was focused on the importance of treatment to address his trauma resulting from the serious burns that were inflicted upon him as a child. In her opinion, this trauma had impacted on his psychological functioning. However, she reported that 'his offending behaviour appears to have been maintained by the reinforcing sexual component; not being caught; having his sexual needs met; and avoiding social and other anxiety provoking situations'.

17 In Dr Brett's opinion, '[t]here was no evidence that [the appellant] had a pervasive affective or psychotic disorder'. Dr Brett acknowledged that the appellant 'described some obsessive qualities'. Dr Brett's opinion was that the appellant 'suffers from paedophilic features' and 'has features of personality dysfunction including avoidance, obsessiveness and borderline features'. He noted that the appellant 'is extremely remorseful and embarrassed about these offences and is motivated to have a better understanding and stop his offending behaviour. From a clinical perspective his prognosis appears relatively good'.

18 Mr Dunlop provided a detailed personal history of the appellant. In his opinion his early traumas were 'reawaken[ed]' as a consequence of viewing the safety video. According to Mr Dunlop:

This led him to the revert to the strategy he had employed earlier in his life to cope with the terrifying nightmares that ensued namely by avoiding sleep through the obsessive pursuit of volumes of information which he could use to distract himself. As a consequence of doing this via the Internet he became exposed to the possibility of downloading among other things items of child pornography.

19 Mr Dunlop was alone amongst the experts in diagnosing the appellant as suffering from a complex post traumatic stress disorder. However, there is nothing in his report which links, in a causal way, this condition with the appellant's offending. At best, the appellant's desire to ward off nightmares led to his obsessive use of the internet to distract himself. It does not explain why he chose to download, retain and view child pornography.

20 It is clear that his Honour paid regard to all of the expert reports and to the references which had been provided to the court.

21 With respect to the reports, his Honour said (ts 11, 2 June 2010):

It is ... a common theme of the reports, as I've indicated, that the traumatic incidents of your younger life may be looked upon as, by way of background as having led you to this type of offending. Your character developed as a consequence of dealing with those issues. You tended to internalise most things and not be open about them, and you resorted ultimately to the Internet and to downloading the material the subject of these charges.

It's apparent also, and again a common theme, that you have obsessive qualities. You save most everything that - or it was your habit to save most everything that you looked at.

22 His Honour expressly took into account, as mitigating factors:

(c) concessions that he made as to the number of images and videos;

(e) the voluntary steps he had taken towards his rehabilitation.

23 His Honour regarded the offences as serious. His Honour had regard to the large volume of material possessed by the appellant. He noted the importance of general deterrence, which he described in these terms:

... the court imposing sentence must send a message to the community that this conduct, the possession of child pornography, will not be tolerated in the community, and that those who do possess the material will be dealt with appropriately by the courts.

General deterrence requires that appropriate sentences be imposed such that others who might be like minded to offend in this way, will know and be well aware that this type of offending, in all likelihood, leads to a sentence of imprisonment (ts 14 - 15, 2 June 2010).

The problem with child pornography in its various forms, of course, is an international one. And of course with the advent of the Internet and the very sophisticated transmission and downloading and storage techniques, it has become a problem which is extremely difficult to detect. As long as there are people like you who provide a ready market for this material, children in particular will continue to be exploited (ts 15).

25 His Honour came to the view that the only appropriate sentence for the offences was imprisonment. His Honour then went on to consider, in an entirely orthodox way, whether a term of suspended imprisonment was open. In doing so, he expressly had regard to all of the features of the case, including matters of mitigation. His Honour came to the conclusion that a suspended term of imprisonment was not warranted. He said:

The offending is so serious because of the volume of material, the nature of the abuse of the children depicted in the videos, and the serious nature of the images, the years over which you have collected and possessed this material, the offending is simply too serious in this case to suspend a term of imprisonment (ts 16).

26 He then considered questions of concurrence and totality and decided that each sentence should be served concurrently.

27 The underlining theme in the first three grounds of appeal is the contention that the appellant's offending was caused by his 'obsessive/hoarding behaviour' and by 'complex post traumatic stress disorder'.

28 It is difficult to understand how either of these conditions could have caused the appellant's interest in child pornography and then led him to download it and view it for his sexual gratification. Further, there is nothing to indicate that any of his psychological conditions diminished his ability to know that what he was doing was wrong. Indeed, for the most part over the period that he collected the material, he knew that what he was doing was illegal. There is no evidence that any of his psychological conditions deprived him of the ability to resist downloading and accumulating this material.

29 The appellant's submissions ignore the reports of Ms Barbuzza and Dr Brett. Ms Barbuzza, while accepting the possibility that the appellant's large collection of pornography was consistent with his reported obsessive hoarding tendencies, thought that the behaviour was reinforced and maintained by the appellant's sexual arousal and gratification. Dr Brett's opinion was that his offending displayed paedophilic features. None of these opinions were challenged.

30 His Honour regarded the appellant's psychological condition as part of the background to the appellant's offending. That was as high as it could be reasonably put. His Honour went on to find, correctly in my view, that the appellant had an entrenched disposition towards the possession of child pornography and used it for his sexual stimulation.

31 The appellant's counsel relied heavily on Mr Dunlop's report, but at its highest, all that Mr Dunlop concludes is that as a result of his obsessive use of the internet he became exposed to 'the possibility of downloading among other things items of child pornography'. It is clear from all the evidence that the appellant consciously acted to download the material, collect it and use it in the way that he did over a long period of time.

32 I reject the appellant's submission that his offending behaviour was caused, in any material sense, by the psychological factors he relied upon.

33 It is not alleged that his Honour erred by imposing terms of imprisonment for each of the offences on the indictment. Rather, it is submitted by the appellant that those sentences should have been suspended. The appellant submits that, in light of the mitigating features of the case found by his Honour, and the appellant's psychological condition, his Honour should have imposed suspended sentences.

34 A complaint of manifest excess is a complaint of implied error on the part of the sentencer. A sentence may be excessive because the wrong type of sentence has been imposed: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 325. To determine whether a sentence is manifestly excessive, it is necessary to examine it from the perspective of the maximum sentence prescribed by law for the offence, the standards of sentence customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.

35 Possession of child pornography carries a maximum penalty of 5 years' imprisonment.

36 The criminal conduct of the appellant was undoubtedly very serious. The appellant deliberately, over a long period of time, downloaded, accumulated and viewed child pornography, examples of which caused his Honour to conclude that they were in the worst category of child abuse imaginable. The material was used for the appellant's sexual gratification. The appellant possessed not only images of child pornography, but videos, both in very large numbers. The significance of the quantity lies in the number of different children who are depicted and thereby victimised: R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 [99]. He kept his collection not just on his computer, but on an external hard drive and on a USB device.

37 In The State of Western Australia v Cunningham [2008] WASCA 240, Miller JA, with whom Steytler P and Buss JA agreed, undertook, at [26], an analysis of sentencing appeals decided in this State in cases involving possession of child pornography between 1997 and 2007. At [27] his Honour observed:

Although the facts of each case differ, and in some cases there are many more images of child pornography than in others, as a general rule it can be said that the range of sentences imposed over the last 10 years for the offence of possession of child pornography is between 8 months and 2 years' immediate imprisonment ... 'post-transitional' ...

38 Of the cases examined by Miller JA, only in R v Liddington (1997) 18 WAR 394, a case involving 266 images of child pornography, was a sentence of suspended imprisonment imposed. This is not to say that a sentence of immediate imprisonment will invariably be imposed for the offence of possession of child pornography. However, what is clear from his Honour's examination of the cases is that the sentences imposed upon the appellant were within the range of sentences customarily imposed for possession of child pornography.

39 It has been said time and again in cases involving the possession of child pornography that the paramount public interest is in protecting children from sexual exploitation and abuse and, accordingly, significant weight must be given to general deterrence: Hutchins v The State of Western Australia [2006] WASCA 258 [23].

40 The appellant, like many convicted of the offence of possession of child pornography, had good antecedents. His Honour took these into account. However, because of the importance attached to general deterrence, matters personal to the appellant must be accorded less weight: Hill v The State of Western Australia [2009] WASCA 4 [28]; Furber v The Queen [2008] WASCA 233 [45].

41 In light of the seriousness of the offending and the need to provide general deterrence, the imposition of immediate terms of imprisonment was not manifestly excessive. Ground 1 has not been made out.

42 I have already set out the serious features of the appellant's offending. His Honour's assessment of that behaviour was correct. This ground has not been made out.

43 The factual premise upon which ground 3 is based, namely that the appellant's complex post traumatic stress disorder caused his offending behaviour, has not been demonstrated. For this reason alone, this ground must fail.

44 However, assuming the appellant has complex post traumatic stress disorder, it does not follow that he was an inappropriate vehicle for general deterrence. In Gok v The Queen [2010] WASCA 185 [59] I said:

It is not the law that once it is demonstrated that an offender has a mental impairment that general deterrence is irrelevant. General deterrence still operates when a court is sentencing an offender with a mental impairment but its effect is ... 'sensibly moderated'.

45 The degree to which general deterrence is moderated very much depends on the facts of the case. In some cases general deterrence plays virtually no part, while in other cases its effect is unabated because the offender knows what he or she is doing and appreciates the gravity of their actions.

46 The appellant was plainly aware of what he was doing and knew that what he was doing was illegal. The appellant in these circumstances would not be an inappropriate vehicle for general deterrence.

48 Counsel for the appellant asserted that his Honour erred by stating that the appellant's possession of child pornography provided a ready market for this material, resulting in children continuing to be exploited. In support of this ground it was asserted:

(a) there was no evidence of any market that was before the sentencing court;

(b) in any event there was or is no market for the child pornography that the Appellant obtained, as the material had no price having been freely downloaded from the internet;

(c) there was no evidence of the motivation behind those who produce child pornography, such as doing so for the benefit of those who merely wish to possess it;

(d) there was also no evidence that the Appellant's possession of the child pornography will result in children being or to continuing to be exploited when little can now be done to control the supply of child pornography ... [because] child pornography will be produced regardless of who may subsequently come into possession of it.

50 While there was no actual evidence of the market in child pornography and the motivations behind those who produce it, it cannot be seriously doubted that there is a market for child pornography and that those who produce it are motivated by a desire to provide it to those, like the appellant, who choose to possess it. The existence of the market for child pornography is so well-known, and the purposes of its production and the effect upon the children who are involved in it are so obvious that no evidence of these things is required.

51 The appellant's submissions proceeded on the erroneous basis that the use of the word 'market' only refers to a market where the material is paid for. The word 'market' was referred to by his Honour, as it has been in other cases, to mean the operation of supply and demand: see Hill [28]. Whether or not payment is made for child pornography, its demand by those who wish to possess it gives rise to its production, and in turn to the exploitation of children.

52 The appellant's counsel argued that his submissions were supported by what Miller JA said in Cunningham at [32]. His written submission on the point was as follows:

Given ... that the Court of Appeal has effectively acknowledged that no one individual can now have an effect on the supply of this offensive material, the Court's past statements on discouraging a market for this material and preventing further exploitation of children justifying condign punishment to be imposed on those who merely possess it [sic] is no longer apposite.

54 The appellant's counsel quoted in his written submissions only part of what Miller JA said in Cunningham at [32] and did not seek to place the paragraph in its full context. His Honour said:

1. Generally speaking, this court has made it clear that the offence of possession of child pornography contrary to s 60(4) of the Classification Act (previously the Censorship Act 1996) is a serious offence: see Hutchins v The State of Western Australia [2006] WASCA 258 at [18] (McLure JA).
2. The reason why the offence is to be regarded seriously is summarised by Kennedy J in Jones at [9]:

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. In my opinion, a sentence of immediate imprisonment was called for.

1. Similar observations were made by Ipp J in Liddington:

The mere fact that persons are prepared to possess child pornography, albeit for their private purposes, necessarily creates a market for the corruption and exploitation of children. Children are abused, violated and degraded in order to create a market of this kind. It may also be said that people with pederastic inclinations could be stimulated to commit pederastic acts on viewing these images: see Russell (1986) 8 Cr App Rep 367 and Travell (1997) 1 Cr App Rep 52.

1. The observations of Kennedy J are even more pertinent today than they were in 1999. It is a fact of which judicial notice can be taken that use of the Internet has dramatically increased, in at least the western world, during the last decade. Child pornography is likely to be more readily available to those who wish to have recourse to it than it was in the past. Little can be done to control the supply of child pornography on the Internet, but what can be achieved is the prosecution of those who choose to take possession of child pornography. Section 60(4) of the Classification Act is clearly directed at preventing that evil.

55 It is clear, when [32] is quoted in its entirety and its proper context, that nothing his Honour said could reasonably be seen as contrary to the repeated statements made by this court to the effect that persons who are prepared to possess child pornography create a market for its production and encourage the corruption and exploitation of children.

57 None of the grounds of appeal have a reasonable prospect of success. I would not grant leave in respect of any of them. Consequently, the appeal must be dismissed.

1. Leave to appeal is refused on all grounds.
2. The appeal is dismissed.