Criminal Law - Appeal and new trial - Sentence - Relevant factors - Nature and circumstances of offence - Circumstances of offence - Accessing and possessing child pornography material - Whether relevant that no payment made for material.

Hutchins v Western Australia [2006] WASCA 258, followed.

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

DPP v Latham [2009] TASSC 101, referred to.

Respondent: Director of Public Prosecutions (Commonwealth)

Judgment Number: [2009] TASSC 108

2 Sentence of four years' imprisonment, partly cumulative sentence of two years' imprisonment, and order that the appellant be eligible for parole after serving three years' imprisonment, all quashed.

3 On count 1, the appellant sentenced to imprisonment for 12 months with effect from 15 August 2008.

4 On count 2, the appellant sentenced to a concurrent term of imprisonment for 21 months, with the unserved balance of that sentence suspended on condition that he be of good behaviour for three years.

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

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

3 Count 1 on the indictment was a charge of using a carriage service to access child pornography material, contrary to the Criminal Code (Cth), s474.19, between 31 March 2005 and 2 March 2007. On that charge the appellant was sentenced to two years' imprisonment.

4 Count 2 on the indictment was a charge of possessing child exploitation material, contrary to the Criminal Code (Tas), s130C, on 2 March 2007. On that charge the appellant was sentenced to four years' imprisonment. The learned sentencing judge proceeded to order that 18 months of the two-year Commonwealth sentence was to be cumulative with the four-year State sentence, but that the sentences were otherwise to be concurrent. She also ordered that the appellant was to be eligible for parole when he had served "three years of the effective custodial sentence of 5½ years".

5 The appellant contends that his sentences were manifestly excessive, and that the learned sentencing judge made a number of specific errors in the sentencing process. His grounds of appeal, as amended, read as follows:

"1 That the Learned Judge erred by imposing a sentence which was manifestly excessive having regard to all the circumstances of the case.

2 That the Learned Judge erred in that she found that the fact that the appellant did not pay for any of the material was irrelevant when it was relevant.

3 That there was a miscarriage of justice in the imposition of the sentence in that the appellant was sentenced on the basis that he was in possession of 142,000 pornographic images on compact discs when in fact he was in possession of 98,709 pornographic images on compact discs of which 17,768 images were duplicates and 1,841 images were cartoon images.

4 That the Learned Judge erred in failing to order that the two periods of imprisonment be served wholly concurrently with each other.

5 The learned sentencing judge erred in imposing one non-parole period with respect to the sentences of imprisonment imposed."

6 The appellant's offending was detected as a result of investigations by the United States Federal Bureau of Investigation ("FBI") and by the Australian Federal Police ("AFP"). The FBI investigation related to an internet website which allowed people anonymously to post computer files containing child pornography material, and messages about such material. On 2 March 2007 the appellant's home was searched, and computer equipment was seized. It was found that 3,122 child pornography images were stored on the computer hard drive. Child exploitation material was found on 75 compact discs out of a total of 83 discs that were seized. On those 75 discs, there were 98,709 child pornography files, of which 17,768 were duplicates. Excluding duplicates, there were 80,941 child pornography files, most of which were still images, but some of which were videos.

7 The prosecutor told the learned sentencing judge that count 1 related only to the downloading of the 3,122 images found on the hard drive, and that count 2 related only to an estimated 142,000 images said to have been found on the CDs.

8 On the appellant's hard drive, AFP officers found a series of spreadsheets that constituted a catalogue of many of the appellant's child pornography files. That catalogue was created by him over a period from 2 April 2004 to 1 March 2007, the morning before the search of his home. It occupies 353 A4 pages in our appeal books. It contains details of thousands of items, including what they depict and, in some cases, a rating indicating the appellant's opinion of their quality as child pornography. For example, he gave a rating of "A+++" to a video with the description, "4yo sucks cock in bathroom. Great shots in mirror & man cums at end."

9 AFP officers examined the images on 14 of the seized CDs. They saw thousands of scenes depicting children of all ages, including babies, toddlers and pre-teens. There were scenes depicting each of the following:

•

Naked children.

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Adult males engaging in or attempting to engage in oral, vaginal and anal sex with naked infants and pre-pubescent girls.

•

Naked boys and girls, bound by their arms and legs, being sexually abused by adult males.

•

Sexual activity between boys and girls.

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Sexual activity between women and boys.

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Sexual activity between women and girls.

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Sexual activity between girls.

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Girls having items pushed into their vaginas.

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Children urinating and defecating.

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An animal being encouraged to lick a girl's vagina.

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Other acts of bestiality involving children.

10 The appellant participated in a police interview, in which he admitted that he had regularly downloaded child pornography from the internet since 1998 or 1999, except for a break in 2005 and/or 2006 when a particular internet site became unavailable. The Criminal Code (Cth) did not prohibit the accessing of child pornography until s474.19 came into effect on 1 March 2005. Count 1 originally alleged that the appellant commenced contravening that section on 21 August 2004, but the indictment was amended by changing that date to 31 March 2005. I do not know why the amended date was 31 March, rather than 1 March, but the choice of 31 March would appear to make no significant difference for sentencing purposes.

11 When she sentenced the appellant, the learned sentencing judge said this:

"There is no suggestion that you have profited financially from the material you downloaded. You told police that you did not pay for any of the material. In my view that is irrelevant. Whether it is paid for or not does not change the underlying premise that, were it not for people ready to access this type of material, there would be little, or no, demand for its creation."

12 The appellant contends that the learned sentencing judge erred in saying that it was "irrelevant" that he did not pay for any of the material. He contends that that fact was relevant, on the basis that his offending would have been worse if he had paid for any of the material.

13 In Hutchins v Western Australia [2006] WASCA 258, McLure JA, with whom Steytler P and Wheeler JA agreed, said at par26:

"I accept that payment for pornographic images can aggravate the offence. It may do so by reflecting on the strength of the offender's motivation for obtaining possession of child pornography. ... Further, payment is one way of contributing to an economic market for child pornography. However, I am not persuaded that payment for accessing a site is the only means of contributing to an economic market for such images. In any event, whether or not payment is made does not alter the fact that the generation and existence of demand stimulates the supply side of the incalculable harm to the children involved. The absence of payment does not mitigate the offending, but its presence may aggravate it."

I agree with that approach in relation to payment and non-payment for child pornography, and with the reasons stated by McLure JA for taking such an approach.

14 At the hearing of the appeal, both counsel seemed to accept that paying for child pornography material is an aggravating factor, but that not paying for it is not a mitigating factor. This ground of appeal really raises a question of what the learned sentencing judge meant when she said that not paying for the material was "irrelevant". In one sense, that factor was relevant because an aggravating factor was absent. In another sense, not paying for the material was irrelevant, in the sense that it was not a factor weighing in favour of a lighter sentence. The learned sentencing judge did not make the mistake of treating the absence of payment as a mitigating factor. There is nothing in what she said to indicate that she would not have treated the making of payment as an aggravating factor, and any such mistake would have been irrelevant since this was not a case where any payment was made. There is nothing to indicate any material error as to the fact that the appellant did not pay for any of the material. Ground 2 must therefore fail.

15 Before the sentencing of the appellant, AFP officers counted the number of child pornography files on 14 of the 83 compact discs that had been seized from the accused's home. There were about 28,000 child pornography files on those 14 discs. They assumed that the other 69 discs all contained similar quantities of child pornography material, and undertook some calculations on that basis. We were not provided with those calculations, but it seems likely that they were unsophisticated and imprecise. As a result of those calculations, it was estimated that the appellant's CDs contained 142,000 child pornography images, inclusive of video images. On the day he was sentenced, the prosecutor told the learned sentencing judge of that estimated figure, and the appellant's then counsel did not dispute it. He was sentenced on the basis of that figure.

16 After he was sentenced, the appellant changed lawyers, and the number of child pornography or child exploitation images on the 83 CDs was counted. It was only at that stage that anyone noticed that eight of the CDs contained nothing unlawful. The figure of 142,000 was wrong. For the purposes of this appeal, it is an agreed fact that the total number of images and videos containing child pornography or child exploitation material on the 83 CDs was 98,709, of which 17,768 were duplicates. This Court received evidence of that agreed fact on the hearing of the appeal in accordance with the Criminal Code (Tas), s409(1)(c).

17 Where material that was not before a sentencing judge is put before an appellate court, and shows that there has been a miscarriage of justice, the sentencing discretion should be exercised afresh, even if there has been no error on the part of the sentencing judge: S v Tasmania [2007] TASSC 62; (2007) 16 Tas R 292 at 297. In my view the figure of 142,000 involved such a substantial overestimate as to the size of the appellant's child pornography collection that, as a result of that overestimate, he might have received a longer sentence than he would have received if the correct figure had been established. It follows that there has been a miscarriage of justice. Ground 3 must succeed.

Ground 4 - Concurrent and cumulative sentences

18 All of the child exploitation material found in the appellant's possession had been downloaded by him from the internet. It is likely that much of it was downloaded before 1 March 2005, when s474.19 came into effect, and before 31 March 2005, which was the beginning of the period covered by count 1. Since the Crown relied on different collections of files or images in relation to each of the two charges, it was clearly open to the learned sentencing judge to impose two sentences that were wholly or partly cumulative.

19 When a course of conduct involves the commission of crimes or offences contrary to both Commonwealth and State legislation, there is no general rule as to whether cumulative sentences or concurrent sentences should be imposed: Cahyahi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.

20 Counsel for the appellant relied on Johnson v R [2004] HCA 15; (2004) 78 ALJR 616. That case is authority for the proposition that, when two offences involve common facts, elements or aspects, and cumulative sentences are imposed, appropriate weight must be given to all of the matters that the two offences have in common. However this ground of appeal involves a contention that the learned sentencing judge was obliged to impose two wholly concurrent sentences. Johnson is not authority for the proposition that concurrent sentences must always be imposed for crimes and offences that have substantial common elements. This ground of appeal must fail.

21 As I have said, the learned sentencing judge made an order that the appellant was to be eligible for parole when he had served "three years of the effective custodial sentence of 5½ years". The power to fix a non-parole period in respect of a Commonwealth sentence is conferred by the Crimes Act 1914 (Cth). The power to order a non-parole period for a sentence imposed under Tasmanian legislation is conferred by the Sentencing Act 1997, s17(2). However there is no legislation that empowers a judge to fix or order a single non-parole period in respect of a federal sentence and a State sentence. The Crimes Act, s19AJ, expressly states that the relevant division of that Act does not authorise a court to fix a single non-parole period in such a situation.

22 The learned sentencing judge erred by making a single non-parole order in respect of both the sentence under Commonwealth legislation and the sentence under State legislation when there was no legislation authorising her to take such a course. This ground must succeed.

23 The authorities relating to sentencing for child pornography offences were recently reviewed by this Court, differently constituted, in DPP v Latham [2009] TASSC 101. In his judgment in that case at par33, Porter J listed a series of propositions relevant to sentencing in child pornography cases. I entirely agree with that list of propositions. It reads as follows:

"• the production of child pornography for dissemination involves exploitation and corruption of children;

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persons with pederastic inclinations can be stimulated to commit such acts on reading the material or viewing the images;

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the collection of pornographic material is likely to encourage those who produce it, for without any market, there is less incentive to make it;

•

collection of child pornography may also have the effect of normalising the activity, both in the minds of the participants and makers, and of any children to whom it may be shown;

•

widespread collection and distribution may also have the effect of desensitising all those involved in the making, distribution and consumption of the material. This may lead to escalation in the gravity of the conduct depicted."

24 Porter J went on, in par34, to list the factors relevant to the evaluation of the objective seriousness of the possession and distribution of child pornography. I entirely agree with that list too. It reads as follows:

"• the nature and content of the images, including the age of the children and the gravity of the activity portrayed - in particular, the degree of obvious physical harm or fear or distress in the victim;

•

the number of images or items of material;

•

whether mere possession is for the purpose of further distribution, and whether there will be any profit or benefit from the activity of the offender. Actual profit or benefit will aggravate the offence, whilst absence of such profit or benefit is not mitigatory.

•

the level of personal interest in the material, as perhaps evidenced by the way in which any collection is organised on a computer;

•

whether the possession or distribution involves a risk of accidental discovery by innocent computer users."

25 I have already described the appellant's criminal conduct. It should be noted that 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 or child exploitation material.

•

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

26 The mitigating factors that were put to the learned sentencing judge about the appellant and his circumstances were as follows:

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He was 49 years old, single, and living with his parents.

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He had no prior convictions.

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He had been a public servant for many years, but had resigned about three months before he was sentenced because of the charges against him.

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There were children within the family unit, but there was no suggestion that any member of his family had any concerns about any impropriety in his relationship with those children.

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He co-operated with the AFP. He provided investigating officers with passwords to enable them to access his hard drive and the CDs. He participated in an interview, in which he made full admissions.

•

He pleaded guilty to the charges. By doing so, he saved the cost and inconvenience of a long and complicated trial, and of the preparation for such a trial.

•

He had taken various steps towards rehabilitation. He obtained counselling through the government department in which he had been working. He saw a psychiatrist. He took part in a number of programs of self-development and self-awareness.

•

He was diagnosed by the psychiatrist as having an obsessional personality disorder. He compiled the elaborate catalogue partly because that was the sort of thing he tended to do. His interest in child pornography was only part of the explanation for compiling it.

•

He was ashamed of his conduct.

27 If the appellant had not been diagnosed as suffering from an obsessional personality disorder, I think that his enormous catalogue, and the great amount of time spent in its preparation, would have indicated such an intense level of personal interest in child pornography material as to constitute a very serious aggravating factor. However, in the light of that diagnosis, I think much less significance should be attached to the catalogue and the time spent in preparing it.

28 There have been so few comparable cases in Tasmania that I do not think it can be said that any tariff has been established for cases like this one. In one similar case, presently under appeal to this Court, another judge imposed two concurrent sentences, the longer of which was one of 12 months' imprisonment, but made a recognizance release order providing for the offender to be released after serving six months of that sentence. That case, unlike this one, involved the making available of child pornography material over the internet. In fact many thousands of files were made available to dozens of people. That case and this one indicate a serious inconsistency in sentencing standards on the part of some Tasmanian judges.

29 A sentence of two years' imprisonment was imposed in Latham (supra) after a successful Crown appeal. The respondent in that case had ceased all relevant activity 10 months before his home was searched, and had a smaller quantity of child pornography than the appellant in this case. He had no videos, and over 90 per cent of his still images were small thumbnails, automatically generated by his computer when he downloaded files that he had subsequently deleted. He had forgotten about the thumbnails. I understand that thumbnails cannot be enlarged. That offender also supplied child pornography to others on dozens of occasions.

30 In other Australian jurisdictions in recent years, there have been a number of decisions of courts of criminal appeal in sentencing cases relating to child pornography: R v Liddington (1997) 18 WAR 394; R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50; R v Curtain [2001] VSCA 156; R v Coultas [2002] WASCA 131; Dodge v R [2002] WASCA 286; (2002) 134 A Crim R 435; R v Cook [2004] QCA 469; R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29; R v Plunkett [2006] QCA 182; Hutchins v WA (supra); R v Wheatley [2007] ACTCA 15; R v Richardson; Ex parte Attorney-General (Qld) [2007] QCA 294; (2007) 175 A Crim R 244; R v Wharley; Ex parte Attorney-General (Qld) [2007] QCA 295; (2007) 175 A Crim R 253; R v Salsone [2008] QCA 220; Mouscas v R [2008] NSWCCA 181; R v Carson [2008] QCA 268; (2008) 187 A Crim R 435; WA v Cunningham [2008] WASCA 240; Dragon v WA [2008] WASCA 252; James v R [2009] NSWCCA 62; Saddler v R [2009] NSWCCA 83; R v Mara [2009] QCA 208; R v Booth [2009] NSWCCA 89. I have tried to exclude from this list any cases in which it was significant that the offenders were sentenced not just for accessing, possessing or making available child pornography, but also for crimes involving contact with children, such as rape and indecent assault. The cases I have listed indicate wide variations between and sometimes within the various jurisdictions as to head sentences and non-parole periods. Each of the listed cases of course turned on its own facts. However I think it can be said in the light of those cases that the sentences imposed in this case were markedly more severe than those likely to have been imposed in a similar case in most, if not all, other Australian jurisdictions.

31 In fact there seem to have been only two comparable Australian child pornography cases in which sentences of comparable severity were imposed. The first was in the County Court of Victoria: R v Fulop, Judge Pullen, 20 December 2007. The offender in that case pleaded guilty to charges of accessing and possessing child pornography. He had downloaded and kept 41,594 image and video files over 18 months to 2 years, some of which depicted the vaginal and anal penetration of children. He was sentenced to 3½ years' imprisonment on the accessing charge, and 2½ years on the possession charge, with six months of the second sentence to be cumulative upon the first, and with cumulative non-parole periods of two years and one year. In R v Mara (supra), the offender was sentenced to six years' imprisonment, with a recognizance release order permitting his release after serving 32 months of that sentence, on charges of accessing child pornography, transmitting child pornography to himself, and transmitting child pornography to others. He was sentenced to a concurrent term of six months' imprisonment for recording an indecent visual image of a child. The Queensland Court of Appeal held that those sentences were not manifestly excessive. The offender was one of the leaders of a group of child pornography enthusiasts who exchanged encrypted material over the internet.

32 The crimes committed by the appellant were serious, and called for significant sentences of imprisonment, but the sentences imposed upon him were out of all proportion to the seriousness of his offending, particularly since there is no suggestion that he even contemplated making child pornography available to anyone else. Even if he had had 142,000 images on his CDs rather than 80,941 plus duplicates, I would have reached the same conclusion. The sentences imposed on him, separately and in combination, were manifestly excessive. Ground 1 must succeed.

33 As I have said, the Crown based the accessing charge on the 3,122 images stored on the hard drive, and based the possession charge on the 80,941 files, plus duplicates, found on the CDs. All other things being equal, the possession of downloaded child exploitation material is a more serious crime than the mere accessing of such material on the internet. In this case, the possession charge is a much more serious charge than the accessing charge because of the much larger number of files involved.

34 Separate sentences will have to be imposed for the Commonwealth offence and the State offence since there is no legislation that permits any other course. In my view the most appropriate course is for this Court to impose two wholly concurrent sentences. Both should take effect from the day the appellant went into custody, 15 August 2008. On count 1, I would sentence the appellant to 12 months' imprisonment. On count 2, I would sentence him to a concurrent term of 21 months' imprisonment. He has now been in custody for over 15 months. If these sentences had been imposed on 15 August 2008, the appellant probably would have been paroled by now. In the circumstances, I think the most appropriate course would be to suspend the unserved balance of his sentence on count 2, so that he can be released today. I would make orders accordingly, suspending the unserved balance of the new sentence on count 2 on condition that the appellant be of good behaviour for three years.

35 I agree with the reasons for judgment of Blow J and with the orders which his Honour has proposed.