Criminal law - Appeal against sentence - Possession of child pornography - Whether sentence manifestly excessive in type and length - Utility of categories of seriousness put forward in R v Oliver - Turns on own facts

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4)

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

DAR v The State of Western Australia [2010] WASCA 72

Dragon v The State of Western Australia [2008] WASCA 252

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

R v Oliver [2005] EWCA Crim 3404; [2003] 2 Cr App R (S) 15

R v Wild (No 1) [2009] EWCA Crim 1217; [2002] 1 Cr App R (S) 37

Young v The State of Western Australia [2011] WASCA 13

1 McLURE P: This is an appeal against sentence. The appellant was convicted on his plea of guilty of one count of possession of child pornography contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA). On 16 November 2010, Stevenson DCJ sentenced the appellant to a term of immediate imprisonment of 22 months. There is only one ground of appeal. The appellant contends the sentence is manifestly excessive in both type and length.

2 The facts found by the sentencing judge are as follows. The appellant was apprehended in the course of his employment as a result of concern about the content of his work laptop computer. Subsequent analysis of the computer disclosed the existence of 43 still images. Twenty nine of the images depicted a female child, apparently under the age of 13, in a clothed but provocative pose. Of the remaining 14 images, four concerned a pre-pubescent female child being sexually penetrated in the vagina by the penis of an apparently middle-aged man. Three depicted the same child exposing her genitals, covered with what appeared to be semen. Seven are a sequence of images depicting what is possibly the same pre-pubescent female child being sexually penetrated in the vagina by the penis of a different adult male. Four of those images depict actual penetration, two depict the man's penis against the child's genitals, and one depicts the child's genitals covered in semen. The sentencing judge continued:

I have had the opportunity to view those images on the laptop for the purpose of preparing for sentencing today. I note that there are 43 in total. And it is conceded that although they are not at the most serious scale, in my view, they would certainly be at level 4 on the scale which is often referred to in matters of this kind.

3 I will return to the 'scale' later in these reasons.

4 There were an additional 1,411 still images of pornography depicting children aged between five and 15 years and 98 video files of child pornography on the appellant's work laptop. The appellant admitted that he had been in possession of this additional child pornography while he was overseas. The appellant frequently travelled overseas for work purposes. It was accepted by the prosecution that he honestly and reasonably, but mistakenly, believed that he was not in possession of that material as he thought he had removed it from his computer (using software called 'Evidence Eliminator') before returning to Australia. Thus, the deleted material was not the subject of the charge.

5 Accordingly, the only child pornography the subject of the conviction is the 43 still images described above. The sentencing judge had regard to the additional child pornography as part of the background circumstances. Moreover, he concluded that the fact of the deletion indicated that at all relevant times the appellant fully appreciated the nature and seriousness of his offending.

6 The appellant pleaded guilty to the offence at the earliest reasonable opportunity following negotiations with the Office of the Director of Public Prosecutions (DPP). The appellant was aged 61 at the time of sentencing. He had no criminal record that was regarded as being of any significance for sentencing purposes. The appellant lost his job as a result of the offence. At the time of sentencing he was doing casual work and helping his wife in her business.

7 The sentencing judge accepted that the appellant no longer worked away from home, was in a supportive and loving relationship with his wife, that he supported her in the conduct of her business and cared for his elderly mother.

8 However, the sentencing judge rejected the proposition that the appellant retained the child pornography on the basis that it was simply material which gave him emotional comfort. The judge continued:

In my view, it must have stimulated you, having regard to the nature and content of it and the fact that you downloaded it and retained it for viewing.

9 The sentencing judge had before him two psychological reports, one provided pursuant to a court order (by Ms J Hasson) and one from the appellant's treating psychologist, Ms K Houghton. In view of her therapeutic relationship with the appellant, Ms Houghton did not provide a risk assessment.

10 As appears from Ms Houghton's report, the appellant had attended eight counselling treatment sessions with her by the time of her report. Her treatment focussed on areas identified in the current literature as appropriate to addressing risk issues specific to child pornography internet offenders. Those include identifying the cognitive distortions engaged in justifying the offending, development of victim recognition and developing an understanding of the external and internal factors linked to offending of that nature.

11 The court-ordered report was based in part on an interview with the appellant which took place after he had attended six of the eight counselling treatment sessions with his treating psychologist. The court-ordered psychological report states:

During the current assessment [the appellant] acknowledged his offending behaviour however he espoused a number of attitudes and beliefs rationalising and justifying his interest in child pornography. Consistently he attempted to minimise his level of responsibility by commenting that he had not created the images, that they were historical, obtained from easily accessed and available, free (non-paying) sites. [The appellant] also commented that he never shared images or supplied images and was not a part of a paedophile ring or distribution network. [The appellant] appeared to lack an appreciation for the harm child sexual exploitation causes. Instead he focused on how he believed the children to be enjoying themselves and were complicit in producing the images due to their apparent smiles ...

As a consequence of engaging in several sessions of counselling [the appellant] was able to recognise the cognitive distortions he uses however he requires further psychological input to allow his intellectual understanding to be fully integrated into his awareness as there remains some dissonance. Until this occurs [the appellant] may not be fully aware of the seriousness of his offending behaviour. He also shows no appreciation for the consequences both short and long term for the victims pictured in the images.

12 The pre-sentence report (PSR) supports the court-ordered psychological report. The author of the PSR states:

[The appellant] acknowledged he had accessed and viewed child pornography images and during the commission of the offences he did not view his behaviour as inappropriate or harmful as pornography had played a significant part in his working career.

13 The assessment that the appellant had further treatment needs caused the author of the court-ordered report to conclude that the appellant posed some risk of further offending. The sentencing judge accepted that there was a need for personal deterrence in this case.

14 The court was provided with a document prepared by the DPP classifying pornography at different levels. The levels are as follows:

• Level 1: Images of children depicting nudity or erotic posing, with no sexual activity;
• Level 2: Sexual activity between children, or solo masturbation;
• Level 3: Non-penetrative sexual activity between adult(s) and child(ren);
• Level 4: Penetrative sexual activity between adult(s) and child(ren);
• Level 5: Sadism (including urinating and defecating) and bestiality involving children;
• Level 6: Other child images including part or full animation involving sexual activity;
• Level 7: Ignore (only used in federal or eastern states matters);
• Level 8: Bestiality or sadism (including urinating and defecating) not involving children;
• Level 9: Adult pornography that may be for some reason used in comparison.

15 This classification approach derives from the guideline judgment of the Court of Appeal of England and Wales in R v Oliver [2005] EWCA Crim 3404; [2003] 2 Cr App R (S) 15. The guideline judgment was based on proposals of the Sentencing Advisory Panel which had been sought by the court in R v Wild (No 1) [2009] EWCA Crim 1217; [2002] 1 Cr App R (S) 37. The court in Oliver adopted the following categorisation levels:

1. Images depicting erotic posing with no sexual activity;
2. Sexual activity between children, or solo masturbation by a child;
3. Non-penetrative sexual activity between adults and children;
4. Penetrative sexual activity between children and adults;
5. Sadism or bestiality.

16 This categorisation is intended to reflect levels of increasing seriousness. That cannot have been the intention in relation to levels 6 - 9 of the DPP's list.

17 It is not suggested by the English Court of Appeal that its classification list is intended to be a substitute for the sentencing judge viewing the pornographic material the subject of the conviction. Nor should it. The relative perversion and debauchery of the pornographic material is a relevant sentencing factor. Viewing a representative sample (as identified or agreed by the parties) of the material will ordinarily be necessary for the proper performance of the sentencing judge's duties. Judges involved in the administration of the criminal law are frequently exposed to material that is deeply offensive in a myriad of different ways whilst being required to retain their objectivity and sense of proportion. Moreover, this court is assisted by findings as to the nature of the pornographic material such as those made by the sentencing judge in this case which went well beyond the limited description in the DPP's list. The classification levels can only be of marginal assistance to courts involved in imposing or reviewing sentences for offences involving child pornography.

18 This court can only intervene in the exercise of a sentencing discretion if the primary judge made an express or implied material error of law or fact. A claim of manifest excess relies on the implication of error from the sentencing outcome. When determining manifest excess (or inadequacy) regard is had to the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the level of seriousness of the circumstances of the offence and the personal circumstances of the offender.

19 When the appellant committed the offence, the maximum penalty was 5 years' imprisonment. In Hill v The State of Western Australia [2009] WASCA 4, I set out the general legal principles relevant to determining the appropriate sentencing option and how those principles are applied to the offence of possession of child pornography. As to the latter, I said:

The recent cases reveal that ordinarily a sentence of immediate imprisonment will be imposed for possession of child pornography contrary to s 60(4) of the Act: Hutchins [v The State of Western Australia [2006] WASCA 258] [23]; The State of Western Australia v Cunningham [2008] WASCA 240. As previously noted, the offence of possessing child pornography is not a victimless crime. The generation and existence of demand for possession of child pornography stimulates the supply side to the incalculable harm to the children involved. The creation and satisfaction of demand for child pornography is exponentially facilitated by the internet and there are significant difficulties in detecting the offences. These factors result in significant weight being given to general deterrence and correspondingly less weight being given to matters personal to the offender. Indeed, positive personal antecedents and a reduced or absent need for personal deterrence are relatively commonplace amongst offenders in possession of child pornography.

20 The appellant's primary contention is that the circumstances of the offence he committed are at the very low end of the scale of seriousness. Reliance is placed on the small number of images involved, the significant percentage of images in the lowest level of seriousness and the fact that there was only one child victim. The court's attention was drawn to the sentences imposed in the cases summarised by Miller JA in Cunningham v The State of Western Australia [2008] WASCA 240 [26]. For the sake of convenience, I will incorporate that paragraph:

The cases are: R v Liddington [1997] 18 WAR 394: three counts, 266 images, no prior convictions, low risk of reoffending, guilty plea, 2 years' imprisonment (16 months post-transitional) on each count to be served concurrently, suspended for 2 years; Kirk v The Queen (Unreported, WASCA, Library No 980067, 4 February 1998): one count, numerous images, fast-track plea, co-operation with authorities, 2 years' imprisonment (16 months post-transitional) concurrent with 8 years' imprisonment for having a sexual relationship with the child in the images; R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50: one count, more than 80,600 images, 'appalling degradation', images alphabetically organised, 2-year suspended sentence increased to 18 months' immediate imprisonment (12 months post-transitional); Lee v The Queen [2000] WASCA 73: 14 counts, 14 images, convicted after trial, 2-year sentence imposed on each count to be served concurrently, reduced to 1 year (8 months post-transitional); Pendleton v The Queen [2002] WASCA 4: six counts, one handwritten story, images, videotapes, indecency varying from relatively low to very high, collected over several years, 1 year's imprisonment on each count to be served concurrently (8 months post-transitional); R v Coultas [2002] WASCA 131: 94 counts, thousands of images, some children under the age of 7, fast-track plea, longstanding interest in child pornography, actively trading images (non-commercially), 18 months' imprisonment on each count to be served concurrently (1 year post-transitional); Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237: three counts, one videotape, 3,019 images and 502 videos in electronic format, 1 year's imprisonment on each count to be served cumulatively (effective 2 years' post-transitional); Dodge v The Queen [2002] WASCA 286; (2002) 134 A Crim R 435: one count, 16 fictional stories described as 'disgusting and depraved', fast-track plea, co-operation with authorities, had been in prison since 1993, 18 months' imprisonment reduced to 12 months' (8 months' post-transitional); G v The State of Western Australia [2005] WASCA 150: two counts, 4,092 images, no prior convictions, fast-track plea, co-operation with authorities, 2 years' imprisonment for the first count, 20 months' concurrent for the second count; Hutchins v The State of Western Australia [2006] WASCA 258: two counts, 59 images, 51-year-old offender, no prior convictions, late guilty plea, 4 months' on the first count and 8 months' on the second count served cumulatively; The State of Western Australia v Rock [2007] WASCA 121: eight counts, 2,662 images, collected over several years, collection organised, convicted by trial, 12 months' imprisonment on count 1, 8 months' imprisonment on the other counts, to be served concurrently.

21 The post Cunningham cases include: Dragon v The State of Western Australia [2008] WASCA 252: suspended sentence on two counts overturned on appeal, sentences of immediate imprisonment reduced for time spent in custody imposed in lieu thereof, one further count involved six images at the very low end of the scale of seriousness, a fine of $1,200 imposed on that count; Hill: two counts, 38 still images and an 11-minute video of very depraved material, fast-track plea of guilty, police officer, total sentence of 2 years' immediate imprisonment; DAR v The State of Western Australia [2010] WASCA 72: one count (with other offences for indecently recording five-year-old grand-daughter and supplying child pornography), plea of guilty, images of naked females stored on mobile phone, 18 months' imprisonment; Young v The State of Western Australia [2011] WASCA 13: six counts, fast-track pleas of guilty, 84,663 images and 24,477 video files, concurrent sentences of 2 years' immediate imprisonment on each count.

22 The additional child pornography unsuccessfully deleted from the laptop establishes that the appellant's conduct the subject of the offence is not an uncharacteristic aberration. That finding is underscored by the appellant's admissions recorded in the pre-sentence and psychological reports, including as to the aberrant views which underpinned his offending behaviour. Moreover, the steps taken to delete the additional material compel the inference that the appellant was aware of the illegality of his activity.

23 The factual background to the appellant's offending demonstrates what would not otherwise be apparent from the number of images itself, namely that the focus is appropriately on the sentencing objectives of personal deterrence, as well as general deterrence, and the protection of the public. The appellant has failed to demonstrate that the sentencing judge erred in imposing a term of immediate imprisonment.

24 I turn now to the length of the term. Sentences imposed since 1997 for the offence of possession of child pornography range from 8 months to

2 years. The closest comparable case is Hill, a case in which personal deterrence was not an issue. Of course, the sentences customarily imposed do not establish the range of a sound exercise of the sentencing discretion. The existence of a range is in recognition of the fact that there is no single correct sentence for an offence. There is no doubt that the length of the sentence imposed on the appellant is at the high end of the sound sentencing range. However, the appellant has not established that the length of the term is manifestly excessive.