Supreme Court of Tasmania|2009-11-12|Before: Porter JJ, Evans J

Director of Public Prosecutions v Latham [2009] TASSC 101 (12 November 2009)

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Director of Public Prosecutions v Latham [2009] TASSC 101

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Crown appeal - Production, distribution and possession of child exploitation material - Production by typing words in online discussion - Approach to child pornography offences - Whether sentence manifestly inadequate.

R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50; R v Oliver [2003] 1 Cr App R 28; R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, applied.

Judgment Number: [2009] TASSC 101

DIRECTOR OF PUBLIC PROSECUTIONS v LINDSAY GORDON LATHAM

1

Appeal allowed.

2

Sentence 10 months' imprisonment to commence on 9 April 2009, the execution of six months of which was suspended on condition that he be of good behaviour for a period of three years, quashed.

3

Respondent sentenced to imprisonment for two years to date from 14 August 2009.

4

The respondent is not to be eligible for parole until he has served one half of that sentence of imprisonment.

DIRECTOR OF PUBLIC PROSECUTIONS v LINDSAY GORDON LATHAM

1 I have had the benefit of reading the reasons for judgment prepared by Porter J and agree with his reasons for allowing the appeal. Had it not been that a significant aspect of the respondent's criminal conduct was producing child exploitation material by means of his involvement in internet chat room conversations, I doubt that I would have allowed the appeal. It has only been since the growth of the internet that criminal conduct of the nature of the respondent's has become the subject of the criminal law. In the time that has passed since the crimes for which the respondent has been convicted were introduced into the Criminal Code Act 1924 ("the Code"), no discernible sentencing range has emerged from the sentences imposed for these crimes. There is however, an increasing tendency for crimes such as these to attract an immediately effective sentence of imprisonment. I strongly favour this tendency and the message it sends, which is that those who might be similarly inclined can expect to serve an actual term of imprisonment if they act on that inclination. The impact of this message comes more from the certainty of imprisonment than the length of the term imposed. Whilst the sentence imposed on the respondent sent that message (he received an immediately effective sentence of four months' imprisonment) I am nevertheless satisfied that the total length of his head sentence, ten months, was manifestly inadequate in the circumstances of his criminal conduct.

2 The aspect of the respondent's criminal conduct upon which I focus is his production of child exploitation material by participating in written internet online conversations in the course of which he encouraged the other participant to engage in sexual activities with children. In these conversations the respondent purported to be a 27 year old female and the sexual activities canvassed included rape, sadism, torture, bestiality and genital mutilation. As explained by Porter J, the respondent was a more than willing and enthusiastic participant in the discussions. He raised abusive suggestions for the purposes of the discussions and offered direct encouragement to the other participant. The seriousness of his conduct was compounded by the fact that he assumed the identity of a mother who gravely abused her children and encouraged others to do so. The respondent knew nothing of the personal circumstances of the other participants in his conversations; he knew nothing of their mental state; their susceptibility to suggestion; their access to children or the likelihood of them putting into effect the abuses discussed. These conversations cannot be dismissed as abhorrent but harmless fantasises. The pictures that are the subject of the respondent's convictions plainly demonstrate that there are those who act on their abhorrent fantasies. There is a real risk that the respondent's participation in these conversations may have fuelled the abusive fantasies of others and encouraged them to carry them into effect.

3 As to the sentence warranted in substitution for the sentence imposed on the respondent, I agree with Porter J that it should be two years imprisonment, should commence ninety days' prior to the date of the respondent's return to custody and that the respondent should be eligible to apply for parole after serving one half of the sentence.

DIRECTOR OF PUBLIC PROSECUTIONS v LINDSAY GORDON LATHAM

4 The respondent pleaded guilty before a judge to one count of possessing child exploitation material, 25 counts of producing child exploitation material and 67 counts of distributing child exploitation material. The crimes are created by the Criminal Code, ss130C, 130A and 130B respectively. These sections and related provisions came into force on 1 August 2005. The production and distribution charges relate to the respondent's conduct from that date until 18 April 2007, when his conduct came to the attention of police. The possession charge relates to the day of the police search of his home; 18 April 2007.

5 Relevant definitions in the Criminal Code are as follows:

• "'child exploitation material' means material that describes or depicts, in a way that a reasonable person would regard as being, in all the circumstances, offensive, a person who is or who appears to be under the age of 18 years -

(c) as the subject of torture, cruelty or abuse (whether or not in a sexual context)."

• "'produce' includes make, film, print, photograph and record."

6 On 29 April 2009, the respondent was convicted of all counts and sentenced to 10 months' imprisonment to commence on 9 April 2009, the execution of six months of which was suspended on condition that he be of good behaviour for a period of three years. An order was made that his name be placed on the Register pursuant to the Community Protection (Offender Reporting) Act 2005, and that he comply with the reporting obligations under that Act for a period of seven years.

7 The Director of Public Prosecutions has appealed to this Court against the sentence of imprisonment imposed. The grounds of appeal are as follows:

"1 The Learned [sic] Judge erred in law in that she imposed a sentence which was manifestly inadequate in all the circumstances of the case.

2 The Learned [sic] Judge erred in law and the sentence she imposed was inadequate because she and it failed to give any, or any sufficient weight to:

a) the seriousness of the crimes of production and distribution;

b) the nature of the material produced and the effect it may have had on encouraging the actual commission of the crimes and depravities on the children it described;

c) the fact that the Respondent intentionally distributed child exploitation material in order to gratify the recipients and to receive more material himself."

8 Count 1 on the indictment, that of possessing child exploitation material, alleged that the accused "on the 18th day of April 2007 possessed 38,054 pictures of girls and boys under the age of 18 years performing and receiving oral, vaginal and anal sex, and a number of these pictures depicted the torture of persons under the age of 18 years".

9 In relation to the 25 counts of producing child exploitation material, it was alleged that the respondent had produced the material by writing his part of an internet on-line conversation describing sexual activity between adults and persons under the age of 18 years. In 11 of those counts, it was alleged that the description included the torture of persons under the age of 18 years, the description in one of those counts including the sending of pictures. In general terms, there is a connection in time and material between the production counts and the distribution counts.

10 Of the 67 counts of distributing child exploitation material:

•

42 counts alleged that between various dates, the respondent distributed numbers of pictures (varying between three and 1000) of girls or of girls and boys, under the age of 18 years "performing and receiving oral, vaginal and anal sex".

•

the remaining 25 of those counts alleged that on various dates, the respondent distributed material "by electronically sending his part of an internet chat room conversation describing sexual activity between adults and persons under the age of 18 years".

•

as to 12 of those 25 "internet conversation" counts, in 10 it was alleged that the description of sexual activity included the torture of persons under the age of 18, and in two counts, the description included the sending of pictures depicting the torture of persons under the age of 18 years.

11 The sentencing judge was told that on 19 March 2007 Tasmania Police received a report from the Australian Federal Police Online Child Sexual Exploitation Team in relation to the respondent being suspected of communicating with a known child sex offender in the USA by way of the Google "Hello" file sharing program. (This program enabled simultaneous viewing and on-line conversing by at least two people.) As a result, the respondent's premises were searched on 18 April 2007. A computer tower, a number of floppy discs and CD/DVDs were seized. On examination the following were discovered:

•

approximately 1,000 child exploitation images in the "My Documents" folder.

•

80 child exploitation images in emails.

•

use of the Google "Hello" messaging and photo sharing program between May 2005 and September 2006 by a user who had the ID number 1140400. That user (admitted by the respondent to be him) had had contact with 182 other users.

•

97 user chat logs, which showed the respondent actively chatting and trading in child exploitation images.

•

38,054 thumbnail images of child exploitation material contained in those files.

12 When interviewed by police, the respondent admitted that he used the internet "chat" program to trade in sexual-related images with other users, and to converse about sex involving children. He regularly sent and received large quantities of child exploitation images to other chat room participants, the images being saved on the computer's hard drive. The respondent said that when participating in the internet chat room, he depicted himself as a 27 year old female and that the reason he used the facility was because he was lonely and could fantasise with other users. He would participate on a daily basis. He denied taking any of the photographs.

13 In order to properly understand the nature of the material the subject of the possession charge, it is necessary to detail what was put before the court. By way of a written statement of facts, the sentencing judge was told that the content of the images included:

"• Images depicting naked females exposing their vagina and breasts engaged in sexual activity with a naked male.

•

There are numerous images of post and pre-pubescent girls exposing their vaginas and breasts, some naked and semi-naked. Some of the images depict a naked child under the age of 8 years exposing her vagina. Other images depict children under the age of 12 sucking an erect penis.

•

Many of the images depict children between 5 - 15 engaged in sexual activities.

•

There are a substantial number of images containing babies (not able to communicate or walk) with semen placed in their vagina. Alternatively the babies have erect penis's placed at the commencement of the baby's vagina.

•

Images of girls aged between 3 - 15 covered in semen and faeces. Some images are of children forced to swallow semen.

•

A number of images contain young girls aged 6 - 15 in positions of torture, bound, gagged, blindfolded and in some cases all three.

•

A child aged approximately 8 years of age, who is blindfolded and semen is being placed in her mouth.

•

A child (female) aged 4 years old sucking a man's penis whilst receiving either anal/vaginal sex.

•

An image of a woman who appears to be a mother holding a son's penis for her daughter to suck.

•

Some of the images depict naked female children aged between 10 and 15 urinating, engaged in vaginal sexual intercourse, naked female children sucking a male penis, naked male and female children posing together with the female child touching the male child's penis and touching each other, the female child sucking the male child's penis, the male child licking the female child's vagina.

•

A young female child aged approximately 4 - 5 being held upside down by the ankles by a middle-aged man sucking a male penis.

•

A child aged 4 - 5 with her held being held down and the child wants to get up. She has semen all over her. [sic]

•

A young boy aged 13 - 14 licking a baby girl's vagina."

14 As to the content of the internet conversations, the sentencing judge was supplied with copies of the 97 "chat log" files. These covered some 70 printed pages, although the entirety of all pages is not taken up. Of course, these transcripts reveal discussions conducted in "real time". It is difficult to accurately summarise the nature of these conversations. The appellant has properly described them as "of the most depraved nature". On many occasions they involved discussions about what sexual acts and acts of sadism and acts of torture could be committed on the children depicted in images exchanged. On other occasions such discussions had no particular subject, but concerned sexual activity with children in general. Children as young as 18 months were discussed. Activities which were described almost invariably involved penetrative activity using a range of animate and inanimate objects; bestiality involving children was not uncommon.

15 More significantly, rape, torture in various forms, and genital mutilation were frequent topics. One of the conversations involved a discussion about an alleged friend of the respondent wanting to cause the death of a girl by sexual activity, and included speculation on the part of the correspondent as to whether strangulation would be involved. So as there is no misapprehension as to the type of discussion and the language involved, it is necessary to set out the relevant part of that conversation, and some parts of others to which the Court's attention was specifically drawn by the appellant. I have omitted the very graphic continuation of each of these conversations.

16 It will be remembered that "1140400" was the user name of the respondent, and I have abbreviated the user name of the other participants. The first extract is drawn from a file dated 16 December 2005. It reads:

"09:47:46 1140400: bored want to experiment a guy asked me if i would hepl [sic] him do something really nasrty [sic].

09:47:54 fs: what?

09:48:18 1140400: wants to fuck a girl to death

09:48:39 fs: strangle her?

48:58 1140400: no keep fucking her till she dies"

17 A further extract which the appellant described as "sinister" is derived from a file dated 6 February 2006. The point which the appellant makes is the respondent's encouragement to the other participant in relation to child abduction and torture.

"08:58:29 sh: ive been considering snatching a kid

08:58:44 1140400: great

08:59:03 sh: about this age

08:59:38 1140400: omg yes

09:00:31 sh: she is about 4 or 5

09:00:50 1140400: nice

09:01:33 sh: do you like inflicting pain

09:01:44 1140400: omg yes

09:02:24 sh: ever tortured a kid

09:02:30 1140400: yes"

18 Further extracts specifically referred to were identified as evidence of introduction and encouragement to a person who apparently had not previously engaged in any sexual conduct with children. The file is dated 29 December 2005. The extract reads:

"06:11:05 1140400: have u ever fucked kids

06:11:24 dv: no ... have u?

06:11:36 1140400: yes u want too

06:12:22 dv: yes ... very very much

06:12:50 1140400: is it easy to find children in india

06:13:45 dv: yeah but on country side ... not in urban population"

19 Suffice it to say that the conversations were conducted in the vilest, most graphic and abominable terms imaginable, and would cause an extremely high degree of revulsion in the ordinary reader. The respondent was a more than willing and enthusiastic participant in the discussions. He raised topics for the purposes of those discussions and offered direct encouragement to the ruminations and suggestions of others. In many cases, suggestions as to types of conduct were raised with the other participant and the topic pursued by the respondent.

The respondent's submissions to the sentencing judge

20 Counsel for the respondent put to the sentencing judge that the respondent had begun to use the internet chat facility when his partner had left the computer logged on with her user ID. That, it was said, enabled the respondent to represent himself as a woman. The following matters were put in relation to the distribution and production charges:

•

there was nothing in what was described or discussed which actually occurred to any child;

•

none of the conversations concerned "actual people that have ever existed or have ever behaved in the way as described";

•

the conversations were not designed or intended to have any consequences for any actual child;

•

the respondent had little interest in the actual images, but enjoyed "the charade of the fantasy rather than the possession of, searching for or viewing pornographic content".

"There is no evidence that any child was actually harmed by these conversations. ... [T]his type of fantasy and description of non-existent persons amounts to a type of offending that must be at the lower end of the scale of child exploitation crimes. They do not relate to real children. They do not relate to real actions and they do not involve the actual exploitation of any existent person."

22 It is true that many of the conversations were fantasising and musing about children in general. At the same time however, as noted by Crown counsel in reply to the sentencing judge, many of the conversations also centred on real children who were depicted in the photographs which were exchanged. Although the nature of the conversations would appear to have often transcended the activities which were depicted in the images, the discussions nonetheless to that extent, involved actual children who had been the victims of grave criminal and sexually exploitative conduct.

23 As to the charge of possession, and in particular the significant number of thumbnail images, it was submitted that these were "adaptations" of the originals, the explanation being that when the original photograph was sent and accepted, the computer created a thumbnail image to be saved. Whilst the respondent from time to time deleted the original photograph, he overlooked the creation of the thumbnails. It was accepted that the respondent distributed images as well as requesting them, but that this activity occurred in order to maintain the conversations. It was said that "if a request was made and nothing forthcoming, that conversation would quite often be terminated".

24 Personal matters which were put on the respondent's behalf were that:

•

he was 52 years old, with an excellent industrial record which included employment as a psychiatric nurse for about 10 years, and then as an electrical linesman, also for a period of about 10 years. More recently he had completed a degree in nursing and was employed at a nursing home;

•

he had tendered his resignation in anticipation of the outcome of the proceedings;

•

his partner remained supportive of him;

•

he had voluntarily desisted from all relevant activity some 10 months before the police search in March 2007.

•

he had no relevant prior convictions and none for any serious offence;

•

he was most embarrassed about and ashamed of his activities.

25 In her comments on passing sentence, after briefly summarising the nature and the number of counts, the quantity of material involved, and referring to the respondent actively chatting about sexual activities involving children and trading in child exploitation material, the sentencing judge continued:

"You admitted when interviewed that you regularly sent large quantities of child exploitation images to other computer users and that you had conversations with others in chat rooms about sex with young children. The images found depicted young children and babies engaged in various sexual activities and displays of their genitalia. There were images of babies with semen and erect penises placed near their vaginas. The described images were such as to offend any reasonable person. The chat room logs contained extensive sexually explicit discussions about children.

It would appear from the particulars that your active involvement in chat rooms and the distribution of material ceased in June 2006. Count 1 on the indictment, a charge of possession, arises from the date of the police search. In your interview with police you indicated you did not realise your activities were illegal.

Your counsel's sentencing submissions were to the effect that, as far as the chat rooms were concerned, your conversations were fantasy. You represented yourself as a woman and enjoyed the charade. There was no evidence that any child was actually harmed by your activities. Because the conversations related to imaginary children, he submitted that the offending was at the low end of the scale.

As to the images found, it was submitted that your trading in those was a by product of your chat room activities. Images were sent to you unsolicited and you accepted them and sent some on so that your chat room conversations could continue. Your counsel said you took little interest in the actual images.

You are 52 years old. You live with your partner who remains supportive. You have no relevant prior matters. You were employed when the charges were laid against you in August 2007. You told your employer what you were facing and were provided with counselling. You voluntarily resigned a few weeks before your plea of guilty was entered. Your partner will suffer a financial impact without your income. Your counsel says you are ashamed and embarrassed by your activities.

The legislation pursuant to which you have been charged was implemented in August 2005. It is designed to protect children from abuse. Your activities, whether they be based in fantasy or not, encouraged others to engage in the trading of child pornographic material and to discuss activities with children which demeaned them. They also had the potential to encourage the production of the images you quite deliberately exchanged with others.

You are entitled to some credit for your plea of guilty which has saved the State the time and expense of a trial. While there may have been an argument you were not bowing to the inevitable as far as the chat room discussions were concerned, there can have been little argument about the large number of images found on your equipment.

There must be a sentence which acts as a deterrent to those who seek to engage in the same activities. A custodial sentence must be imposed, not only to reflect deterrence, but also to reflect society's condemnation of the type of activities you undertook. A portion of the sentence will be suspended to reflect your plea of guilty, your lack of prior history and your prospects of rehabilitation." [Emphasis added]

26 The appellant acknowledged that some of what is involved in a consideration of ground 2 is subsumed within ground 1. It is convenient to deal with both grounds together. The appellant does not claim that the sentencing judge made any error in the remarks which I have highlighted above. It is said, though, that in formulating the sentence, her Honour did not "embrace" the strong condemnatory approach to such offences suggested in a number of authorities. Reference was made to the frequently quoted remarks of Kennedy J in R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 at 52 [9] which are as follows:

"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 ...".

27 The appellant noted the endorsement of those remarks in R v Cook; ex parte Attorney-General (Qld) [2004] QCA 469. Reference was also made to the Canadian case of R v Stroempl (1995) 105 CCC (3d) 187 in which the evil of child pornography was generally discussed, as was the contribution made by possessors of child pornography to the production and distribution of it. In Stroempl it was said that part of the evil of the material, apart from what was implicit in its production, was the use to rationalise paedophilia as a normal sexual preference, and to persuade children that the activity depicted is normal.

28 The English case of R v Oliver [2003] 1 Cr App R 28 was relied on to identify aggravating factors in child pornography offences. Obviously the seriousness of an individual offence increased with the offender's proximity to, and responsibility for, the original conduct or images. As to possession, the number of images and their content, and the age of the children involved are relevant factors.

29 It is argued that the crimes are of such seriousness that little weight should have been given to prior good character or personal circumstances. No authority was cited but it is established that previous good character of the offender is frequently encountered in child pornography cases and that this should be given little weight in the sentencing process: R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 at 65 - 66; Mouscas v R [2008] NSWCCA 181 at [37].

30 The appellant submitted that the respondent gained from his distribution and production activities. It was asserted, without dissent, that 97 recipients had received a total of some 11,000 images. He received material in exchange for the images he distributed. To that extent he intentionally distributed the material for the purposes of having different material sent to him. The "swapping of images can properly be regarded as a commercial activity, albeit it without financial gain, because it fuels the demand for such material": R v Oliver (above) at [11].

31 The appellant submits that an important feature of this case is that the respondent discussed at length the torture of children, and sent images relating to that torture. This, it is said, involved a significantly greater level of deliberation about the distribution. The discussions were "disturbing and brutal". An additional factor is that the respondent assumed the identity of a mother, purporting to gravely abuse her children, and willing to allow others to do so. Another important aspect of the respondent's online dialogues is that it created a high degree of risk to children. This is because he knew nothing of the personal circumstances of the other participants and knew nothing of their mental state; more particularly their suggestibility or tendency for actual sexual activity, or violence of a sexual nature or otherwise, involving children.

32 On behalf of the respondent the following points were made:

•

the sentence was appropriate in all the circumstances, and one which took into account the seriousness of the offending, the need for general deterrence, and the need to mark society's condemnation of the particular activities.

•

the sentencing judge was entitled to take into account the lack of prior history, the respondent's prospects of rehabilitation, and the pleas of guilty when suspending the execution of part of the head sentence of imprisonment.

•

the sentencing judge clearly identified in her comments on passing sentence, the seriousness of the crimes of production and distribution, and the sentence imposed was appropriate to that extent.

•

the sentencing judge was not entitled to find that the offences would in fact have encouraged the actual commission of crimes and depravities on the children described, but was entitled to, and did take into account, that the offending would encourage others to engage in the trading of child pornographic material.

•

the intentional distribution of the material in order to gratify the recipients was a matter to take into account, and properly reflected in the head sentence.

33 The approach to offences involving child pornography, and in particular, the possession of such material has been quite widely considered. In addition to the authorities cited by the appellant, I refer to the appellate decisions of R v Liddington (1997) 18 WAR 394; Assheton v R [2002] WASCA 209; R v Wharley [2007] QCA 295; Mouscas v R (above); Saddler v R [2009] NSWCCA 83 and R v Mara [2009] QCA 208. There is unanimity, and from these authorities, the following propositions which relate to child pornography offences can be derived:

•

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

•

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

•

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.

34 In R v Oliver (above) and also R v Gent (above), there is discussion as to the factors which bear upon the objective seriousness of possession and distribution of child pornography. Those factors include:

•

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.

35 There are two aspects of those propositions and factors which require further comment. The points were made by Alisdair Gillespie in Sentences for Offences Involving Child Pornography [2003] Crim LR 81. First, as to distribution, the author notes the additional abuse to the child which is perpetrated by the distribution of images. "The child is debased in front of numerous people through the trade in such images and it keeps the images alive. It is not unusual for the police to find images that are tens of years old and thus when the police or other criminal justice agencies trace the adult, the feelings and trauma of abuse resurfaces." As to the number of images and the nature of the material, the author notes that it is clearly correct to focus on the type of material first and the quantity as a secondary issue. At 86 he 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."

36 I bear in mind that this is a Crown appeal against sentence, and as such, is subject to the well-known restraints articulated in cases such as Everett v R [1994] HCA 49; (1994) 181 CLR 295 at 299 and R v Clarke [1996] VICSC 30; [1996] 2 VR 520: see Attorney-General (Tas) v McDonald [2002] TASSC 120; (2002) 11 Tas R 221 per Slicer J at 226 - 229, per Evans J at 230 - 231. This Court will intervene where it is necessary to avoid the kind of manifest inadequacy or inconsistency in standards constituting "error in point of principle".

37 The activities in which the respondent was engaged included the active distribution of some of the most serious types of pornographic images. These images themselves depict grave sexually exploitative conduct of a very serious nature - sexual activity of and with children, much of it itself involving serious criminal conduct. Most importantly in this case, the respondent produced child exploitation material by engaging in discussions about varying scenarios of sex and torture, directed towards particular images and in general. Although the production involved writing words in a "conversation" with another, and not participating in the making of the images, the dialogue could be preserved.

38 Even leaving to one side the contribution the respondent had made to the exploitation of the children involved, his activities were likely to encourage others. The appellant made the point that the respondent knew nothing of the personal circumstances of the other participants; in particular, their mental state, or tendency to act in an at least inappropriate way towards children, and that this involved a high degree of risk. These observations must be accepted. It might also be said that he knew nothing of their particular physical location or environment. A highly suggestible correspondent may well have had ready access to young children. They may have lived with or nearby the person, or for instance, the person may have lived close to a school. In short, even leaving to one side the contribution the respondent had made to the exploitation of the children involved, his activity was likely to encourage others.

39 In determining whether a sentence is manifestly excessive or manifestly inadequate, it is acceptable and customary for this Court to refer to a range of penalties established by other cases. That tariff is a standard established by comparable cases: see Markarian v R [2005] HCA 25; (2005) 228 CLR 357 per McHugh J at 388 - 389 [78] - [79]; Bauer v R [1987] TASSC 14; [1987] Tas R 166 per Nettlefold J at 170 and Inkson v R [1996] TASSC 13; (1996) 6 Tas R 1 per Crawford J (as he then was) at 22. A proper tariff can only be established from sentences imposed over a period of time "long enough to neutralise the element of personal idiosyncrasy"; per Nettlefold J in Reynolds v R 46/1974. In R v Dowie [1989] TASSC 44; [1989] Tas R 167 at 186, Wright J warned that the tariff approach to sentencing may be of little value, "particularly where cases supposedly illustrative of the tariff are few, or the relevant facts are not directly comparable". His Honour went on to say that a court may frequently be aided by the provision of statistical data but that "it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in light of all of the known facts and circumstances".

40 I have been able to find 17 other sentences imposed by the Supreme Court in this State since March 2006 which relate to child pornography. Many of those cases involve only the possession, or the accessing and possession, of child exploitation material under the Criminal Code, ss130C and D. They involve a range of types and quantities of images. The sentences in these cases have ranged from a $3000 fine up to six months' imprisonment with the execution of part or the whole of the term suspended on conditions. There is one case of eight months' imprisonment, but that also involved dishonest offences which, in part, related to the possession of childrens' underwear. Two further cases involved, as well as possession under the Criminal Code, s130C, the Commonwealth offences of using a carriage service to access or make available child pornography, under the Criminal Code Act 1995 (Cth), s474.19(1)(a). In one, there was a sentence of 12 months' imprisonment, with the execution of six months being suspended; in the other, the sentence was one of 5½ years with a non-parole period of three years.[1] Other cases have involved additional offences of a sexual nature.

41 There is one case of producing child exploitation material, the facts of which were that the accused covertly filmed his stepdaughter involved in sexual activity on a number of occasions over a two year period from when she was about 15. The sentence was one of six months' imprisonment. It follows that I do not think it is possible to determine any established and reliable sentencing pattern in this State in relation to the nature and extent of the particular criminal conduct of the respondent.

42 The way in which the respondent was producing child exploitation material may be somewhat unusual. It is different from usual notions of producing child exploitation material; that is, in the sense of the making of pornographic images by photograph, video or film. It would be useful to examine how such conduct has been approached, as a matter of principle, in other jurisdictions, but I have not been able to find a case in which the production was of the type involved here. It seems to have occurred in one case but was not the subject of any separate charges: R v NK [2008] QCA 268. Four appellate cases[2] have involved the production of child pornography, with two of those involving the distribution of it. All four cases involved the actual commission of serious sexual crimes which were associated with the production allegations, and they involved, as head sentences, total terms of imprisonment ranging from 6½ years to 16 years, with the production components attracting gaol terms ranging from 9 months to 4 years. In Dodge v R (2002) 134A Crim R 435 the possession of 17 items of written material and the supply of one such item, attracted a one year term of imprisonment, reduced from 18 months.

43 These considerations lead to a broader point which needs to be mentioned. There is no doubt that child pornography is an international problem. The means by which the bulk of possession and distribution offending seems to occur is the use of computers and the internet. "The internet has been used to create a self-justifying online community for child pornography users."; Tony Krone, A Typology of Online Child Pornography Offending, Aust Inst Crim Issues Paper No 279 - July 2004. Images are collected and stored on computers in large quantities and distributed by means of email and file sharing programs. The characteristics of the internet make it exceedingly easy for offenders to covertly access, download and distribute material, and readily facilitates private communications between actual and potential offenders. No physical limitations or barriers, nor jurisdictional boundaries, intrude on these activities[3].

44 Traditionally, courts of States or Territories not exercising the judicial power of the Commonwealth have applied notions of consistency of sentencing outcomes according to local circumstances and factors which may vary from one locality to the next: see Leeth v Commonwealth [1992] HCA 29; (1992) 174 CLR 455. Mason CJ, Dawson and McHugh JJ at 470, and Sir Guy Green, The Concept of Uniformity in Sentencing (1996) 70 ALJ 112 at 117 - 118. For the reasons which I have set out, the concept of what is the "local community" may have to be expanded. The impact of offending such as this may be quite widespread, as may be the potential targets of deterrent measures.

45 Ultimately, the question in this appeal is to be approached using my own judgment of the facts and circumstances, guided by what can be derived from sentences in this jurisdiction, and the established propositions and factors which I have outlined. I would take it as self-evident that the mere possession of child pornography is a very serious matter, as are of course, in ascending level of seriousness, the distribution and production of such material.

46 In my respectful view, the sentence failed to properly reflect the abhorrent and very insidious nature of the respondent's conduct. He collected and distributed graphic images of the sexual abuse and, in some instances, torture, of children including the very young. He discussed, encouraged and promoted, the sexual abuse and torture of children the subject of particular images, and of children generally. That online typed discussion amounted to the production of child exploitation material. This conduct called for far sterner denunciation, and a sentence reflecting a greater degree of deterrence. There was nothing of particular significance in the respondent's personal circumstances to ameliorate this approach.

47 The respondent was released from prison on 8 July 2009, about a month before this appeal was heard. Neither party suggested that this had any consequences for the resolution of the appeal.

48 The Criminal Code, s402(4A), provides as follows:

"(4A) The Court, on hearing an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor) -

(a) may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard; but

(b) despite paragraph (a), must not take into account the fact that the Court's decision may mean that the person is again sentenced for the crime."

49 Plainly enough, subs(4A)(b) prevents this Court from taking into account the concept of "double jeopardy" in considering whether to intervene; (as to the meaning of which see Hayes (1987) 29 A Crim R 452 per Kirby P at 469). Irrespective of that subsection, I would take the same course. In my view, the appeal should be allowed, and the sentence quashed. However, the order under the Community Protection (Offender Reporting) Act, should remain undisturbed.

50 To me, s402(4A) is strangely drafted. In the Minister's second reading speech of 28 August 2008, it was said that the provision was also intended to prevent this Court from taking into account double jeopardy situations "in determining what sentence to impose". The requirement in subs(4A)(b) is to not take into account that the Court's "decision may mean that the person is again sentenced". Read literally, that is a reference to the decision by which the person may become liable to be re-sentenced, and not the re-sentencing itself. Accordingly, I am not sure that the wording of the subsection actually achieves the stated purpose. For present purposes, in the absence of any argument, I am prepared to assume that it does. In any event, this Court has taken a narrow view of the operation of the double jeopardy principle in a re-sentencing exercise; Attorney-General (Tasmania) v McDonald (above), and in this case I would not afford any particular weight to the fact that the respondent again faces sentence.

51 In my view the substituted sentence should be one of two years' imprisonment. In order to take into account the time spent in custody, the sentence should commence 90 days before the respondent's return to custody. There should also be an order that the respondent not be eligible for parole until he has served one half of that sentence.

[1] Both are presently under appeal to this Court; the first as being manifestly inadequate, the second as being manifestly excessive.

[2] Director of Public Prosecutions v DJS [2003] VSCA 9; R v Jongsma [2004] VSCA 218; (2004) 150 A Crim R 386; R v GAE [2008] QCA 128; R v NK [2008] QCA 403.

[3] As is shown in this case by one of the discussions which I have set out, the distribution from this State was made internationally.

Director of Public Prosecutions v Latham [2009] TASSC 101

At a glance

Court

Decision date

Before

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Source

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Judgment (92 paragraphs)

Director of Public Prosecutions v Latham [2009] TASSC 101 (12 November 2009)

Parties

Cases Cited (6)