Criminal law and procedure - Sentencing - Three counts of indecently recording a child (lineal relative) - One count of supplying child pornography and one count of possessing child pornography - Whether individual sentences manifestly excessive - Whether overall term of 4 years' immediate imprisonment offended totality principle - Sentence not disturbed

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(1)(b), s 60(4)

Dodge v The Queen [2002] WASCA 286

LSC v The Queen [2003] WASCA 303

R v Coultas [2002] WASCA 131

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

TJD v The State of Western Australia [2004] WASCA 310

Trang v The State of Western Australia [2010] WASCA 44

2 OWEN JA: The appellant was convicted on his own plea of a series of offences relating to indecent recording of a child, supplying child pornography and possessing child pornography. He was sentenced to a total term of 4 years' immediate imprisonment.

3 The appellant has previously obtained leave to commence his appeal out of time and has been granted leave to appeal. This is the substantive appeal against the sentence.

4 The appellant was charged on indictment dated 4 September 2009 with three counts of indecently recording a child who he then knew to be his lineal relative with a circumstance of aggravation, namely, that the child was under the age of 16 years (counts 1, 2 and 3). He was also charged with one count of supplying child pornography, in the form of images to another (count 4). The final count (count 5) alleged that the appellant had in his possession child pornography, in the form of images stored on his mobile telephone.

5 The appellant was 64 years of age when the first three offences were committed and 65 years of age at the time of sentencing. The complainant in the first three counts is the appellant's natural granddaughter and at the time of the offences was 5 years of age.

6 On 6 April 2008 the complainant was at the appellant's home. She was in the backyard alone with the appellant. The appellant asked her to part her shorts so he could see her vagina. The appellant used his mobile telephone and took a photograph of the child exposing herself. This is the subject of count 1 on the indictment.

7 On 13 April 2008 the complainant was again at the appellant's home. At an unknown location at the house, the complainant removed her pants and underpants to expose her vagina to the appellant. The appellant used his mobile telephone and obtained a photograph (count 2).

8 On 25 May 2008 the complainant was with the appellant in the garage of his home. The appellant asked her to pull her pants down to expose her bottom. The complainant did so and the appellant used his mobile telephone and obtained a photograph (count 3).

9 In the 12 months preceding June 2009 the appellant experienced marital problems and believed he had a sexual interest towards young

adult males and young children. He advertised his mobile telephone number on a toilet wall in Hillarys, hoping to explore his sexual interest. On 3 June 2009 the appellant received a text message from a person responding to the appellant's advertisement. Between 3 June 2009 and 8 June 2009 the appellant and the third party sent and received text messages to each other discussing their sexual interests. In the course of those exchanges the appellant sent a number of images to the third party. The appellant suggested the images were of an 11 year old girl. In the text messages that accompanied the images the appellant said he was the adult male performing sexual activity, although it seems that they were images the appellant had located on the internet and had photographed from the screen using his mobile telephone. Three images clearly depicted a young, naked girl who was approximately 11 years of age. The girl was engaged in oral sex, penetrative sex and posing with an adult male. The transmission of the images is the subject of count 4 on the indictment.

10 These images were surrendered to police by the third party, not the appellant. On 8 June 2009 police executed a search warrant at the appellant's home. The appellant participated in a video record of interview. The appellant admitted to sending the images and hoping to receive similar images in return. He stated that his advertisement was to communicate sexually with other adult males. He also said he had an interest in collecting child pornography images.

11 During the search on 8 June 2009 police seized the appellant's mobile telephone and analysed its contents. The appellant said that he had been accessing pornography websites at his work for about 12 months. He displayed images of naked females on the computer screen and then photographed the images using his mobile telephone. The appellant said he had used adult websites, searching for images that he believed looked under age. The appellant stored the images on his mobile telephone. The storing of the images on his mobile telephone is the subject of count 5 on the indictment.

12 It is not entirely clear from the appeal papers what quantity of images was involved in the offences. So far as concerns count 4, in the plea in mitigation defence counsel said a 'very small number of images' had been sent to the third party. Counsel for the State at the appeal hearing conceded that on the evidence this court could only proceed on the basis that three images that were clearly child pornography were disseminated. It is common ground that the photographs taken of the complainant (and therefore the subject of counts 1, 2 and 3) were not sent to the third party. There is no evidence of the number of images the subject of count 5. Prosecuting counsel told the sentencing judge:

[T]he offender stated he had been accessing pornography websites at his work for the last 12 months.

He displayed images of naked females on the computer screen and then photographed images at work using his mobile phone. He said that he had used adult websites, searching for images that he believed looked under age, and contained a number of images which formed the child pornography (ts 5).

13 The images recovered from the mobile telephone were handed to the sentencing judge in an envelope. The record indicates that the sentencing judge handed the envelope back. It can be assumed that the three photographs of the complainant were among those that were found on the appellant's mobile telephone. It can also be assumed that the three images the subject of count 4 were similarly stored. We know no more than that the appellant possessed 'a number' of child pornography images. This court can only proceed on the basis that the number was small. Apart from the six images that I have identified, there is no evidence as to their content or relative severity as instances of child pornography. All that we have to go on is the submission of defence counsel at the sentencing hearing (a submission which the prosecutor accepted) that apart from the two images showing a child engaged in sexual penetration, the images were 'at the lower end'.

14 The appellant was sentenced to a total of 4 years' immediate imprisonment. The appellant was made eligible for parole upon serving 2 years' imprisonment.

Indecent recording of a child (known to be a lineal relative)

Indecent recording of a child (known to be a lineal relative)

Indecent recording of a child (known to be a lineal relative)

15 The ground of appeal, as drafted, is that the sentencing judge erred by 'imposing a sentence that was manifestly excessive in all the circumstances'. That masks, rather than elucidates, the true nature of the complaint. At the hearing of the appeal, counsel for the appellant advised that the appellant wished to argue that each sentence was manifestly excessive and that the first limb of the totality principle (namely, that the overall effective sentence was disproportionate to the degree of criminality involved in the offending conduct) was infringed. On countless occasions, most recently in Trang v The State of Western Australia [2010] WASCA 44 [14], this court has emphasised that care needs to be taken to ensure that grounds of appeal are drafted to reflect the real import of the challenge. While the totality principle and a complaint of manifest excess have some elements in common, they serve different purposes. A challenge to the length of a total sentence for multiple offences that depends on an inference of implied error should be based on a breach of the totality principle. The manifest excess principle applies to a challenge, again usually alleging implied error, to an individual sentence.

16 It is not said that the sentencing judge made an express error, overlooked a relevant factor or took into account an irrelevant factor. The argument is based purely on discerning implied error from the result. For that reason there is no need to describe what his Honour said in his sentencing remarks.

17 The ground of appeal is particularised. There is no need for me to set out the matters listed in the particulars as they will all be covered in the section that follows. I will proceed on the understanding that the same matters are advanced in support of the argument on the first limb of the totality principle.

18 The maximum penalty prescribed by Parliament for the offence of indecent recording of a child under 16 known to be a lineal relative (Criminal Code s 329(6) and s 329(10)(a)) is imprisonment for 10 years. I note that this is the same maximum penalty as is prescribed for the offence of indecent dealing with a child under 16 known to be a lineal relative (Criminal Code s 329(4)).

19 The appellant took indecent photographs of his 5-year-old granddaughter on three separate occasions over a period of about seven weeks. It was not an isolated incident. It was a gross breach of trust to take advantage of an innocent 5-year-old granddaughter whom the appellant could expect would comply in an unquestioning manner with his directions. Although there is no evidence the appellant disseminated these images to other persons, the pre-sentence report indicates that he used them to obtain sexual gratification. He admitted, in the video record of interview, that when he took the photographs he had become excited and had an urge (which, thankfully, he resisted) to touch the complainant. The sentencing judge accepted the view of the author of the pre-sentence report that the appellant had displayed only minimal victim empathy and had failed to acknowledge the breach of trust. While I would not label the offences as being in the worst category (they did not, for example, involve threats or violence and the images were not shared with others) the circumstances are nonetheless very serious.

20 The offences of supplying child pornography and possessing child pornography, the subject of counts 4 and 5, carry maximum penalties of imprisonment for 7 years and 5 years respectively: Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (the Act) s 60(1)(b) and s 60(4).

21 The appellant was in the habit of accessing pornographic websites on his computer with the professed aim of finding sexually explicit images of young people. He then used his mobile telephone to take photographs of the images displayed on the screen. He supplied the three pornographic images the subject of count 4 with the object of attracting the interest of an unknown correspondent in the hope that he would be able to further his sexual interests. He had an interest in child pornography and hoped to receive similar images in return.

22 The supply and possession of child pornography are inherently serious offences because they support an industry that exploits and corrupts young and vulnerable children and because the holders and users of the material may be encouraged to perpetrate physical sexual attacks on children. In this case, the seriousness of the supply offence was exacerbated by the accompanying text messages that suggested (falsely as it turned out) that the appellant was the person involved in corrupting the depicted child.

23 In their written submissions the State sought to make something of the fact that the appellant 'captured' and 'distributed' images as well as storing them. I have difficulty with that submission. There does not seem to me to be much difference between 'capturing' an image by downloading it and storing it on the computer (or some other electronic storage device) and doing so by taking a photograph of the image and retaining it on a mobile telephone. In the circumstances of this case there would be an element of double punishment if the distribution were taken as an aggravating feature of count 5 when it was the subject of specific consideration in count 4.

24 Similarly, the State pointed to the admissions in the video record of interview that the appellant had, on occasions, sent images to other people, 'maybe two or three', and that these transmissions would have involved 'one or two' images (not hundreds). But the appellant is charged with a specific offence of supplying images. Nowhere in the sentencing materials is it suggested that count 4 is representative of a course of conduct of a general nature. In any event, there is no evidence of the type of images and their relative severity.

25 The appellant is not charged with accessing adult websites. In his video record of interview he admitted having done so over a period of 12 months. It seems that many of the images stored on his mobile telephone were of adult pornography. While his interest in pornography and his habit of trawling through websites looking for images of children who looked under age forms part of the factual matrix to the charges, the counts on the indictment relate to specific instances of possession and supply of child pornography.

26 The seriousness of the offences falls to be considered in the light of all of the circumstances. The number of images is a factor, but not the only factor, to be taken into account. The nature and severity of the images, the manner in which they were captured and the extent of the supply (where relevant) are some of the myriad other matters that must be examined. On balance and in the circumstances of this case, given the small number of images involved and the fact that only two can definitely be classified as particularly bad, I think the appellant's offending would fall towards the lower end of the scale of seriousness.

27 The appellant was 65 years of age at the time of sentencing, with no prior criminal record. He was married with two children and three grandchildren. He had been gainfully employed since the age of 15. He had served in the armed forces for over 20 years and was in receipt of a Veterans' Affairs pension. Notwithstanding the offences he continues to have the support of his wife and one of his children.

28 The appellant had been diagnosed with anxiety and depression in the pre-sentence report and psychological report. Since shortly after his arrest he had been undergoing counselling to address his offending and to determine the causative urges which led to the aberrant conduct. The sentencing judge acknowledged that the psychologist had not embarked on any treatment in regards to the offending so the court process would not be compromised. The appellant had attended seven appointments to address 'stress, anxiety and depressed mood'. The appellant had been assisted to monitor his sexual feelings. He was assessed as suffering from depression in the 'upper clinical range, as well as clinically significant anxiety'.

29 The appellant cooperated with the police from the outset and had pleaded guilty at the earliest opportunity.

30 One of the particulars advanced in support of the 'manifest excess' ground is that '[s]entencing authorities suggest that the [sentences were] above the range commonly imposed for like offending'.

31 It will be convenient to deal first with the offence of possessing child pornography under s 60(4) of the Act. In The State of Western Australia v Cunningham [2008] WASCA 240 [26] - [27] the court examined the authorities and concluded that as a general rule it can be said that the range of sentences imposed for the offence of possession of child pornography is between 8 months and 2 years' immediate imprisonment.

32 It is more difficult to identify a range of sentences customarily imposed for the supply offence under s 60(1)(b) of the Act. In R v Coultas [2002] WASCA 131 the offender pleaded guilty to 94 counts of supplying child pornography and to one count of possessing child pornography with intent to supply under the statutory predecessor to s 60(1)(b). The images had been supplied to three recipients via the internet, although it was not alleged that the offender was doing anything for financial gain or was setting out to corrupt others who were previously innocent. The offences were committed on 20 separate occasions and involved thousands of images. A total sentence of 18 months' imprisonment (which would be 12 months in post-transitional terms) was not disturbed on appeal. However, this was a State appeal and was decided at a time when the 'double jeopardy' principle applied. At least one of the judges characterised the sentence as lenient.

33 In Dodge v The Queen [2002] WASCA 286 the offender pleaded guilty to one count of supplying child pornography to a fellow prisoner in a prison and for a further offence of possessing child pornography in the form of written material. He was sentenced to 18 months' imprisonment for each offence. The terms were ordered to be served cumulatively upon each other and upon any sentences which the offender was then serving. The offender was only a few days away from being released from prison where he had been serving sentences of imprisonment for offences against children. He had already been in prison since 1993. On appeal the court had regard to all the circumstances, including that there was no involvement of live children in the production of the written material, there was no financial gain to the offender and there was a relatively low number of items involved. The court also took into account the time the offender had been in prison, his cooperation and his fast track pleas of guilty. The appeal succeeded and the offender was sentenced to 12 months' imprisonment for each offence, to be served concurrently. The differences between Dodge and this case are obvious.

34 I have not been able to find other cases dealing with sentences under s 60(1)(b) of the Act or under its predecessor, s 60(1) of the Censorship Act 1996 (WA). Due to the peculiar circumstances of Coultas and Dodge I do not think they give any guidance as to a range of sentences customarily imposed for offences of this nature. In any event, I doubt that two cases could establish a 'range'.

35 This brings me to the charges of indecent recording. Once again there is a paucity of relevant authority. So far as I am aware there are no cases decided by this court ruling on sentences for the stand alone offence of indecent recording. Most of the authorities have dealt with indecent recording together with physical sexual offences and the individual terms may well have been affected by totality considerations: see, for example, LSC v The Queen [2003] WASCA 303 and TJD v The State of Western Australia [2004] WASCA 310.

36 The next question is whether any assistance can be derived from sentences imposed for indecent dealing with a child. I note that indecent dealing and indecent recording are dealt with together (although in different subsections) in both s 320 (where the child is under the age of 13) and in s 329 (where the child is a lineal relative and is known to be under the age of 16). In both instances, the statutory maximum penalty is the same. Such a comparison could only be embarked on with great caution. In the area of sexual offences the variety of miscreant activity is almost infinite and great caution has to be exercised before characterising one form of behaviour as inherently more serious than, or of equal seriousness with, or of lesser seriousness than, another type of sexual misconduct of the same general character. Attempts to place various forms of digital, oral and penile penetration into an ascending order of seriousness is an example. So much depends on individual circumstances. In any event, it is not easy to extract much that is of assistance from the cases dealing with indecent dealing because they, too, are usually grouped with other, and more serious, offences of sexual misconduct. It would be necessary to confine the examination to cases arising under s 329 and s 320.

37 In the end, I have come to the view that it would be inappropriate to attempt to extract from the authorities a range of sentences customarily imposed for indecent dealing offences and which could confidently be translated to the area of indecent recording. I have concluded that the authorities have not, thus far, delineated a range of sentences customarily imposed for the offence of indecent recording.

Were the individual terms manifestly excessive?

38 According to the authorities, sentences customarily imposed for the offence of possessing child pornography fall into the range of 8 months to 2 years' immediate imprisonment. The mid point of that range is 16 months. The sentence of imprisonment of 18 months for count 5 falls slightly into the upper half of the range. The sentence is very high given the overall criminality that I have characterised as being at the lower end of the scale for offences of this type. But it is not outside the range. Bearing in mind the well-known principle that an appellate court cannot intervene simply because the members of the court might have exercised the discretion differently, I cannot conclude that the sentence for count 5 is manifestly excessive.

39 In relation to count 4, the statutory maximum penalty for supplying child pornography (7 years) is higher than that for a simple possession offence (5 years). This suggests that the legislature regards the criminal culpability that attaches to an offence under s 60(1)(b) as greater than that inherent in a simple possession offence under s 60(4). It would follow that, generally speaking and allowing for the vast range of circumstances that can arise in individual cases, a supply offence would attract a higher sentence than a simple possession offence. In those circumstances, and given that the sentence of 18 months for the possession offence is not outside the range established for that crime, I cannot conclude that the term of 2 years for count 4 is manifestly excessive. Once again, given the small number of images involved and the fact that they were only sent to one other person, I think the sentence is very high. However, I do not believe that it is so out of kilter as to justify intervention by this court.

40 There is no allegation that the terms of 2 years imposed for each of counts 1, 2 and 3 (indecent recording) have been infected by express error. Accordingly, the sentences have to be viewed on their merits as a matter of impression and (if the appeal is to succeed) error has to be discerned by implication and in the absence of guidance from previous authorities. The complainant was alone with the appellant, her maternal grandfather. He gave her instructions as to what she was to do and she complied. On three separate occasions he took indecent photographs of her. On one occasion he told her to part her shorts so he could see and photograph her vagina. On another occasion the complainant removed her pants and underpants and the appellant photographed her vagina. On the third occasion he asked her to take down her pants so he could see and photograph her bottom. This was not an isolated incident. Although it occurred over a relatively short period, it was sustained and repetitive conduct.

41 The offences involved a gross breach of trust. The photographs were retained by the appellant and used by him for his own sexual gratification. The appellant pleaded guilty but he has not demonstrated much victim empathy. There is no way of knowing what (if any) memory the 5-year-old child will carry of those incidents and what (if any) long term effect they may have on her development. What can be said is that the issue presents a dilemma for the family. The sentencing judge was told that the child's parents are agonising over the decision whether the offences should be disclosed to the child and, if so, when. This simply highlights the problem.

42 This is not an easy question to answer. In the end I have not been persuaded that the sentencing judge erred. The term of 2 years for each offence is high, but I have not been persuaded that the sentencing judge imposed a sentence that is manifestly excessive.

43 The final question is whether the total term of 4 years is disproportionate to the level of criminality involved in the offending conduct. The sentencing judge was aware of the totality principle. It caused him to reduce sentences that would have totalled 9 years and 6 months (had they been accumulated) to the ultimate effective term of 4 years.

44 The considerations that I have outlined in relation to the circumstances of the offending conduct, the seriousness of the offences and the personal circumstances of the appellant come into play here. The offences occurred over a period of 14 months. The conduct was brought to an end, not by any action of the appellant, but by the decision of the third party to involve the police. A sentence of 4 years is a long time for a 65-year-old. Nonetheless, the circumstances were serious and there is not much that can be put to reduce the level of criminality.

45 I have characterised each of the individual sentences as being 'high'. I would likewise regard the overall term of 4 years as 'high'. But it has been arrived at with an eye to the totality principle by ordering concurrency, rather than accumulation, on some of the terms. The ultimate question is not whether the overall term of 4 years is 'high' but, rather, whether it is disproportionate to the level of criminality represented by the five offences. In my view, it is a sentence in full measure, but it does not offend the totality principle.