DPP v Groube [2010] VSCA 150

3 The respondent pleaded guilty in the County Court at Melbourne to having used a carriage service to access and transmit child pornography, contrary to s 474.19(1)(a) of the Criminal Code Act 1995 (Cth), and to having knowingly possessed child pornography contrary to s 70 of the Crimes Act 1958 (Vic).

4 On 17 April 2009, the respondent was sentenced on count 1 to a term of 18 months' imprisonment, to be released forthwith on entering into a Recognizance Release Order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), subject to certain conditions. He was also sentenced on count 2 to be released on a Community Based Order which required him, inter alia, to perform 150 hours of unpaid community work over a period of two years.

5 The Victorian Director of Public Prosecutions, who had the carriage of this matter, has now appealed against the sentence imposed on count 2. Put simply, the Director contends that the two year Community Based Order made in respect of that count was manifestly inadequate.

6 More specifically, the Director contends that the sentence on count 2 failed to pay sufficient regard to various aggravating features of the offending and, in particular:

• the number of images and videos in the possession of the respondent;

• the content of the material and the ages of the children depicted in the pornographic material;

• the period of time that the material had been kept by the respondent;

• the production of multiple copies of the pornographic material; and

• the fact that the respondent had engaged in sending and receiving images via the internet from the relevant collection, thereby contributing to the exploitation of children.

7 In addition the Director contends that the sentence on count 2 gave too much weight to mitigating factors concerning the respondent, in particular:

• his excellent record of community service and care provided to his family;

8 The Director's complaint of insufficient weight having been given to every factor which could conceivably be regarded as having aggravated the offence on count 2, and too much weight having been given to every individual matter raised in mitigation, is not altogether helpful in identifying with precision where the sentencing judge is said to have erred.

9 The Notice of Appeal contains only one ground, namely that the sentence imposed on count 2 is manifestly inadequate. It is important to note that regardless of the outcome of the Director's appeal, the respondent will be required to serve the sentence fixed in relation to count 1.

10 The facts may be stated briefly. The respondent's home was searched in February 2008. Count 2 relates to 12,802 files containing child pornography, which were discovered on two of his computers, and on 18 compact discs.

11 Counsel for the appellant accepted that it was reasonable for this Court to proceed upon the facts as found by the sentencing judge, and to adopt his Honour's characterisation of the material found. The sentencing judge said that there were 3,975 individual images, and nine videos stored on the computers. The 18 compact discs contained 7,528 images classified as child pornography, 749 images of children engaged in sex acts, 13 videos depicting children, and 23 images of child abuse.

Examination by police of the child pornography material revealed multiple series of naked images of females between five and under 18 years in erotic and model-like poses. Amongst the material were a significant number of images involving sexual acts, including penetration, masturbation, and oral sex. Following application by the prosecution and with the consent of your counsel, I viewed a representative sample of the material possessed by you on your computers. The informant provided a sample on a laptop computer. The sample shown was consistent with the generality expressed above, being mostly poses of young females but including some oral sex and heterosexual sex with young females. When I say "females", children between the ages of five and under 18 years. A printout of descriptions of a sample of images from the compact discs was also tendered. Of the approximately 114 descriptions, the overwhelming majority were of young naked girls in various poses. Approximately 20 per cent show some kind of sex act, mostly sex with an adult male.[1]

13 Counsel who appeared for the Director on the plea submitted that in relation to count 2, nothing less than a term of actual imprisonment, to be served immediately, would be appropriate. That submission was repeated before this Court.

14 Counsel sought to demonstrate the seriousness of the offending by reference to four indicia which assist in classifying the gravity of such conduct, which he submitted could be distilled from the decided cases.[2] These were:

• the nature and content of the images, including the age of the children and the gravity of the sexual activity portrayed;

• the number of images or items of material possessed by the offender;

• whether the possession is for the purpose of sale or further distribution; and

• The length of time for which the images have been possessed and the extent to which they have been organised or systematically stored.

15 It was further submitted that some of the material fell into the 'most depraved' category. It had been argued on the plea that that was the case.

16 It was common ground that, of the 12,802 images to which his Honour referred, about 50% were duplications. In addition, most of the material showed children in 'poses'. About ten per cent involved direct sexual abuse.

17 In Exhibit E, which was a log of a representative sample of the material, about ten per cent involved children aged five to ten. Some of the images showed direct adult abuse of the children. There was no material which involved what might be described as 'extreme violence'. Nor was there any material involving bestiality or infant children. I have reviewed Exhibit E and, in my view, possession of all of that material would be regarded as serious offending. Some of it would be regarded as extremely serious.

18 Next, it was submitted on behalf of the Director that the respondent had admitted in his record of interview that he had kept the material for 'bargaining purposes'. Presumably that meant that he had exchanged images with others, and intended to do so again in the future. It was submitted that the respondent's offending, as represented by count 1, provided an example of engaging in that conduct.

19 In my view, the answer to the question put to the respondent by the police, which was said to justify this finding, was altogether too vague and uncertain to allow it to be made. Moreover, the Crown did not rely, on the plea, upon any suggestion that the possession of the material which gave rise to count 2 related to any form of 'bargaining'.

20 However, the circumstances giving rise to count 1 underline the potential for the use of such material in the way complained of.

21 I accept that it was a relevant factor, by way of aggravation, that the respondent had been collecting such material for about three years.

22 On the other hand, the plea material put on behalf of the respondent was extremely powerful. He made full admissions to the police in his record of interview. He had previously lead a blameless life. He had provided great support to his ill and ageing parents, far beyond what might be regarded as typical. He had been active in his local church and in motor sport.

23 It was submitted, on the plea, that the respondent had been particularly vulnerable at the time he began offending because of the dire circumstances in which his parents found themselves. His Honour found that, given the totality of these mitigating circumstances, the respondent's case was exceptional, and called for an unusual disposition.

24 Offending of this nature and gravity would ordinarily lead to an immediate custodial sentence.[3] In my view, and notwithstanding the mitigating circumstances, it should have done so in this case.

25 However, that is not the end of the matter. His Honour had to sentence the respondent on two separate counts, and had to fashion a sentence which would meet the needs of the case. On count 1, he imposed a term of imprisonment, though it was effectively suspended. On count 2, he made the Community Based Order in relation to which the Director now complains. These sentences were fixed as a total package. His Honour had been told that by reason of the vagaries of Commonwealth sentencing, he could not order a work component in respect of the Commonwealth offence.

26 This Court is faced with having to consider count 2, in isolation. In my view, even taking into account the suspended sentence imposed on count 1, the sentence imposed on count 2 was manifestly inadequate.

27 It does not follow that appellate intervention is necessarily warranted. There are two reasons for declining to interfere. The first is that a Director's appeal always gives rise to an issue of double jeopardy. The second is the caution which this Court exercises when the Director seeks to substitute for a non-custodial sentence one that involves immediate imprisonment.[4]

28 In this case the respondent has completed the required community work component. He has also met the financial condition imposed on count 1, namely a payment of $6000 to the Royal Children's Hospital. That too, is of some relevance when considering whether to allow this appeal, and cause him to be re-sentenced on count 2.

29 In relation to double jeopardy, I note that the respondent first pleaded guilty in the Magistrates' Court on 1 July 2008. He then pleaded guilty in the County Court on 29 July 2008. His plea was listed to be heard on 19 November 2008. It was not reached on that day and the matter was adjourned several times thereafter. The respondent was not sentenced until 17 April 2009.

30 This Court has a discretion, on a Director's appeal, as to whether or not to intervene irrespective of whether sentencing error has been shown. In view of the factors set out above, I would exercise my discretion against such intervention. I would therefore dismiss the appeal.

[1] R v Groube (Unreported, County Court Of Victoria, Judge Mason, 17 April 2009), [6].

[2] R v Curtain [2001] VSCA 156, [15] and [25]; R v Jongsma [2004] VSCA 218; (2004) 150 A Crim R 386, 405; and R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, 49.

[3] R v Jongsma [2004] VSCA 218; (2004) 150 A Crim R 386, 395; and R v Sykes [2009] QCA 267.

[4] See Best (1998) 100 A Crim R 127, 132-133; DPP v Wilson [2000] VSCA 112; (2000) 1 VR 481, 489-90; and DPP v Leach [2003] VSCA 96; (2003) 139 A Crim R 64, 74-5.