DPP (Cth) v Ison [2010] VSCA 286

2 Far from revealing any error of the type described in R v Clarke,[1] which is necessary in order to found a successful Crown appeal, I consider that her Honour's reasons disclose a sentence which was sensibly adapted to fulfil the ends of justice in this particular case having regard to the circumstances of the respondent.

3 These are appeals against sentence by the Commonwealth and State Directors of Public Prosecutions on the ground of manifest inadequacy. On 19 October 2010 the Court dismissed the appeals and these are my reasons for joining in that order.

4 The respondent pleaded guilty in the County Court of Victoria to the following three charges:

Count 1: That between 12 May 2009 and 18 September 2009 at a named place in Victoria the respondent did use a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth) (maximum 10 years' imprisonment).

Count 2: That on or about 20 May 2009 at a named place in Victoria the respondent did use a carriage service to cause child pornography material to be transmitted to himself, contrary to s 474.19(1)(a)(ii) of the Criminal Code (Cth) (maximum 10 years' imprisonment).

Count 3: That on 18 September 2009 at a named place in Victoria the respondent did knowingly possess child pornography contrary to s 70(1) of the Crimes Act 1958 (Vic) (maximum five years' imprisonment).

5 I note that the respondent pleaded guilty on 22 January 2010 at the committal mention in the Melbourne Magistrates' Court.

6 The respondent's plea in mitigation was heard in the County Court of Victoria on 6 May 2010 at the conclusion of which the learned sentencing judge adjourned

until 19 May 2010 in order to obtain a report from the Office of Corrections. The judge said that this did not mean that she was going to place the respondent on a Community Based Order as she still had to decide what she was going to do. Her Honour added that on the adjourned date she would hear further submissions concerning the report from the Office of Corrections.

7 The Office of Corrections provided a pre-sentence report to the Court, assessing the suitability of the respondent for a Community Based Order. The Office reported that the respondent was considered suitable for a Community Based Order and recommended conditions as to unpaid community work, supervision, assessment/treatment for drugs/alcohol dependency or psychological/psychiatric treatment and that the respondent undergo referral to the Sex Offender Program and participate in such program as directed. The pre-sentence report stated that the respondent had been assessed as a low-risk offender according to the Victorian Intervention Screening Assessment Tool, while noting that this assessment did not relate to the risk of 'sexual re-offending' the report stated that to determine that risk, an assessment by the Sex Offender Program was recommended. The writer of the report went on to say that the respondent appeared to be open and honest with her concerning his offending and that he had admitted it was 'the wrong thing to do' and that he was extremely remorseful for his actions - he further stated to the writer that he 'needed help' and was willing to comply with any Order condition that the court might make.

8 When the hearing resumed on 19 May 2010 both counsel said that they had received copies of the above assessment and I note that the Crown did not seek to make any submission about the assessment.

9 On 19 May 2010 the respondent was convicted and sentenced as follows:

(a) on count 1: sentenced to 18 months' imprisonment commencing on 19 August 2010 which sentence was wholly suspended subject to the respondent giving security with surety by recognisance in the sum of $2,000 to comply with the following condition - that he be of good behaviour for two years;

(b) on count 2: ordered to serve a Community Based Order for a period of two years commencing on 19 May 2010 and ending on 18 May 2012 under which he was required to attend at Werribee Community Correctional Services by 4:00pm on 21 May 2010 and in addition to the core conditions was required to:

- perform 150 hours of unpaid community work over a period of two years as directed the Regional Manager;

- undergo assessment and treatment for alcohol and drug addiction or submit to medical/psychological/psychiatric assessment and treatment as directed by the Regional Manager;

- participate in the Sex Offenders Program as directed by the Regional Manager.

(c) on count 3: sentenced to 18 months' imprisonment commencing on 19 August 2010 which sentence was wholly suspended for an operational period of two years.

10 It was further noted in the records of the County Court that the length of the reporting period for the purpose of s 34 of the Sex Offenders Registration Act 2004 was life and the judge stated, pursuant to s 6AAA of the Sentencing Act 1981, that had the respondent not pleaded guilty, a sentence of 21 months' imprisonment with a non-parole period of 12 months would have been imposed. A forfeiture order was made with respect to one computer and 66 compact discs.

11 The circumstances giving rise to the charges and the details of the offending may be summarised as follows. On the basis of information received, the Australian Federal Police attended at the respondent's address on 18 September 2009 and executed a search warrant. The property removed included a laptop computer and 66 compact discs. Forensic analysis of the computer revealed that between 12 May 2009 and 18 September 2009 the respondent had used certain computer programs to access child pornography material via the internet. This material had been downloaded by the respondent and was located on his computer (count 1). The accused also used the programs to participate in online chats with other users. The chat logs showed the respondent's interest in male children. A chat log dated 20 May 2009 recorded the respondent requesting another user to provide him with child pornography material as a result of which the respondent received 20 images in that category. The respondent and the other user exchanged mobile telephone numbers and the user then sent the respondent an additional five images. The transmission of the 25 images to the respondent constituted count 2. An inspection of the computer and the compact discs and also a number of DVDs disclosed that the respondent possessed a total of 6511 images and 656 videos containing child pornography material (count 3).

12 It was not in dispute that the appalling and sickening material in the possession of the respondent was accurately and sufficiently described by the sentencing judge. It is convenient to set out her Honour's description:

Forty-two percent of the images and 13 percent of the video material comprised images of semi-dresses and nude male children ranging from three to 16 years of age. Twenty-eight percent of the images and 40 percent of the video material comprised images depicting sexual activity between children, or solo masturbation by a child, including penetration by children of other children's mouths and anuses by penises, tongues, fingers and vibrators.

Eleven percent of the images and 11 percent of the video material comprised non-penetrative sexual activity between children and adults, which involved males and females aged between three and 17 years having their genitals exposed by adults, masturbating adult males by hand or tongue or being ejaculated or urinated upon by adult males.

Nineteen percent of the images and 26 percent of the videos depicted penetrative sexual activity between children and adults, mostly male but including some children, between the age of 12 months and 17 years of age. Penetration was vaginal, anal and oral, by penises, hands, tongues and objects. Some of the children seen in this category appeared distressed and crying.

Finally, one percent of the images and three percent of the video material depicted naked children in forms of bestiality and bondage involving male and female children between five and 15 years. They were tied up with tapes, ropes, handcuffs or chains, bound and gagged and penetrated vaginally and orally with a penis, objects and digitally. Some of the images showed young children either being sexually penetrated by animals or sexually penetrating animals. Some of these children appeared distressed and crying. There were a total of eight images of this type.

13 After setting out the above description, the learned sentencing judge noted that the respondent had told police that the computer was his and that he was the only one who used it and that he had pleaded guilty at the committal mention. The judge said that she had viewed a sample of the material and it was a sickening display of sexual exploitation of children, some of them very young and some of it quite horrifying. Her Honour said that the material was vile, degrading and represented the basest form of exploitation of children.

14 The judge then turned to the respondent's personal circumstances noting that he was thirty years of age and had no prior convictions. The respondent resided in rental premises with his two sisters, one aged 32 and the other aged 25 years, and he had been raised in a loving, caring family. The respondent worked part time at a community arts centre and also worked as a disability instructor and accounts officer for a charitable organisation and did not work with children. The respondent was an occasional social drinker of alcohol and had never been a regular illicit drug user. The respondent had told a psychologist, Mr Jeffrey Cummins, whose report was before the court that he had come to acknowledge that he regarded himself as being homosexual. The respondent had a shy personality and had remained very much living within the confines of his family.

15 The respondent told Mr Cummins that he had drifted into viewing child pornography on the internet in about 2004 and that only a matter of months before his arrest he had begun to form the view that his behaviour did not represent victimless offending, as a result of having read various newspaper articles and seen news items on television. The judge noted that Mr Cummins said that the respondent presented as emotionless and isolated from his feelings and that Mr Cummins was concerned that the respondent's mental state could deteriorate significantly and quickly if he was incarcerated. Mr Cummins' view was that it was imperative that the respondent participate in a sex offender program and receive one to one psychotherapy from a psychologist or psychiatrist trained in sexual therapy.

16 The judge noted that, although the respondent had told Mr Cummins that he had learnt his lesson and would never again offend by downloading child pornography material or engaging in sexualised chat room conversations, Mr Cummins' opinion was that the respondent's risk of re-offending was moderately high and that Mr Cummins believed that the respondent's dependent personality style and shyness would almost inevitably draw negative attention to himself in a custodial setting.

17 The judge noted that the respondent had moved home to reside with his parents and that he had not sought any counselling since his arrest which, in her Honour's view, underlined the concerns raised by Mr Cummins and the opinion that she had formed 'that over the years you have been unable to come to terms with your homosexuality, to act upon it in a normal, open way and that this has led you to the sort of solitary pursuit via the chat rooms, leading to the collection by you of this child pornography'.

18 Her Honour then continued with what I would describe, with respect, as a particularly perceptive and comprehensive analysis of relevant sentencing considerations, both those concerned with the public interest and those concerned with the personal circumstances of the respondent:

Overall, as a result of the plea submitted by your counsel, the psychological material, and my observations of you during the hearing, it seems to me you have had considerable difficulty coming to terms with both the gravity of your offending and the legal predicament you now find yourself in.

Like so many people charged with this sort of offending, you present as shy and rather socially isolated. You have had a dearth of mature adult relationships and, again, if you have trouble coming to terms with your own homosexuality, this is not something that is going to occur in your life. You have become part of the shadowy, unreal world of the internet sexually-based chat room, which has taken the place of open, mature, adult relationships. There, the perverted and abnormal loses its true character. Reaction becomes blunted and grossness is accepted as normal.

Your offending has yet not involved a movement by you to action beyond the accessing of child pornography. You have not sought to secure the sexual services of a child. You need to understand, however, Mr Ison, that the material you collected and that you possessed involves the most depraved, sickening and remorseless exploitation of the subjects of these pictures and videos. In every one of those thousands of images, there are victims in the truest sense of the word, children overborne by cruel, manipulative adults who are subjecting them to degrading and distressing experiences that will mark their development, their self esteem, their psychological security and happiness for the rest of their lives.

Many of these children are clearly able to be exploited because they themselves were born into situations of poverty and deprivation. The enormous cruelty is that, already vulnerable to suffering in that situation, they are then subjected to this horrendous sexual subjugation. That record of their subjugation and degradation is then sold, that is commercially traded, so that people like yourself can gain sexual gratification from their mistreatment and the cruelty visited upon them.

Make no mistake, Mr Ison: there are thousands of victims in the crimes charged against you. You may not have realised it at the time, but you are part of the driving force behind this ruthless exploitation of these most vulnerable members of the human community. Were there no voyeurs such as yourself this material would have no audience. It would have no market. It is for this reason that both State and Federal Parliaments have moved to enact legislation to punish and deter people like yourself, who gratify themselves at the expense of these children's suffering and exploitation. That you could even get to the point of finding such material sexually gratifying and worth preserving is a sign that something very wrong indeed has developed within you.

It is quite clear to me that your parents and family have very little idea of what you have been doing. Your father was the only member of your family present on the plea. He gave no evidence, but his appalled reaction that I observed to the revelation as to the contents of the child pornographic material you possessed was graphic.

My concern is that reasons particular to you - I know I am repeating myself here - that is, your inadequate personality style, as determined by Mr Cummins, your shyness, your social isolation, your lack of mature adult relationship in your 30 year lifespan, lead me to conclude that the community may be better served by the imposition of a non-custodial disposition which contains in it the psychological and educative processes recommended by Mr Cummins.

I am satisfied that the enormity, depravity and sordid nature of the exploitative subject of the material you possessed somehow escaped you and that your reaction to it became blunted. It would appear you come from a strong family background, a family that will hopefully continue to support you notwithstanding the revelations to it of the appalling material you have been collecting and sexually fantasising over.

It would appear that your inability to acknowledge your own homosexuality, as I have said, may have had some part to play, particularly in keeping you socially and sexually isolated, and making more attracting this shadowy, sordid world of internet pornography and sexualised chat rooms.

You have not been assessed as frankly paedophilic by Mr Cummins. I have had a large number of reports from Mr Cummins in relation to people charged with offences such as yours, and normally he does not hesitate to make such an assessment. He has not done this in your case. While he says you are vulnerable to re-offending, it appears to be re-offending in terms of continuing to collect pornographic material, rather than moving into direct sexual abuse of children themselves, although he is concerned that given the nature of this material this is something that could happen.

You have gainful employment. It seems to me far better for the community that I deal with you in a way which attends to the re-education of you as to the aberrant nature of this pornographic material rather than gaol you, where unfortunately you could come into contact with active paedophiles, where you would lose a vast array of opportunities via employment in the community and which could do you the sort of psychological damage which could undermine for some time your capacity to function in a normal and productive sense.

As I have said, this offending is serious. The material you collected was gross, and it is my view that the first and third counts on the indictment are the most serious of the offences because of the size of the pornographic collection and the nature of it. I intend to deal with those charges by way of a sentence of imprisonment which will, however, be wholly suspended for the reasons I have given.

Charge 1 involves you accessing this very large amount of horrible material.

Charge 2 involved the exchange of pornographic material by yourself and 'kevin', and I propose to place you on a Community-based Order on that charge. You have been assessed as suitable for such a disposition. You were described by the Community Corrections Assessor as, 'polite and cooperative throughout the process and appeared to be open and honest'. You were described as extremely remorseful for your actions. You told the assessor you need help. You expressed a clear willingness to comply with all Order conditions.

In sentencing you, I take into account your plea of guilty, which was entered at an early stage, your lack of prior convictions and lack of subsequent offending, and the fact that, in my view, with appropriate assistance you have reasonable prospects of rehabilitation. I accept that you are remorseful for your offending, the enormity of which is only beginning to dawn upon you. I therefore sentence you as follows. ...

19 It was common ground that the appeal was governed by s 289 of the Criminal Procedure Act 2009 (Vic) and that the element of double jeopardy was not to be taken into account.

20 The Crown accepted the principles governing Crown appeals as set forth in R v Clarke,[2] and summarised them as being, relevantly: where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle, where there is a need to maintain adequate standards of punishment, where it is necessary to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience, and where it is important to ensure uniformity in sentencing.

21 The Crown cited a number of cases which had emphasised the importance of general deterrence for this class of offences.[3] The Crown referred to a number of factors that might bear upon the objective seriousness of the offences, including the nature and content of the images, the number of images or other material, whether the possession was for the purpose of sale or further distribution and the length of time the images had been possessed and the extent to which they had been organised or systematically stored. The Crown submitted that, in this case, the images and videos were of the most depraved content and, while accepting that there was no evidence that the respondent had bought or sold child pornography, noted that count 2 involved the respondent encouraging another person to transmit such material to him. It was further noted that there were 66 CDs and DVDs and some were found in a padlocked metal box.

22 The Crown further emphasised the importance of specific deterrence, noting that the respondent's risk of re-offending had been assessed as 'being moderately high'. While acknowledging that the judge was entitled to take into account the various personal mitigatory factors, the Crown submitted that they should be given less weight than the factor of general deterrence when passing sentence for child pornography offences.[4]

23 The Crown, referring to the principles of comity, submitted that an analysis of recent Australia-wide decisions[5] supported the proposition that ordinarily one could expect an immediate term of imprisonment to be imposed in cases of this type.

24 Counsel for the Crown drew the Court's attention to the recent decision of this Court in DPP v Smith[6] in which a Crown appeal based on the lack of an immediate term of imprisonment had been dismissed but it was submitted that that case was different.

25 It is convenient at the outset to refer to the case of Smith[7] just mentioned. That was a Crown appeal in which the respondent had pleaded guilty to one count of using a carriage service to access child pornography and one count of possessing child pornography. The judge had sentenced the respondent on count 1 to 18 months' imprisonment to be wholly suspended for a period of two years and on count 2 to a Community Based order for a period of two years with various conditions. The basis of the Crown appeal was that anything less than an immediate term of imprisonment was inadequate. Nettle JA (with whom Harper and Hansen JJA agreed) said:[8]

The precepts which apply to the sentencing of offenders for offences of possessing child pornography are tolerably clear.

1. First, the nature and gravity of the offending ordinarily falls to be determined by reference to the four criteria adumbrated by Johnson J in R v Gent:[9]

(a) The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted.

(b) The number of images or items possessed.

(c) Whether the material is for the purpose of sale or further distribution.

(d) Whether the offender will profit from the offence.

In the case of child pornography for personal use, the number of children depicted and thereby victims is also regarded as a relevant considerations.

1. Secondly, general deterrence is regarded as the paramount sentencing consideration - because of the public interest in stifling the provision and use of child pornography; and less or limited weight is given to an offender's prior good character because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character.[10]
2. Thirdly, a sentence of immediate imprisonment would ordinarily be warranted,[11] but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded.[12]

26 Nettle JA referred to a number of relevant circumstances of the case which, to my mind, are quite similar to the present. His Honour mentioned that the objective nature and gravity of the offending was in some respects particularly serious but there was no suggestion that any of the material was for the purpose of sale or further distribution or that the respondent would profit from it. His Honour mentioned that offences of this kind frequently appear as manifestations of the depraved voyeurism of socially mature adults who have the insight to comprehend the effects of child pornography on its victims whereas, in that case, the respondent's offending was the addictive consequence of curiosity on the part of a socially very immature human being living an extraordinarily lonely existence and lacking insight into the effect on the victims. As I have said, the facts are not dissimilar to the present.

27 Nettle JA, in Smith, went on to say that, in the particular circumstances, he was not persuaded that considerations of general or specific deterrence demanded an immediate custodial sentence and that, while generally an immediate custodial sentence was appropriate in such cases, his Honour was not persuaded that the course taken by the sentencing judge was 'beyond the range of sound discretion'.[13] His Honour added that, as the respondent was almost halfway towards completing his community-based order - he had completed his community service and was about to begin his group therapy - it would be unduly harsh to send him to gaol.[14] Harper JA, while rightly deprecating the offences in strong terms, considered that in the particular circumstances of the case the ends which the relevant legislation was designed to advance would be best protected by the disposition favoured by the sentencing judge.

28 Accepting that anything less than an immediate custodial sentence may be exceptional, it is also clear that a non-custodial sentence may sometimes be within the range of appropriate dispositions. A comparison of the decisions of this Court in D'Alessandro[15] (Redlich and Harper JJA and Williams AJA) and in Smith (Nettle, Harper and Hansen JJA) well illustrates that proposition.

29 In the present case, I consider that, far from being manifestly inadequate, and far from simply being within the 'appropriate range', the sentence was correctly fashioned to serve the ends of the legislation[16] in the light of the particular circumstances of the respondent. I further agree with and adopt what was said by the learned sentencing judge.[17] In my opinion, the course adopted by her Honour satisfied the considerations of denunciation, general deterrence[18] and specific deterrence.

30 Finally it would have been, in my view, an entirely retrograde step and contrary to the public interest to pluck the respondent out of the community when

he was in the middle of satisfying the community-based order and to cast him into prison.

[1] [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA).

[2] [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA).

[3] R v Booth [2009] NSWCCA 89, [39]-[40], [47] (Simpson J); DPP v D'Alessandro [2010] VSCA 60, [19], [21]; R v Padberg [2010] SASC 189, [18], [21]; Hill v The State of Western Australia [2009] WASCA 4, [28].

[4] Citing R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, [61]-[62]; Mouscas v R [2008] NSWCCA 181, [37] and Hill v The State of Western Australia [2009] WASCA 4, [28].

[5] Citing 14 mainly appellate decisions including a number of decisions in Victoria, New South Wales, Western Australia and also in South Australia and Queensland.

[6] [2010] VSCA 215 (Nettle, Harper and Hansen JJA).

[7] DPP v Smith [2010] VSCA 215.

[8] [2010] VSCA 215, [23].

[9] [2005] NSWCCA 370 [99] (Johnson, McLelland CJ at CL and Adams J agreeing).

[10] See DPP v D'Allesandro [2010] VSCA 60 [21] (Harper JA), where the cases are considered.

[11] See R v Jongsma [2004] VSCA 218; (2004) 150 A Crim R 386, 395; Hill v The State of Western Australia Unreported, WACA, 1 December 2008, [28] and the cases there cited; R v Booth [2009] NSWCCA 89, [48] (Simpson J); R v Sykes [2009] QCA 267; DPP v Groube [2010] VSCA 150, [24].

[12] R v Gordon ex parte DPP (C'th) [2009] QCA 209, [43]; R v Sykes [2009] QCA 267, [24].

[13] [2010] VSCA 215, [26]-[29].

[14] [2010] VSCA 215, [30]: citing R v Vest (1998) 100 A Crim R 127, 132-133; DPP v Wilson [2000] VSCA 112; (2000) 1 VR 481, 489-90; DPP v Leach [2003] VSCA 96; (2003) 139 A Crim R 64; DPP v Groube [2010] VSCA 150, [27]-[30].

[15] [2010] VSCA 60.

[16] Cf DPP v Buhagiar [1998] 4 VR 540, 547.

[17] See [18] above.

[18] See DPP v Carter [1998] 1 VR 601, 607-608.