DPP v Smith [2010] VSCA 215

1 This is a Crown appeal against the alleged manifest inadequacy of the sentence imposed on the respondent on pleading guilty to one count of using a carriage service to access child pornography, contrary to s 474.19(1)(a) of the Criminal Code (Cth) (Count 1), and one count of possessing child pornography contrary to s 70(1) of the Crimes Act 1958 (Vic) (Count 2).

2 The maximum penalty for the offence of using a carriage service to access child pornography is ten years' imprisonment and the maximum penalty for the offence of possessing child pornography is five years' imprisonment.

3 The judge 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 special conditions that the respondent perform 150 hours of community work and be subject to the supervision of a Community Corrections Officer, undergo psychological psychiatric assessment and treatment pursuant to s 38(1)(d) of the Sentencing Act 1991 and undergo a referral to the Sex Offender Programme and participate in such a programme.

4 The Crown makes no complaint about the sentence imposed on Count 1 but contends that the judge erred in relation to Count 2, by failing to recognise that anything less than an immediate term of imprisonment was inadequate punishment.

5 The facts of the matter are set out in detail in the judge's sentencing remarks and I shall not recite them all. For present purposes, it suffices to record the following.

6 On 20 October 2008 Australian Federal Police attended at the respondent's home and executed a search warrant at the premises. They seized three desk top computers and five compact discs. Subsequent examination of the computers revealed Shareaza a peer to peer file sharing software installed on two of the computers which allowed for the searching and downloading of pictures, music and video files from other users of the internet.

7 Police also ascertained that 35 files containing child pornography had been downloaded through the Shareaza application onto two of the computers on 14 April 2008 and 9 October 2008. Of those 35 files, three images and six videos depicted child nudity or erotic posing with no sexual activity; two images and nine videos depicted sexual acts between child or self-masturbation by a child; one video depicted non-penetrative sexual activity between adults and children; and 14 videos depicted penetrative sexual activity between adults and children. Those are the facts which comprised Count 1.

8 Further examination revealed that one of the computers contained five videos of child pornography; another computer 133 images and 156 videos of child pornography; the third computer contained 7,569 images and 55 videos of child pornography; and two of the five compact discs contained a total of 12 videos of child pornography. Those are the facts which comprised Count 2.

9 The pornographic material so discovered fell into five categories. The first was of images depicting nudity or erotic posing without sexual activity. Those images were of pre-pubescent female children in sexual poses in various states of undress, mostly naked, with close up shots of their genitalia. The age of the children ranged from only months to 12 years with the majority of images depicting pre-pubescent females aged between five and ten years. That category comprised approximately 60 percent of the total images possessed.

10 The second category was of sexual activity between children and self-masturbation by children. Those images were of pre-pubescent male and female children engaged in sexual activity with other children and female pre-pubescent children masturbating themselves. It accounted for some seven percent of the total images possessed.

11 The third category was of images of non-penetrative sexual acts between children and adults. Those images were of pre-pubescent female children engaged in non-penetrative sexual acts with adult males. The age of the female children ranged from only months to around 10 years. That category accounted for approximately seven percent of total images possessed.

12 The fourth category was made up of images of penetrative sexual acts between children and adults. Those images were of pre-pubescent female children aged from months to around ten years engaged in penetrative sexual with adult males. It accounted for approximately 22 percent of total images possessed.

13 The final category was of images of sadism and bestiality depicting pre-pubescent female children aged between five and ten years apparently in pain, bound with tape, chains, handcuffs or ropes by their hands or feet to a bed, chair or other object. As an example, one series of images showed a female child aged approximately five years with the words, 'Cut me slut, hurt me', written in red blood-like liquid on her chest, a knife and adult penis. That category accounted for approximately four percent of total images.

14 There were also five categories of videos of cognate content totalling more than 40 hours of viewing. Category 1 videos comprised five percent of total video images possessed, Category 2: approximately 30 percent, Category 3: some six percent, Category 4: approximately 55 percent, and Category 5: approximately five percent. Categories 4 and 5 were particularly bad. Category 4 showed pre-pubescent female children aged from months to approximately 10 years engaged in penetrative sexual acts with adult males, including oral, anal and vaginal penetration, and Category 5 showed pre-pubescent female children bound as explained before and pre-pubescent female children fellating a dog. The judge estimated that the number of children depicted in the images and videos totalled more then 1,000. The period of possession, however, was only six months.

15 In summary, the judge found that the gravity of the material was at the higher end of the scale and his Honour appears to have accepted the prosecutor's submission that the quantity was towards the upper end of the spectrum, but the period of possession was at the lower end of the range.

16 At the time of the offending, the respondent was a 28 year old single man, who had been raised in a so-called 'strict Christian household', with 'limited information about sexual matters', living with his parents in a 'sheltered existence focussing on home life and his computer'.

17 Perhaps not surprisingly, the judge found 'that the genesis of the offending was a very shy man escaping to his room and then committing these appalling offences'. There were, 'no problems until broadband was connected'. At first the respondent 'was just curious and then he became addicted'.

18 Away from home, the respondent was a qualified horticulturist working full- time as such for a shire council, but he was socially isolated and shy, had difficulties in making friends and had never had a sexual relationship with a woman.

19 He had no prior convictions, however, he had an excellent work ethic, he supported his family, and, apart from the subject offences, he had led a blameless life putting in and assisting others within the community.

20 After making a 'no comment' response to questions put to him by police when interviewed, he signified his willingness to plead guilty at an early stage of the proceedings and sought the advice of his general practitioner and a counsellor.

21 Psychological examination revealed him to be a man of intra-punitive personality who, the judge accepted, was genuinely remorseful. As compelling evidence of that remorse, the judge referred to a letter written by the respondent to his counsellor after beginning treatment, in which he stated that:

Since I have been out of contact with the software and daily internet access and the now common public knowledge of what I've done, it has of course dawned on me how self-destructive all of this has been on myself, my family, my friends, my career and the local community and I am sorry for that. Of course the people I feel most sorry for as I reflect on my actions are the victims in this material. I can walk down the street, and look into the face of a young child and not in any way be sexually stimulated but now as always recognising innocence and purity, not a sexually submissive doll or a filthy image. I now struggle to look that child in the eyes and not feel very guilty for ever having viewed this material in the first place. Perhaps not having children of my own or any close personal contact with children for a long time, has made this situation possible.

22 According to psychological testing, the respondent met criteria for paedophilia, but he was considered to be of fundamentally heterosexual orientation and with significant professional help able to derive sexual satisfaction with adult females. On that basis, the judge found that the respondent had positive prospects of rehabilitation.

23 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:[1]

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

(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.

2. 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.[2]

3. Thirdly, a sentence of immediate imprisonment would ordinarily be warranted,[3] but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded.[4]

24 Counsel for the Crown contended that, although the judge referred to all relevant sentencing criteria, and appropriately paid attention to them, his Honour had fallen into error by placing undue focus on the respondent's need for counselling and personal matters at the expense of the need for general deterrence and denunciation. In counsel's submission, given the gravity of the pornographic material in this case, nothing short of an immediately custodial sentence would suffice to meet the needs of just punishment.

25 I do not accept the submission. As was earlier noted, the objective nature and gravity of this offending was in some respects particularly serious. Although the content of the material was varied, a significant part of it was at the upper end of the range of depravity, the number of items was high, and the number of victims was large. But in favour of the respondent, 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, and the period of possession was at the lower end of the range.

26 Further, in favour of the respondent, the judge appears to have considered the respondent's offending was, in terms of moral culpability, towards the lower end of the range. With respect, I am inclined to agree. Offences of this kind frequently appear as manifestations of the depraved voyeurism of socially mature adults. Such offenders have the insight to comprehend the effects of child pornography on its victims, but they offend nonetheless. But in this case, as the judge found, 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 he lacked insight into effect of the victims until after he was arrested. Senior counsel for the Crown submitted that it must have been plain to someone of even moderate intelligence that the victims of the Category 5 material were in pain and distressed. In other circumstances, there would be force in that submission. But in face of the uncontradicted expert evidence to the contrary in this case, I am unable to accept it.

27 It follows that, in the particular circumstances of this case, I am not persuaded that general deterrence demanded an immediate custodial sentence.

28 I do not overlook that specific deterrence is also an important consideration. In many cases of this kind, it would be enough in itself to demand some time in prison. But I am not convinced that the judge was wrong not to think it so on this occasion. As his Honour observed, the respondent was genuinely remorseful and had genuine prospects of rehabilitation. They included the chance that, with time and appropriate care, he could be restored to a proper sexual orientation. Contrastingly, according to the uncontradicted expert evidence, his low chance of recidivism was likely to be exacerbated by any time in gaol. It seems to me,

therefore, that the judge strove to fashion a sentence calculated to maximise the possibility of rehabilitation, and so, in the end, to minimise the risks of re-offending and thus maximise community protection.

29 So to say does not mean that an immediate custodial sentence would have been exceptionable. To the contrary, recent decisions of this court and of comparable courts in other states suggest that the respondent was very fortunate indeed to be spared that disposition.[5] But, for the reasons I have given, I am not persuaded that the course which his Honour chose was beyond the range of sound discretion.

30 In any event, in this case I would be not disposed to intervene; for it is now almost a year since the respondent was sentence and, as a result, he is almost half way towards completing his community-based order. We were told that he has now completed the 150 hours of community service and is about to begin his group therapy, after almost a year of individual therapy with Dr Grech. To send him to gaol in those circumstances would be unduly harsh.[6]

32 I agree. I do so however only after anxious thought. Taken by themselves the nature and content of the material found in the respondent's possession, in particular the age and number of the children and the gravity of the sexual activity depicted, indicate a term of immediate imprisonment of more than half the maximum sentence. It must never be forgotten that the children who are the pawns of those who create these images have for no better cause than selfishness and greed been treated as mere chattels. For these wholly unworthy ends lives have been ruined.

The criminality involved in creating these images reflects the lowest depths of human depravity. The Courts must be every mindful of that fact, even when dealing with offenders who as is the present respondent merely consumers of the image makers' work.

33 I have, however, in the end come to the conclusion that in the particular circumstances of this case, the ends which the relevant legislation is designed to advance will be best protected if the respondent is placed in a position from which is least likely to offend in the future. The disposition favoured by the sentencing judge was, I think, most likely to achieve that goal.

35 The order of the Court is that the appeal is dismissed.

[1] [2005] NSWCCA 370 [99] (Johnson, McLelland CJ at CL and Adams J agreeing).

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

[3] 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].

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

[5] See, for example DPP v D'Allesandro [2010] VSCA 60; DPP v Groube [2010] VSCA 150.

[6] R v Best (1998) 100 A Crim R 127, 132-133; DPP v Wilson [2000] VSCA 112; (2000) 1 VR 481, 489-90; DPP v Leach (2003) 139 A Crim R, 7405; DPP v Groube [2010] VSCA 150, [27]-[30].