Court of Appeal (WA)|2008-11-18|Before: Buss JA

FURBER -v- THE QUEEN [2008] WASCA 233 (18 November 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : FURBER -v- THE QUEEN [2008] WASCA 233

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Appellant convicted on indictment of one offence of importation of child pornography and one offence of attempted export of child pornography - Sentenced to cumulative terms of imprisonment aggregating 15 months with recognisance release order after 7 months - Appellant also convicted summarily of three offences of importing prohibited imports and three offences of attempting to export prohibited exports - Fined a total of $24,000 - Whether sentences of imprisonment should have been suspended - Whether sentences of imprisonment were excessive - Whether sentences of imprisonment should have been imposed cumulatively - Whether totality principle offended in relation to imprisonment and/or fines

Order for imprisonment in default of payment of fines set aside

2 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Murray AJA. I agree with his Honour that leave to appeal should be refused in appeal CACR 79 of 2008 and the appeal should be dismissed in SJA 1047 of 2008. I agree with the reasons advanced by Murray AJA and I have nothing to add.

3 The appellant was convicted after pleading guilty when charged with a number of offences. The pleas of guilty were made as early as they could be. He was dealt with in the District Court on indictment for two offences. He was also dealt with in the Magistrates Court, shortly after sentence was passed in the District Court, for six further offences.

4 The offences dealt with by the District Court were:

On 22 December 2007, at Fremantle, he imported DVD discs containing images of child pornography, contrary to s 233BAB(5) of the Customs Act 1901 (Cth).
On 14 January 2008, at Perth International Airport, he attempted to export a hard drive containing digital images of child pornography, contrary to s 233BAB(6) of the Customs Act.

By s 11.1 of the Criminal Code (Cth), the offence of attempting to commit the exportation offence is punishable as if the offence attempted had been committed. The maximum penalty for each of these two offences was imprisonment for 10 years or a fine of 2,500 penalty units ($275,000), or both.

5 The six offences dealt with in the Magistrates Court also fall into two groups:

Three offences, committed on 22 December 2007, at Fremantle, of the importation of prohibited imports. These were DVD discs said by the three charges to contain images depicting matters of bestiality, depicting other abhorrent activities involving the human body, and depicting matters of sex and violence, all in such a way as to offend against the generally accepted standards of decency in the community, and contrary to reg 4A of the Customs (Prohibited Import) Regulations (Cth) and s 233(1)(b) of the Customs Act.

Three offences, committed on 14 January 2008, at Perth International Airport, of the attempted export of prohibited exports. The prohibited exports were the same three types of material as had been imported on 22 December 2007, this time contrary to reg 3 of the Customs Regulations, and s 233(1)(c) of the Customs Act.

For these exportation offences, s 237 of the Customs Act provides, as did s 11.1 of the Criminal Code (Cth), that an attempt is punishable as if the offence had been committed. That being the case, each of these six offences would carry a maximum penalty, in the circumstances of these cases, of 1,000 penalty units, unless dealt with summarily.

6 Under the Crimes Act 1914 (Cth), s 4AA(1), the term 'penalty unit' generally means $110. That is why, in relation to each of the offences dealt with on indictment, the court was told that the maximum fine was $275,000, the product of 2,500 penalty units. For each of the offences dealt with summarily, however, the maximum penalty, the court was told, was a fine of $22,000, resulting in an aggregate, therefore, of $132,000. That was because, by s 245(4) of the Customs Act, where such a prosecution is dealt with summarily the amount of the penalty that exceeds 200 penalty units is taken, 'to have been abandoned'.

7 In the District Court on 7 May 2008, Mazza DCJ sentenced the appellant to imprisonment for 9 months for the importation offence, and to imprisonment for 6 months, cumulative, for the attempted export offence. Because the aggregate term of 15 months imprisonment to be immediately served did not exceed the term of 3 years, the court was, generally speaking, required by s 19AC of the Crimes Act to make a recognisance release order. That was done in this case. His Honour ordered that after serving 7 months of the aggregate term, the appellant might be released upon entering into a recognisance to be of good behaviour, in the sum of $5,000. The sentences of imprisonment commenced on the date of their imposition, 7 May 2008.

8 The appellant was then taken before the Magistrates Court where he appeared on 23 May 2008. He pleaded guilty to the six charges, was convicted, and the magistrate, clearly understanding what had occurred in the District Court in relation to the child pornography charges before that court, fined the appellant $4,000 for each offence, a total sum of $24,000. His Honour granted the application by the appellant for time to pay the fines. He ordered payment by 1 March 2009, effectively 10 months after the commencement of the term of imprisonment imposed on the appellant, and so nearly 3 months after his assumed release under the recognisance release order.

9 In default of payment, the magistrate imposed imprisonment for a period of 4 months. Prosecuting counsel had asked the court to order imprisonment in default. Under the Sentencing Act 1995 (WA), s 59, the period of imprisonment in default roughly equates to the sum of $200 per day if the fines were unpaid. That is broadly what would be the outcome if, rather than having the default period set by the court, a calculation of the term to be served was to be made under s 59.

10 There is a fundamental difficulty with the order made. It was identified by the respondent on the hearing of the appeal. Section 59(1) gives the power to order imprisonment in default of payment of a fine to a 'superior court'. By definition, under s 4(1) of the Sentencing Act, a superior court is the Supreme Court or the District Court. Although the difficulty was not pointed out to the magistrate, his Honour had no power to make the order he did. The appropriate course in that event, whatever else occurs in relation to the appeal against the fines imposed, is for this court to set aside the order in default so made.

11 The State legislation relating to the enforcement and recovery of fines for Federal offences is applied by the Crimes Act (Cth), s 15A. As this is not a case in which an order could be made for the enforcement of payment of the fine by means of a work and development order under s 57A of the Sentencing Act, and it could not be ordered that the appellant be imprisoned until the fine was paid, under s 58 of the Sentencing Act, in my opinion, the appropriate course, under s 57 of the Sentencing Act, would be to leave the process of enforcement to the operation of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA).

12 The appellant was born on 26 April 1969. He was therefore 38 when these offences were committed. He is a national of the United Kingdom. He came to Perth by air, arriving on 16 November 2007. He came via Malaysia. Before emigrating, he had arranged for his personal belongings to be shipped to Australia. They arrived at Fremantle by sea on 22 December 2007, and they were inspected by Quarantine officers on 12 January 2008. The officers located various DVDs and referred them to Customs officers, in the belief that they may contain prohibited material.

13 Customs officers took possession of the items on 14 January 2008. They then discovered that there were six movies which constituted child pornography and became the subject of count 1 on the indictment, and there were various other items of prohibited material which became the subject of the three prosecution notices for the importation of prohibited imports, which were later dealt with summarily.

14 Coincidentally, on the same day, the appellant was in the process of leaving Australia by air from Perth International Airport. His destination was Malaysia. It was a business trip. Customs officers searched his baggage and found nine movies and 27 still images of child pornography. This material was contained on a hard disc which also contained other prohibited material of the kind described in the prosecution notices for attempted export of prohibited exports, which again were offences subsequently dealt with summarily. The child pornography was the subject of count 2 on the indictment. The appellant was arrested and charged.

15 The first matters to come before the courts were the child pornography matters, the subject of the indictment in the District Court. The 'fast-track' system was used. The appellant pleaded guilty on 7 March 2008. A pre-sentence report and psychological report were ordered. They were available to Mazza DCJ when the matter came on to be dealt with on 6 May 2008. His Honour passed the sentences to which I have referred on 7 May. His Honour confined his attention, of course, to the child pornography material, and ignored the fact that material of different kinds was also involved in the importation and attempted exportation, understanding that that material was to be dealt with subsequently in the Magistrates Court.

16 As to how the offences fit together, it is to be noted that the material the subject of the attempted exportation was, of course, different material from that which was separately seized from the shipping container at Fremantle, and the material which the appellant attempted to export had been transferred onto, or collected on, a hard disc, a portable and convenient way of carrying the material, which could then be accessed by using the computer which the appellant proposed to take with him to Malaysia.

17 As to the quality of the material, there is no dispute raised about the accuracy of the description of the material by Mazza DCJ:

It is this material which is the subject of count 1 on the indictment. I have viewed the material found on this DVD. The six movie clips last a little in excess of 30 minutes in total. They show children approximately aged between 10 and 15 engaging in masturbation, fellatio, cunnilingus and being sexually penetrated. The acts of fellatio and sexual penetration are with adult men. No-one disputes that they depict a high level of depravity. To describe them as sickening is no exaggeration.

So far as count 2 is concerned, later on 14 January 2008 you were at Perth International Airport preparing to fly to Kuala Lumpur for a short business trip. While there you were detained by Customs officers. You had with you a laptop computer and a separate hard drive. Customs officers found on the hard drive a significant quantity of pornographic material. Amongst that material were 27 still images and nine movies of child pornography.

I have not been provided with all of the still images but I have been provided with a sample of the images. Some of those images depict pubescent girls posing naked. Three of them are disturbing to say the least. One shows a young girl plainly under the age of 10 engaged in an act of fellatio with an adult male. Another shows a pubescent girl being sexually penetrated by one adult male as another sucks on one of her nipples. The third depicts two young girls, one of which is engaging in cunnilingus on the other.

The movies depict a range of sexual conduct involving girls who appear to me to be between 10 and 15 years of age. The movies depict, in common with the material the subject of count 1, a high level of depravity. The conduct depicted in these movies varies from naked girls talking and handling what appear to be sex toys to the types of behaviours I have already referred to in count 1. The total running length of this DVD is just over nine minutes. Once again, it is not too much to describe the material as sickening (ts 4).

18 I have not viewed any of the material. I am relieved of the need to do so by the fact that his Honour's findings about the nature of the material are not disputed. Of course, those findings are confined to the child pornography.

19 The other material, dealt with in the Magistrates Court, comprised 830 still images and 18 movies of bestiality; 750 images and three movies of abhorrent behaviour, as it was described by the prosecutor in the Magistrates Court; and four images and four movies of sex and violence. The prosecutor described the movies and images as being of a high level of depravity and it is clear, I think, that his Honour the magistrate accepted that that was the case. He observed that the offending material was at the high end of the scale in respect of which, 'it would have been appropriate that imprisonment be imposed for these matters if that was possible' (ts 6). Again, that description of the nature of the material is not the subject of any contest on the appeal, and I gratefully consider that I need not view this material, but may accept the general description of it by the sentencing magistrate.

20 Turning to the appellant's personal circumstances, again they may be taken to be as found by Mazza DCJ, there being no contest on appeal about the accuracy of those findings. Relevantly, the appellant is a British subject. He was aged 38 at the time of the commission of the offences. He was an engineer, employed by one company, who had travelled extensively and lived in various parts of the world as required by his employer. He was, when convicted, employed as an operations manager.

21 He was married in 1996, a marriage which had broken down. He and his wife were desperate to have a child, but despite 8 years of IVF treatment, they remained barren. The marriage effectively broke up as a result of this stress, in 2005, at which time the appellant met the partner with whom he was happily involved in a relationship when he came before the courts. He had no previous convictions.

22 There was a pre-sentence report and psychologist's report available to the court. The conclusion reached by the psychologist was that the appellant presented a low risk of offending in the same way unless his current relationship again broke down, or presented him with difficulty in conceiving a child. Otherwise, the psychologist said, in her opinion the appellant had no particular treatment needs.

23 The psychologist, and Mazza DCJ in turn, accepted that the appellant had first commenced to experiment with the use of pornography generally, when his marriage came under stress and he began to experience sexual dysfunction. He used pornography, 'as a way of stimulating sexual arousal and achieving ejaculation'. However, the psychologist noted that his judgment was impaired and, 'he began to explore areas such as child pornography and bestiality', perhaps caused in part by an increasing reliance on alcohol as his personal difficulties continued.

24 No explanation was provided for the appellant's possession of the offending material some three years after the final breakdown of the appellant's marriage and his formation of a satisfactory relationship with his current partner at about that time. Nor was there any explanation as to why the appellant arranged for the material to be imported into this country, or why some part of it was attempted to be taken with him on his business trip to Malaysia.

25 A number of character references were placed before the District Court. They include a letter to the court from the appellant's partner, from which it is very evident that the relationship between the two people was sound and their intention was to live and work in WA, where they could join a local community, 'get off the expat carousel', as she puts it, lead a normal life and raise a family. It was evident that the appellant retained her support and her commitment to their future together. The letter is a document which attracts considerable sympathy.

26 The other references are from friends and workmates, including former superiors, all of whom expressed surprise to learn of the child pornography charges, which they considered to be out of character for the appellant. They regarded him as a person who could not be described as a threat to the community. On the contrary, they considered that he had much to offer.

27 As I have said, all knew of the child pornography charges. None mentioned the material which was the subject of the other charges, nor do any of the referees say they were familiar with the specific nature of the material the subject of the charges. However, it is evident that Mazza DCJ read the references and considered their content.

28 In addition, the appellant tendered in evidence a letter provided by a Mr Christie, a lawyer who is a registered migration agent. He noted that the appellant entered Australia and resided here on a long-stay business visa as a sponsored employee. The visa enabled him to live and work in Australia for up to four years. It was common for the holder of such a visa, after two years or so successfully living and working in Australia, to convert the visa held into a permanent visa.

29 Under the Migration Act 1958 (Cth), s 501, a relevant ground upon which the minister may refuse to grant a visa or cancel a visa is the application to the person concerned of what is described as the 'character test'. The term is defined in s 501(6). There are a number of aspects to the test, but a person does not pass the test if he or she has a substantial criminal record, as defined in s 501(7). Relevantly, a substantial criminal record is established if the person is sentenced to a term of imprisonment of a year or more, or is sentenced to two or more terms of imprisonment aggregating 2 years or more. There are other bases upon which the person will not pass the character test. For example, that will be the case if, having regard to the person's criminal conduct or general conduct, the person is not of good character. Under the section it is for the person to satisfy the minister that he or she passes the character test.

30 Mr Christie's letter, received in evidence upon the sentencing proceedings in the District Court without objection, expressed the view, no doubt based upon Mr Christie's experience as a migration agent, that:

a recent visitor or migrant to Australia, who commits an offence or engages in conduct within a relatively short time of arriving in Australia and who as a result fails the character test, is at very significant risk of having his or her visa cancelled.

31 Mazza DCJ referred to the evidence of Mr Christie's opinion (ts 10), but his Honour did so in a way which makes it clear, in my view, that he did not attempt to tailor the result of the sentencing process so as to give effect to a view about whether the appellant's visa should be cancelled, or he should be denied a permanent visa, and in either event would be deported. His Honour said that the fact that the offending had significantly jeopardised the appellant's immigration status and placed in conjecture the appellant's plans to permanently settle in Australia could be considered to be a matter of mitigation because the appellant had, by his offending, placed in jeopardy the plan to take up permanent residence in this country and establish a life here with his partner.

32 The appellant has appealed against both the sentences of imprisonment passed upon him in the District Court and the fines imposed upon him in the Magistrates Court. In relation to the District Court sentences, the application for leave to appeal by which, necessarily, the appeal was instituted, was referred to the full Court of Appeal to be heard together with the appeal. In relation to the fines imposed in the Magistrates Court, leave to appeal was granted on specific grounds and then an order was made that that appeal be referred to be heard by the Court of Appeal. There was one consolidated hearing of both appeals.

33 The grounds of the appeal against the sentences imposed by the District Court need not be set out in full. They raise four issues. In the first place, it is said that each sentence was manifestly excessive having regard to particular matters of fact to which the ground draws attention. Then it is alleged that the aggregate term of 15 months imprisonment was in error because the two sentences should not have been ordered to be served cumulatively. At least, this ground (ground 3) asserts, the sentences should have been made to run 'partially concurrent as they were part of the same foray into criminal activity on the part of the offender, which did not require fully cumulative terms'.

34 The aggregate term is also challenged because, it is said, the sentencing judge erred in his consideration of the application of the totality principle. Ground 4 contends that his Honour erred, 'by failing to have regard to whether the sentence in question was excessive to the criminality involved in the present offending in all the circumstances of the case'. Finally, it is said that his Honour's exercise of discretion miscarried, having regard to various matters to which the ground refers and to which I will return, by failing to suspend the term of imprisonment imposed.

35 There are two grounds of appeal against the fines imposed in the Magistrates Court. They need not be set out in full. The particulars provided are actually a factual chronology. The essential proposition involved in this appeal is that the Magistrate erred because he failed to have adequate regard to the sentences imposed in the District Court, with the result that the fines imposed were not too great in themselves, but, by way of an application of the totality principle, were too great when account is taken of the sentences imposed in the District Court.

36 The fines, it is alleged, were effectively a cumulative penalty. Reference is made to the default order as if that was part of the penalty imposed by the magistrate. The grounds proceed upon the assumption that the fines would not be paid and the term of imprisonment imposed in default would have to be served. I have already said that having regard to the lack of power to make the order, the default order will need to be set aside.

Were the sentences of imprisonment manifestly excessive?

37 This ground is pursued, although it is said that the appellant does not challenge the individual sentences imposed. But, however that may be, a ground which complains of the miscarriage of sentencing discretion in relation to the terms imposed in this case cannot be made out, in my view.

38 Mazza DCJ referred, as I have said, primarily to his Honour's assessment of the nature of the child pornography. He expressed a reaction to it, which I have set out above. No complaint is made by the appellant that his Honour overstated his view about the repugnance of the material in question.

39 His Honour referred to the severity of the prescribed penalties as marking the seriousness with which the legislature viewed the importation and exportation of child pornography. He was right to do so. No complaint is made that his Honour considered that, despite his finding that the appellant was unlikely to offend in a similar manner again, and therefore that personal deterrence did not have a substantial role to play in the sentencing process, nonetheless general deterrence was a paramount consideration, 'given the prevalence and easy availability of child pornography, especially over the internet' (ts 8). In so saying, his Honour mirrored remarks made by Kennedy J in a different statutory context, but in relation to child pornography generally, in R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50, 51.

40 This court has long been of the view, in relation to offences concerned with child pornography, whether under the Censorship Act 1996 (WA) or under the Customs Act, that in sentencing for such offences, the court is primarily concerned with both particular and general deterrence, because the acquisition and distribution of such material provides a market, at least indirectly, for persons prepared to possess child pornography, and encourages the abuse of children. As Ipp J put it in R v Liddington (1997) 18 WAR 394, 403:

Children are abused, violated and degraded in order to create a market of this kind.

Having regard to that central aim of the legislation, it is not surprising that the courts are little moved to mitigate penalty by arguments about the number of images and the quantity of material possessed or by arguments that the material was for personal use and not part of a process of distribution for profit.

41 The Customs Act offences concerned with the importation and exportation of child pornography are directed to this purpose of attempting to stamp out this pernicious activity. Section 233BAB was a provision introduced by an amendment to the Customs Act which came into force in April 2000. The second reading speech of the Commonwealth Attorney-General, delivered in the House of Representatives on 24 November 1999, referred to the need to protect the community from injury and specifically to protect children from harm and exploitation, as a central motivation for the enactment of legislation which, the Attorney-General noted, provided for serious penalties to address serious offences.

42 Of course, this being Federal legislation, the various courts of the States and Territories having responsibility for its administration will strive for uniformity of approach in sentencing offenders. In R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, Johnson J, with whom McClellan CJ at CL and Adams J agreed, reviewed the approach taken to the legislation in a number of cases, notably Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237, a decision of Malcolm CJ, Murray and Steytler JJ agreeing, which was applied in Holland v The Queen [2005] WASCA 140; (2005) 30 WAR 231, and the decision of the Court of Appeal of Queensland in R v C; Ex p. A-G (Qld) [2004] QCA 469.

43 Other cases were cited to us and there are certainly a number of published judgments concerned with the possession and distribution of child pornography, given by courts of other jurisdictions. I do not propose to refer to them because they seem to add no additional matter of general principle. They are examples of the application of the relevant principles in particular factual circumstances, and as such their utility is reduced.

44 In Gent, Johnson J concluded, at 49 [99] - [100]:

As cases such as Liddington, Jones, Assheton and R v C make clear, a range of factors bear upon the objective seriousness of an offence of possession or importation of child pornography. These factors include:

(a) the nature and content of the pornographic material -- including the age of the children and the gravity of the sexual activity portrayed;

(b) the number of images or items of material possessed by the offender;

(c) whether the possession or importation is for the purpose of sale or further distribution;

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

It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised.

Whether an offence of importation of child pornography calls for a full-time custodial sentence will depend upon the facts and circumstances of the particular offence and offender. The Applicant's offence was objectively serious. This is not a victimless crime. The Applicant took advantage of the sexual exploitation of children. This reflects a substantial level of moral turpitude. General deterrence is a paramount consideration and specific deterrence was a significant factor in the Applicant's case. The subjective circumstances of the Applicant were not of particular assistance to him in this case.

45 Having regard to the expression of the view by the Parliament and the courts that general deterrence is a major consideration for the purpose of endeavouring to prevent harm to, and exploitation of, children, which harm may include serious and long-lasting psychological damage as well as other injuries, Johnson J observed at 44 [64] - [66] that it was this factor and its predominance which led the courts to consider that the fact that the offender was otherwise of good character, while it was to be considered, did not carry the weight that good character might, in mitigation of punishment, in other types of offending. As Johnson J noted, offences of importation of child pornography were often committed by persons of otherwise good character. That that was so would have little impact on the court's assessment of the quality and seriousness of the offending behaviour.

46 If this ground is to succeed, it will be because the appellant is able to persuade the court that the sentences of imprisonment imposed, not in their individual length but in their aggregate, given the way the matter was argued, fell outside the range of a sound exercise of sentencing discretion. It is important in that context to remember that it is a discretionary judgment with which the appellate court is concerned and, in relation to any offence, it is never the case that it can be said that there is a single correct sentence so that any other sentence will demonstrate a miscarriage of the sentencing process: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 per Gleeson CJ, Gummow, Hayne and Callinan JJ at 370 - 371 [25] - [28].

47 In support of his argument that the sentences were together manifestly excessive, the appellant argues that the nature of the still images and the videos, while revealing pornography of a grave kind involving children who appeared to be from the age of about 10 into their early teenage years, could have been worse. However, it is conceded, as it must be, that the pornography involved penetrative as well as non-penetrative sexual activity between adults and children, together with the depiction of sexual activity between children, and children posing in sexually explicit ways. The respondent argues simply that the categorisation of the material by the sentencing judge as being 'sickening' was well justified. As I have said, it is not argued that such a description could not reasonably be applied to the material.

48 The appellant argues that in total there were 15 videos and 29 still images, and that the videos lasted for a total of about 40 minutes. I must say that it seems to me that that is a significant amount of material involving the victimisation and exploitation of a significant number of children. No doubt one can imagine cases where the images run into the thousands, particularly given the ease of obtaining access to the material over the internet. But, for my part, I think the judge did not err when he concluded that the amount of material was significant and the offences were properly regarded as serious because of the high degree of depravity of the material which was imported and which the appellant attempted to export (ts 10).

49 The appellant relies also upon the fact that there was no commercial aspect to the offending. This was a consideration which was not overlooked by the sentencing judge. But to my mind, this consideration carried limited weight in mitigation of punishment, for these reasons. Mazza DCJ found that the appellant had initially acquired the material as a means of stimulating sexual interest at a time of sexual difficulty in his marriage. He was suffering from penile erection problems. He endeavoured to cure them, as I understand it, by viewing material of this general kind, and masturbating. His interest widened into various forms of pornography and his collection became one of substance. He retained the material after the break-up of his marriage and the formation of a successful and happy relationship with another woman. It was accepted by the judge that in a general sense the material was acquired and retained for the appellant's sexual gratification. It was not his intention to distribute the material more widely.

50 He was dealt with on that basis. The offences of which he was convicted would have been rightly regarded as being more serious had he intended to further distribute the material, whether for commercial gain or not, because it is the distribution and acquisition of the material as such, not the payment of money for it, which expresses the mischief which the legislation is designed to overcome. It is that activity which creates the market for the pornography.

51 It is the acquisition of the material, whether for personal use or further distribution, which necessarily involves the exploitation and victimisation of others, both children and adults, who become involved in unacceptable sexual activity and sexual perversions. It is for that reason that such offences are firmly dealt with by the courts on the basis that they are by no means victimless crimes. To my mind, the sentencing judge and magistrate made no error in approaching the matters before them in this way.

52 The appellant relies, in relation to the child pornography offences, upon the fact that, as they are defined, a sufficient fault element to establish guilt of the offences is recklessness as to the nature of the material, rather than intention or knowledge that all of the material was prohibited child pornography. It was argued that the importation resulted from an exercise of general packing, and the attempted exportation, while deliberate and intentional, involved images and material with which the appellant was generally familiar, but some of which he may not even have deliberately viewed. In my view, Mazza DCJ was right to approach this argument upon the basis that, while it may be true to say that the appellant was not familiar with the precise content of each item imported or the subject of the attempted exportation, it was material deliberately collected and retained for his sexual gratification, and the appellant was well aware of its general nature.

53 The appellant relies upon the mitigatory power of the pleas of guilty, which were accepted by both the judge and magistrate as being made at the earliest available opportunity. They were remorseful pleas, and it was accepted that they were of significant weight in mitigation of punishment, lending strength to the proposition that the appellant's prospects of rehabilitation were high, and the need to deter him from offending in this way in the future was low.

54 Further, there was the acceptance that, apart from this offending, the appellant was otherwise of good character and, as I have observed, that also was a factor dealt with properly by not overlooking it, but by not according to it significant mitigatory weight.

55 As I have noted, it is accepted that these sentences of imprisonment, given the unchallenged conclusion of the sentencing judge that for the child pornography offences no punishment other than imprisonment would be appropriate, could not individually be regarded as manifestly excessive. I agree and add my conclusion that neither may they be so regarded in their aggregate, putting to one side, of course, the question of the appropriateness of their accumulation, and totality considerations.

56 In their aggregate, the sentences were not manifestly excessive because of the seriousness of the offences, the depravity involved in their commission and the need to mark offending of this character with an expression of the abhorrence of the courts, on behalf of the community generally, for such behaviour. The aim of deterring the commission of such offences generally, required significant punishment and, as to the length of the terms, they were indeed, in my opinion, modest and well within the generally accepted range of appropriate penalties, given the seriousness of the offences themselves and the gravity of the appellant's offending behaviour. I would not uphold the ground that the child pornography sentences were manifestly excessive.

57 There is power, under s 19 of the Crimes Act, when sentencing for federal offences, to order them to be served cumulatively, partly cumulatively or concurrently. As in the case of the equivalent provision of the Sentencing Act in respect of State offences, the section provides no direction as to when the court should choose to structure a number of sentences so that they are served in any manner for which the section provides.

58 Ground 3 of the appeal against the sentences for child pornography observes, in the particulars provided that, as the offences occurred on separate days, prima facie the sentencing judge was entitled to impose fully cumulative sentences. However, the ground asserts, his Honour erred in failing to make the sentences at least partially concurrent, 'as they were part of the same foray into criminal activity'.

59 The ground essentially encapsulates the appellant's argument, which notes that, although the offence of importation and the offence of attempted exportation involved separate acts and different material, all of the material had been obtained earlier, during the appellant's experimentation with various forms of pornography. It was obtained in similar circumstances, to which I have previously referred. It was material of a similar nature in that it was all child pornography, and it was obtained for the appellant's personal use.

60 The respondent, on the other hand, seeks to support the approach of the sentencing judge. His Honour noted that the offences were committed on separate days, involved separate acts, and should therefore receive cumulative penalties.

61 As to when a sentencing judge should order sentences to be served cumulatively, partly cumulatively or concurrently, the question was dealt with recently by Steytler P, Roberts-Smith and McLure JJA agreeing, in Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38. That was a case of aggravated burglary, aggravated because the accused broke into the complainant's home. He confronted the complainant and told her that he wanted sex. He had met her previously. She submitted, and three sexual offences were committed against her. This was therefore a case where the burglary was linked to the commission of the sexual offences because to commit them was the offender's intention and the reason why he broke into the house.

62 Steytler P discussed the relevant principles at 42 [14] - [17]. His Honour referred to what is sometimes called the 'one transaction' rule, that concurrent sentences should be imposed for a series of offences arising from the same or closely related circumstances, 'one multi-faceted course of criminal conduct', where the offences are to be seen as, 'manifestations of the one criminal enterprise, transaction or episode'. The reason behind the so-called rule, which Steytler P observed is not a rule at all, but simply a guideline to decision-making for the sentencing judge, is said to be that where the offences, taken together, constitute a single invasion of the same legally protected interest, then concurrent sentences are warranted.

63 In the end, however, the final touchstone in relation to what should be done is, as in the case of the application of the totality principle, the endeavour to arrive at a total punishment which is commensurate with the gravity of the offending behaviour. I do not here set out the whole of the relevant portions of his Honour's reasons or embark upon any discussion of the authorities to which Steytler P referred.

64 In my opinion, this is a case where the decision to impose cumulative sentences was entirely justified. Of course, there were links between the offences of importation and attempted exportation, but in truth they were, in my opinion, quite separate acts, one being directed to bringing offending material into this country, and the other being intended to compound that offending behaviour by attempting to export different material of a similar kind. The question then must be whether the resulting aggregate term was too great, as a measure of the punishment required for the offending behaviour.

65 This matter may be discussed both in respect of the appeal against the sentences of imprisonment, aggregating 15 months, and the fines imposed in the Magistrates Court, in aggregate amounting to $24,000. In the latter case, that is effectively what the appeal is about. There are two grounds of appeal alleging that the fines did not adequately take into account the sentences imposed in the District Court. One aspect of that complaint is in respect of the term of imprisonment fixed in default of payment. I have referred to that, and the relevant statutory provisions. I have already indicated that, in my view, that order should be set aside and a different process of enforcement in default should be utilised.

66 In relation to the total term of imprisonment, Mazza DCJ said that he had considered the operation of the totality principle, but in the end his Honour concluded that in the circumstances of the case he did not, 'regard the total penalty of 15 months imprisonment as disproportionate or crushing'. For the appellant, it is argued that that reveals a misunderstanding of the proper application of the principle, in relation to which the question is whether the total term exceeded that required to achieve a result proportionate to the criminality involved in the offending in all the circumstances of the case, including those personal to the offender.

67 The proper content and operation of the totality principle has been referred to very recently by this court in Western Australia v Wallam [2008] WASCA 117. That was a Crown appeal in which the court was unanimously of the view that the appeal should succeed. Members of the court had different views about the re-sentencing required, depending upon whether they considered that the Sentencing Legislation Amendment and Repeal Act 2003 (WA), sch 1 cl 2, was applicable. Miller JA and Murray AJA considered that it was not. McLure JA considered that it was applicable, and her Honour's view was vindicated by a majority decision, Steytler P, McLure and Buss JJA, Martin CJ and Miller JA dissenting, in Yates v Western Australia [2008] WASCA 144. The point has no relevance to the decision of this appeal.

68 In unanimously concluding that the State appeal should be upheld in Wallam, the members of the court all considered that re-sentencing of the order proposed was not precluded by the application of the totality principle. There were some differences in the way in which the principle was stated. In my judgment, with which Miller JA generally agreed, I spent some time reviewing the authorities and setting out my understanding of the content of the totality principle: [133] - [144]. It is evident that in so stating the principle I expressed views with which McLure JA was not entirely in accord. At [46] her Honour observed that the Court of Appeal was, 'yet to resolve the conflict as to the rationale of the totality principle'.

69 This case requires no analysis of such matters because I do not think the appellant has established that the remarks made by Mazza DCJ in the course of imposing sentence reveal any misunderstanding of the totality principle, and I do not think the appellant has established that the exercise of sentencing discretion has miscarried because the result is a term of imprisonment which is disproportionate to the criminality involved in the offending behaviour.

70 As I understand the appellant's argument in relation to the total term of imprisonment, it is that the judge erred because he confined his consideration of the totality principle to the question whether it might properly be said that the aggregate term of 15 months imprisonment was 'crushing' in the sense in which that word is used in reference to the totality principle, ie, that it is of such a length as to be calculated to remove hope for the future, the so-called 'second limb' of the principle. The principle will be offended if the final result so far exceeds the punishment required to properly serve the accepted objects of the imposition of sentence, as to positively work against the prospects for the rehabilitation of the offender.

71 The appellant argues that the focus on the question whether the aggregate term was 'crushing' has meant that the need to consider whether the total term was disproportionately severe in all the circumstances of the case, including those personal to the appellant, has been inadequately considered. However, for my part I do not interpret his Honour's remarks in that way. He did not say that the total term was not disproportionate because it was not crushing, in the relevant sense. His Honour said the term was neither disproportionate nor crushing.

72 In my opinion, there can be no argument that in so holding, his Honour allowed the exercise of sentencing discretion to miscarry. The aggregate term was not disproportionate to the offending behaviour, particularly having regard to the quality of the offending and the criminality which it expressed, but at the same time not overlooking all that was capable of being said in mitigation of punishment, essentially, the remorseful early pleas of guilty and the generally good character of the appellant.

73 So far as the fines are concerned, it is appropriate to deal with the grounds of appeal on the basis that they are intended to raise wider issues than those merely concerned with the order for imprisonment in default of payment, and I accept that it is necessary to consider the total impact of the fines, and the obligation to pay them, in the context of the sentences imposed in the District Court and the making of a recognisance release order by that court.

74 As has been seen, for the six offences dealt with by the Magistrates Court, the appellant could not directly be sentenced to imprisonment. The maximum penalty for each offence was a fine of $22,000, but it should be observed that that was not a maximum penalty prescribed for the offences concerned, but a maximum penalty in the sense of an expression of the limit of the jurisdiction of the Magistrates Court, by the operation of s 245(4) of the Customs Act, deeming any penalty in excess of 200 penalty units 'to have been abandoned'. The prescribed maximum penalty was 1,000 penalty units for each offence- $110,000 cut down to $22,000 as a result of the jurisdictional limitation applicable to the Magistrates Court: cf Evans v Vanderheide [2001] WASCA 352; (2001) 126 A Crim R 239 per Miller J at 244 - 245 [19].

75 Section 16C of the Crimes Act requires a court, before imposing a fine, to take into account the financial circumstances of the offender in addition to other matters affecting the punishment to be imposed. But a fine in an appropriate amount may be imposed if the financial circumstances of the offender cannot be ascertained by the court. In this case, the magistrate was told that the appellant had been required to make payments to his ex-wife, which had left him 'very depleted of funds' (ts 4). The magistrate was told by counsel that the appellant would be able to make arrangements to pay the fines, but time to pay was sought and granted. The fines were to be paid in full by 1 March 2009. In fixing the amount of the fines, the magistrate expressly took into account the term of imprisonment by then being served by the appellant. In addition, his Honour the magistrate concluded that, 'the offending material was at the high end of the scale in the scheme of things' (ts 6).

76 The imposition of fines for federal offences was discussed generally by Roberts-Smith J in Djou v Commonwealth Department of Fisheries [2004] WASCA 282; (2004) 29 WAR 216. His Honour's conclusions are summarised at 226 [48], where he refers to the need for the fine to 'reflect the gravity of the offence'. Of course, the gravity of the offence is to be measured having regard to all the circumstances, not only those expressive of the criminality involved in the offending, but also those concerned with any matters of mitigation and matters personal to the offender.

77 So far as the appellant is concerned, I have said enough about the nature of the offending, and the same observations as were made in relation to the offences of importation and attempted exportation of the child pornography are apposite in relation to the offences before the Magistrates Court. They were grave examples of the offences charged. The same matters of mitigation were applicable.

78 In my opinion, even in the context of the jurisdictional limit imposed in respect of the financial penalty, fines of $4,000 for each of these offences could not be regarded as being so excessive as to indicate that the exercise of discretion by the magistrate miscarried.

79 Nor, in my view, can it be said that the imposition of a global fine of $24,000 for this offending, with time to pay, was disproportionate and required reduction, having regard to the impact of the fact that the appellant had been sentenced to an aggregate term of 15 months imprisonment for the child pornography offences, with the capacity to enter into a recognisance release order after serving 7 months.

80 When sentencing for a federal offence, a court may, if it considers, as did the District Court in this case, that no other sentence than imprisonment is appropriate in all the circumstances of the case (Crimes Act, s 17A(1)), order the immediate release of the offender upon entering into a recognisance, with or without sureties, that he or she will be of good behaviour for up to 5 years: Crimes Act, s 20(1). Defence counsel submitted to Mazza DCJ that his Honour ought to take that course. The judge considered the matter, and determined that no such order, effectively an order suspending service of the term of imprisonment, should be made. His Honour said that he had applied the approach to that decision, directed by the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.

81 His Honour mentioned the question at an appropriate time in his sentencing remarks, after he had discussed all those matters concerned with the seriousness of the offences and personal matters having mitigatory power which had led the judge to the conclusion that no other penalty but sentences of imprisonment were appropriate. It is clear that his Honour had, by the time he mentioned the question of suspended imprisonment, determined how long those terms were. That had been announced. He had dealt with the question whether those terms should be served cumulatively to any degree, or concurrently. He had undertaken the last look at the aggregate term which resulted and considered whether it required reduction on totality grounds.

82 When his Honour then turned to the question of suspended imprisonment, he said that he understood that Dinsdale required him to give consideration to that issue in the context of all the discretionary factors applicable in the case which had led him to consider that it was only appropriate to impose terms of imprisonment and what the length of those terms should be. His Honour said he had had regard, again, to all those matters, but he was of the view that, as an exercise of discretion, it was not open to him to suspend the terms. Mazza DCJ said:

In my opinion, notwithstanding all that has been said in your favour, the seriousness of what you did, coupled with the need to give general deterrence, has led me to the sad conclusion, from your perspective and from the perspective [of the appellant's partner] that I cannot suspend the terms of imprisonment I have imposed upon you, either in part or in whole. I have come to this conclusion, aware that a suspended sentence, whether suspended in part or in whole, does have some degree of general deterrence (ts 14).

83 In Duong v Western Australia [2006] WASCA 110; (2006) 32 WAR 246, the question of the process of considering and deciding upon suspension of sentence, in the context of the State offence of possession of drugs with intention to sell or supply, was considered. The views expressed by their Honours in that case are apposite here. The views of the court were, of course, expressed in the context of the provisions of the Sentencing Act 1995 (WA). They were summed up by Pullin JA, Roberts-Smith JA agreeing, at 256 - 257 [40] - [41].

84 Applying what was said in Duong to this case, it is relevant to note that the law does not permit or require a sentencing judge to decide in the abstract whether a suspended sentence is the appropriate option. The judge must first arrive at the conclusion that imprisonment is the only appropriate punishment, and at the term which, having regard to all those matters bearing upon the exercise of discretion, should be imposed. Only then is the decision to be taken whether or not to suspend service of the sentence. That is a decision which will be informed by considering all of the matters which informed the decision about imprisonment made thus far. If the judge's conclusion is that service of the term ought not be suspended, in whole, or under the Crimes Act in respect of a federal offence, in part, the sentence of imprisonment previously determined will be imposed to be immediately served.

85 The approach taken by Mazza DCJ in this case cannot, in my opinion, be faulted. I have discussed, as did his Honour, all the various matters relevant to the decision about suspending service of the terms imposed. It is clear that the sentencing judge considered that the criminality involved in the offences committed by the appellant marked them as being too serious to be adequately dealt with by the imposition of suspended imprisonment, in whole or in part. It will already be clear that, in my view, that conclusion was well open to the sentencing judge. I would not uphold this ground.

86 It follows that in the appeal against the sentences imposed by the District Court, CACR 79 of 2008, I would dismiss the application for leave to appeal. Leave to appeal has, as I have noted, been granted in respect of the fines imposed by the Magistrates Court. I would allow that appeal, but only to the extent necessary to set aside the magistrate's order that the appellant be imprisoned in default of payment of the fines.

Penalties and Infringement Notices Enforcement Act 1994

FURBER -v- THE QUEEN [2008] WASCA 233 (18 November 2008)

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Judgment (104 paragraphs)

FURBER -v- THE QUEEN [2008] WASCA 233 (18 November 2008)

Legislation Cited (1)

Cases Cited (7)