Criminal law - Appeal against sentence - Possession of child pornography - Whether cessation of viewing mitgatory - Whether sentence manifestly excessive - Turns on own facts

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

Criminal Appeals Act 2004 (WA), s 31(4)

Sentencing Act 1995 (WA), s 8(1), s 39(2)

Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA)

2 McLURE JA: This is an appeal against sentence. The appellant was convicted on his own fast-track plea of guilty of two counts of having in his possession child pornography contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (the Act). The first count related to 38 still images and the second to an 11-minute video.

3 On 13 June 2008, Yeats DCJ sentenced the appellant to a term of immediate imprisonment of 1 year on count 1 and 2 years on count 2. The sentences were ordered to be served concurrently.

4 The appellant contends the sentencing judge erred (1) in failing to conditionally suspend the terms of imprisonment; (2) in determining that the appellant's viewing of only seconds of the video did not affect the sentencing process; and (3) in imposing sentences that were manifestly excessive.

5 The 38 images the subject of count 1 included naked girls posing, a naked girl with two naked men and an image of a naked girl performing a sexual act. The ages of the children ranged from 6 to 16 years.

6 The sentencing judge described the video the subject of count 2 as containing some of the most depraved footage she had ever seen. It depicted two naked female children estimated to be aged between 9 and 11 performing oral sex on a hooded adult male, using a sex toy on each other, masturbating the adult male and ultimately having sexual intercourse with him. The footage reveals a number of other children present who were observing and taking photographs.

7 The sentencing judge referred to all matters personal to the appellant. He was aged 47 at the time of sentencing, had no prior record of conviction and was otherwise of good character. At the time of the commission of the offences, the appellant was a serving police officer after having trained and served as a minister in a local church. He had an entrenched addiction to adult pornography which he described as insatiable. That led to the appellant accessing child pornography. The sentencing judge was impressed with the steps the appellant had taken towards rehabilitation. He had undergone 10 sessions of counselling by a psychologist after an initial assessment and taken steps to ensure that he ceased accessing all forms of pornography.

8 The appellant was interviewed by police after the images the subject of count 1 were located on the hard drive of his laptop and before the video the subject of count 2 was located on the hard drive of the computer tower of his home computer. The appellant said his practice after downloading pornography was to delete it straight away, not by pressing the delete button but by using a file shredder which he thought was a more thorough deletion measure. The compelling inference is that this was an anti-detection measure. When asked about his intentions with respect to the still images the subject of count 1 the appellant said:

'[T]here's obviously a stimulation there but, um, I, ah, have no intention of doing anything else with it' (ts 26).

9 However, the pre-sentence report notes that the appellant denied experiencing any sexual interest in children and explained that part of the thrill of viewing child pornography was the fact he was looking at images he knew he should not have been seeing, saying he felt compelled to continue. The psychological report provided to the court notes that while the appellant did not deny using child images for sexual stimulation, he said that part of the excitement of accessing child pornography was 'a thrill, risk taking', suggesting that the viewing of illegal material may have been stimulating in itself.

10 The author of the psychological report records that the appellant said he could not remember viewing the video and thought it may be due to him having started watching it and turned it off after a short period (a few seconds). In the pre-sentence report the appellant is reported as explaining that he did not like viewing elements of the video as he found them disturbing and had logged out after approximately 30 seconds of viewing. The appellant's counsel informed the sentencing judge of his express instructions which were that the appellant viewed the video for about half a minute before deleting it. The sentencing judge said:

The claim is made that with count two, the video, that you never looked at more than a few seconds of it, the offence you are charged with is the possession. And given, that you have conceded in your record of interview with the police, when they were interviewing you, that you were sexually stimulated by the child pornography. It is difficult for me to accept that, and I do not - whether it is true or not, it does not affect this sentencing. To access a site that would have that hard-core child pornography, supports the exploitation and abuse of young children, and that is the damage as you are well aware, that these offences are aimed at (ts 27).

11 In concluding that the term of imprisonment on count 2 should be 2 years the sentencing judge said:

I accept ... that despite this being the most hard-core child pornography that I have ever seen, I am sure there are worst [sic] examples, but that is not the point. I think with count two the pornography involved in the degradation, the damage to these children, not just the two children who were penetrated, but the group of children that were somehow participating in this whole ritual that was underway, is so serious that it is in the upper category of seriousness ... (ts 28)

12 After determining the length of the terms of imprisonment she intended to impose, the sentencing judge went on to consider suspension. She said:

The important issue in this case, is whether this is the case where I can suspend your term of imprisonment ... When looking at this issue, one has to again, go back and review everything mitigatory, and to see whether in this case, it is possible, in my discretion, for you to suspend this term of imprisonment. Now, I do take account of the fast track plea, the genuine remorse, and I think that is evident very much so, from the references that I have been referred to, and from what you have said to the pre-sentence writer, and the rehabilitation you have taken, and the good prospects, and I am also impressed that you, and it is not surprising, but as a police officer would have appreciated the harm done to the children involved ...

In this case, despite all the matters very much in your favour, I have formed the view that the offending is so serious and that is because of the nature of the abuse of the children depicted on the video, and the serious nature of the images, that it is simply too serious in this case, for me to suspend your term of imprisonment. I say that, primarily because, when one looks at this level of pornography - of child pornography, and the serious severe harm being done to these children, right before one's eyes, and the very young ages of the children, that the purpose of our sentencing is for the protection of children, and general deterrence, so that this sort of offending will not go on again. So it will stop! So these children won't be harmed! I am pleased that you have undertaken your own rehabilitation, so that undoubtedly we would not have you before this court again. But you are going to have to serve these sentences (ts 28 - 29).

13 The logical starting point is the question whether the sentencing judge erred in concluding that whether or not the appellant viewed the video for a short time did not affect the sentencing process.

A person who possesses or copies child pornography is guilty of a crime, and is liable to imprisonment for 5 years.

15 By his plea of guilty to possession, the appellant must be taken to have admitted that he intended to download the video which he knew, actually or constructively, contained child pornography. (See, by analogy, the case law on possession of narcotic goods including He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523; Bahri Kural v The Queen [1987] HCA 16; (1987) 162 CLR 502; Saad v The Queen [1987] HCA 14; (1987) 61 ALJR 243.)

16 It is not an element of the offence under s 60(4) that the appellant view the entire video or indeed any part of it. However, that is not determinative. A matter does not have to be an element of an offence to be a (mandatory) relevant sentencing consideration: Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248.

17 Although the sentencing judge clearly rejected the appellant's claim that he ceased viewing the video, she did not make a positive finding to the contrary or rely on any such finding to aggravate the seriousness of the offence. The real issue raised by this ground of appeal is, if the appellant's claim was accepted, whether it was capable of decreasing the culpability of the appellant or the extent to which he should be punished (and thus be a mitigating factor under s 8(1) of the Sentencing Act 1995 (WA)). The position taken by the appellant's counsel before the sentencing judge was that it was a relevant sentencing consideration but one that should only be given 'marginal credit' (ts 11). The appellant's counsel in the appeal sought to depart from the concession as to weight.

18 The mere fact that an offender had viewed only part of a video of child pornography is not itself mitigating. However, the motivation for such conduct may affect the position. If an offender ceased viewing in order to avoid the risk of detection, that could hardly be mitigating. On the other hand, if an offender ceased viewing because he was offended by the depth of the depravity depicted on the video, that would be a mitigating factor which should be taken into account. The weight to be given to it is a separate question.

19 The level of perversion and debauchery of the child pornography in the possession of an offender is a relevant sentencing consideration: Hutchins v The State of Western Australia [2006] WASCA 258 [23]. That is so regardless of the extent to which the material is viewed. Child pornography is not a victimless crime. As stated by Ipp J in R v Liddington (1997) 18 WAR 394, 403:

The mere fact that persons are prepared to possess child pornography, albeit for their private purposes, necessarily creates a market for the corruption and exploitation of children. Children are abused, violated and degraded in order to create a market of this kind. It may also be said that people with pederastic inclinations could be stimulated to commit pederastic acts on viewing these images ...

20 There is no evidence that the appellant would be stimulated to commit pederastic acts on viewing the material although the sentencing judge made the unchallenged finding, based on the appellant's admissions to police, that the appellant was stimulated by the child pornography.

21 However, as Ipp J noted, the mere possession of child pornography creates a market which leads to the abuse of children as demonstrated in the material the subject of counts 1 and 2. Moreover, persons who (like the appellant) seek out child pornography on the internet are unlikely to have significant control over the level of pornography which comes into their possession. If the appellant ceased viewing the video because he was offended by the material, that is a relevant sentencing consideration which would be accorded some weight.

22 If there are circumstances which are favourable to the interests of an offender, he carries the onus of proving those circumstances on the balance of probability: The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24] - [27]. The calling of evidence is only required if the asserted fact is controverted or if the judge is not prepared to act on the assertion: Olbrich [25]. In this case the sentencing judge made it clear before sentencing that she did not accept the appellant's assertion that he ceased watching the video. Ordinarily, an offender with notice of that fact would be bound by his failure to adduce evidence on the subject. However, that is not so in this case because the sentencing judge also informed the appellant's counsel that such evidence would have no impact on sentencing one way or the other.

23 I am satisfied the sentencing judge erred in concluding that, even accepting the appellant's claim at its highest, it was incapable of mitigating the offending. However, that is not the end of the matter. This court may only allow an appeal against sentence if, in its opinion, a different sentence should have been imposed: Criminal Appeals Act 2004 (WA), s 31(4). For the purposes of that exercise it is necessary for this court to assume a factual finding most favourable to the appellant. Having regard to all relevant sources, that would be a finding that the appellant ceased viewing the video after approximately 30 seconds because he found the pornographic content disturbing. Against that background, I turn to the appellant's claim that the sentencing judge erred in failing to impose conditional suspended imprisonment.

The failure to suspend the terms of imprisonment

24 The appellant relies on express and implied errors in failing to impose a suspended term of imprisonment. The express errors are claimed to be that the trial judge erred:

(a) in failing to consider all the circumstances when determining whether or not to suspend the term of imprisonment; and

(b) in relying only on the nature of the abuse of the children depicted in the video in determining not to suspend the term of imprisonment.

25 The legal principles relevant to the sentencing options of suspended imprisonment and conditional suspended imprisonment under s 39(2) of the Sentencing Act 1995 (WA) are set out in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. I referred to those principles in detail in Collins v The State of Western Australia [2007] WASCA 108 [12] - [17]. I do not propose to repeat them here. It is sufficient for present purposes to note that a court cannot impose a sentence of immediate imprisonment unless satisfied that it is not appropriate to use the option of suspended imprisonment (conditional or otherwise) or some other lesser sentence. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: Dinsdale [85]. The power to suspend imprisonment is not confined by reference wholly, mainly or specifically to the effect that suspension would have on the rehabilitation of a particular offender (Dinsdale [18], [26] and [84]) nor, I interpolate, to any other single factor.

26 It is apparent from the sentencing judge's reasons that she approached the issue of suspension by revisiting all the matters she took into account in determining whether imprisonment was appropriate and if so for what term. There is no foundation for a claim that she confined her consideration wholly, mainly or specifically to the seriousness of the offending. The only reasonable construction of her Honour's reasons is that, weighing all considerations in the balance, the seriousness of the offending and the need for general deterrence were so weighty as to cause her to conclude that a suspended term of imprisonment was not appropriate.

27 The appellant also contended that the terms of immediate imprisonment were manifestly excessive because conditional suspended imprisonment was the appropriate sentencing option, with or without taking into account the appellant's claimed response to the video. I propose to deal with this ground on the assumption most favourable to the appellant being that he ceased viewing the video shortly after it started because he was disturbed by its content.

28 The recent cases reveal that ordinarily a sentence of immediate imprisonment will be imposed for possession of child pornography contrary to s 60(4) of the Act: Hutchins [23]; The State of Western Australia v Cunningham [2008] WASCA 240. As previously noted, the offence of possessing child pornography is not a victimless crime. The generation and existence of demand for possession of child pornography stimulates the supply side to the incalculable harm to the children involved. The creation and satisfaction of demand for child pornography is exponentially facilitated by the internet and there are significant difficulties in detecting the offences. These factors result in significant weight being given to general deterrence and correspondingly less weight being given to matters personal to the offender. Indeed, positive personal antecedents and a reduced or absent need for personal deterrence are relatively commonplace amongst offenders in possession of child pornography.

29 In this case the appellant relies on the relatively small amount of material the subject of the offences, the fact that he deleted rather than stored the material and ceased viewing the video because it disturbed him, his positive steps towards rehabilitation (the sentencing judge accepted there was no real risk of the appellant re-offending), his positive antecedents and his otherwise good character as reflected in the references. On the other hand, some of the still images and the video are in the upper levels of seriousness of material of this kind. It is also significant that the appellant was a serving police officer at the time of the commission of the offences. That is relevant because the appellant was charged with the responsibility of upholding the law and by virtue of his position, knew his conduct to be illegal and of the harm caused by possession of child pornography. Further, I do not regard deletion of material to avoid or reduce the risk of detection as mitigatory. Having regard to all sentencing considerations, the sentencing judge was correct to conclude that a term of immediate imprisonment was the only appropriate sentencing option.

Manifest excess - the length of the sentence

30 The appellant also claims the sentence of 2 years' imprisonment imposed on count 2 is manifestly excessive. Even without regard to the appellant's claim that he ceased viewing the video because it disturbed him, that sentence is at the high end of the sentencing range. That is demonstrated by the standards of sentencing customarily imposed for offences of this type. The cases are conveniently collected in The State of Western Australia v Cunningham [2008] WASCA 240 [26]. However, putting to one side the appellant's claim, I am not satisfied that the sentence is so severe as to be outside the appropriate sentencing range.

31 On the other hand, as express error has been demonstrated, this court can intervene if it is of the opinion that a different sentence should be imposed. Based on the law presently in force, a lesser sentence should be imposed if the appellant's claim is accepted. This should not be read as suggesting that the position may be different once the Sentencing Legislation (Transitional Provisions) Amendment Act 2008 (WA) comes into effect on 14 January 2009. That is a matter for the appellant's legal advisers.

32 This court is not in a position to re-sentence the appellant. Before any re-sentencing, there would have to be a trial of the issue whether the appellant ceased viewing the video because its content disturbed him. If the appellant indicates that he wishes to proceed to a trial of the issue, I would make orders upholding the appeal, setting aside the sentences imposed on the appellant and remitting the matter to the District Court for a trial of the issue and for the appellant to be sentenced by a different judge. If the appellant does not intend to seek a trial of the issue, I would dismiss the appeal.