Court of Appeal (WA)|2006-11-28|Before: McLure JA, Steytler P, Wheeler JA, Lure JA

Hutchins v The State of Western Australia [2006] WASCA 258 (28 November 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HUTCHINS -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 258

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law and procedure - Sentencing - Possession of child pornography - Whether suspended imprisonment the appropriate sentencing option - Turns on own facts

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

G v The State of Western Australia [2005] WASCA 150

R v Liddington (1997) 18 WAR 394

Law v Deed [1970] SASR 374

Lovatt v The State of Western Australia [2004] WASCA 265

R v Coultas [2002] WASCA 131

R v Vecsey [1962] SASR 127

Vassiliou v The Queen [1999] WASCA 140

2 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of McLure JA. I agree with them, and I, too, would dismiss the appeal. I wish to add only some observations in relation to factors which may be relevant to assessing the seriousness of the offending.

3 By way of background, the Censorship Act 1996 (WA) ("the Act") deals, in a variety of ways, with restrictions on the possession and dissemination of a variety of material, and with the classification of material. For the most part, the Act is concerned with the restriction of the possession and dissemination of indecent or obscene articles generally, with different restrictions applying to different articles.

4 The broad social purposes of censorship are, as I understand them, to ensure that ordinary members of the community are not affronted by the display of material to which a majority of reasonable adults would object, to maintain a level of public decency, and to avoid the undesirable social effects which may flow from the "normalisation", by its use in entertainment or other dissemination, of undesirable material. The extent to which regulation of this kind is desirable is, of course, a matter of political debate. By and large, the penalties provided for in the Act suggest that, while Parliament regards regulation of this kind as desirable, the possession and dissemination of material subject to the Act is not seen as among the more serious forms of social harm. So, for example, s 59, which deals with, inter alia, possession and display of indecent or obscene articles, provides a maximum penalty of $5000 for possession and a maximum of $10,000 for sale of such articles. Where the Act provides maximum penalties which include imprisonment, the terms are generally relatively short. For example, in s 68 the maximum penalty provided for exhibiting an unclassified film is $15,000 or imprisonment for 18 months.

5 The penalties provided for in s 60, which deals with child pornography, are of a very different order. Possession, display and publication of child pornography or advertisements for child pornography attract a maximum penalty of 5 years. The possession of such material with intent to sell or supply, or the sale or supplying of it, attracts a maximum penalty of 7 years.

6 Child pornography is defined in the Act as material which "describes or depicts, in a manner likely to cause offence to a reasonable adult, a person who is or looks like a child under 16, whether engaged in sexual activity or not", so that the prevention of affront to members of the public

is clearly a relevant statutory purpose. The penalties, however, suggest that s 60 fulfils additional, and more important, social purposes. In my view, they include the following.

7 As noted in Liddington, there is a potential, which the Act is aimed at suppressing, for such images to stimulate persons who may have such an inclination to commit offences upon children (R v Liddington (1997) 18 WAR 394 at 403 per Ipp J). So far as that question is concerned, material may be regarded as more or less serious depending upon how explicit is the depiction of sexual activity, if any, which involves children, and the type of activity depicted. A related purpose, it seems to me, is to ensure that those who may have some inclination towards sexual activity with children do not derive, from any source, encouragement to regard such an inclination as normal or appropriate. Material will be more serious, in relation to that purpose, if it tends to depict sexual activity with children as attractive or desirable (whether for the adult concerned, or for the child).

8 Finally, there is the important consideration that the existence of a market for material of this kind frequently requires that children will be sexually abused in order to supply it. This issue will arise only where the material appears to depict actual children (as opposed, for example, to writings which purport to describe sexual activity involving children). Most relevant to this question will be matters which are relevant to other cases involving sexual abuse of children, such as the apparent age of the child or children, and the extent to which, having regard to the Court's experience gained from cases of child sexual abuse, the conduct in question is likely to give rise to harm to a child.

9 The factors outlined above are not exhaustive, but assist in assessing the seriousness of offending involving child pornography. Of course, questions of the scale of the offending, judged by the number of images involved and the period of time over which the offending apparently took place, will also be relevant.

10 In the present case, while there were not the thousands of images sometimes seen, there were a significant number. They involved children of an apparently young age, and the sexual penetration of those children by adult males. While not in the worst category of such offending, it was for those reasons self-evidently serious.

11 McLURE JA: This is an appeal against sentence. On 19 May 2005 the appellant was convicted on his own plea of guilty of two counts of

possession of child pornography contrary to s 60(4) of the Censorship Act 1996 (WA). He was sentenced to 4 months' imprisonment on the first count and 8 months' imprisonment on the other count, the sentences to be served concurrently.

12 The first count related to 14 images on the appellant's computer hard drive of sexual acts between children under the age of 16, sexual acts between children and adults and explicit images of the genitalia of boys and girls. The second offence related to 45 images stored by the appellant on a compact disc which included images of children masturbating and performing oral sex on adults and images of full sexual intercourse, including sexual penetration of children who appeared to be pre-pubescent (no older than 6 or 7 years) by adult males.

13 The appellant was aged 51 at the time of the offending. He had no relevant prior convictions, an excellent employment history and was otherwise of good character. His offending became public knowledge within the Busselton community where he and his family resided. The appellant was apprehended as a result of information supplied to police by his son. The appellant entered a late plea of guilty.

14 The learned sentencing Judge noted that possession of child pornography is not a victimless crime because it necessarily creates a market for the corruption and exploitation of children. She considered and rejected the option of a suspended term of imprisonment. She said:

"Although the number of images in this case is small, I consider the downloading of images of very young children being sexually penetrated by adult males to be so serious in terms of the exploitation of those young children who are involved in these images as to require immediate imprisonment. Despite the small number of images, the perversion and debauchery depicted in some of these images is so serious that suspended imprisonment is in my view not appropriate."

15 There are two grounds of appeal. They are that the sentencing Judge erred first, in not suspending the term of imprisonment and secondly, by treating as an aggravating factor and failing to treat as a mitigating factor, that the images downloaded by the appellant were freely available on the internet.

16 Section 39(2)(e) of the Sentencing Act 1995 (WA) sets out the sentencing options available to a court, the penultimate option being that of suspended imprisonment. A court must not use a sentencing option in s 39(2) unless satisfied that it was not appropriate to use any of the options listed before that option (s 39(3)).

17 Under s 76(1) of the Sentencing Act, a court that sentences an offender to a term of imprisonment, or to an aggregate term of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court but not more than 24 months. However, suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances (s 76(2)).

18 The discretion to impose a term of suspended imprisonment requires consideration of all the circumstances of the case, not only rehabilitation of the offender: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. The seriousness of an offence is a relevant factor. The Court of Criminal Appeal in this State has made it clear that the offence of possessing child pornography contrary to s 60(4) of the Censorship Act is a serious offence. As stated by Ipp J in R v Liddington (1997) 18 WAR 394 at 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 ... "

19 In Liddington, the Crown appealed against a sentence of 2 years' imprisonment suspended for 2 years for three counts of possession of child pornography and two counts of possession of an indecent or obscene article contrary to the Censorship Act. The respondent was aged 49, had a good employment history and no relevant prior convictions. The pre-sentence report noted that the respondent had undertaken psychometric tests in the course of the assessment process by the Sex Offender Treatment Unit which showed, amongst other things, that there were no indicators of sexual deviance or abnormal sexual preference. In addition, the respondent had suffered considerable personal embarrassment and loss of his livelihood as a result of the conviction. Although the court said the decision was finely balanced, it dismissed the appeal.

20 Jones [1999] WASCA 24; (1999) 108 A Crim R 50 was also a Crown appeal against a suspended sentence imposed for one count of possession of child pornography. There were a substantially larger number of images in the respondent's possession in this case. However, his personal circumstances were relevantly similar to the offender in Liddington and he also suffered great embarrassment and financial harm as a result of the offending. The court allowed the appeal and imposed a term of immediate imprisonment of 18 months. Kennedy J referred to the insidious impact of child pornography, its increase in prevalence with the advent of the internet and difficulties in detection in concluding that the sentencing Judge erred in imposing a suspended sentence. See also G v The State of Western Australia [2005] WASCA 150 at [23] - [26] per Steytler P.

21 The appellant in this case relies on a number of particulars in support of the claim that the sentencing Judge erred in failing to impose a suspended sentence. First, it is said the sentencing Judge's exercise of discretion miscarried when she took the view that the case was "too serious to permit suspension of the [gaol] sentence". The sentencing Judge did not make a statement in those terms. Clearly she regarded the possession of pornography as serious but placed particular emphasis on the level of perversion and debauchery in a number of the photographic images to conclude that suspended imprisonment was not an appropriate sentencing option in the circumstances. Indeed, she was required to conclude that suspended imprisonment was not an appropriate sentencing option before imposing a sentence of immediate imprisonment.

22 The other particulars relied on by the appellant include his positive history and antecedents; he had already endured feelings of embarrassment and shame once his offending became public knowledge within Busselton; there was no suggestion he had disseminated the pornographic material or that there was a commercial aspect to the case; he was genuinely remorseful for the offending and was unlikely to re-offend or be a risk to the community; the relatively small number of pornographic images involved; and the State's concession that the seriousness of the offending was not such that only an immediate term of imprisonment was justified. The sentencing Judge accepted the matters referred to save for the claims that the appellant did not pay for the images and that the appellant was unlikely to re-offend or be a risk to the community. The sentencing Judge found that the appellant paid for the images. For the reasons given below I will proceed on the assumption he did not. Further, the sentencing Judge did not make a positive finding that the appellant was unlikely to re-offend or be a risk to the community. It was not contended that she erred in failing to make such a finding or that this Court could make its own finding. I will proceed on the basis that there is no positive or negative finding on the subject.

23 The State did make the concession referred to. However, the sentencing Judge was required to make her own independent assessment as to the appropriate sentence and was not bound to adopt the State's concession: Wood (2002) 130 A Crim R 518 at 527 per Murray J; at 538 per Miller J. As noted by the sentencing Judge, the District Court has gained considerable experience over the past few years in dealing with persons charged with possession of child pornography as illustrated in a table of comparative sentences provided to this Court by the State. The table shows that most of the factors relied on by the appellant are common to a significant number of offenders, most of whom have been sentenced to immediate imprisonment. This is consistent with authority and reflects the paramount public interest in protecting children from sexual abuse and the weight given to general deterrence. Further, it is apparent from Her Honour's reasons that she was in a position to assess the relative perversion and debauchery of the images in question. The level of perversion and debauchery is a relevant factor in assessing the seriousness of the offending and the culpability of the offender. I am not persuaded that the sentencing Judge erred in imposing a term of immediate imprisonment. I would dismiss ground 1.

24 The appellant through his counsel claimed that he had not paid money to obtain access to the images the subject of the convictions. There was no evidence before the court that he had paid for the images and the State did not contend to the contrary. After rejecting the appellant's claim that he had downloaded the images as a protest at this sort of material being freely available on the internet and finding that he offended for his own sexual gratification, the sentencing Judge addressed the issue of payment. She said:

"The other contention that troubles me that is made on the offender's behalf is that these images were freely available on the Internet; that the offender never paid anyone for access to the images. I have to say that the nature of some of these images flies in the face of such a submission. Experience has shown that collectors of child pornography pay for access to what I would consider very soft pornographic images which simply involve nudity by children and sexual positioning of the children.

It is very difficult for the Court to accept that a number of these images involving, as they do, sexual penetration of very young children are freely available on the Internet. It is true that police were not alerted to these offences as part of the international campaign which relied on details of persons who purchase pornographic material from international pornographic websites, but that does not in itself establish that these images, as debased as I find them to be, were free to Internet users. I am unable to accept that."

25 A court in sentencing may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. If there are circumstances which the Judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probability: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281. Further, if the prosecution seeks to have the sentencing Judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the Judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the Judge to do so and, again, if necessary, call evidence about it. The calling of evidence would be required only if the asserted fact was controverted or if the Judge was not prepared to act on the assertion: Olbrich at 281. In this case the appellant's assertion that he did not pay for the images was not controverted by the State and the sentencing Judge did not advise the appellant's counsel that she was not prepared to act on the assertion. Procedural fairness required the sentencing Judge to make this known to counsel so that the offender had the opportunity of calling evidence.

26 However, I am not persuaded that this is a material error affecting the outcome. I accept that payment for pornographic images can aggravate the offence. It may do so by reflecting on the strength of the offender's motivation for obtaining possession of child pornography. However, in this case the sentencing Judge found that the appellant offended for his own sexual gratification independently of the finding that he paid for the images. Further, payment is one way of contributing to an economic market for child pornography. However, I am not persuaded that payment for accessing a site is the only means of contributing to an economic market for such images. In any event, whether or not payment is made does not alter the fact that the generation and existence of demand stimulates the supply side to the incalculable harm to the children involved. The absence of payment does not mitigate the offending, but its presence may aggravate it.

27 The next question is whether the sentencing Judge took into account payment as an aggravating factor. There is nothing in her reasons to positively indicate that she did. The sentencing Judge addressed the question of payment in the context of an assessment of the level of perversion and depravity in some of the images. Her finding on that subject is not challenged in the appeal. It is plain that the content of the pornographic images was the decisive factor in the decision to impose a term of immediate imprisonment. The matter of payment was not referred to in the sentencing Judge's explanation for the sentence she imposed. I am not satisfied that the sentencing Judge treated payment as aggravating the appellant's offending.

28 Even if I am wrong in that regard, I would not intervene. This Court may only allow an appeal against sentence if, in its opinion, a different sentence should have been imposed (s 31(4) of the Criminal Appeals Act 2004 (WA)). For the reasons given in relation to ground 1, and accepting the appellant's assertion concerning payment, I am not of the opinion that a different sentence should have been imposed. I would dismiss the appeal.

(1977) 1 Crim LJ 216

Hutchins v The State of Western Australia [2006] WASCA 258

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Hutchins v The State of Western Australia [2006] WASCA 258 (28 November 2006)

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