Mouscas v R

Liddington (1997) 97 A Crim R 400 CASES CITED : R v Fowler [2007] ACTCA 4 R v Gent [2005] NSWCCA 370

PARTIES: Alexios Mouscas Regina

COUNSEL: C Nash and O Kang (Applicant) G O'Donnell (Respondent)

SOLICITORS: Ford Criminal Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2007/5918

ALLSOP P JAMES J PRICE J

6 August 2008 MOUSCAS V R Judgment 1 ALLSOP P: I agree with Price J. 2 JAMES J: I agree with Price J. 3 PRICE J: On 14 December 2007 Alexios Mouscas, the applicant, was sentenced in the District Court for one count of possession of child pornography contrary to s 91H(3) of the Crimes Act 1900 to a term of imprisonment consisting of a non-parole period of 1 year 6 months and a balance of term of 1 year 3 months. As the sentence commenced on the day of sentence, the applicant will be released to parole on 13 June 2009. The overall sentence expires on 13 September 2010. Pursuant to s 166 of the Criminal Procedure Act 1986 an offence of using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth) had been placed on a certificate. 4 A plea of guilty was entered in the Local Court and adhered to in the District Court. The sentencing Judge allowed a discount of twenty per cent for the plea about which the applicant does not complain. 5 An offence contrary to s 91H(3) is punishable by imprisonment for 5 years. 6 The applicant appeals against the severity of the sentence on two grounds which are:

Ground 1: His Honour erred in finding that the offence was in the "upper-end" of the range of objective seriousness. Ground 2: The sentence was manifestly excessive. 7 The facts of the offence were not in dispute and an agreed statement of facts was handed to the sentencing Judge which his Honour adopted in his sentencing remarks. The facts disclosed that the United States Federal Bureau of Investigation in July 2006 commenced an investigation into the distribution of child pornography using the Internet. The investigation conducted by the FBI led them to identify numerous persons located in Australia who had attempted to download child pornography images from an FBI monitored website. One of those persons was the applicant and a search warrant was executed at his home on 8 March 2007. The police were escorted by the applicant to his bedroom where he removed a concealed computer hard drive and a concealed spindle of compact disks. At the time of the seizure, Australian Federal Police Computer Forensic Team Members examined the computer and found approximately three gigabytes of child pornography images. Subsequent examination by police of the seized hard drive and disks revealed 41,923 graphic files and 251 video files classified as child pornography. Due to the large number of the files that had been seized that required classification, Australia Federal Police limited the classification of child pornography to prepubescent males and females in at least a semi-nude state. 8 At the time of commission of the offence the applicant was 39 years old. He was a single man who had obtained his Higher School Certificate and had been working as a security guard for 12 years as well as performing other jobs to supplement his income. He had no previous criminal record and resided with his parents in suburban Sydney. 9 The principal contention for the applicant so far as concerns the first ground of appeal was that the level of objective seriousness of his offending was at the mid-range or just below the mid-range and was not at the "upper-end" as found by the sentencing Judge. Counsel for the applicant submitted that there was no evidence that he was motivated by profit or intended to distribute the images and that his collection was only for private viewing. In accordance with the typology of online child pornography offending as defined by Dr Tony Krone in a paper entitled "A Typology of Online Child Pornography Offending" (Trends and Issues in Crime and Criminal Justice No 279 July 2004), counsel submitted the applicant was essentially a "Trawler" or more accurately an "intense Trawler". 10 It was further submitted that the applicant's level of culpability was not at the "upper-end" on the basis that the nature of the abuse towards children was "indirect" in the sense that the applicant did not "directly" abuse children by attempting to cultivate an online relationship with them, nor did he actually physically abuse them, produce his own images or those of others or distribute the images. In accordance with the typology used by Dr Krone, the applicant was not a "Secure Collector", "Groomer", "Physical Abuser", "Producer" or "Distributor". 11 The Crown, however, objected to the paper by Dr Krone being before this Court. The paper was not before the sentencing Judge nor was it referred to in any of the expert material tendered for the applicant in the proceedings on sentence. The Crown argued that the paper did not relate to matters going to the commission of the offence or to the applicant's personal circumstances and was, therefore, not "evidence" within the meaning of s 12(1)(c) of the Criminal Appeal Act 1912. In response, counsel for the applicant said that the article was not evidence but merely intended to be of assistance to this Court in terms of research done in the area of child pornography. 12 In view of that concession, it is unnecessary to consider whether the academic paper is evidence within s 12(1)(c). I did not find in any event the article to be of assistance in considering the present appeal and, in my view, it is not material to which the Court ought to have regard. In particular, the determination of seriousness of offending by classifying offenders within particular groups is of limited use in individual cases.

13 In the present case, the sentencing Judge was invited to view a sample of the images that had been seized. During his remarks on sentence, his Honour said (ROS at 4-5): "…I viewed a sample of the forty-odd thousand images that had been retained by the offender. In short, those images depicted the basest kind of sexual maltreatment of children. Some of the images might be described as art style photos of semi-naked and naked young girls, but there were also images of adult men having oral, anal and vaginal sex with young female children. Some of the children appeared to be as young as four or five. Many appeared to come from disadvantaged circumstances, appearing to be malnourished. In addition, there are even more disturbing photos of children being bound, gagged and blindfolded. Some of the images leave one to doubt as to whether the children were also drugged, as in some of the photographs the children appear to be asleep. There are yet further images of children involved in sexual acts with animals and one where the child was also tied up. In my view these images fall within the most serious category of possible material that could be described as child pornography. Whilst the sheer number of photos may not itself be a reliable guide to the seriousness of the offence, it is plain here that many hundreds, if not thousands, of victims are involved in the production of these photographs. Every one of those children can legitimately be seen as a victim of this crime." 14 And further (ROS at 6): "In my view, the range and number of photographs depicting sexually repulsive and depraved acts on young children, in this case, puts this offence in the upper-end of the range of seriousness." 15 In cross-examination before the sentencing Judge the applicant agreed that much of the material involved "quite graphic sexual activities involving children, mostly girls under the age of 12". 16 His Honour's findings of fact about the nature of the material he viewed is not challenged. What is challenged is his Honour's characterisation of the offence being in the upper-end of the range of seriousness. It is evident that this characterisation was founded upon the nature, content and number of the pornographic images. 17 The sentencing Judge had earlier referred to what was said by Johnson J (with whom McClellan CJ at CL and Adams J agreed) in R v Gent [2005] NSWCCA 370, at [99] that: "…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." 18 It was not suggested that the applicant had the child pornography in his possession for the purpose of sale or further distribution or that he would profit from the offence. The absence of these factors, however, did not preclude the sentencing Judge from coming to the conclusion that the applicant's offending was at the "upper-end" of objective seriousness. 19 The nature and content of the images that were in the applicant's possession involved the abuse, violation and degradation of children of a most serious kind. Whilst it is true that the nature of the applicant's abuse towards children was indirect, it has been frequently said that possession of child pornography for private purposes provides a market for those who produce and distribute this material: see for example Liddington (1997) 97 A Crim R 400 per Ipp J at 409. There were, as the sentencing Judge remarked, "many hundreds, if not thousands" of children who were subjected to this shameful sexual exploitation. They were the innocent victims of the depravity depicted on the images which his Honour vividly described. In my view, it was open to the sentencing Judge to characterise the offence as being at the upper-end of the range of seriousness. 20 The first ground of appeal has not been established. 21 The sentencing Judge's finding that there was a real chance of the applicant re-offending was challenged in this Court. It was submitted for the applicant that Dr Allnutt, a psychiatrist, had not said that and it was upon Dr Allnutt's report that the sentencing Judge relied. 22 The subjective material before his Honour included reports from Dr Allnutt, and Marcelo Rodriguez, a psychologist. There was also a Probation and Parole report. The applicant gave evidence during the proceedings on sentence as did his sister and brother-in-law. The sentencing Judge was told by the applicant's sister that she had three young children and she had no concern at all with her brother having contact with them. Her husband gave evidence in similar terms. The applicant testified that it was his intention "never to surf the net again" for child pornography. He had, the applicant said, a continuing intimate relationship with a lady whom he had met in 2004. 23 Julian Goldschmidt in the Probation and Parole report expressed the opinion that "it remains difficult to tell whether the offender's confidence in his ability to refrain from future offending is speculative". Mr Rodriguez opined that the applicant "who does not self-report an interest in children, who has not previously sexually offended against children, and who is not anti-social, is a low risk for contact offences against children" (italics added). He, however, pointed out that there were a number of risk factors associated with future sexual recidivism present in the applicant's case. The applicant, Mr Rodriguez found, manifested personality traits usually found in obsessive compulsive disorder. 24 Dr Allnut regarded the applicant "as having deviant sexual interests" and manifesting "obsessive compulsive personality traits". Whether or not the applicant was driven by "a primary broad underlying paraphiliac disorder with secondary sexual addiction to Internet pornography or is [sic] primary non-paraphiliac sexual addiction to pornography with secondary exposure to paraphiliac material" remained unclear. 25 Dr Allnutt wrote: "Having regard to the information provided, in my opinion your client would fall into a group of individuals with a low risk of contact sexual offending. If he did re-offend it would most likely involve possession. It is difficult to determine the probability for future sexual recidivism with regard to possession of child pornography in the absence [sic] research in this area. My clinical experience suggests that this group of offenders might have different predictive factors associated with risk for future possession. Internet activity is relatively difficult to monitor which makes supervision difficult. It would probably be best to state what sort of interventions might reduce, whatever risk exists." (italics added) 26 Both Mr Rodriguez and Dr Allnutt acknowledged an absence of research in determining risk of future sexual recidivism in individuals who had been charged with possession of child pornography. 27 During his remarks on sentence, the sentencing Judge compendiously dealt with the subjective material that had been placed before him. His Honour paid close regard to Dr Allnutt's report and passages from it were quoted including the passage at paragraph 25 above. 28 His Honour said (ROS at 9): "Whilst the offender has the continuing support of his parents and siblings, none of that support seems to me to significantly affect the prospects of him re-offending. When previously he offended he had their support but he kept his offending secret. The offender himself in his evidence before me undertook not to re-offend, but, with respect, I prefer the evidence of the expert psychiatrist as to this likelihood. In my view the prospect remains a real possibility and therefore there remains an aspect of specific deterrence in this sentence." 29 It is plain, in my view, that his Honour was not there referring to the possibility of the applicant committing offences of a contact sexual nature, but was referring to the real possibility that the applicant might re-offend by possessing child pornography. This was a finding which was open to the sentencing Judge, who had seen and heard the applicant give evidence, on all of the material before him. 30 Another complaint made for the applicant was that his Honour "seemed to take a dim view" about the fact that the applicant did not allow other people to see the child pornography. It was argued that this should have been regarded by the sentencing Judge as a positive rather than a negative. 31 His Honour observed during his sentencing remarks that "…the offender hid his activities from those who were close around him" (ROS at 5) and in the passage quoted at 28 above that "he kept his offending secret". The secrecy within which an offence of this nature is often committed creates difficulties for detection and prevention. In my view, the observations which his Honour made were open to him and his remarks disclose no error. 32 During oral submissions, it was contended for the applicant that the sentencing Judge did not give sufficient weight to the applicant's prior good character. Counsel for the applicant referred to R v Fowler [2007] ACTCA 4 where the Court of Appeal of the Australian Capital Territory considered at [18] that the respondent in that case who was charged with a single count of possessing child pornography was entitled to have his lack of prior offending favourably taken into account on sentence. 33 In the present case, the sentencing Judge said [ROS at 6]: "The offender is a person of prior good character; I take that into account on sentence. But again, I note the words of Johnson J in the case of Gent with respect to this issue. There his Honour said at para 64: "There is a foundation for the approach that less weight should be attached to evidence of prior good character on sentences for offences of importing child pornography. It appears that such offences are committed frequently by persons of otherwise good character. General deterrence has been referred to as the " paramount consideration " on sentence for this class of offence. The fact that the offence is, in a sense, committed in secret is also relevant to this issue." 34 It seems from these remarks that less weight was given by the Judge to the finding of prior good character as the applicant was charged with possession of child pornography. 35 Johnson J in Gent, however, went on to say at [65 - 66]: "The rationale for this approach to prior good character of child sex offenders and drug couriers does not seem to apply to the present offence. The concept of breach of trust is not applicable. Although a clear and egregious breach of trust is involved on the part of those who perpetrate acts of abuse upon children which are filmed and also by those who have direct responsibility for such action, a person who accesses such images via the Internet or obtains material in printed form containing such images cannot be said to be in a relationship of trust with the children involved. However, the public interest in stifling the possession and use of such material as a means of protecting children has been advanced to emphasise the significance of general deterrence on sentence. It cannot be said that the existence of good character places this class of offender in a position where they are more able to commit an offence (as with a white-collar offender) or more likely to be selected to commit an offence (as with a drug courier). It appears that pornographic material is available generally on the Internet to any person who is minded to access it, irrespective of the good character or otherwise of the person. Indeed, the ready availability of the material is a further factor pointing to the significance of general deterrence on sentence." 36 What was said by Johnson J in Gent at [66] was substantially quoted in Fowler at [14] although the ready availability of pornographic material being a further factor relevant to general deterrence was not mentioned. Fowler was a Crown appeal against sentence. 37 For the offence of possession of child pornography where general deterrence is necessarily of importance and is frequently committed by persons of prior good character, it is legitimate for a court to give less weight to prior good character as a mitigating factor. The sentencing Judge clearly recognised the significance of general deterrence when he said (ROS at 11): "The penalty here must properly reflect the level of seriousness of the offence and the need for this sentence to demonstrate general deterrence." 38 I am not satisfied that his Honour erred in the weight given by him to the applicant's prior good character.

39 The parties in submissions referred to sentences imposed in other cases. Particular reference to Fowler was made for the applicant. Fowler, however, was concerned with manifest inadequacy and not manifest excess. The offender in that case had been sentenced to 12 months imprisonment to be served by way of periodic detention and placed on a good behaviour order for three years. A Crown appeal against sentence was dismissed. 40 None of the cases referred to persuade me that the sentence in this case is manifestly excessive. In my opinion, the sentence imposed does not manifest error and is within the range of an appropriate sentence. 41 The second ground of appeal fails. 42 I propose that leave to appeal be granted, but the appeal be dismissed.

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