Police v Power

The charge first came before this Court on 27th July 2006 when in the usual course of events orders were made requiring the prosecution to serve a copy of the brief of evidence on the accused. The proceedings were subsequently adjourned for compliance with these orders and for consideration of whether an election would be made to prosecute the charge on indictment before the District Court. On 12th December 2006 the Court was informed there would be no election to prosecute the matter on indictment and that the proceedings would be brought to finality within the Local Court.

The offence is one to which Section 259 and Schedule 1 of the Criminal Procedure Act 1986 applies. These provisions permit a prosecution for this offence to be dealt with before a District Court or a Local Court. An election to have the matter dealt with on indictment before the District Court lies either on the prosecution or the accused. Where no election is made by either party the matter remains within the jurisdiction of the Local Court. Section 267(2) of the Criminal Procedure Act provides that the maximum penalty that may be imposed by the Local Court for the offence is two years imprisonment.

On 25th January 2007 the accused formally entered a plea of guilty on the record, the proceedings were adjourned to obtain a pre-sentence report and for submissions on the question of sentence. I will return to the submissions for both parties shortly. Before doing so it is appropriate to turn to the facts upon which the prosecution rely.

On the last occasion these proceedings were before me the prosecution tendered a 15 page agreed statement of facts. For the sake of completeness it is appropriate in my view to read the majority of the pertinent agreed statement of facts on to the record.

The accused, Dr Patrick John Power, is 54 years of age having been born on 12 May 1952. As at 4 July 2006 he was a Deputy Senior Crown Prosecutor and Senior Counsel in NSW. He maintained chambers on level 8, 265 Castlereagh Street, Sydney.

Records maintained by the Office of the Director of Public Prosecutions establish that between 2 June and 30 June 2006 (inclusive), Dr Power was on annual leave. It has been established that at 1345 hours on Thursday 1 June, he left Australia on board on aircraft. He returned to Australia at 0555 hours on 3 July 2006.

At his home in Darlinghurst, Dr Power has a computer. It was a black "Tsunami" badged ATX personal computer which, at some stage, had two internal hard disks fitted to it. One of those hard disks contained a 134-gigabyte volume known as Drive F. The computer contained a single user account, "Patrick Power". This account, which was password protected, was the only one that had been used to log onto the system.

An examination of Dr Power's home computer has revealed that at 1022 hours on 1 June 2006 (the day on which Dr Power left Australia), whilst it was being used by a person who had logged onto the computer using the password associated with the user account "Patrick Power" at 0943 hours on 31 May, it suffered a fatal system error which effectively disabled the computer. At the time that the computer crashed, "Drive F" was installed in the computer alongside the other disk drive. A thumbnail database on the computer (ACDSee) was being updated at 0507 hours on 1 June 2006 by a user logged into the system as "Patrick Power".

At about 0930 hours on 3 July 2006 Dr Power rang a computer systems analyst in the Information, Management and Technology Branch of the ODPP and informed him that he had returned from holidays and had a problem with his home computer and was wondering if the analyst could give him some advice. Dr Power explained that when the computer boots up the screen is black and nothing comes up. As the analyst was unable to solve the problem over the phone, he asked Dr Power to bring the computer in to the office and he would look at it.

At about 1300 hours the next day, 4 July, Dr Power brought his home computer into the IT Branch of the ODPP. When the computer was booted up by the ODPP technician, Drive F was not in the machine.

As Dr Power was concerned about losing financial records that he said were on the computer, arrangements were made for the analyst to do a back up of his personal data on to a portable hard drive. As Dr Power had an appointment that afternoon, it was arranged to leave the computer with the analyst and for it to be picked up the next morning. During the back up process, the analyst kept an eye on the screen to check that the file download was running smoothly. While looking at the screen he noticed a file bearing the name - "P101 - mikea01 10yo boy rides his dads big cock, fucked hard -pthc gay boy - ". Because of the file name, the analyst conducted a folder search on the computer and discovered a folder entitled "Good" that contained 31 video files with descriptive names suggesting that their contents were of a sexual nature.

The analyst located the file whose title he had seen on the screen during the back up process. It was a video file which contained footage of a middle aged man having anal sex on a sofa with a young Asian boy. The analyst decided to check another video file entitled "(pedo gay) man fucks 5yo thai boy". The opening scene of the video was of an Asian boy, seemingly aged less than 10 years, with his head near the genitals of a man who was masturbating in front on his face. The scene then shifted to that of a middle aged white man preparing a young Asian child for sex by smearing lubricant on his anus, and then having anal intercourse with the child.

The analyst who found this material on Dr Power's computer reported his find to his Program Manager who, in turn, notified the Manager of the IT Branch. Shortly after that, the Deputy DPP, Mr Gregory Smith, was advised of what had occurred and he directed that the hardware be brought to the Director's Chambers.

At about 5.20pm that day, 4 July, Mr Smith rang Dr Power on his mobile phone and directed him to come immediately to chambers for a meeting. In the presence of Lou Lamprati SC, the other Deputy DPP, and Mark Tedeschi QC, the Senior Crown Prosecutor, Mr Smith detailed to Dr Power what had been found on his computer and advised him that there was evidence that he had breached Section 91H of the Crimes Act (possession of child pornography). Dr Power was invited to step down voluntarily from his position while the matter was investigated by the police. According to Mr Smith, Dr Power was visibly shaken by what he had been told and then said - "I have been away for a while and two other people have been staying at my house. But I understand what a prima facie case is and I agree to voluntarily stand down". Mr Lamprati's recalls Dr Power looking concerned but reacting little to what Mr Smith said. When invited to stand down, Mr Lamprati recalls Dr Power saying - "I am well able to recognise a prima facie case. I will accept suspension". Mr Tedeschi's recollection of the meeting is that when confronted with what had been found on his computer, Dr Power said - "I know what a prima facie case is. Of course I will stand down. You know that I have been away for some weeks. There have been two people in my house that could have had access to my computer".

Shortly after his discussion with Mr Smith, Dr Power left the room. He spoke briefly to Gary Corkill, the manager of Personnel Services at the ODPP. Mr Corkill offered him counselling if he felt that he needed it. Dr Power said simply to him - "I am just stunned".

After Dr Power left Mr Smith's chambers, Mr Smith rang the Chief of Staff of the NSW Police Commissioner and informed him of what had occurred. The next morning, 5 July, Mr Smith spoke with the OIC of the NSW Police Child Protection and Sex Crimes Squad about the matter.

At about 12.30pm on 5 July, Dr Power spoke on the phone to Mr Corkill and after some discussion about obtaining access to financial records on his computer and some papers in his chambers said - "I am deeply embarrassed. I didn't purchase it. It was a free download and it satisfies a long term sexual fantasy but I don't engage in that type of behaviour". Mr Corkill replies - "We'll just have to see where all this goes and I will ring you by Friday". Mr Corkill observed that Dr Power's voice was very flat and quiet throughout this conversation and that it gave the impression of deep sadness. Mr Corkill made a contemporaneous note of his conversation with Dr Power.

Later that day, police executed two search warrants at the ODPP. During the execution of the first, Dr Power's home computer (which he had brought in for repairs) was seized from the DPP's boardroom where it had been taken at the direction of Mr Smith. During the execution of the second warrant, Dr Power's chambers were searched, his work computer examined and a number of computer disks seized. A preliminary examination of the home computer conducted at the State Electronic Branch revealed the presence of a number of child pornography videos.

During the afternoon of 6 July 2006, Dr Power was arrested at his home in Darlinghurst for possession of child pornography. After preliminary processing at the Surry Hills Police Station, Dr Power was taken whilst still in custody to his home where he was permitted to be present whilst it was searched. Although a number of computer disks were seized during the search, the hard disk containing Drive F that had been in the computer when it crashed, but was missing when the computer was booted up in the ODPP on 4 July, was not located.

It is worth noting that the police search of Dr Power's home occurred two full days after he became aware that his colleagues at the ODPP had located child pornography on his personal computer. In that two day period, Dr Power was not subject to any significant restraints on his liberty, movements or activities other than being requested not to attend his chambers.

At the completion of the search of his home, Dr Power was returned to Surrey Hills Police Station where he was charged with possession of child pornography.

A full examination of his computer was conducted by an expert attached to the State Electronic Evidence Branch, Sergeant John McCulloch.

A summary of his principal findings is as follows:

· At 1022 hours on 1 June 2006 the computer suffered a fatal system error. At that time, Drive F was installed in the computer alongside the existing disk. At the time, "Patrick Power" was logged on to the computer and was performing file maintenance operations. · The computer remained off until the next boot which occurred at 1326 hours on 4 July 2006 (this corresponds to the time when the analyst in the IT Branch at the ODPP turned on the computer to examine it). The hard drive containing Drive F was not attached to the computer at that time. Between 1022 hours on 1 June and 1326 hours on 4 July, this hard drive had been removed from Dr Power's computer. · Although the hard drive containing Drive F was not in the computer when it was booted up by the ODPP technician on 4 July, and was not found during the execution of search warrants on his chambers or home, it has been possible to reconstruct much of what was contained on the missing hard drive. It contained catalogued homosexual pornography, some of it with names strongly suggestive of it being child pornography. Some of the files bore names such as "Naughtyboyz - Weekend House Party, Two boys playing in bed hardons, Gay porn…threesome rape of blond boy, Boy fucked by dad, 10yo Indian boy loves his rubber dildo man fucks him hard, Gay porn young boy tied gets raped begs for them to stop, Two gorgeous young boys jerkoff cum facial and kiss". · Located on the hard drive in the computer was a Quicken accounting automatic back up folder containing 31 video files of child pornography. These videos contained scenes of adult males engaged in a variety of sex acts with young children aged 10 years and less and with adolescents aged under 16 years including penetrative oral and anal sex, bondage and masturbation and sex acts between adolescent (meaning under 16 years old) males. The vast majority of the child pornography was homosexual, although there was one still image of an adult female masturbating an adolescent male's penis. The videos were of varying duration from a few seconds to 37 minutes, the average being about 15 minutes. Full details of the contents of the videos can be found in the annexures to the statements of Detective Senior Constable Laura Beacroft dated 11 September and 12 October 2006. · Also located on the hard drive of Dr Power's computer was a database containing 28,981 thumbnail images, the vast majority of which were homosexual pornography (there were about 200 personal images of a non-pornographic nature). Of the approximately 29,000 images, 433 were of child pornography. The majority of these images depicted males under the age of 16 years and a much smaller number depicted males under the age of 10 years engaged in a variety of sex acts with each other, or males depicted in a sexualised context. Details of the 433 images are to be found in the annexure to the statement of Detective Senior Constable David Shaw dated 4 November 2006. · Also found on the computer was a 188-page novel entitled - text removed - which contained a number of passages describing sexual acts between males under the age of 16 years. The document appeared to have been forwarded by email to Dr Power's computer. The relevant emails can be found in Annexure 17a, b and c to the Computer Forensic Analysis Report prepared on 6 September 2006 by Sergeant John McCulloch. · Dr Power had on his computer a software application called - text removed - that enabled a user to share files on his computer with other uses on a network, such as the internet, running a similar piece of software. The examination of the computer located many file names with references to child pornography which indicated that the files had been downloaded to Dr Power's computer using - text removed -. There is no evidence, however, of Dr Power having distributed to any third person any of the files or material downloaded by using - text removed -. · Dr Power had also "bookmarked" a very large number of internet web sites. Some had names suggesting that the sites contained child pornography Examples include - text removed -. Some of the sites contained links to sites containing child pornography. The full list of the bookmarks can be found in Annexure 15b, 15c and 16 of the forensic computer report referred to previously. · Evidence was found on the computer of an attempt having been made at 0739 hours on 4 May 2006 to burn to 14 video files to a DVD. The disc session was extracted from the disc image file and was examined. Ten of the video files had names suggesting that they may contain child pornography (Annexure 11 to Computer Forensic Analysis Report) - names such as "Dave 13 yo masturbates, pre boys, preteen boys sex…fuck, 2 Thai preteen boys fuck in bamboo forest, Jap boy and Man in garden, Friends from Poland Part 3 (Pthc Gay Pedo)." Eleven on the 14 video files were corrupt and unable to be examined. The 3 that were examined all contained child pornography (see 4.5.3 of Computer Forensic Analysis Report).

During the search of Dr Power's home on 6 July, police found a number of 3.5" diskettes. Those diskettes contained 20 graphic image files depicting child pornography and a list of bookmarks containing references to web sites with names suggesting that child pornography was available on those sites. That particular diskette was actually labelled "Thesis Backup".

On 4 July 2006 Dr Power was in possession of a great deal of material that fell within the legal definition of "child pornography".

It is an offence to possess child pornography (Section 91H(3) of the Crimes Act 1900). "Child Pornography" is defined in Section 91H(1) of the Crimes Act as "material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context."

In addition to the agreed statement of facts the prosecution tendered to the Court a copy of correspondence sent to the accused's solicitors seeking the production of the missing F drive from the accused's computer. Senior Counsel for the prosecution informed the Court there had been no response to that correspondence. Whilst it may be inferred that the F drive contained more pornography, and perhaps child pornography I do not believe that there is anything to be gained from taking this part of the proceedings into account. Even if the court could conclude the accused had actively hidden further instances of child pornography the inability to classify or number the instances would render placing such a circumstance in the overall context of aggravation impossible. The approach on sentence will be confined to the agreed statement of facts and the remainder of submissions from the respective parties. Relevant considerations

The sentencing of an offender in any jurisdiction is subject to a combination of both statutory provisions and the common law. The Common Law may be found set out in Veen -v- The Queen (No.2) (1988) 164 CLR. Subsequent legislation in the form of Section 3A of the Crimes (Sentencing Procedure) Act 1999 as the Court of Criminal Appeal said in R -v- Ma (2004) 145 A Crim R 434 " is in substance a codification and elaboration of the purposes of criminal punishment described in Veen -v- The Queen (No. 2).

Further, as the Court observed in R -v- King (2004) 150 A Crim R 409 at [130] there is a necessity to reconcile and rationalise the s 3A purposes in considering the sentence appropriate to the particular offence. The sentencing Judge must reach an 'instinctive synthesis' which takes account of and balances the conflicting and contradictory factors which bear upon the sentencing exercise."

Section 3A sets out seven purposes "for which a court may impose a sentence on an offender":

(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, and (g) to recognise the harm done to the victim of the crime and to the community.

Against this background the sentence to be passed on the accused must ultimately reflect the objective seriousness of the offence committed and must be reasonably proportionate to the crime committed R -v- Scott [2005] NSWCCA 152. The maximum penalty is not an outcome that occurs as a matter of course. It is only in the gravest of cases that the maximum penalty will fall to be considered. Where an indictable offence is to be dealt with within the jurisdiction of the Local Court however although the Court is required to assess where the objective seriousness of the offence lies by having regard to the maximum penalty for the offence not the maximum penalty which may be imposed by a Local Court [R -v- Doan (2000) 50 NSWLR 115]. Although the sentencing court is not bound to accept the correctness of an election by the prosecution to bring the matter to finality within this jurisdiction such a decision invariably brings with it, whether properly based or not, a concession that the objective seriousness of the conduct within the offence does not approach that of the gravest of cases.

In determining where the accused's conduct falls within the commission of the offence the decision of R -v- Gent [2005] NSWCCA 370 at [99] provides assistance as to the approach to be adopted and factors to be considered. 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…. is for further distribution (d) whether the offender will profit from the offence.

The Court went on to say:" 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 the quantity lies more in the number of different children who are depicted and thereby victimised .

In the case of R -v- Gent [8] the accused was prosecuted for importing child pornography. One of the CDs seized by Customs Officers was found to contain 16 video images of varying lengths of time, between approximately 5 and 39 seconds and contained images of young boys engaged in sexual acts with adult males and each other. The titles of the 16 video images indicated that acts of oral and anal penetration and masturbation involving young children were depicted on them. A further CD was found to contain 601 photographic images of young boys and girls engaged in sexual acts with adult males and females and or each other. The boys appeared to range in age from between six to 16 years with the majority appearing to be aged between eight and 11 years. The girls appeared to range in age from between six and 14 years. (R-v-Gent [9]). The sentence imposed in those proceedings was one of 18 months imprisonment. It was not altered on appeal.

It should be noted however that the maximum penalty for the offence of importing child pornography is one of 10 years imprisonment when prosecuted on indictment. It is worth noting again that the maximum penalty for the offence before me is 5 years imprisonment. Nonetheless R -v- Gent and the analysis given in that appeal of the relevant considerations do, together with the factual context provide assistance to this court.

With this in mind it is appropriate to note that the accused was found in possession of 31 video images of adult males engaged in a variety of sexual acts with young children aged 10 years and less and with adolescents aged under 16 years including, inter alia, penetrative oral, anal sex, bondage and masturbation. Unlike the position on the facts in R-v-Gent the videos were of varying duration from a few seconds to 37 minutes, the average being about 15 minutes. The volume of thumbnail images in these proceedings before me, 433, is not significantly different from the 601 referred to in R-v-Gent. It may fairly be said in my view that the length and depictions of pornography in the videos secreted by the accused on his computer in these proceedings when taking into account the age of the children and the gravity of the sexual activity portrayed demonstrably exceeds the material considered in R -v- Gent.

In its submissions to the Court Senior Counsel for the prosecution referred to the COPINE (Combating Paedophile Information Networks in Europe) Reference database and the identified 10 levels of classification. Whilst it is impossible to compare or classify the material detected in R-v-Gent it has been possible to so in relation to the material before this Court. The Court has also had the opportunity although most would call it the unwelcome task of viewing the material in order to assess it against the background of the criteria identified in R-v-Gent referred to earlier. It is appropriate to reiterate some of the more heinous classifications of the material found in the accused's possession. Of the thumbnail images, 79% were classified as being in category 6 or 7. Of the videos 14 (or 45.2%) come within category 7, two come within category 8 being "Assault" depicting sexual assault involving an adult. Fourteen videos (or 45.2%) come within category 9 being "Gross Assault" which includes penetrative assault involving an adult and one video falls within category 10 being "Sadistic/Bestiality" showing the infliction of pain on a child. That video runs for 23 minutes. I agree with the description of Senior Counsel for the prosecution wherein he describes it as 'a graphic and revolting film'. The words 'wicked and evil' would be no less apposite. The imagery depicted has a correlation with that described by Williams DCJ in R -v- Gent wherein His Honour observed : "..Anyone, anywhere who might possibly think that children may somehow enjoy sexual relations with adults or other children would be rapidly disabused of that notion by this material.

To see the pale death of innocence and trust in the eyes of so many young children is to bemoan the capacity for some members of the human race to descend into the dark and depraved side of the human condition.

It must be said however, in viewing the compilation compact discs produced by the Prosecution, distressing and disheartening though they are, the images depicted therein cannot be described as the gravest of examples. The apportioning of images and videos within the COPINE categorisation establishes that as a matter of fact. It is perhaps this perspective that was applied in determining to prosecute these matters to finality within the Local Court jurisdiction. That is not to seek to diminish the effect of the material but to put it in perspective for the sake of proportionality in the ultimate sentence. It is the view of this Court for the purpose of sentencing that the collective effect of the imagery and nature of it, number of children and adolescents involved and disparate races from which they are drawn places the objective seriousness of the material towards the middle range category of offending behaviour.

In making such finding it should not be concluded that the Court is stating that the objective seriousness is towards the middle range of matters that fall within its sentencing discretion. I make it clear that I am identifying the objective seriousness of the conduct by reference to the gravest of cases and thus the maximum legislative penalty not the jurisdictional barrier that applies in the Local Court. [R -v- Doan (2000) 50 NSWLR 113].

It is also timely to remind the wider community that the accused's conduct is not directly related to the production of material he asserts was downloaded from the Internet. There is no evidence whatsoever of the accused ever having engaged in the type of behaviours demonstrated in the material provided to the Court. This is not to say that the possession of child pornography is a victimless crime. Courts have long recognized that this is not the case.

As the Ontario Court of Appeal said in R -v- Stroempl (1995) 105 CCC (3d) 187 at 191: The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense possessors such as the appellant instigate the production and distribution of child pornography - and the production of child pornography in turn frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions stifle the activities of the prospective purchasers and collectors of child pornography this may go some distance to smother the market for child pornography altogether. In turn this would substantially reduce the motivation to produce child pornography in the first place.

These observations have been cited with approval throughout the Commonwealth of Australia. For my own part I agree with Williams DCJ in the matter of R -v- Gent wherein His Honour referred to the observations of Kennedy J. in R-v-Jones (1999) 108 A Crim R 50: "The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection or such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children in the end are the victims." 42. The impact of child pornography produced on video is also graphically demonstrated by research in the field. Itzin C Online child pornography and offline child abuse - Dr. Tony Krone Australian Institute of Criminology - New South Wales Magistrate's Annual Conference 2005 p.12 in the publication Child Abuse Review 6 pp.94-106 said the following: " not only is the victim initially abused but the nature of the abuse is heightened by the presence of a camera. Recording the abuse that takes place emphasises the powerlessness and degradation of the victim. It also tends to exaggerate the abuse, as the child is required to perform for the camera. The process of filming is intrusive and the producer may seek to satisfy a market for increasingly more serious images. Finally, the victim must live with the consequence of their image being swapped, traded and sold perhaps perpetually in the child pornography trade."

43. These observations are of relevance in the context of Section 3A of the Crimes (Sentencing Procedure) Act 1999 and Section 3A(g) in particular. The Plea

44. The accused entered a plea of guilty to the charge on 25th January 2007. At that time the proceedings had been before the Court for six months. A plea of guilty is an acknowledgment of each of the intrinsic elements of the offence, including the intention to commit the offence. It is also a circumstance that the Court is obliged to take into account. Section 22 of the Crimes (Sentencing Procedure)Act 1999 expressly states:

(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must take into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed.

(2) When passing for not doing so. sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, and make a record of, its reasons 45. The manner in which a plea of guilty is to be approached by Courts is subject to the guideline judgment of R-v- Thomson and Holten (2000) 49 NSWLR 383 wherein the Court said, inter alia (i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight. (ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian valuer - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, eg assistance to authorities, a single combined quantification will often be appropriate. (iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25% discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge. (iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount. (v) The utilitarian value of the plea does not depend upon the strength of the Crown case. 46. In these proceedings the accused entered his plea of guilty some six months after the matter first came before the Court and after the prosecution had completed and served a brief of evidence. There is an undoubted utilitarian value to be measured in the plea but it is qualified in terms of its extent by the reality that although entered reasonably early it is not a plea entered at the first available opportunity (see R -v- Harmouche [2005] NSWCCA 398 at 39). The accused by virtue of the nature of his profession and the furtiveness in his conduct by the way in which he sought to secrete the child pornography within his computer by giving the videos and photographs misleading file names would have had no doubt from the very outset of being charged that he was guilty of the offence. Although the brief ultimately prepared and served appears large, this is not a complex matter such that a plea would bring about a significant utilitarian outcome.

47. Nevertheless there is a benefit to the State in the plea and the consequential savings of a need to conduct a defended hearing. As indicated I am obliged to take the fact of his plea into account and to apportion a discount for its utilitarian value. The view is often expressed that a plea of guilty attracts a 25% discount on the sentence that might otherwise be imposed. That view is erroneous and fails to reflect the guidelines expressed by the Chief Justice in R-v- Thomson and Houlten. In that decision the Chief Justice referred to a range of 10%-25% not a minimum discount of 25% and

that the primary consideration determining where in the range a particular case should fall is the timing of the plea 48. It is my view that the appropriate discount to be given for the utilitarian value of the plea in these proceedings is 16.5%.

The Subjective Features 49. Section 21A of the Crimes (Sentencing Procedure) Act 1999 requires a court to consider a number of matters at the time of sentence. Senior Counsel for the accused referred in particular to Section 21A(3) (b) (e) (f) (g) (h) (i) and (k) as being of particular relevance.

50. Section 21A(3) refers to the mitigating factors to be taken into account in determining an appropriate sentence. Section 21A(3)(b) states that it is a mitigating factor where the offence was not part of a planned or organised criminal activity. It is asserted the accused's conduct does not fall within this description. The prosecution does not take issue with this assertion.

51. Section 21A(3)(e) identifies a lack of any record, or significant record as a mitigating factor. It is conceded the accused is a person with no prior criminal record. The accused is entitled against that background to have the court accept that this offence is one that is out of character.

52. Section 21A(3)(f) refers to the character of the accused. Much has been made of the accused's otherwise good character. Senior Counsel told the Court that the accused is regarded as an honourable man. Some 59 references from persons both in Australia and overseas attest to the accused's good character and good works within the practice of the law and the community generally. None of the referees assert that they were aware during the period of their association with the accused that he was a person who downloaded child pornography.

53. Outwardly however I accept, putting this matter to one side, that in the generally accepted understanding of the phrase the accused is a person of otherwise good character. I accept that he has contributed significantly to the community through his principal professional role as a Deputy Senior Crown Prosecutor and the adjunct roles undertaken by him by virtue of his standing within the law.

54. The law requires good character to be taken into account in mitigation of penalty. The general proposition however can be affected by the nature of the offence. In R-v- Kennedy [2000] NSWCCA527 AT [21]-[22] the court said, inter alia: "… a court may legitimately give less weight to prior good character as a mitigating factor. Generally speaking, such a situation might arise where general deterrence is important, the particular offence before the court is serious and is one frequently committed by persons of good character . In Ryan -v- R (2001) 206 CLR 267 at 275 McHugh J. said of good character: "…..if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all the circumstances ."

In R-v- Gent [62] the Court said: " There is authority in support of the approach of attaching less weight to prior good character for child pornography offences .

55. In the United Kingdom the Sentencing Advisory Panel has published advice by way of sentencing guidelines to the Court of Appeal concerning such offences. The Court of Appeal agreed to adopt these proposals subject to certain modifications: R-v-Oliver [2003] 1 Cr App R 28. In giving judgment for the Court Rose LJ at 470 touched on the question of the weight to be given to good character in sentencing for this class of offence, wherein His Lordship said: " So far as mitigation is concerned, we agree with the Panel that some but not much weight should be attached to good character."
56. True it is the decision of Oliver related primarily to the distribution and making of child pornography but it is the association with child pornography that is the determinant for that conclusion not the fact of creating or distributing such material. I reach this conclusion by having regard to paragraph [64] in R-v- Gent. Here the court said: " There is a foundation for the approach that less weight should be attached to the evidence of prior good character on sentence for offences of importing child pornography. ……General deterrence has been referred to as the paramount consideration on sentence for this class of offence (Assheton). The fact that the offence is, in a sense, committed in secret is also relevant to this issue."

57. The guidance to be derived from these decisions on the issue of good character is duly noted. The accused's prior good character will be accorded by this court a lesser weight than it might otherwise attracted for offences different in nature.

58. Section 21A(3)(g) refers to the lack of likelihood that the accused will re-offend. Quite simply the Court cannot possibly answer this question with any measure of overwhelming confidence. The legislative provision does not require the court to be absolutely satisfied, "unlikely" is of itself a word seised of a measure of caution and uncertainty. The impact of these proceedings on the accused both within the court and the community may well bring about that outcome. The report of his consulting psychiatrist Jonathan Phillips [at p.12] expresses the opinion that he "is extremely unlikely to offend again." His prior good character, age and the opinion expressed by Dr. Phillips leads me to the conclusion that the assessment that he is unlikely to re-offend is a conclusion which on the balance of probabilities should be determined in favour of the accused.

59. Section 21A(3)(h) identifies the fact that the accused has good prospects of rehabilitation whether by reason of the offender's age or otherwise as a further mitigating factor. At face value it is reasonable to expect that an accused of the accused's intellectual and professional capacity does present with good prospects of rehabilitation. In coming to that conclusion however the Court does not lose sight of the significant body of opinion, referred to in part in R-v-Sharpe 2001 SCC 2 (CanLII) to the effect that: "[34]…possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences and further [at 35] "child pornography promotes cognitive distortions, i.e. child pornography may change one's attitudes in ways that makes them more likely to sexually abuse children. One may come to see sexual relations with children as normal even beneficial. Moral inhibitions may be weakened. People who would not otherwise abuse children may consequently do so."
60. Despite those understandable concerns there is no evidence before me to suggest that the impact of the accused's access to and consideration of child pornography to date with his stated intention of "satisfying a long term sexual fantasy" will not be brought to an end by the outcome of these proceedings. Absent cogent evidence to the contrary, which has not been presented in these proceedings, the Court is not entitled to speculate to the point of drawing an inference adverse to the accused as to the prospects of rehabilitation.

61. Section 21A(3)(i) establishes remorse as a factor to be taken into account in mitigation. I accept the opinion of Dr. Phillips that the accused is contrite for his actions.

62. In addition to the foregoing matters the accused asks this court to take into account the medical report of Jonathan Phillips. Doctor Phillips is a consultant psychiatrist who prepared a thirteen-page report regarding his assessment of the accused following two sessions of interview with him in late January and mid March 2007.

63. The report outlines the accused's professional and personal history including a lengthy history of depression and detailing the almost ten year history of downloading material from the internet which started with homosexual pornography on an intermittent basis but which grew from 2002 to become increasingly compulsive.

64. Of particular note [at p.5] Doctor Phillips reported that the accused said he "felt himself to be desensitised to vivid imagery partly as a result of the nature of his work as a Crown Prosecutor and that.. he would look on the material in terms of a picture rather than reality and rarely experienced any significant reaction to the imagery… noting specifically that included very little sexual reaction." So far as the use of the Internet by the accused is concerned Doctor Phillips said that based on the accused's disclosures to him it is his opinion the accused gradually acquired an addiction to the Internet that was primarily related to his interest in homosexual pornography rather than child pornography. According to the psychiatric report "there was a shift in [the accused's] behaviour over the last few years (probably from 2002) in the context of depression spectrum symptoms (p.11). The report further discloses the existence of a long-term history of depression for which the accused has been receiving psychotherapy and medication at times since 1996 from another psychiatrist.

65. At page 12 of his report Doctor Phillips expresses the view "Dr Power has unfortunately come to experience Internet addiction. The phrase Internet addiction reflects an obsessional preoccupation with the Internet secondary to the psychopathology of a depression spectrum disorder, with compulsive use of the Internet. The most common expression of this phenomenon is through Internet gambling, but the seeking of pornographic images/text on the Internet is a well-recognised phenomenon. The psychodynamics of Internet addiction, in the context of depression, remain uncertain. The most likely explanation is that the depressed person seeks an escape from their dysphoric mood state through compulsive activity of one type or another. That Dr Power compulsively sought and collected pornographic phenomenon. Further, Dr Power has not used the materials collected in any major sense for purpose of sexual gratification, this again pointing to addictive behaviour, rather than sexually oriented behaviour."

The final paragraph of Doctor Phillip's report is expressed in these terms:

"Finally, to the best of my understanding, Dr Power is not psychopathic or criminal by disposition, and additionally your client is not a paedophile. The child pornographic images and text found on his home computer will be explained as a consequence of internet addiction, with this occurring as part of a chronic depression spectrum disorder (dysthymia)."

66. The opinion expressed by Doctor Phillips is not relied on by the accused to justify or excuse his criminal offending behaviour. There is no concept known to law as a qualified plea of guilty. As indicated earlier a plea of guilty is an acknowledgement of each of the intrinsic elements of the offence including the element of intention to commit the crime. The background information and opinions expressed by Doctor Phillips are provided to place the conduct in context on a subjective basis. It is also provided to support the submission by the accused's Counsel in relation to the applicability of the principles of general and special deterrence. Such a submission is in accordance with the general law however the general principles are to be considered in light of the circumstances of the particular case.

67. Although not expressly put, the circumstances and opinions outlined within the report attract consideration in mitigation of penalty pursuant to Section 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999.
68. In addition to Doctor Phillip's report the accused relies on the authority of Sconamiglio (1991) 56 A Crim R 81 at 86 for the principle of sentencing that general deterrence should often be given little weight in the case of an offender suffering from a mental disorder or abnormality because such offender is not an appropriate medium for making an example to others.

69. There is further authority on the way in which a sentencing court, where appropriate, is to approach such material. In R -v- Israil [2002] NSWCCA 255 AT [23] Chief Justice Spigelman said: "To the extent that mental illness explains the offence - as her Honour found to be the position in the present case - then an offender's inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, will impact on the level of culpability of the offender, even where the illness does not amount to an excuse at law."

In R v Henry (1999) 46 NSWLR 346 Wood CJ at CL said at 354: "[an] offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing."

70. The degree of consideration to be given to the existence of a mental disorder or abnormality relative to the commission of the offence will not always result however in a reduced sentence. In R v Engert (1996) 84 A Crim R 67 Gleeson CJ said at 71: "the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a casual relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a casual connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a casual connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public."
71. In R -v- Wright (1997 93 A Crim R 48 at 50 and 51 in considering the weight to be given to the existence of a mental illness the Court said: " Considerations of general (or even personal) deterrence are not rendered completely irrelevant and the significance of the offender's mental incapacity is to be weighed and evaluated in light of the particular facts and circumstances of the individual case ." And further [at p.51]: "But if the offender acts with the knowledge of what he is doing and of the gravity of his actions the moderation need not be great."
72. In my view this requires the court to take into account the particular circumstances of the accused before the Court.
73. There is no issue the accused, unlike other members of the community, is uniquely placed to understand the nature of his conduct. He holds the degree of Bachelor of Laws, has been awarded a Master of Laws and a Doctorate. He is, as many of his referees attest, a highly intelligent man. Since his return from overseas earlier in his life he has practised at the New South Wales Bar since 1986, was appointed a Crown Prosecutor in 1987 and a Deputy Senior Crown Prosecutor in 1991 a position in which he has remained continuously every since. His profession has recognized his competence by his appointment as Senior Counsel.
74. There will be few people better placed to know "what he is doing and of the gravity of his actions" irrespective of the co-existence of a mental condition. Corroboration of that reality is also to be found in the manner by which he sought to conceal the true identity of the child pornography by disguising it in the "Quicken" and "Thesis backup" folders. I do not accept the submission by the accused's counsel that the files somehow found their way to these locations randomly. The overwhelming inference is that they were placed there deliberately in the full knowledge that they were instances of child pornography and to prevent the possibility of their being found by someone who might take issue with their nature and legality.
75. Further, I agree with the submissions of Senior Counsel for the prosecution wherein counsel says [at p.16-17] in response to one of the opinions within the psychiatric report: "At the same time that Dr Power was experiencing these stressors and committing the criminal offence for which he is to be sentenced he was functioning as one of this State's most senior Crown Prosecutors- appearing daily in the highest courts in the most difficult cases and giving advice to participants in the NSW [sic] criminal justice system of the most responsible and complex type imaginable. He was not on sick leave. There is not the slightest suggestion that he was incapable of discharging his professional duties adequately or that he made any errors of judgment during this time. How can it be that his judgment became impaired in one sphere only?"
76. Such a submission is a powerful counterbalance to the submission made on behalf of the accused. I agree with the tenor of the Prosecution's submission. The only sensible conclusion that can be drawn is that the accused, whilst he did suffer from the conditions referred to in the psychiatrist's report, nonetheless well knew what he was doing and that it was manifestly unlawful. Accordingly, in line with the guidance derived from R. -v- Engert and R -v- Wright (supra) the Court gives a lesser degree of weight to the accused's mental condition than might otherwise apply in ordinary circumstances.
77. The consequence of such a finding is that the need for general deterrence remains not just significant, but a paramount consideration.

78. Having dealt with the relevant submissions made to this Court on sentence and outlined those considerations important in determining the approach to sentence I turn to the question of the appropriate sentence. Senior Counsel for the accused argues that the appropriate sentence is a good behaviour bond pursuant to Section 9 of the Crimes (Sentencing Procedure) Act 1999. Senior Counsel for the prosecution submits the appropriate punishment is full time imprisonment.
79. The persuasiveness of the submission as to penalty on the part of the accused is clearly affected by the conclusions to which the court has come on the issues of good character and the weight to be given to his mental condition at the time of the commission of the offence. It is also affected by the view taken by the Court of the objective seriousness of his conduct and the clear need for general deterrence in relation to child pornography prosecutions. Consideration of the prosecution's argument that imprisonment is appropriate however requires the Court to have regard to Section 5 of the Crimes (Sentencing Procedure) Act 1999.
80. Section 5(1) is a statement of legislative policy and is expressed in the following terms: "5(1) A court must not sentence an offender to imprisonment unless it is satisfied having considered all possible alternatives, that no penalty other than imprisonment is appropriate."
81. In R -v- Zamagias [2002] NSWCCA 17 at [23] Howie J. set out the approach to be taken in considering this issue: "It is clear when sentencing an offender to a term of imprisonment a court is required to undertake a number of steps before finally determining the appropriate sentence. Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime"
82. In my view the objective seriousness of the offence and the need to emphasise general deterrence does warrant the imposition of a term of imprisonment. I am not persuaded the subjective circumstances of the accused outweigh such a conclusion. Support for such a conclusion comes not only from authority in this country, such as R -v- Gent wherein it was held that general deterrence is a paramount consideration. This approach reflects the view common in other countries.
83. In R-v- Oliver [2002] EWCA Crim 2766 the Court of Appeal of the United Kingdom gave guidelines for sentencing those convicted of offences involving indecent photographs of children. At paragraph 17 the court said, inter alia: "We agree with the Panel that the custody threshold will usually be passed where any of the material… in cases of possession (consist of) a large amount of material at level 2 or a small amount at level 3 or above. A custodial sentence of up to six months will generally be appropriate in a case where (a) the offender was in possession of a large amount of material at Level 2 or a small amount at Level 3….. A sentence of between six and twelve months will generally be appropriate for (b) possessing a small number of images at Levels 4 or 5." At paragraph 17 the Court of Appeal went on to say: "In relation to more serious offences a custodial sentence between 12 months and three years will generally be appropriate for possessing a large quantity of material at Levels 4 or 5, even if there is no showing or distribution of it to others."
84. The United Kingdom categorisation of child pornography differs from the COPINE rating referred to by the prosecution in these proceedings. The correlation between the 5 levels in the United Kingdom and the COPINE scale is that Level 1 of the former equates with levels 4,5, and 6 of the latter. Level 2 equates with Level 7, Level 3 with Level 8, Level 4 with Level 9 and Level 5 with Level 10. Krone (supra) p.7
85. In these proceedings it can hardly be said that the amount of material in the accused's possession could be classified as small even allowing for the capacity to use the Internet to download material in the thousands. It can be said that the majority of the material is towards the more serious end of whichever classification one might choose to apply. In my view the guidance to be obtained from the approach taken in decisions such as R-v- Gent and R -v- Oliver and my own view of the objective seriousness of the conduct takes the sentencing range to be considered towards the upper levels of this Court's maximum jurisdiction of two years. In arriving at that conclusion I am mindful that in R-v- Gent the Court was dealing with an offence that carried a maximum term of imprisonment of 10 years. In R-v- Oliver the maximum penalty for possession of an indecent photograph of a child was 5 years imprisonment [see paragraph 5 R-v- Oliver]. Both approaches on sentence however are instructive.
86. It is my view the level of involvement by the accused in these proceedings in terms of the nature of the child pornography in his possession is more serious than that to be inferred from the facts in R-v- Gent and R-v- Oliver. I have already indicated that my assessment of the objective seriousness of the offence places it towards the middle of the range of offences of this type. It is the view of the Court the appropriate sentence is one of eighteen months imprisonment.
87. I have indicated that the discount to be given for the plea of guilty is to be set at 16.5% of the otherwise appropriate sentence. The effect of this is to reduce the sentence to one, in round figures, of 15 months.
88. Having concluded that it is necessary to impose a term of imprisonment I turn my mind to the manner in which such a sentence is to be performed. This requires the Court to consider whether it is appropriate to exercise its discretion pursuant to Section 12 of the Crimes (Sentencing Procedure) Act 1999 and suspend the execution of the sentence. The approach to this consideration has received appellate consideration in this State in two important decisions. In R-v- Zamagias (supra) the court observed at [32]: "a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognized that the face that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. It is perhaps trite to observe that although the purpose of punishment is the protection of the community that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate."
89. I have however indicated that this offence is one in which general deterrence is of particular importance. Having come to that view I am mindful of the view taken by Court in R -v- Taylor [2000] NSWCCA 442 at 49, that when the court comes to the view, as I have, that the offence for which the offender is being sentenced is one where the element of general deterrence is of particular importance, a suspended sentence is not appropriate. I decline to exercise my discretion to suspend the execution of the sentence in this matter.
90. Although I am not of the view periodic detention is appropriate for this offence I note that I am nonetheless constrained by Section 66(1) of the Crimes (Sentencing Procedure) Act 1999 from considering it as an alternative in light of the Pre-Sentence report that assesses the accused as unsuitable for this alternative. The reason for that assessment however is relevant in another context.
91. Section 44 of the Act requires the Court, where a sentence exceeds 6 months, to set a minimum period for which the offender is to be kept in detention in relation to the offence [S.44 (1)] and to thereafter fix an additional term which must not exceed one third of the non-parole period unless the court decides there are special circumstances.
92. In my view there are, in this case, special circumstances. They go to the issue of hardship. As part of the submissions in support of a non-custodial sentence the accused produced to the Court correspondence from the Department of Corrective Services regarding the difficulties supervising the accused in custody. The Department acknowledges that the nature of the accused's profession creates a genuine risk to his safety that the Department would be required to manage. The Department acknowledges the accused would need to be placed in protective custody for his own safety. I accept that this is an accurate assessment.
93. It is not of itself a reason not to impose a term of imprisonment. In the history of the criminal justice process there have been a number of persons from sentenced former police officers to other high profile individuals who have faced, and successfully so, the risks associated with imprisonment and the nature of their professions. Hardship however can be a matter for the Court to take into account in coming to a conclusion that an individual accused may serve their term of imprisonment under conditions of greater hardship than other prisoners. I am aware of the observations of the Court in R -v- Mostyn [2004] NSWCCA 97 to the effect that: "it can no longer be assumed that a prisoner by reason of the fact that he will serve his sentence on protection will find prison life more difficult or onerous than other prisoners in the general prison population….. the vagaries of prison life are such that it could never be confidently assumed or predicted that a prisoner will serve the whole of his sentence in a particular type of custodial arrangement."
94. As a general proposition I accept that to be the approach. The nature of the accused's background in this case however is to my mind a very different set of circumstances. The views expressed in the Probation and Parole report and in the correspondence from the Department of Corrective Services together with the simple application of common sense bearing in mind the accused's former profession leads inevitably to a conclusion that there will be a need to maintain him in protective custody during the period of his incarceration.
95. I am satisfied that this constitutes "special circumstances" sufficient for the court to exercise its discretion and vary the statutory relationship between the minimum non- parole period and the head sentence. Such a variation however should not be applied to an extent that renders the ultimate period of imprisonment meaningless.
96. The accused is convicted and sentenced to a term of imprisonment that consists of a non-parole period of eight months and a total term of fifteen months. The sentence is to commence forthwith. The non-parole period will expire on 8th January 2008 with the balance of the sentence to expire on 8th August 2008. Graeme Henson Chief Magistrate 9th May 2007

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