Police v Power

Local Court of NSW|2008-11-14|Before: Chief Magistrate P, Grove J

PARTIES: Director of Public Prosecutions Little

MAGISTRATE: Deputy Chief Magistrate P S Cloran

LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999

REPRESENTATION: Ms. Nightingale for Director Defendant - unrepresented

1 The offender stands charged with possession of child pornography contrary to s. 91H of the Crimes Act in January 2006.

2 The offender was found guilty on 7th November, 2008.

3 The facts in this matter are set out in the judgement delivered on 7th November.

4 The maximum penalty for the offence on which the offender stands for sentence is 5 years imprisonment if dealt with on indictment. The matter presently under consideration is one to which the principles enunciated by the Court of Criminal Appeal in R -v- Doan (2000) 50 NSWLR 115 per Grove J. at [35] apply. Assessment of the Criminality

5 The salient features of this matter are that there were only two images of child pornography found in the offender's possession and that was amongst a large amount of adult pornography. It should be stressed that the court did not form the view that the offending images could have been inadvertently mixed with the adult pornography particularly in view of the fact that both children in the images are pre-pubescent. 6 For the purpose of proceeding to sentence I am of the opinion that this matter falls towards the lower end of the category of this type of offence because of the number of images. 7 In determining the objective seriousness of the material possessed and the accused's conduct in the commission of the offence, the Court in R v Gent 162 A Crim R 29; [2005] NSWCCA 370 set out a number of factors to be considered, including:

q The nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed; q The number of images or items of material possessed by the offender;

8 In the case of Police v Power [2007] NSWLC 1, the prosecution lead evidence of the COPINE (Combating Paedophile Information Networks in Europe) Reference Database. The COPINE collection contains examples of most of the material publicly available on the Internet. A descriptive analysis identifies 10 levels of severity, based on increasing sexual victimization. Material may therefore, be classified and apportioned according to the 10 levels of COPINE categorisation as follows:

Level 1 Indicative (non-erotic/sexualised pictures) Level 2 Nudist (naked or semi-naked in legitimate settings/sources) Level 3 Erotica (surreptitious photographs showing underwear/nakedness) Level 4 Posing (deliberate posing suggesting sexual content) Level 5 Erotic Posing (deliberate sexual or provocative poses) Level 6 Explicit Erotic Posing (emphasis on genital areas) Level 7 Explicit Sexual Activity (explicit activity, but not involving an adult) Level 8 Assault (sexual assault involving adult) Level 9 Gross Assault (penetrative assault involving adult) Level 10 Sadistic/Bestiality (sexual images involving pain or animal)

9 In relation to the current matter before the court, I assess the images at level 8 on the COPINE scale.

11 Section 21A of the Crimes (Sentencing Procedure) Act requires a court to consider a number of matters at the time of sentence, including under section 21A(3)(f) the character of the accused. The general proposition, however, that good character can be taken into account in mitigation of penalty can be affected by the nature of the offence.

12 In R v Gent, in dismissing the severity appeal, the Court found that the sentencing judge did not err in giving limited weight to the applicant's prior good character, saying: "There is authority in support of the approach of attaching less weight to prior good character for child pornography offences."

13 In dealing with the Offender the court must have regard to the provisions of theCrimes (Sentencing Procedure) Act, particularly s.3A which sets out the purposes of sentencing

(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. 14 Seven purposes for which a court may impose a sentence on an offender - in effect a codification and elaboration of the purposes of criminal punishment R. v. MA (2004) 145 A Crim R 434. R. v. King. (2004) 150 A Crim R 409 "Troublesome though the task may be, it is essential that the sentence reflect the factors set out in s.3A 15 Courts have repeatedly stated that possession of child pornography is not a victimless crime. It follows that possession of child pornography instigates the production of such material, which in turn frequently involves direct child abuse.

16 In R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, general deterrence was said to be a 'paramount consideration': "This is not a victimless crime. The Applicant took advantage of the sexual exploitation of children. This reflects a substantial level of moral turpitude."

17 R -v- Dodd (1991) 57 A Crim R 349 at 354 namely: Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594."

18 Dodd was affirmed by R -v- Carroll [2008] NSWCCA 218 at [20]-[21]. Plea in mitigation - subjective matters

19 The Offender has submitted that he is completely committed to his children and his grandchild. He has been employed by the NSW Police for 33 years and is likely to lose that employment. He stated that he had sought treatment for Post Traumatic Stress Disorder however there was no evidence placed before the court from any clinician in this regard. The Offender has also referred to his seeing a psychiatrist however, there has been nothing put before the court in that regard. 20 The Offender sought the extension of the provisions of s.10 of the Crimes (Sentencing Procedure) Act. In considering that matter, the court has regard to the fact that up until today there has been no suggestion of contrition or remorse for the offence. Each accused person has the right to put the prosecution to proof of its case, and, on being found guilty cannot be subjected to extra punishment for seeking to put the prosecution to proof. However, equally the accused cannot then seek any discount of the punishment the court would otherwise impose because of lack of contrition or remorse, a discount otherwise available to persons who enter a plea of guilty.

21 The Crown submits that this matter is unusual because there are only two images of child pornography. Similar charges brought before the court contains hundreds, thousands of even tens of thousands of images. The Crown submits that a period of imprisonment is not called for and that the imposition of a community service order would be appropriate. 22 I concur with the submissions of the Crown that a custodial sentence is not called for because of the number of images. I am not satisfied that the imposition of Community Service is a suitable way of disposing of matters of this kind. Sentence

23 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." 24 I have considered the objective seriousness of this matter noting that at least one of the images is Level 8 on the COPINE scale. I note the Offender has no prior convictions however I also note that prior good character is to be given little weight in these matters. 25 I also note the observations from past sentences for this kind of matter that if the courts through 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. R. v. Stroempl (1995) 105 CCC (3d) 187. 26 I note that the Offender is a senior member of the NSW Police Force, whether that remains the case is something for someone else to consider. It does not mean that the Offender should be dealt with in any harsher way than any other member of the community. The court also takes into account the provisions of s. 21A of the Crimes (Sentencing Procedure) Act which sets out the aggravating and mitigating factors that the court must take into account when considering sentence. 27 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. On face value it is reasonable to expect that an offender of the accused's professional capacity and achievements, does present with good prospects of rehabilitation. 28 I adopt the words of the learned Chief Magistrate in Police v. Power [2007]NSWLC 1 in relation to this Offender, There is no issue the accused, unlike other members of the community, is uniquely placed to understand the nature of his conduct

29 What is clear is that the courts of this State must do all they can to protect children from sexual abuse. People who download child pornography are supporting, some in a direct way others in an indirect way, the sexual abuse of children. Such behaviour is abhorrent to all right thinking members of the community. In my view the objective criminality of this offence precludes consideration of the disposal of this matter pursuant to s. 10 of the Crimes (Sentencing Procedure) Act. 30 The Offender will be placed on a bond to be of good behaviour for a period of two years. If during that period he commits any offence, he will be brought back before the court for sentence. If the offender were to commit an offence similar to this offence, he should go to gaol. In my view, any similar offence committed by this Offender in the future even outside the currency of the bond, would attract a period of imprisonment. The Offender will also be required to pay a substantial fine. 31 The Accused is convicted. He is ordered to enter a bond pursuant to Section 9 of the Crimes (Sentencing Procedure) Act conditioned that he be of good behaviour for a period of 2 years and to appear for sentence if called upon to do so at any time during that period.

Further he is fined the sum of $4,000 with Court Costs $73

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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Judgment (27 paragraphs)

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Cases Cited (4)