Relevant principles
27There are a number of relevant considerations to which I must now turn before reaching a conclusion as to the appropriate sentence to be imposed. The first is the purposes of sentencing.
28Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) enunciates the purposes for which a court may impose sentence as being, namely, punishment, protection of the community, promotion of rehabilitation and accountability, deterrence, both specific and general, denunciation and a recognition of the harm done to the victim of the crime and to the community at large. In my view, sentencing for offences of this kind must comprise a real denunciatory emphasis, with particular regard to general deterrence. One must be especially cognisant of the fact that offences involving child pornography and child sexual abuse material, of whatever kind, are not victimless crimes and in circumstances where technological mediums such as the internet facilitate the exchange of offending material, courts should be vigilant in protecting a vulnerable section of the community from the predatory practices of those who deal with such material. The paramountcy of general deterrence and denunciation as considerations based on the exploitative nature of these offences was made clear in the decision of Simpson J in R v Booth [2009] NSWCCA 89 wherein her Honour (with whom McClelland CJ at CL and Howie J agreed) held, at [40]: -
"40 ... It seems to me that possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.
41 In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. ... The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse....
43 And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.
44 It is for that reason that this is a crime in respect of which general deterrence is of particular significance. In my opinion the sentencing judge too readily dismissed from consideration the need to convey the very serious manner in which courts view possession of child pornography."
29In R v Gent [2005] NSWCCA 370, reference was made to the decision of Morden ACJO in the Ontario Court of Appeal in R v Stroempl (1995) 105 CCC (3d) 187 at 191 in which it was held that: -
"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."
30The next relevant consideration is the assessment of the objective seriousness of the offences. The Court of Criminal Appeal has provided guidance in relation to assessing offences of this kind. In R v Gent , Johnson J at [99] identified a number of factors to assist in the assessment of objective seriousness: -
"(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."
31More recently, RA Hulme J in Minehan v R [2010] NSWCCA 140 at [94] (with whom Macfarlan and Johnson JJ agreed) identified the following factors as having relevance to an assessment of the objective seriousness of child pornography offences: -
"1. Whether actual children were used in the creation of the material.
2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted.
5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.
6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
8. The proximity of the offender's activities to those responsible for bringing the material into existence.
9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.
10. Whether the offender acted alone or in a collaborative network of like-minded persons.
11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.
12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence."
32So far as the possession charges are concerned, paragraphs (c) and (d) of the Gent factors would appear to have no application in that there is no evidence of possession or importation for the purpose of sale or distribution or for profit on the part of the offender. However, paragraphs (a) and (b) of the Gent factors have direct application as do paragraphs 1 and 2 of the Minehan factors. The offender was found in possession of 16 videos and 176 images, 192 items in total, stored across two computers, with children varying in ages between four and 14, with 24% of material falling within the upper range of the Oliver scale (level 4) and 2% at the top of the scale (level 5). The number of images present in Gent's case was 601. When turning to the Minehan factors, in particular paragraph 3, it would seem that the volume of material illustrative of penetrative sexual activity between adults and children at level 4 and sadism and bestiality at level 5 carries with it a real and genuine concern of the cruelty and physical harm occasioned to the children portrayed in those images and footage. Counsel for the offender conceded that there would not have been a significant overlap in the number of children depicted in the material and I understand from that submission that it is of some significance that there would have been numerous children victimised by the activities portrayed in the images and videos as referred to in paragraph 4 of the Minehan factors. It was submitted by counsel for the offender that for the purposes of assessing paragraph 10 of the Minehan factors, the offender acted alone in his pursuits and never met any people of the chat room sites and indeed that there was no evidence that he participated in any activity with the nine-year-old child whose parents were also apprehended by police. Whilst I accept that submission, paragraph 10 of the Minehan factors is quite specific in its application requiring a sentencing court to consider whether the offender acted alone or in a collaborative network of like-minded people. Unlike the Gent factors, which deal primarily with possession of child pornography, the Minehan factors deal with possession, dissemination and production of child pornography. I accept that not all of the 6379 chat logs consisting of conversations between the offender (via his username 'louise_69r') and 1806 other users consisted of offending material. In fact, the Facts Sheet makes it clear that the chat logs ranged between 2005 and 2010 and their review identified a further 28 persons of interest, and it is the content of the communications between those persons and the offender which are similar to the chat logs forming the basis of sequence 1, which I have set out earlier in these reasons. The dissemination offence, by virtue of the chat log conversations, cannot be considered in a vacuum. In my view, there is a clear and unambiguous network of participants, at varying levels along the spectrum of criminality which pervades the standards of morality, decency and propriety enjoyed by mainstream society.
33Another relevant consideration is that of increased penalties. Most of the leading cases dealing with the possession of child pornography were decided prior to the amendments carried through principally by the Crimes Amendment (Sexual Offences) Act 2008 (NSW) and to a lesser extent the Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW). By virtue of the Crimes Amendment (Sexual Offences) Act 2008, which commenced on 1 January 2009, the maximum penalty for being in possession of child pornography was increased from five years imprisonment to 10 years imprisonment. This had the effect of imposing the same maximum penalty for possessing child pornography as had already existed for producing or disseminating child pornography, thus merging the various child pornography offences into a single offence. The significance of this point is that when maximum penalties are raised, this is an indication that higher penalties should be imposed. In R v Way (2004) 60 NSWLR 168 at [52], the Court held that: -
"Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum: R v Sha (1988) 38 A Crim R 334; R v Peel [1971] 1 NSWLR 247. The courts are expected to recognise and reflect that intention when sentencing offenders for offences after such amendments are made: R v Slattery (1996) 90 A Crim R 519 at 524 and R v Jurisic (1998) 45 NSWLR 209 at 227."
34An increase may represent a change in the community feeling or expectation as to the sentence appropriate for such an offence, although it must be understood that such a change will not necessarily have a wholly determinative or conclusive effect: R v Crump (unreported, 30/5/94, NSWCCA).
35Another consideration is that in structuring a sentence with multiple charges, I am required to have regard to the principles of totality. The effect of the totality principle is such that the Court is required to pass "a series of sentences, each properly calculated in relation to the offence for which it is imposed ... [and] to review the aggregate sentence" to determine whether it is 'just and appropriate': Mill v R (1988) 166 CLR 59 at [63].
36In assessing the objective seriousness of an offence where the offender has committed multiple offences, the court should not indulge in a global assessment: R v R eyes [2005] N SWCCA 218. The laying of two separate charges for the 'possess' offences appears to have been so as to discern the material found on one computer from the other. In R v Saddler [2008] NSWDC 48, each charge was based on the location of material on separate electronic devices and cumulative sentences were imposed to reflect this. Other than the fact that the images and videos were found on two different computers in the offender's home, the desktop computer and the laptop computer respectively, there is nothing, in my view, which makes one 'possess' charge objectively more or less serious than the other or distinctive in any way and, noting that Saddler's case was decided by a single judge in the District Court of NSW, I distinguish Saddler's case , to the extent that it constitutes any form of persuasive authority. Accordingly, any sentence to be imposed for the two 'possess' charges preferred by sequences 2 and 3 should, in my view, be concurrent as between the themselves. The same cannot be said, however, for the 'disseminate' charge preferred by sequence 1 and the sentence to be imposed for that offence should, in my view, be made partially cumulative and partially concurrent to the offences for sequences 2 and 3 so that, to use the words of Howie J in Cahyadi v R [2007] NSWCCA 1 at [27], the sentence for one offence could "comprehend and reflect the criminality for the other offence" and that if it could not, the sentences should at least be:
"... partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality".
37Another consideration which falls for assessment is that of sentencing statistics. Counsel for the offender tendered a number of sentencing statistics of cases decided in this jurisdiction. Whilst they are instructive and I have had regard to them, their use must be tempered with the cautions referred to by Campbell JA in Han v R [2009] NSWCCA 300 at [2] wherein it was held that: -
"Sentences imposed on other people for crimes that bear some similarity to the crime in question can legitimately be looked at as part of the process of a judge fixing a sentence. But in themselves they will not inform the judge of the range of sentences that would properly be open in a correct application of sentencing principles. It is the sentencing principles themselves that it is the duty of the judge to apply. They include taking account of the maximum penalty that Parliament has prescribed for the offence in question, and how the criminality of the particular mode of committing the offence that is being sentenced for compares to the criminality of the various possible ways in which a contravention of the particular prohibition that creates the offence could occur.
3 Statistics about the sentences that have been imposed for a particular offence can be of some assistance in informing the judge about the range of sentences that have actually been imposed for that offence. But the use of such statistics is limited. Part of the reason why that is so is because consideration of the range of sentences actually imposed is at best a check that the judge is correctly applying the sentencing principles. Part is because the statistics leach out many of the objective facts and all of the subjective circumstances that must be taken into account in a sentencing decision. Part is because the limited number of sentences that make up the sentences summarised by the statistics do not necessarily cover the full range of circumstances in which that particular crime can be committed. This list does not purport to be exhaustive."
38A more comprehensive list was enunciated by Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 (with Sully and Ireland JJ in agreement). What must be borne in mind when considering a particular sentence are the specific findings as to objective seriousness of the offence and culpability of the offender, rather than a comparison with statistical figures and percentages. The critical question is whether the sentence imposed is appropriate for the particular case: Sinkovich v R [2011] NSWCCA 90 at [41].
39The English Court of Appeal in R v Oliver gave some direction as to sentences for offences involving possession of images depicting child pornography at [17]: -
"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 ...... 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."
40It should be borne in mind that the maximum penalty applicable in Oliver for possession of child pornography was five years, not 10 years as in the present case.