R v Cardwell [2021] QCA 112

SUPREME COURT OF QUEENSLAND

CITATION: R v Cardwell [2021] QCA 112

PARTIES: R / v / CARDWELL, Keith / (applicant)

FILE NO/S: CA No 184 of 2020 / DC No 397 of 2020

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Cairns – Date of Sentence: 9 September 2020 (Fantin DCJ)

DELIVERED ON: 21 May 2021

DELIVERED AT: Brisbane

HEARING DATE: 8 April 2021

JUDGES: Sofronoff P and Mullins JA and Bradley J

ORDER: Application is refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to count 1 and count 2 of using a carriage service for child pornography and child abuse material under s 474.19 and s 474.22 of the Criminal Code 1995 (Cth) – where the applicant also pleaded guilty to count 3 of possessing child exploitation material contrary to s 228D(1)(b) of the Criminal Code 1899 (Qld) – where the applicant deleted the images, assisted the police in locating the material, expressed remorse to a psychologist, received positive character references from friends and associates and had no criminal history – where the offending on count 3 took place on a single day whereas the offending on count 1 and count 2 took place over a period of three and a half months – where count 3 involved still images, whereas count 1 had at least one video – where the maximum penalty for count 3 was lower by one year than the Commonwealth offences of count 1 and count 2 – where the applicant appeals the sentence on count 3 on the grounds that it was manifestly excessive – whether the primary Judge erred in finding that count 3 was the most serious of the three charges which rendered the sentence manifestly excessive / R v Vantoosten [2009] QCA 54, cited

COUNSEL: C F C Wilson for the applicant / S J Bain for the respondent

SOLICITORS: Phillips Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P: The applicant pleaded guilty to one count of using a carriage service for child pornography material contrary to s 474.19 of the Criminal Code 1995 (Cth) and one count of using a carriage service for child abuse material contrary to s 474.22 of the Commonwealth Code. Both offences carry a maximum penalty of 15 years’ imprisonment. He also pleaded guilty to one count of possessing child exploitation material contrary to s 228D(1)(b) of the Criminal Code 1899 (Qld). That offence carries a maximum penalty of 14 years’ imprisonment. Fantin DCJ sentenced the applicant to imprisonment for 12 months on the Commonwealth charges and ordered that he be released forthwith on entering into recognizance in the sum of $500 on condition that he be of good behaviour for a period of two years. For the State offence, her Honour sentenced the applicant to imprisonment for 15 months to be suspended after he had served a period of three months, the suspension to be operational for two years. The Commonwealth sentence was to take effect after the applicant’s release upon the suspension of the sentence imposed on the State count. The applicant now applies for leave to appeal against the sentences on the grounds that they were manifestly excessive, but the focus of the applicant’s oral and written submissions was the sentence imposed for count 3.

2. The facts and circumstances of this case are, unfortunately, not at all unusual. The applicant was a 69 year old man at the time of the offending and is now 71 years old. He had no previous criminal history and was otherwise of good character. On 26 October 2019 police executed a search warrant at his home. Police told the applicant that they were there to execute a search warrant in relation to child exploitation material. The applicant said, “That’s quite possible”. He added, “I’ve been looking up some porn”. Police asked the applicant to show them where this material was on his desktop computer. He told them that it was in a folder on the desktop named “AAA”. He said that this folder contained “some porn” and “young, old and animals. [It] could be anything. Anything a little offbeat”. Police found two folders containing such material in the recycle bin of the computer. They contained images of prepubescent children involved in sexual acts with adults. The applicant volunteered that he was the owner of a laptop which could be found in his bedroom. Police found child exploitation material on that computer also. The applicant told police that he had downloaded these images “for his own assistance” in order to help himself become sexually aroused. He said that he was not “passing any of this on” and that “there [was] no way that [he] would send this information on or go outside of just looking”. He said that “the thought of tampering with anyone that’s vulnerable” was “quite abhorrent”.

3. Police found that the material on the desktop computer had been accessed at 8.41 pm on 21 October 2019, at 8.30 am on 25 October 2019 and at 9.08 am on 26 October 2019. Material on the laptop computer had been accessed at 11.47 am on 26 October 2019. These occasions of access constituted count 2 on the indictment.

“a. “7 y o 9 y o girls p the super quality pictur es pthc” – on 5/07/2019 at 10:13:37am;

b. “[PTHC 2012] 12y o Bucarest Girl Bates And Let Dog Licks Her Pink Puss y! VERY GOOD! [11yo, loli,webcam,preteen,pedo,bibcam,kids,cbaby,zoo,bes_ality]_01.mpg” – on 5/07/2019 9:49:04am;

c. “Lolita little sweet Russian Girl” - on 1/09/2019 at 12:37:17pm;

d. “Pthc_ght puss y fuck pthc collec_on (july 2010) high r es” – on 5/07/2019 at 10:27:27am;

e. “Pthc_ght puss y fuck pthc collec_on (july 2010) p thc” – on 5/07/2019 at 10:10:13am.”

5. These occasions of access constituted count 1 on the indictment.

6. Police also found 520 images consisting of child exploitation materials on the two computers. These included 254 unique images. The possession of these images constituted count 3 on the indictment. The images fell within the following categories of child exploitation material:

“a. Category 1 (CEM – Interpol Baseline): Depicts a pre-pubescent “real” child under 13 years of age showing sexual activity involving a child; or clear focus on either genitals or anus;

b. Category 2 (CEM – Any other CEM): Any other CEM that meets the Queensland and Commonwealth Legislative Description and was not within Category 1. Includes animated and written CEM, and Commonwealth Child Abuse Material, depicting children under the age of 18.”

7. The Interpol baseline category of images constituted the majority of these pictures, 460 in number.

8. After his arrest the applicant was immediately released on bail. He had no prior criminal history. In 2017 he was injured in a road accident and, as a result of this, he suffered erectile dysfunction as a side effect. He was unable to obtain effective medical therapy for this condition and began looking through adult pornography sites. He then came upon child pornography and began to download it.

9. Some months after his arrest, on 7 January 2020, the applicant attended a psychologist for six sessions which ended on 1 April 2020. The psychologist found that he was suffering “moderate to severe mood symptoms with symptoms increasing over the past two months”. The applicant was experiencing suicidal ideation, low mood and mild insomnia. These conditions appear to have been related to his being charged. The psychologist reported that the applicant had gained insight into his wrongdoing and was feeling shame and remorse. Several respectable people who were friends or associates of his furnished references testifying to his previous excellent character and their continued faith in him despite his having committed these offences. They testified to the genuineness of his remorse.

10. Fantin DCJ observed that the names of the files (which are quoted above) made the character of the images in them very apparent. Her Honour noted that the acronym “pthc” stood for “pre-teen hard core”. Her Honour also observed that 88 per cent of the images were in the most serious category for material of this kind and that these were offences that were committed on multiple occasions by “a very intelligent, mature man on a number of different dates over a period that spanned four months”. Her Honour said:

“The cases on this kind of offending make it clear that accessing and possessing child pornography is not a victimless crime. These offences actually harm real children and the repeated circulation of child pornography depicting this abuse continues the victimisation of the children in the images. Every child in every image you accessed or downloaded was, in fact, harmed.

Victims of child pornography report lifelong impacts as a result of the abuse and by participating in it, you are revictimising because of your downloading of that material. It is difficult to permanently or fully remove images from circulation. Every time you accessed that material, you supported the market for the continued corruption and exploitation of children. That market occurs on an international level. It is increasingly prevalent because of internet access. By doing that, you were supporting an abhorrent industry which exploits children.”

11. Those observations are, of course, sound and accurate.

12. Her Honour also correctly observed that, as a consequence of these features of the events, general deterrence is an important factor in sentencing offenders.

13. Her Honour referred to, and took into account, several strong mitigating factors. These included the applicant’s early pleas of guilty, his cooperation with police and his admissions, his lack of criminal history, his steps towards rehabilitation, the support of his family and friends and the extra-curial punishment that he will suffer by way of public shaming.

14. Her Honour concluded that the State offence was the “most serious of the three charges” because it involved a total of 520 images all of which were child exploitation material with 88 per cent of them being in the most serious category of such matter.

15. The applicant submits that her Honour was mistaken in categorising the State offence in that way. He submits, that offence was not the most serious of the three offences because the maximum penalty for that offence was 14 years, whereas the maximum penalty for the Commonwealth offences was 15 years. Further, he submits that the offence was committed on a single day whereas counts 1 and 2 took place over a period of three and a half months. He submitted that there was limited material before the court to enable it to assess the nature and seriousness of any of the images, whereas the evidence in relation to count 1 contained file names which implied the content of those files. He also submitted that the material in count 3 consisted entirely of still images rather than videos and that some of the images had been deleted.

16. The submission that her Honour erred in that respect cannot be accepted. There is no great significance to be found in the difference of one year in maximum penalty between the State offence and the Commonwealth offences. Nor was it of any significance that the Commonwealth offences were committed over a period while the charge of possession “was on a single day”. That is to mischaracterise the nature of the State offence. It may be accepted that the charge was laid on the basis that the offence was constituted by possession of material on a particular day. However, as the applicant himself admitted, he was deleting (and therefore accessing) such material on a weekly basis and so he must have had these pictures for some period. In any event, their intentional possession for however short a period is the culpable element that lies at the heart of the offence.

17. Nor can it be accepted that the court is unable to assess the nature of the material which is the subject of the State offence. Most of it fell into the worst category of such material, the nature of that category having already been referred to.

18. Nor is it of any great moment that the material consisted of still images. The wickedness that lies in the commission of this offence lies partly in an offender’s act in possessing the material of that kind. The essence of the moral culpability is that the production of child pornography requires the exploitation and corruption of children who are unable to protect themselves. People like the applicant who collect and use such material encourage the criminal acts of those people who abuse children in order to satisfy the wants of offenders such as the applicant. It has been said many times, and Fantin DCJ made the same observation, that the possession of child pornography is not a victimless crime. The children in the images are victims and generally it cannot matter in the slightest whether an image is a still image or a moving one.

“You’ve read the authorities? In particular, the one you took me to which reinforces that prior good character carries less weight in sentencing for child pornography, and that the subjective circumstances of an offender must not overshadow the objective gravity of the offending. You rely on Hickey, but I have to say, it seems to me that this is a case where it is certainly open to impose a period of actual custody, and I’m a little surprised the Crown is not submitting for that.

Nonetheless, I will hear any further submissions you have, and obviously, it may well be that Mr Crawford persuades me that that’s not appropriate. But certainly, Hickey involved requiring that defendant to serve one third of the suspended sentence in actual custody. And it’s very common for defendants to be mature people with no criminal history.”

20. The applicant submitted that her Honour erred in criticising the prosecutor’s submission that “no actual custody was required in the circumstances of this case”.

21. Contrary to the applicant’s submission, the prosecutor was not merely indicating that the sentencing discretion was not fettered as to require actual custody. His submission was that the circumstances of the present case warranted a sentence that did not require the applicant to serve a period of actual custody. In my respectful opinion her Honour was correct to point out that “this is a case where it is certainly open to impose a period of actual custody”. It is proper for a judge to form a preliminary view about a possible sentence and to express that view in the face of a prosecutor’s submission that greater leniency ought to be shown. A sentencing judge is not bound to sentence within the range advocated by defence counsel at the lower end of a range and prosecuting counsel at the higher end of a range. A judge has a duty to impose the correct sentence notwithstanding the submissions of the parties. Of course, submissions have to be given great weight but, in the end, the proper sentence is one that the judge determines is that which is required by law. I would reject the applicant’s criticism of her Honour’s approach in that respect.

22. In R v Vantoosten [2009] QCA 54 at [19], Muir JA said that the quality of the material in such cases rather than the quantity will often be more determinative of the gravity of the offending conduct. His Honour said that the greater the cruelty, degradation and corruption depicted and the more that the material offends against community values, the more reprehensible the offending conduct. I respectfully agree The applicant’s submissions which are critical of Fantin DCJ’s characterisation of the State offence as the most serious of the three offences cannot be accepted because the seriousness of the State offence was based upon her Honour’s appreciation of the quantity and quality of the images found in the applicant’s possession. The applicant’s submission that “no specific seriousness was attached to the images” must be rejected.

23. The sentence imposed in a case like Vantoosten, and the cases discussed by Muir JA in the course of his reasons, show that the sentences imposed upon the applicant fell within a sound exercise of sentencing discretion and that this Court has no warrant to interfere with them.

24. For these reasons the application should be refused.

25. MULLINS JA: I agree with Sofronoff P.

26. BRADLEY J: I agree with Sofronoff P.