Court of Appeal (Qld)|2008-09-05|Before: Fraser JA, Philippides and Daubney JJSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Fraser JA, Philippides and Daubney JJSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED– GENERALLY – applicantconvicted on guilty pleas to one count ofpossessing child exploitation material and one count of distributing childexploitationmaterial – applicant used peer-to-peer software which allowedothers to access child exploitation material on his computer– applicantsentenced to concurrent sentences of 12 months imprisonment for possessioncount, and three and a half years fordistribution count, with a paroleeligibility date set at 18 months – whether sentence manifestlyexcessiveCriminal Code 1899 (Qld), s 228C, s 228DPenalties andSentences Act 1992 (Qld), s 9(2)R v Burns (Unreported, District Court of Queensland, Dearden J, 26February 2007), citedR v Chambers (Unreported, District Court ofQueensland, Dick J, 18 January 2008), citedR v Cook
ex parte A-G
(Qld)
R v Cook
ex parte Commonwealth DPP [2004] QCA
469, citedR v Cuthbert (Unreported, District Court of Queensland,
Dodds J, 14 February 2008), citedR v Finch
ex parte A-G (Qld) [2006] QCA
60, citedR v GAE
ex parte A-G (Qld) [2008] QCA
128, citedR v Havenaar (Unreported, District Court of Queensland,
McLauchlan J, 6 March 2007), citedR v Heiniger (Unreported, District
Court of Queensland, Wolfe CJ, 21 November 2006), citedR v Jesson
(Unreported, Supreme Court of Queensland, Wilson J, 28 February 2005),
citedR v Jones [1999] WASCA 24
(1999) 108 A Crim R 50, citedR v Plunkett
[2006]
QCA 182, citedR v Reid
ex parte A-G (Qld) [2000] QCA
218, citedR v Salsone
ex parte A-G (Qld) [2008] QCA
220, followedR v Searle (Unreported, Supreme Court of Queensland,
Lyons J, 15 June 2007), citedR v Tarnawskyj (Unreported, District
Court of New South Wales, Coolahan J, 14 June 2007), citedR v Wharley
[2007]
QCA 295, cited
Judgment (82 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - GENERALLY - applicant convicted on guilty pleas to one count of possessing child exploitation material and one count of distributing child exploitation material - applicant used peer-to-peer software which allowed others to access child exploitation material on his computer - applicant sentenced to concurrent sentences of 12 months imprisonment for possession count, and three and a half years for distribution count, with a parole eligibility date set at 18 months - whether sentence manifestly excessive
Director of Public Prosecutions (Queensland) for the respondent
[20]
**[1] FRASER JA: I agree with the orders proposed by Philippides J and her Honour's reasons for those orders.
[21]
[2] PHILIPPIDES J: On 18 February 2008, the applicant was sentenced on his plea to two offences contained in an ex officio indictment. Count 1 concerned a charge of possession of child exploitation material on 30 October 2006, in contravention of s 228D of the Criminal Code. Count 2 concerned a charge of distribution of child exploitation material between 8 and 30 October 2006, in contravention of s 228C of the Criminal Code. The applicant was sentenced to concurrent sentences of 12 months imprisonment on Count 1 and three and a half years imprisonment with parole eligibility on 17 August 2009 (that is, after serving 18 months of the sentence) on Count 2. The applicant seeks leave to appeal against the sentence imposed on Count 2.
[22]
[3] Count 1 concerns the possession by the applicant of 11,816 child exploitation files acquired through the use of the file sharing software, Limewire. Count 2 concerns 2,483 child exploitation files that the applicant was aware were, as a result of the Limewire default settings, automatically downloaded into the applicant's "shared" folder and thus available to other Limewire users.
[23]
[4] The offences were detected as a result of a Crime and Misconduct Commission internet based investigation, targeting distributors of child pornography, including through the use of peer to peer file sharing networks.
[24]
[5] The applicant was sentenced on the basis of an agreed schedule of facts which stated the following. On the morning of 24 October 2006, in the course of conducting investigations, police using a specific search term identified a Limewire client on the Gnutella network in possession of a large quantity of child exploitation material with more than 2,000 files in his shared folder. (The Gnutella network is an open source, public file sharing network and is used primarily to exchange music, films, software. Files are exchanged between users.) The material had been made available by the applicant for viewing and downloading by other users and consisted of images, video and text. An on-line examination of the shared folder content of the applicant indicated that he was in possession of more than 300 known child victims' files and numerous other files with child exploitation material naming conventions. Inquiries revealed the subscriber for the internet account was a Mr Carson, with a date of birth of 24 December 1974, and led the authorities to the applicant.
[25]
[6] On 29 October 2006, a search warrant was executed at the applicant's address in his presence. An initial forensic examination of the applicant's computer hard drive identified in excess of 1,000 child abuse images, video and text files on the applicant's primary computer. A search of his bedroom revealed in his bedside drawer two documents which had been downloaded containing graphic "stories" referring to children as sexual objects. The documents victimised children and included references to sexual abuse and molestation of children between the ages of 11 and 14 years.
[26]
[7] On the 7 November 2006, the computer was examined in full. The applicant's computer tower contained one hard drive consisting of two volumes (C: & D:). Limewire was installed on the computer, creating two folders by default namely "Shared" and "Incomplete". By default, files left in the "shared" folder were available for downloading by other users. A total of 11,816 child exploitation files were located. The earliest confirmation "date stamp" record was 22 March 2001.
[27]
[8] Examination also revealed that the applicant had attempted to download an additional 587 files, which were located in the Limewire "incomplete" folder, with enough data to view the material. Many of the files were related to child pornography, including 13 child exploitation movies and seven partially downloaded child exploitation movies with enough data to view the nature of the movie.
[28]
[9] The computer examination also revealed a child abuse story link had been opened on the morning of 29 October 2006. The BXWIPE program was also found installed on the applicant's computer, which enabled a purging of the computer to occur. There were no link files before the 29 October 2006, consistent with a user purging such entries. By default, Windows Explorer maintained a log entry of web site visits for 20 days before purging. During the computer examination, a 41 page log was produced showing the computer was extensively used to access child pornography material on both the C: and D: drives in the 20 day period from 9 October 2006 and 29 October 2006.
[29]
[10] During the execution of the search warrant on 29 October 2006, the applicant was questioned and made admissions in relation to the offending. During initial questioning the applicant stated he had been on Limewire lately and had been mainly downloading porn and noted a bit of "suspect stuff" had been coming up and that he had been putting it aside to delete it later. The applicant stated that he was holding it to get rid of it. He stated he was aware that possession of such material was an offence. The applicant denied having any sexual interest in children, although he did state, "I must admit I was curious but I do not have an interest in it. You see it on the news and wonder how bad it could be".
[30]
[11] Whilst the computer was being preliminarily tested, the applicant further admitted to having completed independent searches on Limewire for child pornography. He stated he was searching for certain looking girls, not knowing their age. The applicant admitted that he had his Limewire setting activated in such a way that other Limewire users could browse and download from his shared folder. He also admitted that he understood that others could access the material stored in his shared file.
[31]
[12] The applicant stated in relation to the material found in his bedroom that he was interested in the "different writing styles" of the authors that have written on the net, rather than the stories involving the sexualisation of young children, and said he had downloaded the stories due to his "curiosity".
[32]
[13] At the conclusion of the forensic examination of the applicant's computer, the applicant denied a formal interview.
[33]
[14] A schedule was tendered at sentence which described the material located on the computer. The material included extremely graphic stories of physical and sexual abuse of children aged 0 to 15 years, including stories of incest, paedophilia, deprivation of liberty, bestiality and violence towards children. The material also included a large amount of images and movies depicting children as young as two being sexually assaulted. Some of the material involving bondage and included images of children being subjected to anal and vaginal penetration and performing oral sex and masturbation and other sexual acts.
[34]
[15] In the shared folder there was included 11 movies of varying duration, the longest being nearly an hour. They were described in the schedule tendered as follows and are reflective of the nature of the other material described in the schedule:**
[35]
● 10yo female. Child displaying herself naked on webcam. Exposes genitalia and masturbates. Changes clothes. Inserts hair brush into her vagina. (7m 39secs)
[36]
● Adult Caucasian mother and two females (8-15 years) lying naked on bed, touching each other. Mother performs oral sex on younger child. Separate footage of adult female and older child inserting objects into anus and vagina. Further footage of older child masturbating erect penis of adult naked male. Child performs oral sex on adult male. Adult male has vaginal sex with child. Further footage of adult female and younger child. Adult female inserts object into vagina of child. Female performs oral sex on younger child. Film titled Tenny-Film. Lolita 8. (59 mins)
[37]
● Naked adult male inserts erect penis into childs vagina during nappy change. Child appears to be 2-4 years. Has sex with female child and then ejaculates on child. (2m 45 secs)
[38]
● Male adult kisses female Caucasian child 3-5 years. Child has face covered with black mask. Child cries. Adult male forcefully inserts erect penis into vagina and mouth of child. (3m 11 secs)
[39]
● Female Caucasian child 5-8 years performs oral sex on adult male erect penis which is protruding from in between the legs of a teddy bear. (44 secs)
[40]
● Adult Caucasian male has anal sex with Caucasian female child 3-6 years and ejaculates. (49 secs)
[41]
● Two naked Caucasian female children 3-6 years are video taped, with close ups of genitalia. (35 secs).
[42]
● Caucasian adult male has vaginal sex with female Caucasian child. Further footage of female child aged 6-10 years performing oral sex on second female child, similar age. Female child inserts fingers in her vagina. Adult male again has vaginal sex with female child. (10m 30 secs)
[43]
● 13-15 year old female child masturbates older teenage male and performs oral sex on him. (30m)
[44]
● Adult male masturbates female child 10-14 years. (3m 39 secs)
[45]
● Black male and female child 8-12 years undress. Male child simulates sex with naked female child, whilst lying naked on top of her. (3m 9 secs)
[46]
[16] As mentioned, the applicant seeks leave to appeal against the sentence imposed on Count 2. The sentence imposed in respect of Count 1 is not the subject of any application and the sentence of 12 months imprisonment for that count was indeed a very lenient one in the circumstances. The complaint in respect of the sentence imposed on Count 2 is that it was manifestly excessive, having regard to the nature of the offence and the applicable maximum penalty and because insufficient weight was given to matters in mitigation. Further, it was submitted that the sentencing judge made factual errors which had the effect of erroneously aggravating the factual circumstances of the offending and also resulted in the imposition of a manifestly excessive sentence.
[47]
**[17] The applicant was 31 at the time of the offences and 33 at sentence. He had one minor conviction for a drug offence for which he was fined.
[48]
[18] In sentencing the applicant in respect of the distribution offence, the learned sentencing judge observed that the distribution consisted of making a vast amount of child exploitation material available through a website. In this regard, her Honour stated that the applicant had "deliberately left 11,816 child exploitation files including images, movie films and child exploitation stories". Her Honour noted that the material comprised graphic images, video files and stories. Her Honour noted that the applicant admitted that he had "activated" his Limewire settings so that other users could browse and download from the shared folder knowing it contained child exploitation material. Her Honour observed that the material comprised videos, still photographs and text explicitly demonstrating adult sexual acts, some of the most horrible kind, on children as young as at least two years old.
[49]
[19] The learned sentencing judge referred to the sentencing range contended for by the prosecution of three and a half to four years, with a parole eligibility after 15 to 17 months, and the competing submission made on behalf of the applicant that a head sentence in the range of 18 months to two years was appropriate.
[50]
[20] Her Honour observed that there was no Court of Appeal authority giving guidance as to sentencing ranges for the distribution offence. Her Honour referred to applicable sentencing principles. In fixing the sentence imposed, her Honour had particular regard to R v Heiniger (Unreported, District Court of Queensland, Wolfe CJ, 21 November 2006), where a sentence of three and a half years imprisonment, with a recommendation for eligibility after 15 months was imposed in respect of three counts of distribution of child exploitation material. Her Honour noted that that case involved 33 picture files of the most serious forms of child pornography, some including sexual acts committed on babies.
[51]
[21] Her Honour observed, "what is important here is that you did distribute enormous amounts of horrendous pornographic material depicting the abuse and corruption of children and little children and you made that available to anyone who was able to enter that site and conduct a search of any of that material". In relation to Count 2, the agreed schedule of facts was augmented by oral submissions. The learned sentencing judge was told that 2,483 of the files located by the police were in a location within the applicant's computer which enabled them to be accessed by other Limewire users. It was explained by the prosecutor that the default setting for Limewire was to put any file downloaded using Limewire into a "shared" folder in a computer which enabled others using the same program to search for them, locate them and download them, if desired. It was said that in order to prevent others from having access to any files downloaded using Limewire, the applicant had to take the step of actually moving the files and saving them in another location.**
[52]
Applicant's submissions as to errors of fact by the sentencing judge
[53]
**[22] It was submitted that the learned Chief Judge made two factual errors which had the effect of aggravating the offending and must have materially affected the exercise of the sentencing discretion and led to a higher level of penalty than was warranted in the circumstances of the actual offending.
[54]
[23] Firstly, it was submitted that her Honour erroneously sentenced the applicant on the basis that the applicant "activated" his Limewire settings so that other users could access his shared folder. It was contended that her Honour thereby attributed to the applicant a "positive" act of distribution, involving a significantly greater level of deliberateness about the distribution than was in fact alleged by the prosecution at sentence. This submission was premised on the prosecutor's oral submissions at sentence that, with the Limewire programme, "the automatic setting" placed downloaded material into a shared file by default. Particular reliance was placed on the prosecutor's statements that the applicant "would have had to change that if he didn't want it shared, so it wasn't an overt act to put it into a shared file".
[55]
[24] In my view, the argument that the learned sentencing judge erred in the manner suggested lacks substance. Her Honour's sentencing remarks to the effect that the applicant had activated his Limewire settings so that other Limewire users could browse and download material from his shared folder, was a faithful representation of the applicant's admission contained in the agreed schedule of facts which actually used the term "activate". There can be no legitimate criticism directed to her Honour's use of that term in those circumstances. Nor is there any basis to consider that her Honour failed to appreciate the oral submissions by the prosecutor expanding on the agreed facts. Her Honour's reference to the applicant "deliberately" leaving the material in the shared folder and to his "allowing" the material to remain available was consistent with the prosecutor's oral submissions and applicant's admission that he knew that, in failing to change the default sittings, the Limewire settings automatically made downloaded material available to others from a shared folder.
[56]
[25] As to the second matter raised, it was submitted that her Honour sentenced the applicant on the basis that the distribution offence concerned the making available of 11,816 child exploitation files. In sentencing on that basis, her Honour clearly proceeded on an erroneous view of the number of files that had been made available for sharing, conflating the number with that the subject of the possession count. The sentence was thus imposed on the footing that the distribution concerned considerably more than the 2,483 files (significant as that number is) that were in fact made available in the shared folder. The learned sentencing judge's erroneous understanding as to the quantity of material made available for sharing was material to the sentence imposed by her, as is evident from her sentencing remarks that: "What is important here is that you did distribute enormous amounts of horrendous pornographic material ... and you made that available to anyone who was able to enter that site and conduct a search of any of that material." In those circumstances, the discretion miscarried and this Court must exercise it afresh.**
[57]
**[26] Section 228C of the Criminal Code, which carries a maximum penalty of 10 years imprisonment, and s 228D of the Criminal Code, which attracts a maximum penalty of five years imprisonment, were enacted pursuant to the Criminal Code (Child Pornography and Abuse) Amendment Act 2005 (Qld) and came into operation on 5 April 2005. As noted in R v Salsone; ex parte A-G (Qld) [2008] QCA 220 at [29], the greater maximum penalty imposed for offences against s 228C, compared with s 228D, evinces an intention on the part of the legislature that, in like circumstances, offences against s 228C will ordinarily warrant heavier penalties than those against s 228D.
[58]
[27] The evil addressed by such provisions is the feeding of the market for the sexual exploitation, corruption and moral degradation of children: R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218, at 8; R v Plunkett [2006] QCA 182 at 3. Indeed, the policy objectives for the new provisions were identified as being "to respond to the growing incidence of child pornography" by inserting specific offences in the Criminal Code with appropriate penalties in respect of "child exploitation material" (see Criminal Code (Child Pornography and Abuse) Amendment Bill 2004 Explanatory Notes). The provisions significantly increased the penalties that applied under the legislation it replaced and which had been criticised as being inadequate: R v Finch; ex parte A-G (Qld) [2006] QCA 60 at [15]; R v Plunkett [2006] QCA 182 at 1.
[59]
[28] It has frequently been observed that offences involving the possession and dissemination of child pornography are not victimless crimes, but ones which necessarily create a market for corruption and exploitation of children. The remarks of Kennedy J in R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 are often referred to in this context:**
[60]
"The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of 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."
[61]
[29] Kennedy J's remarks were endorsed in R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP [2004] QCA 469, which concerned the importation of child pornography in contravention of the Customs Act 1901 (Cth). McMurdo P said at [21]:
[62]
"The production of child pornography exploits and damages young people and is a most serious matter. The relationship between the maker of pornography and those who use it is akin to the relationship between receivers and thieves. People will not be inclined to exploit children to make child pornography if there is no market for it. The Commonwealth legislature clearly intended that significant deterrent sentences be imposed upon those who use the internet to import child pornography."
[63]
"...possession of child pornography for personal gratification is none the less a serious offence because without people wanting to possess it, there would be no market for the product. The production and distribution of pornographic material depends upon there being a market for it, that is persons wishing to possess the product for their own gratification."
[64]
**[31] The propositions stated in Jones and in Cook are relevant to the exercise of the sentencing discretion in respect of offences concerning the possession and distribution of child exploitation material under the Criminal Code: see R v Plunkett [2006] QCA 182 at 7, R v Wharley [2007] QCA 295 at [16], R v GAE; ex parte A-G (Qld) [2008] QCA 128 at [20].
[65]
[32] While the sentencing principles in s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) apply to the offences under sections 228C and 228D of the Criminal Code such that a sentence of imprisonment should only be imposed as a last resort, this Court has also recognised that the sentencing purposes of deterrence and denunciation have particular significance in offences involving child pornography (Plunkett at 6, Wharley [2007] QCA 295 at [17]).**
[66]
Submissions on appeal as to the sentencing range for the distribution offence
[67]
**[33] The applicant contended for a sentence in the range of 18 months to two years imprisonment as appropriate for the distribution offence, having regard to the nature of the conduct which brought the applicant within the ambit of s 228C and the applicable maximum penalty. A sentence of that magnitude was also said to be in line with the general sentencing trend, in the absence of relevant appellate authority, evident in cases at first instance prosecuted under s 228C and the equivalent Commonwealth provisions. It was further submitted that to appropriately reflect the matters in the applicant's favour, including his plea to an ex officio indictment and cooperation with the investigating police, the sentence of imprisonment should be suspended after six to nine months or a parole release date set at the six to nine month mark.
[68]
[34] The primary submission made on behalf of the applicant as to the appropriate penalty for the distribution offence, centred on the level of criminality involved in the applicant's conduct in distributing the material in question. It was contended that the applicant's conduct was at the lowest end of the spectrum of conduct that may amount to distribution, because it merely comprised the downloading of material using Limewire, knowing that the default settings of the software automatically placed the material into a shared folder, thereby making it available to other Limewire users. It was argued that the applicant did not "actively" send any files to others. Furthermore, he did not trade files, nor did he engage in any commercial exchange of files. Nor was there evidence that anyone had actually accessed the files.
[69]
[35] It was submitted that the applicant was to be contrasted with an offender who "actively" distributed child exploitation material with a desire that others receive it or as a trade. The applicant's conduct was said to be more passive in nature; he simply knew that others could access the material and he did nothing positively to prevent that. It was submitted that the large volume of files in the shared folder and available to others was a reflection of the applicant's heavy consumption of child exploitation material and not the result of his being an "active" distributor of large quantities of such material.
[70]
[36] The applicant's submissions overlook the reality of modern day information dissemination. As the respondent submitted, the extent to which the applicant was passive in the distribution of the material is overstated. He was an extensive user of Limewire for the purpose of obtaining child exploitation material, acquiring such material in the same manner in which he distributed it, through shared folders. As was argued by the respondent, the process of automation by default that Limewire sets up does not equate with anything like unwitting distribution. The applicant knowingly allowed the file sharing system to operate as it was intended - to maximise the availability of material to the network of users. In those circumstances, the distinction between arranging its availability by taking advantage of the default settings or by some more positive activation is diminished. Putting to one side the element of financial gain or reward, I cannot accept that in knowingly availing himself of an automated process of distribution, the applicant was necessarily less culpable than someone who engaged in a means of distribution that required more active conduct. Indeed on one level, the distribution of material through a file sharing program such as Limewire may be seen as particularly pernicious because it provides ready world-wide access within a system designed to facilitate proliferation of the material, while offering a degree of anonymity to the distributor.
[71]
[37] Counsel for the applicant sought to support the range of up to two years put forward by placing reliance on what was said to be the general sentencing trend evident from sentences imposed in comparable cases at first instance in Queensland, such as Heiniger and R v Burns (Unreported, District Court of Queensland, Dearden J, 26 February 2007). Reference was also made to the New South Wales case of R v Tarnawskyj (Unreported, District Court of New South Wales, Coolahan J, 14 June 2007).
[72]
[38] In Heiniger, the offender was sentenced to concurrent terms of 12 months for one count of possession of child exploitation material and three and a half years for three counts of distributing child exploitation material, with a parole eligibility date after 15 months of the sentence was served. The offender was of mature years with no previous criminal history, who pleaded to an ex officio indictment. The distribution offence consisted of the offender sending a total of some 33 picture files on three occasions from his computer to another computer in order to obtain other images. The images were described as being of the most serious forms of child pornography imaginable and depicted oral, anal and vaginal sex. Heiniger had been a victim of child exploitation and suffered from psychiatric disorders.
[73]
[39] It was submitted on behalf of the applicant, that Heiniger's conduct in deliberately distributing child exploitation material to others was objectively more criminally reprehensible than that of the applicant in the present case. As I have already indicated, I do not consider that the applicant's conduct in knowingly using an automated system of distribution ought to be seen as significantly less culpable. Heiniger distributed considerably less child exploitation material than the applicant and did so on three occasions, compared with the applicant's conduct which extended over the period of nearly a month. However, Heiniger was involved in exchanging the material for more images, whereas the applicant was not involved in disseminating any material which was not already available to Limewire users.
[74]
[40] Burns concerned a plea to one count of possession and one count of distribution of child exploitation material. For the distribution offence, a sentence of four years imprisonment suspended after 16 months was imposed. The distribution offence related to Burns' involvement as an administrator of a website and chat room, where child exploitation files were regularly traded, and concerned his having entered the site to trade files on 53 occasions over a period of 12 months. The applicant made no financial gain from his conduct. The volume of material involved was considerably smaller than in the present case, but on the other hand, Burns had "administrator" privileges and was thereby able to expel other users from the site and to manage the distribution of child exploitation files through the website and chat room. The possession offence concerned 12,000 child exploitation files, described as images and movies depicting children as young as six, involving "the full ambit of depravity including naked children, intercourse between adults and children and included forced sexual contact". The sentencing judge indicated that he would have imposed a sentence of up to two years for the possession offence, but imposed a sentence of three years probation, taking into account the sentence imposed for the distribution offence and in order to provide an additional supervision component with a special condition requiring treatment for sexual paraphilia.
[75]
[41] Tarnawskyj concerned offences under the Criminal Code Act 1995 (Cth), including an offence pursuant to s 474.19(1)(a)(iv) (use of a carriage service to make child pornography material available) which carried a maximum penalty of 10 years imprisonment. Tarnawskyj was 31 years of age at sentence, with no prior convictions. He was a frequent user of a peer to peer file sharing network called WINMX. As a result of his frequent use of WINMX, he became an administrator of that network, enabling him to control the participants in the network and to manage the exchange of information and images. When his house was searched by police, he was found to be in possession of a total of 8,534 images of child pornography, which included infant to pubescent children engaged in sexual acts with adults and other children, and some of which involved bondage. The offender had 4,693 images stored on his computer hard drive in a location that made them available to other users of WINMX. The total aggregate sentence imposed amounted to one of two and a half years imprisonment with recognisance release for three years after 12 months.
[76]
[42] Reliance was also placed on a further five cases, being R v Havenaar (Unreported, District Court of Queensland, McLauchlan J, 6 March 2007), R v Searle (Unreported, Supreme Court of Queensland, Lyons J, 15 June 2007), R v Cuthbert (Unreported, District Court of Queensland, Dodds J, 14 February 2008), R v Jesson (Unreported, Supreme Court of Queensland, Wilson J, 28 February 2005), R v Chambers (Unreported, District Court of Queensland, Dick J, 18 January 2008). None of these cases are factually comparable and I do not consider them of great assistance. They did not concern dissemination of the large quantity involved in this case and are complicated by the consideration of additional offences of an entirely different nature.
[77]
[43] Of greater significance is the decision in Salsone handed down by the Court of Appeal after the hearing of this appeal. In that matter, the defendant was convicted on guilty pleas of one count of distributing and one count of possessing child exploitation material. The defendant had used the peer to peer software applications, allowing others to access child exploitation material on his computer. Six video files and 122 images containing child exploitation material were thus made available. The material included vaginal and anal penetration and oral sex. One image represented apparently sado-masochistic treatment of a child. The ages of the children varied, but included a boy aged between six and eight and some of the images may have involved children younger than that. The defendant was 21 years old at the time of offending, he co-operated with authorities, pleaded guilty at an early stage, and had promising prospects of rehabilitation. For the distribution offence he was sentenced without conviction to three years probation and ordered to perform 200 hours of community service, all of which had been performed by the time of the appeal hearing. A concurrent sentence without conviction of two years probation was imposed for the possession offence. On an Attorney-General's appeal, the sentence imposed for the distribution offence was set aside and one of 15 months imprisonment suspended forthwith with an operational period of two years imposed and convictions recorded for both offences. Despite the absence of any commerciality or evidence that anyone other than the investigating police officer had downloaded material, the graphic nature of the images made available to others was noted as a serious feature of the offending, given that others could continue to distribute the material to yet more internet users, further fostering the exploitation of the children depicted. McMurdo P, with whom the other members of the Court agreed, stated that the range for the distribution offence before the Court was between 12 to 18 months imprisonment.
[78]
[44] The authorities referred to by the applicant and Salsone do not support a range justifying a term of two years imprisonment by way of head sentence for the distribution offence. A sentence at that level would not, in my view, adequately reflect the level of criminality involved in the offending, when regard is had to the quantity and content of the material in question. Counsel for the applicant accepted that the material, which extended to images, movies and textual material, fell into the worst possible category. This is borne out by the schedule tendered at sentence. Distribution of such material in the large quantity involved calls for condign punishment.
[79]
[45] While the applicant's conduct did not result in new material being made available to Limewire users and he did not act for financial gain, the applicant's conduct in distributing material increased the accessibility of the material, thereby providing further encouragement of the vile market for exploitation of children. What is concerning in this case is the explicit and appalling nature of the material and the quantity which was made available. Indeed, the applicant's counsel readily accepted that material distributed extended to the worst category of images, movies and text and that there was a very considerable amount involved. Deterrence and denunciation are weighty considerations in the formulation of an appropriate sentence in this case, so that through the imposition of appropriate sanctions the activities of those involved in child pornography are stifled. Although the learned sentencing judge misapprehended the quantity of material involved, in exercising my discretion afresh, I consider that the appropriate head sentence in this case is in fact one of three and a half years imprisonment. Such a sentence sends a clear deterrent message that those engaging in the internet distribution of large quantities of child exploitation material falling in the worst category will be met with salutary punishment.
[80]
[46] That sentence must be moderated to reflect the matters of mitigation including the applicant's plea, the fact that the matter proceeded by way of ex officio indictment, his cooperation with investigating police and admissions made. I note that the applicant does not have the benefit of youth. The applicant has voluntarily sought treatment from a psychologist. However, I also note, as the learned sentencing judge observed, that the sessions have addressed the original reason for his referral, being anxiety and depression, and not his predilection for child pornography. Bearing these matters in mind, I consider that an order should be made fixing the applicant's eligibility for parole at a date after he has served 14 months of the sentence and would set a parole eligibility date of 17 April 2009.
[81]
(b) set aside the sentence imposed to the extent of substituting 17 April 2009 as the date that the applicant be eligible for parole in lieu of 17 August 2009.
[82]
[48] DAUBNEY J: I respectfully agree with the reasons for judgment of Philippides J and with the orders she proposes.**
Parties
Applicant/Plaintiff:
# R
Respondent/Defendant:
Carson \[2008\] QCA 268
Legislation Cited (3)
Criminal Code (Child Pornography and Abuse) Amendment Act 2005(Qld)