R v Cook ; ex parte A-G

Judgment (58 paragraphs)

[1]

Commonwealth Director of Public Prosecutions for the appellants

[2]

[1] McMURDO P: The respondent, Mr Cook, pleaded guilty to one count of attempting to intentionally import child pornography (count 1), one count of intentionally importing child pornography (count 2) (both brought under s 233BAB Customs Act 1901 (Cth)), possession of child abuse computer games under s 26(3) Classification of Computer Games and Images Act 1995 (Qld) (count 3) and one count of knowingly possessing child abuse photographs under s 14 Classification of Publications Act 1991 (Qld) (count 4). He pleaded guilty on 6 September 2004 and was convicted and fined $1,000 on each count. The seized computers were forfeited to the Crown under s 64 Classification of Computer Games and Images Act 1995 (Qld). We are told Mr Cook has now paid all these fines. The appellants, the Commonwealth Director of Public Prosecutions and the Attorney-General of Queensland, contend that the sentence is manifestly inadequate.

[3]

[2] The maximum penalty for counts 1 and 2 is a fine not exceeding $250,000 and or alternatively imprisonment of up to 10 years. The maximum penalty in respect of count 3 is a fine not exceeding $18,750 or up to two years imprisonment. The maximum penalty for count 4 is a fine not exceeding $22,500 or one year imprisonment.

[4]

[3] On 24 October 2002 an officer from the United States Postal Inspection Service placed a covert advertisement on an internet news group site titled "alt.binaries.pictures.childerotica.male" stating "Let me know if you are looking for the real thing. I have the vids and CDs. Let me know where you saw my pad [sic]" and provided an email address. On 28 October 2002, the US authorities received an email response from Mr Cook, who used the name "Magic", in these terms:

[5]

"You say you have the real thing. I'll believe it when I see it. We have been ripped off before with poor quality products and those that don't live up to expectations. We are interested in young males and we mean young. Early teens and younger. If you have the kind of thing we are looking for then we can do business."

[6]

[4] Emails continued between the protagonists, Mr Cook made clear that he wanted to purchase first a CD of child pornography and then other tapes and that he would send cash by airmail in Australian or US dollars. He asked that the goods be sent to a post office box at Booval and suggested that any customs declaration form describe the goods as something like "wedding tapes". Mr Cook's email of 29 October 2002 read

[7]

"I can understand your concerns as regards transit of the goods but there must be thousands of tapes going backwards and forwards every day and you would be very unlucky to run into trouble. We, of course, run the same risk here. Anyway, nothing ventured, nothing gained."

[8]

[5] Mr Cook sent $US30 in cash to the address supplied by the US authorities. On 13 December 2002 the US authorities contacted the Australian Federal Police who cooperated in a joint investigation. The American authorities compiled a CD containing images of child pornography and sent it to the post office box address provided by Mr Cook. The post office box was kept under surveillance until Mr Cook was observed to clear it and enter the post office, where he was handed the parcel containing the pornographic CD. He was then followed to his home. Police executed a search warrant. The imported compact disc was located at his premises unopened in the study. Mr Cook was cautioned and declined to answer questions. A subsequent forensic analysis of the two seized computers found in Mr Cook's study revealed the emails discussed above. These circumstances constituted count 2.

[9]

[6] An examination of Mr Cook's computers revealed another attempt to purchase and import child pornography between 10 January 2002 and 7 May 2002. An email offered him the purchase of child pornography videos described in these terms:

[10]

"Most of the boys are between seven and 12 years old. However, a lot of the tapes have clips of younger boys, three to six years old, and older, 12 to 14 years. There are no boys over 14 years old, I am sure of this."

[11]

[7] The email gave details of how to make payment. Mr Cook replied by email that he was interested in purchasing video CDs:

[12]

"We are specifically interested in boys up to very early teens but younger boys would also be very acceptable. So if you were to ask us for a shopping list, it would go something like this; one tape man-boy, one tape men-boys, one tape very young boys plus men, one tape Belgian molestation, one tape inter-racial Asian plus European, one tape boy-boy."

[13]

[8] Mr Cook advised the offeror that he was ready to purchase six video tapes of VCDs and requested more details as to where to send the money. He later emailed that he had sent $US350 as requested in return for which he wanted six video CDs of child pornography plus two free bonus VCDs of child pornography and requested they be sent to him at the post office box address. The next day, he emailed the offeror that he expected to receive the CDs by about 19 March 2002 stating:

[14]

"For you this must be an established routine, but for us it is a very worrying time, the most dangerous time is still to come. However, the next time should be child's play, no pun intended."

[15]

[9] Mr Cook did not receive anything for his money and it is impossible to know whether the pornographic offerings existed or whether it was all a complete scam. These circumstances constitute count 1.

[16]

[10] Mr Cook's seized computers were also found to contain 15 hard drive folders with 136 child abuse images with young boys or girls engaged in explicit sexual acts including anal and oral sex, either with other children or adult males or children posing nude. One movie file depicted two young boys engaged in anal sex. The images appeared to have been downloaded from the internet. These are the circumstances constituting count 3.

[17]

[11] Police also found in the search of Mr Cook's home two folders containing hard copies of 22 child pornography photographs, downloaded and printed from the internet, which explicitly depicted boys engaged in sexual acts, including anal and oral sex with adult males or children posing nude. These facts constituted count 4.

[18]

[12] The prosecutor at sentence urged the judge to consider the need for general and specific deterrence and to impose a one year head sentence cumulatively on counts 1 and 2, requiring the serving of between three and six months actual custody, with concurrent short terms of imprisonment for counts 3 and 4.

[19]

[13] Defence counsel emphasised that Mr Cook committed the offences for his own personal use and not for commercial gain. He was 61 years old at sentence and had served in the British Army and Navy. He was in a permanent relationship of some 35 years standing and was largely housebound, currently caring for his 86 year old father who lives with him. Until his 88 year old mother recently went into a nursing home he also cared for her. Imprisonment would cause his father, who is starting to suffer from dementia, great hardship. He has no previous convictions. He had recently discovered the internet and was attracted to gay sites which gave unsolicited links to child pornography. He investigated these sites out of curiosity and downloaded the images the subject of counts 3 and 4. He then progressed to the commission of counts 1 and 2.

[20]

[14] Mr Cook gave an early indication of his willingness to plead guilty and the matter proceeded by a full handup brief at the committal proceedings. Through his counsel at sentence, he expressed a willingness to forfeit his computers; indeed, he would be glad never to see them again.

[21]

[15] Because of the lengthy examination of Mr Cook's computers, the police investigation took some 21 months to complete, during which he reported as part of his bail conditions to the police twice a week.

[22]

[16] His Honour observed during the course of argument that he had difficulty in equating the criminality of this behaviour with the criminality of those who created the child pornography and that sentencing required some reasonable proportionality between the penalty imposed on offenders like Mr Cook and those who actually abused the children and created the images distributed on or through the internet. Those observations are correct but it remains pertinent that, but for the users of child pornography, there would be no market for those who abuse children by creating the pornography.

[23]

[17] His Honour rightly considered the offences to be relatively minor examples of their type with very limited or no commercial element.

[24]

[18] The appellants contend the learned sentencing judge gave insufficient consideration to comparable Commonwealth sentences and the importance of general deterrence and emphasise that after having been ripped off in respect of count 1, Mr Cook persisted in his anti-social desire to import child pornography by committing count 2. The appellants particularly emphasise the following three cases from other jurisdictions but dealing with offences under s 233BAB Customs Act 1901 (Cth). It is proper for this Court to consider these cases: see R v Leeth.[1] In Assheton v The Queen,[2] Assheton pleaded guilty to 12 counts under s 233BAB(5) Customs Act 1901 (Cth) and two counts under s 50BC(1)(a) Crimes Act 1914 (Cth) and three counts under s 60(4) Censorship Act 1996 (WA). He imported via the internet 13 books containing items of child pornography depicting sexual acts between men and young boys. When a search warrant was executed on his home he was also found in possession of video tape footage depicting him engaged in unlawful sexual acts in Bali with two boys aged 11 and 9. The boys were the children of a close friend. He was also found in possession of 5,582 electronic images of child pornography and 502 unlawful movies. He had no prior convictions, a good work history as a mine surveyor and was involved in a wide range of community organisations. At first instance, he was sentenced to one year imprisonment for the offences under the , five years imprisonment for the offences under the , and three years imprisonment for the offences under the , all sentences to be served cumulatively, making an effective sentence of nine years imprisonment. Leave to appeal against sentence was refused. The Court of Appeal noted that the breach of trust was serious as the father of the boys was the applicant's best friend and that the offences were clearly premeditated; the video taping of them created a permanent record of his actions. As to the offences under the , the court referred to the Commonwealth Attorney-General's statements in parliament when introducing the Bill:

[25]

"Shielding the community from injury and protecting children from exploitation are two essential responsibilities of a just society. While each member of society should uphold public safety and protect children from harm, governments and parliaments have a unique role in establishing laws which can ensure the protection of the community and deter crime and anti-social behaviour.

[26]

Prevention of harm is crucial. Deterrents for those who would cause damage to our community are equally vital. This Bill will provide for increased penalties for a range of import and export offences under the Customs Act 1901 ... By any standard, these are serious penalties to address serious offences."

[27]

The court also approved statements of Kennedy J in Jones[3] as to the insidious impact of child pornography and the internationality of the problem aggravated by the internet, adding:

[28]

"It needs to be borne in mind that the importation of child pornography, whether in the form of literature or photographs, is not a victimless crime. The capacity of child pornography to deprave and corrupt individuals is an accepted result of such importation as is demonstrated in this case. [Mr Assheton's psychiatrist suggested that his exposure to child pornography] ... may have led him to misinterpret perfectly normal behaviour by the boys the subject of the counts under the Crimes Act."

[29]

[19] The second case relied on by the appellant is R v Kitson.[4] Kitson was 22 years old and pleaded guilty to one offence under s 233BAB(5) Customs Act 1901 (Cth), one offence of possession of child pornography under the Censorship Act 1996 (WA) and nine counts of supplying child pornography under that Act. He imported via the internet three video tapes from the United States. As here, a controlled delivery resulted in a search warrant being executed on his home. The video tapes depicted adults, both male and female, engaged in sexual acts with a young child either male or female. He made full admissions of the importation. When his computer was examined downloaded images of child pornography were discovered. He had forwarded these to others by email. Kitson had been physically and sexually abused at 12 and was suffering depressive neuroses and post-traumatic stress disorder. Expert evidence suggested he had a low risk of reoffending. He had no relevant prior convictions and had undertaken counselling after being charged. In relation to the offence under the Customs Act, he was sentenced to one year imprisonment to be released after serving six months upon entering into a recognizance of $1,000 to be of good behaviour for six months. In relation to the State offences he was sentenced to 18 months imprisonment cumulative. His Honour Judge Groves there noted:

[30]

"... possession and distribution of child pornography is not a victimless crime because ... somewhere small children are being corrupted for the purpose of those who take the photographs and arrange the poses. Those who deal in child pornography create the market ... [for] the exploitation of children who must inevitably be harmed in the process. Children are abused violated and degraded in order to create a market of this kind. ... There is a need in these matters for general deterrence and for the community to see courts protecting the interests of these children."

[31]

[20] The third case relied on by the appellant is R v Featherstone; ex parte Cth DPP.[5] Featherstone pleaded guilty in the Magistrates Court to one count under s 233BAB(5) Customs Act 1901 (Cth) and one count of possession of child pornography under a New South Wales statute. He was 53 years old. He purchased two video tapes through an internet website, again, a covert US law enforcement agency. The tapes contained movies of child pornography. As here, a controlled delivery was executed and the videos were imported into Australia. Police executed a search warrant and located further child pornography including videos, photographs, CD ROMS, floppy disks, 2,246 images on floppy disks, 30 videos on VHS tapes, 47,059 CD images, 1,849 CD video images, 184 colour photographs, 82 video files, 63 picture images on a computer hard drive and two video 8 tapes of boys in a swimming pool change room. Mr Featherstone had an exceptional career in music and teaching and was a community worker. He cared for his aged mother and had no criminal record. Psychiatric evidence indicated that he was a paedophile but had taken rehabilitative steps. At first instance he was sentenced to two years fully suspended on all offences. An appeal to the District Court by the Commonwealth Director of Public Prosecutions was upheld and instead Featherstone was sentenced to two years imprisonment on the State offence with a non-parole period of one year and one year imprisonment concurrent for the offence under the Customs Act.

[32]

[21] It is immediately evident that Assheton is a much more serious case than this because he videoed his actual commission of criminal sexual offences upon young boys temporarily in his care. The principles stated in that case and reaffirmed in Kitson and Featherstone are nevertheless apposite. 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. The learned sentencing judge gave insufficient weight to these matters. The cases referred to by the appellants demonstrate that the sentence imposed on the Commonwealth offences, a modest fine, was manifestly inadequate. These offences warranted a custodial sentence.

[33]

[22] There were however significant mitigating factors. As his Honour noted, the offences were at the less serious end of the range. Mr Cook indicated his willingness to plead guilty at an early stage. He was 61 years old at sentence and had no prior convictions. There was nothing to suggest that he was dealing in the pornography for profit or that he was supplying others with it. He expressed remorse and appeared genuinely chastened so that it seemed unlikely he would reoffend. He is the carer of his elderly father who lives with him. Also of significance is that the investigation took some 21 months to complete, through no fault of Mr Cook, and during that period he was required to report twice a week to police officers as a condition of his bail. Since 20 September this year he has known of the Attorney-General's intention to appeal and has had this hanging over his head. He has paid all the imposed fines. The combination of these circumstances is sufficient to warrant the full suspension of a 12 month term of imprisonment.

[34]

[23] As to the offences against the State statutes, the cases to which we have been referred by the appellant of R v Reid,[6] R v Shew[7] and R v Hoch; ex parte Attorney-General (Qld)[8] indicate that the sentence imposed on the offences was also manifestly inadequate. They demonstrate that whilst a fine could have been imposed in circumstances such as here, it should have been more substantial than $1,000 on each offence. Mr Cook's counsel at sentence indicated that he receives between $500 and $600 per week income from his investment properties after expenses. He has already paid $4,000 in fines, $2,000 of which the Commonwealth appellant must remit to him. It seems he plainly has the capacity to pay two fines of $2,500 if given 12 months to do so and that this would be an appropriate salutary penalty.

[35]

[24] I would allow the appeal and instead of the sentence imposed on counts 1 and 2 sentence the respondent on each count to 12 months imprisonment but order he be released upon giving security in his own recognizance of $1,000 that he be of good behaviour for three years. Mr Cook's counsel on the appeal, Mr Seaholme, has undertaken to explain to him the matters specified in s 16F(2) and s 20(2) Crimes Act 1914 (Cth). I would also order that the fines imposed on counts 1 and 2 be remitted by the Commonwealth appellant to the respondent. On both counts 3 and 4, instead of fining the respondent $1,000 to be paid within nine months, I would order that he be fined $2,500 to be paid within 12 months and otherwise confirm the sentences imposed on both those counts.

[36]

[25] WILLIAMS JA: I have had the advantage of reading the reasons for judgment of the President and I agree with all that is said therein.

[37]

[26] The learned sentencing judge described count 1 as "a very minor example of that offence", count 2 as "an isolated transaction" which was not a particularly serious example of the offence, and the other counts as "a relatively minor example of that offence". It appears from comments during the course of submissions that the learned sentencing judge regarded possessing child pornography as a significantly less serious offence than producing such pornography or importing quantities of it for commercial distribution. He apparently saw the latter offences as involving a greater degree of exploitation of children. To an extent that is a valid distinction, but 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. The reasoning of Kennedy J in R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 clearly establishes that; it is worthwhile quoting the last paragraph of his reasoning because it sums up the position so accurately:

[38]

"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. In my opinion, a sentence of immediate imprisonment was called for."

[39]

[27] In the present case the respondent had acquired a limited quantity of child pornography obviously for his own gratification, but the emails he sent to suppliers indicated his interest in a wide variety of such material. In the circumstances a custodial sentence was called for, but the mitigating factors referred to by the sentencing judge and by the President in her reasons justify that being wholly suspended.

[40]

[28] I agree with the orders proposed by the President.

[41]

[29] MACKENZIE J: I have read the reasons for judgment prepared by the President and agree with them. I need not separately state the facts since they are fully set out in her reasons. What follows is merely intended to emphasise matters that point to the conclusion that the sentences imposed were manifestly inadequate.

[42]

[30] The respondent pleaded guilty to two offences under the Customs Act 1901 (Cth). One involved an attempt to intentionally import an item of child pornography; the other involved an actual importation of such material. Both offences infringed against s 233BAB(5) of the Customs Act. By virtue of s 11.1 of the Criminal Code (Cth), an attempt to commit an offence may be punished in the same way as a completed offence.

[43]

[31] The maximum punishment applicable to the offences is a penalty of $250,000 and/or 10 years imprisonment. The legislative policy upon which such a level of penalty is based seems to be that creation of pornographic images of children will involve exploitation of the children concerned. A demand which creates a market for such images will perpetuate exploitation. As Kennedy J expressed the proposition in Jones [1999] WASCA 24; (1999) 108 A Crim R 50, 52:

[44]

[45]

[32] By reason of the level of penalty prescribed, the offences are to be treated as inherently serious. General deterrence and denunciation of offenders are important objectives of the legislation (Jones at 52). Within that legislative framework there will be a spectrum of offences of varying degrees of seriousness.

[46]

[33] Many factors may influence where a particular offence fits within the spectrum. One relevant factor may be whether the importation is for personal gratification only, on the one hand, or for a purpose involving commercial or gratuitous dissemination of the material to others on the other hand. It was accepted by the DPP for the Commonwealth that these particular offences fall into the former category.

[47]

[34] The reason why the sentencing miscarried was, in my view, that the focus by the learned trial judge on the fact that the respondent attempted to import the material, on the first occasion, and successfully imported it, on the second occasion, without any intention to disseminate it further resulted in too little weight being given to the element of deterrence of those who might, by seeking to purchase child pornography, contribute to further exploitation of children (Liddington (1977) 18 WAR 394, 403).

[48]

[35] In this regard, counts 1 and 2 cannot be considered in isolation from one another. After the respondent had received nothing for the $US350 he had sent overseas in relation to count 1, he adopted the more cautious approach on the second occasion of negotiating the purchase of one item for an outlay of $US30 from what he believed was another supplier, while holding out that he would purchase more if satisfied with what was supplied to him. To treat the offences as isolated transactions, the first of which was devoid of harm because no material was in fact obtained and the second of which involved a very minor degree of commercial activity because only $US30 was involved may assist in locating the offences in the spectrum of seriousness. However it does not answer the question of where the range of appropriate penalties begins and ends.

[49]

[36] Comparison with sentences imposed in the cases analysed by the President from other jurisdictions for offences under the same provision shows that the appropriate range of punishment was not determined accurately. I agree with the orders proposed by the President with regard to counts 1 and 2.

[50]

[37] With respect to the State offences in counts 3 and 4 under the Classification of Computer Games and Images Act 1995 and the Classification of Publications Act 1991 respectively, I also agree with the orders proposed by the President and have nothing to add to her analysis.

[51]

[1] [1991] QdR 391.

[52]

[2] [2002] WASCA 209; CCA 48 of 2002, 7 August 2002.

[53]

[3] [1999] WASCA 24; (1999) 108 ACrim R 50, 51.

[54]

[4] No 25 of 2003, District Court of WA, Albany, 12 May 2003.

[55]

[5] District Court of New South Wales, Judge Solomon, 3/12/0461, 5 September 2003.

[56]

[6] [2000] QCA 218, CA No 46 of 2000, 2 June 2000.

[57]

[7] [1998] QCA 333; CA No 13 of 1998, 23 October 1998.

[58]

[8] [2001] QCA 63; CA No 337 of 1997, 26 February 2001.

(1977) 18 WAR 394

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Judgment (58 paragraphs)

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