R v COWELL

General Description Of The Material 6A total of 4,469 images and videos of child pornography material depicting children ranging from infants to fifteen years of age were identified on the accused's seized thumb drives and the Samsung 640 gigabyte hard disk drive as well as eleven pages of cartoon drawings. The material was classified into five categories using the typology developed by the United Kingdom Sentencing Panel in 2002 and used in the guideline judgment of Oliver (2002) EWCA Crim 2766, the UK Court of Appeal (Criminal Division). 7The scale makes reference to the increasing seriousness in the following five different levels of activity:

1. Images depicting erotic posing with no sexual activity.
2. Sexual activity between children or solo masturbation by a child.
3. Non-penetrative sexual activity between adult and child or adults and children.
4. Penetrative sexual activity between adult and child or adults and children.
5. Sadism or bestiality. 8The material was classified into a further unrelated category, but designated 6, being cartoons.

Organisation And Use Of The Child Pornography Material On Seized Items - DSE Four Gigabyte USB Thumb Drive 9A total of 2,410 images and videos classified as child pornography material were located on the DSE thumb drive. They were located within a number of file systems of the thumb drive and are part of the material the subject of the charge contrary to s 91H(2) of the Crimes Act 1900, being possess child pornography. 10The agreed facts set out a schedule of the images. Of note is that of the 2,410 images in total 2,012 were categorised as falling in Category 1. Twenty-three videos were classified in that category. In the most serious category, 5, there were ten images and no videos. There were sixteen videos in Category 2 and eight in Category 4. As to images, there were approximately 100 or more in respect of Categories 2, 3 and 4. 11In short, although the material, at least in terms of images, spanned all five categories, and in terms of videos, spanned Categories 1 to 4, the overwhelming majority of the material in relation to images and videos fell effectively into Category 1, and certainly into Categories 1 and 2 if looked at together. That is, they were in the lowest ranges of seriousness.

Toshiba Four Gigabyte USB 12A total of 1,007 images and videos classified as child pornography material were located on the Toshiba four gigabyte USB thumb drive. Again, the files were located in a number of folders within the file system of the thumb drive. For example (cum/cum, sisters WUT, and Tanya/Tanya/Y157 set 038), and are part of the material, the subject of the charge contrary to s 91H(2) of possess child pornography. 13The Agreed Facts set out a table or schedule of the images and videos. Of the 985 total images, 863 were in Category 1. Three were in Category 2, 106 were in Category 3, thirteen in Category 4 and none in Category 5. Of the videos, there were two in Category 1, nine in Category 2, three in Category 3 and eight in Category 4. Accordingly, again, at least in respect of the images, the substantial portion of what was held in the possession of the offender was in the lowest category of seriousness.

Samsung 640 Gigabyte Hard Disk Drive 14A total of thirty-four images classified as child pornography material were located on the Samsung 640 gigabyte hard drive. The images were located in a folder which indicates it was an internet cache. The full description of the folder is set out in the facts. They constitute the charge contrary to s 474.19(1)(a)(i) of the Criminal Code of accessing child pornography. 15In respect of that matter, there were no videos but thirty-four images, all in Category 1, the lowest level of seriousness.

Western Digital One Terabyte Hard Disk Drive 16A total of 861 images and videos classified as child pornography material were located on the Western Digital One Terabyte Hard Disk Drive. They were located in folders under the headings of "Pictures" and "Videos". They are part of the material the subject of the s 91H(2) charge of possess child pornography. 17There were twenty images, all of which fell into Category 1. There was one video that fell into Category 2. There were also some 836 images which fell into the additional Category 6, relating to cartoon material.

Apple iPhone 3G 18There were a total of forty-eight images classified as child pornography. They are part of the material the subject of the s 91H(2) charge of possess child pornography. The forty-eight images were all cartoon images.

Apple iPhone 4 19A total of 104 images classified as child pornography were located on the accused's Apple iPhone 4 mobile phone. They also are part of the material that is the subject of the s 91H(2) charge of possess child pornography. All of the 104 images were cartoons.

Eleven Pages Of Cartoon Drawings 20A total of four images classified as child pornography were located in the eleven pages of cartoon drawings seized at the accused's premises. These images are also part of the charge contrary to s 91H(2). 21The facts then set out a number of examples in respect of material located and the subject of charges according to the relevant Oliver categories of 1 to 5. I do not propose to make those part of the remarks on sentence as they are set out in the agreed facts, other than to note that in respect of the worst category, Category 5: Sadism or Bestiality, one was of a naked girl approximately ten to twelve years of age performing oral sex on a dog and one further image was of a girl approximately thirteen to fourteen years of age naked from the waist down lying on the floor with her legs open and a small dog appearing to be licking her genitalia. 22The Agreed Facts then set out a schedule of all of the material including each of the thumb drives, digital hard disk drives and eleven pages of cartoon drawings. It makes clear that the most substantial portion of all of the material, although it spanned in total all of the five categories was mostly to be located in the less serious categories and substantially in Category 1. In respect of Category 5, there were in fact only ten images and no videos. In respect of Category 4, there are a total of 147 images and sixteen videos. In respect of Category 3: 212 images and three videos. In respect of Category 2: 108 images and twenty-six videos. In respect of Category 1: 2,929 images and twenty-five videos. 23While all child pornography offences, whether it be possession or access, must be regarded seriously and the community is appalled by them, it is clear in the circumstances of this matter that although the offender's interest did span all five categories of the Oliver Scale, his substantial interest was in the least offending range of such material.

Subjective Matters 24The offender is a thirty-two year old. He resides with his mother, father and sister at Georges Hall and has apparently done so throughout his life, with the exception of a short period overseas in Canada. At the time of the offence he was unemployed. He was studying computer-related subjects at college. He has a prior conviction, as previously referred to, for possession of child pornography in 2005. Although the offence dates from 2005, he was not charged until 28 December 2006, and he was sentenced on 25 September 2007 at Bankstown Local Court. Accordingly, it is reasonable to infer that the charge of possession of child pornography on the material he possessed was substantially less serious than the matters before the Court today, as the matter was dealt with in the Local Court. However, it was felt significant enough by the learned Magistrate to impose a sentence of eight months imprisonment with a non-parole period of four months. 25The offender gave evidence on sentence, as did his sister, Michelle Cowell. There is also before the Court a presentence report. The offender confirmed the contents of the presentence report when he gave evidence. 26He is reported to have been raised in a supportive family environment and had a happy childhood. His father has a number of significant health issues including Parkinsons disease, diabetes type one, Alzheimer's, and has previously been diagnosed with and treated for colon cancer which is currently in remission. His father is seventy-nine years of age. His mother is seventy-three years of age. The offender, together with his mother and sister, assists his father. In his evidence, he did not claim to be the sole carer. He also indicated during his evidence quite frankly that he believed that should he go into custody, as he believed was inevitable, that his sister and mother would be able to cope with looking after his father. 27The offender suffers from congenital adrenal hyperplasia, which requires daily medication. Apparently the offender's father also suffers from that condition. However, again frankly, the offender indicated that when he was last in custody, although there was an initial delay in his medication being provided to him, it was provided to him, and he has no fears that he will not be provided with the appropriate medication while in custody. 28 He also gave evidence that when he served that sentence he spent either all or most of the time on protection. Again, the offender frankly indicated to the Court that serving the time in protection was not a hardship. 29Such frankness from offenders on sentence is rare. Normally, one would have expected to hear on the basis of that material that his father desperately needed his constant attention; that he feared going into protection and would need to go into protection because of the nature of the offences, and that protected custody would be a more severe form of serving his sentence and that he had experienced significant difficulties in relation to obtaining his medication in the past. The offender's evidence in that respect was refreshingly frank, and is to his credit. 30The offender left home in 2004 and moved into shared accommodation with friends. In 2006 he travelled to Canada to work and returned to Australia in April 2007, as I understand it, to meet the charge that had been laid in 2006. While attending school, he is said to have only befriended a few people and to have had no significant relationships. He maintains contact with only one of his few friends from school. He attended Condell Park High School, where he completed the Higher School Certificate. After leaving school in 1995, he attended Bankstown Technical and Further Education College and studied graphic design. On completing his certificate, he continued his studies for five years, focusing on a Certificate III in Information Technology, and on completing those studies, he obtained a position as a graphic designer where he remained for a period of three years. He lost that position as a result of being charged and placed into custody in respect of the earlier offence. He later spent some nine months while on bail in Canada working in Information Technology before returning to be dealt with for that offence. 31He is currently unemployed and in receipt of Centrelink benefits. 32He has never had a partner nor been in a relationship. While he did not consider himself socially isolated, he acknowledged to the presentence officer that he was frequently bored and spent most of his time playing video games. 33The presentence report, under the heading of "Attitude to the Offences" indicates: "Mr Cowell did not dispute the police facts, he disclosed that he knew the Australian Federal Police had placed internet filters on certain sites. He said that he heard that if you placed a question mark after the web address that this would allow access to the site he was visiting. He stated that he wanted to test this information he received and found it was indeed correct. He reported that he now has to accept the charges he is faced with and further reported that he expects to go to gaol as a result." 34The report indicates, under the heading of "Summary and Community Based Sentencing Options": "He appears to lack social skills and has limited appropriate social outlets. This is considered the significant rest factor that will need to be addressed in the future as this leaves him prone to accessing online sites as a means to fulfil his time." 35I note that at the time of his arrest and during the course of the search warrant, the offender had no hesitation in providing police officers with answers to their questions including passwords to his computer, and he made relevant admissions in relation to his activities, including admissions as to being aware that he had been committing offences and was in possession of material that constituted an offence. 36He similarly continued to be open and frank during the course of the record of interview. There is only one area in which, on the basis of the nature of the offences, that the Court would not accept that he was being entirely frank: that is that he claimed that in relation to accessing, possessing and viewing the material from time to time, he did not do so as a result of any sexual interest, rather, some esoteric interest in collecting - not based on sexual interest - as one might find in persons who collect teacups or bottle openers or something of that nature. Clearly, offences of this nature are committed by persons who in fact do have a sexual interest in the material. 37However, there is no material before the Court, and the offender has denied it, and in the light of his open and frank admissions, the Court accepts that the offender did not purchase the material, did not provide it to others, and did not disseminate it, whether it be by via the Internet or otherwise. 38That of course does not mean that the offences are not to be regarded as serious. Children who are abused by way of being photographed or videotaped in sexual activity with other children or with adults are victims, and they are just as much a victim of the person who is prepared to obtain and possess such material as they are of the person who takes the photograph or makes the video or performs the act. Indeed, for the victims, the abuse essentially continues so long as the images exist, and the damage continues from the point at which they become aware - in relation to children - of the significance of the conduct they have taken part in. Such damage and its necessary effects can pursue them for the remainder of their lives. 39In R v Gent [2005] NSWCCA 370 it was said "There can be little doubt that if the market for child pornography was reduced then the numbers of children abused in this way would also be reduced. That means there should be a significant element of general deterrence when considering the question of penalty. Users of child pornography need to understand that when detected the penalty they will suffer is likely to be imprisonment for a substantial period of time, in the hope - although perhaps futile - that some children somewhere will not be exploited in this way in the future." 40In R v Booth [2009] NSWCCA 89 emphasised the harm to child victims stating at (40-42) "Possession of child pornography is a callous and predatory crime. 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. Often this is in undeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. 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, and upon the poverty of the children the subject of the material." 41The Court was provided with a number of examples of the pornography to review. Of note, it was clear that some of the material included, at least in one image, an adult male appearing to have sexual intercourse with a very young female in a room populated by a number of other naked or semi-naked children, all of whom, apart from the male, appeared to be of Asian extraction. 42While I previously said that the majority of the material possessed by the offender fell into the lower categories, it does not mean that there was not amongst what the offender had, material of significant seriousness. 43One of the matters of concern in relation to matters such as this is that there is often a progression from offenders simply viewing material to then later carrying out what up until that time has been fantasising about images, to actually committing offences involving child sexual assaults. That is not to say, of course, that this offender would have necessarily progressed in that fashion, but it must always be a concern in respect of matters of this nature. 44As previously indicated, the offender entered a plea in relation to each offence at the earliest opportunity. In relation to the State offence, it is appropriate to provide a discount of 25 per cent for utility alone as referred to in Thomson and Houlton (2000) 49 NSWLR 383. 45With respect to the Commonwealth offence, the plea of guilty may be considered as indicative of the offender's willingness to facilitate the course of justice. In view of his ready admissions and frankness, the Court is of the view that he is similarly entitled, on that basis rather than a purely utilitarian basis, as is relevant to the State legislation, to an equivalent discount of 25 per cent in relation to the Commonwealth offence. Indeed it has been held that it is generally appropriate in relation to the facilitation of the course of justice, where the plea is entered at an early time for a discount of that degree to be provided in relation to Commonwealth matters. R v Bugeja [2001] NSWCCA 196 at (28). 46The offender is also entitled to have taken into account that he cooperated with the investigations of the Australian Federal Police immediately after they first attended to execute the search warrant, and continued to do so. 47Apart from the one matter that has been previously been referred to in respect of the offender's prior history, he has no other criminal offences. In that sense, he is similar to a large number of persons in recent years who have been apprehended possessing and/or accessing child pornography, such as public servants including police officers and other persons who have no prior history of other offending. 48Of concern in respect of Mr Cowell is that he had already been convicted and served a period of four months non-parole in respect of an eight months sentence for possession of child pornography. It would seem, in terms of when that sentence was served, that within a very short time thereafter, not while on parole, but thereafter that he commenced committing offences, on his admissions, by downloading material from the internet. However I note that the single count of using a carriage service to which he has pleaded guilty relates to an offence between 22 August 2009 and 23 August 2009 of using a carriage service to access thirty-four images, while he made admissions that went beyond that. The charge itself relates only to that access on those dates and that number of images. 49In this day and age it is of course almost always inevitable in relation to matters of this nature that the images are obtained by use of the internet, although they may thereafter be copied and otherwise distributed by CD or DVD or even hard copy. 50The Crown has provided a number of cases, Saddler v The Queen [2008] NSWDC 48 being a decision of Berman DCJ, which was the subject of an appeal dealt with in the New South Wales Court of Criminal Appeal on 31 March 2009. There was a reduction in sentence, however it is noted on perusal of Judge Berman's decision that there was a very significant degree of serious material of the most offensive kind, and a far vaster quantity of material involved. Indeed across some three offences there were approximately 35,000 images as well as approximately 430 movie files. 51I note in relation to the sentence imposed is that the offence of possess child pornography was then under the then current but now repealed s 91H(3) of the Crimes Act 1900 and a number of offences were taken into account on a Form 1. That is, there were three charges of possess child pornography as well as a number of offences on a Form 1. 52The maximum penalty at the time in respect of the repealed section was one of five years. The legislature thought it appropriate to repeal that section and replace it with the now current s 91H (2), which carries a maximum penalty of imprisonment for ten years, being twice what was available under the repealed equivalent section. 53Of the other cases handed up by the Crown, there was Mouscas [2008] NSWCCA 181. Again, it was under the repealed section in respect of possession as well as using carriage service, but it related to a much more significant quantity of material; a lot of the material being judged as being in the upper end of objective seriousness. 54Indeed each of the cases provided by the Crown where they dealt with possession were under the repealed section. 55The Court, in relation to sentencing for Commonwealth matters, is required to take into account the matters set out in s 16A (1): that the Court must impose a sentence or make an order that is of a severity appropriate in all of the circumstances of the offence, and (2): the factors thereafter set out. 56The Court has turned its mind to the factors referred to in s 16A and to the Crown's submissions contained as part of Exhibit 1. In addition the Court has borne in mind that s 17A (1) of the Crimes Act 1914 requires that "A Court shall not pass a sentence of imprisonment on any person for a Federal offence or for an offence against the law of an external territory that is prescribed for the purpose of this section unless the Court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case." 57In this matter, having considered the alternatives, but in particular taking into account the small number of images that are concerned in the Commonwealth offence, and in particular the fact the offender has committed a previous offence in relation to possessing child pornography rather than accessing it, the Court is satisfied that no sentence is appropriate other than a sentence of imprisonment. However, the Court is of the view that while properly reflecting both specific and general deterrence, the circumstances do not require a significant period of imprisonment. 58In relation to the offence contrary to s 91H (2), being the State offence, the Court has had regard to s 3A of the Crimes (Sentencing Procedure) Act 1999. I must take into account such of the aggravating factors outlined in s 21A(2) of that Act as are present, such of the mitigating factors referred to in subs (3) of that section as are present, and any other relevant factor. 59In sentencing the offender, the sentence must reflect the objective seriousness of the offence, and the sentencing judge must fix a sentence that will ensure the time the offender must spend in custody reflects all of the circumstances of the offence, including the objective seriousness and the need for general deterrence and specific deterrence, and meet the fundamental purpose of punishment, the protection of society. 60I am satisfied, pursuant to s 5 of the Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Indeed, Mr Kozanecki, solicitor and legal representative of the offender, has acknowledged from the outset of the sentencing proceedings that the offender must inevitably face a term of imprisonment in relation to these offences. 61While the fact that the offender has previously committed offences of possessing child pornography does not aggravate the sentence to be imposed, it does reduce the degree to which the Court can show leniency in sentencing while providing a sentence within the appropriate range. 62In regard to s 21A(2) being the aggravating factors, the only matter that is relevant is the fact that there is a previous offence of possessing child pornography. All other matters which might be considered, such as, by way of example, the emotional harm or loss of damage caused, or the other matters set out in that subsection, are in the Court's view taken into account by the nature of the charge itself, and the consequences that could normally be expected to flow from the original abuse of the children the subject of the material. 63The Court has taken into account the offender's early plea and assistance from the outset to the investigating police. 64Of some concern is that the offender, having been arrested in relation to the earlier offence and having spent some time in custody, it is not apparent to the Court from the material before it that he has ever sought any assistance or treatment in respect of his offending behaviour. Although he gave evidence that he went to a psychologist in 2005 to seek help, he indicated that he did not continue beyond an initial conference, having then departed for Canada to work full time. Even after his return to Australia and imprisonment he apparently did not take any opportunity to obtain treatment for his deviant sexual orientation towards young children, even if confined to the viewing of images and videos. Since being arrested in relation to this matter, his evidence was that he had been to LSE Psychology, because he did not understand why he was doing it and accepted that he needed help. He said that he had one meeting and was told that when released he should do group therapy. He indicated that he was prepared to do courses in custody but it is of concern that since being charged with this offence the offender has not in fact embarked on any program to assist him with his deviant behaviour, but has simply postponed it in the expectation that he will be serving a period of imprisonment. 65Despite what I have previously referred to as his frankness and his expressions of remorse based on the embarrassment that he has caused to his family, it was difficult to detect in his evidence a significant acknowledgment of the seriousness of his offending behaviour, which causes the Court concern. However, I am prepared to give him the benefit of the doubt on that particular topic, and find, despite the fact that persons with this sexual orientation are difficult subjects for rehabilitation, that properly treated, there is a good prospect of the offender being rehabilitated to the extent that he will not commit any like further offences. However, the Court accepts that he needs assistance in that regard. 66I turn then to the actual sentences to be imposed. Mr Cowell, would you please stand. 67In respect of the offence of between 22 August 2009 and 23 August 2009 accessing child pornography by way of a carriage service, namely, thirty four images located on the Samsung 640 gigabyte hard disc drive contrary to section 474.19(1)(a)(i) of the Criminal Code Act, you are convicted and sentenced to a term of imprisonment of nine months. As you have already spent, on the Court's calculation, fifty-seven days in custody, the sentence will be backdated from today, and will commence on 7 February 2011 and will expire on 6 November 2011. 68Despite the nature of the sentence I am about to impose in respect of the second offence - as I understand it, I am required to set a recognizance release order in respect of the Commonwealth offence, even though it will be incapable of being exercised, but I set a recognizance release order, that is, that you be released on 6 August 2011 on your own recognizance to be of good behaviour for a period of three months. 69It will be noted that I have set the recognizance release order at approximately 66 per cent of the total term. I have taken into account the recent decision of Hili v The Queen [2010] HCA 45; which indicates that the Court should set the period it thinks appropriate to be served rather than simply accord with what has previously been referred to as the "norm" of a period: somewhere between 60 and 66 per cent of the sentence. In the Court's view, 6 months is the appropriate period. 70In respect of the recognizance, you are to agree to forfeit the sum of five hundred dollars without security, should you be in breach of the three months recognizance to be of good behaviour. You will understand how that is not a particularly meaningful process to have to go through, in terms of designating a recognizance release order, in the circumstances of the offence that I am now about to sentence you for, which I intend to make partly concurrent with the offence for which I have just sentenced you. 71In respect of the offence on 31 August 2002, possessing child pornography on the two thumb drives, the Western Digital 1 Terabyte hard disk drive, two Apple iPhones and the eleven pages of cartoon drawings, contrary to s 91H(2) of the Crimes Act 1900, you are sentenced to a term of imprisonment of two years, however I find special circumstances, in that this will be the first significant period of time that you will have spent in custody and in the Court's view you will require assistance in dealing with your offending behaviour when released. Accordingly, while the total sentence is two years, I will vary the statutory relationship in relation to the non-parole period and the balance of term by reducing the non-parole period to one year, and in addition to that, it is to commence when you have served three months of the last imposed sentence for the Commonwealth offence. That means that the sentence of two years for the State offence commences on 7 May 2011, the non-parole period will expire on 6 May 2012 and the balance of term is for one year, commencing on 7 May 2012 and expiring on 6 May 2013. I order that you be released on parole on 6 May 2012 subject to the supervision of the Probation and Parole Service, with particular regard to counselling and/or treatment for sexual offending, for such period of the balance of term as is deemed appropriate by them.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2013