R v Curtain [2001] VSCA 156

Court of Appeal (Vic)|2001-09-03|Before: WINNEKE, P., VINCENT, J.A. and O'BRYAN, A.J.A.

Criminal law - Sentence - Possession of child pornography - Mere possession - Manifest excess.

I will invite Vincent, J.A. to give the first judgment in this application.

They spoke to the appellant and indicated the reason for their attendance. Initially he denied the possession of any such material. However, in a bedroom in the premises the police located a black briefcase containing a plastic compact disc container holding seven discs.

A sample viewing of five of the discs was subsequently made, on the basis of which it was estimated that there were approximately 50,000 images altogether. Some of the images did not relate to sexual activity at all; some which were pornographic in character involved only adults, but it was estimated that approximately 85% to 90% of the images were of child pornography.

"They showed a wide range of sexual activities including sexual activities between persons of the same sex. For example, one compact disc contained numerous images of naked males, including some where the males depicted were engaged in sexual activity and they appeared to be under the age of 16 years. Another compact disc showed males and females obviously under the age of 16 years engaged in various forms of sexual activity, including fellatio and intercourse and a boy and girl around five or six years of age engaged in sexual intercourse. Another compact disc contained a series of images depicting a clothed child about three years of age holding a male's erect penis with her mouth pressed against the penis, and another series of images of the same child of a slightly older age engaged in sexual intercourse with a male person, and the child appeared crying and distressed. There was another compact disc which contained several hundred images of mostly males, apparently under the age of 16 years, engaged in various forms of sexual activities, as well as images of males by themselves with their penises erect. There was also text contained on one compact disc which consisted of stories of sexual fantasies, mainly with boys under the age of 16, and the reported author of this text was said to be 'Grant'."

The appellant told the police that the compact discs had been sent to him by a person whose identity was unknown to him with the indication that they contained images of him as a young person, and depicting episodes of abuse to which he had personally been subjected. He claimed that this had occurred approximately twelve months prior to the time at which the discs were located by the police and that it had been his intention to destroy them.

He was charged with the offence of having child pornography in his possession and, in due course, was presented before the County Court sitting at Ballarat. The appellant entered a plea of guilty and through his counsel advanced submissions in mitigation of penalty. The sentencing judge then imposed a term of 18 months' imprisonment, in relation to which a non-parole period of nine months was fixed.

The appellant has now appealed to this Court against the sentence imposed upon him, relying upon seven grounds.

"The plea hearing miscarried in that 1. The prosecutor improperly led evidence from a police officer regarding sentences imposed in other cases. This was improper in that: (a) The evidence was led without prior notice to the defence. (b) The evidence was led during the course of the prosecutor's opening. (c) The evidence was led for an improper purpose namely to influence the judge and prejudice the defence before any plea material had been heard. (d) The evidence was selective. (e) The evidence was inadmissible. 2. The learned judge erred in ruling the evidence was admissible. 3. The learned judge was influenced or may have been influenced by the material. 4. In the alternative a reasonable person would believe the learned judge was or may have been influenced by the material. 5. The sentence is manifestly excessive. 6. The learned sentencing judge erred in giving no weight to the time of the change in maximum penalty for the offence in the light of the period of time over which it was alleged the offence was committed. 7. The learned sentencing judge erred in failing to take into account the stage of proceedings when the applicant pleaded guilty to the offence."

Grounds 1 to 4 relate to the reception by the sentencing judge of evidence given by a witness, Detective Acting Senior Sergeant Doig, who was attached to the Computer Crime Investigation Squad of the Victoria Police Force. The evidence concerned sentences imposed in three cases of the possession of child pornography that had come before a Magistrates' Court. Counsel who then appeared for the appellant objected to the introduction of this evidence.

"MR REARDON: Yes, and it's my duty, Your Honour, to give you assistance in relation to penalties and this witness has been involved in cases there and - - - HIS HONOUR: Yes. MRS WILLIAMS: Your Honour, I do object to it because necessarily I don't know what was put before the court in whatever court this witness appeared in front of. It's meaningless, isn't it, unless you know the full background of the material that was put before the court, including all of the plea material. How can I possibly answer any of that and how does it assist Your Honour? HIS HONOUR: I suppose in Commonwealth matters, you often get it, don't you, as to - - - MR REARDON: You do, Your Honour, and - - - HIS HONOUR: - - - but I think to recognise that it's a reasonably limited value, I suppose, but - - - - MR REARDON: Of course, Your Honour, but nevertheless it's some guidance, Your Honour, in relation to the matters and in relation to the case that you - - - - HIS HONOUR; I accept it on that basis, Mrs Williams. MR REARDON: (To witness) In relation to those three cases, what were the penalties imposed in those three cases?---The penalties imposed in those three cases was two years' imprisonment with a minimum of 18 months. In relation to the case that you were directly involved what were the circumstances of that case? HIS HONOUR: There were three cases and that was the penalty in each one or - - - ?---Yes, Your Honour. MR REARDON; Were they Magistrates' Courts hearings?---They were Magistrates' Court hearings. The circumstances of the case that you were directly involved in yourself?---The circumstances of the one I was involved myself was a male person who was actually talking to children on the Internet on the other States and other countries and basically having sexual fantasies with them in a text format across the Internet. The analysis of the other two cases that you were involved in?---They were child pornography involving images only and I think one of them had one or two text documents on there as well. In those cases did the respective defendants contest the case or plead guilty?---Two of the three were contested. The CDs there are available for Your Honour if Your Honour were so desired to view those CDs but I'm not suggesting that Your Honour should view them."

In my view, this evidence should not have been received by the judge. The most detailed and reliable information as to sentencing practices adopted with respect to a specific offence can provide a judge with only very limited assistance in the determination of an appropriate sentence in a given case. There are, of course, several reasons why that is so. Perhaps the most obvious is that the sentence to be imposed upon a particular offender must be determined on the basis of all of the principles, considerations and circumstances relevant to the specific offence and offender involved. There are many factors that must be taken into account and the significance to be attributed to any one or more of them can vary significantly.

The foreshadowed evidence in the present case could not and did not purport to provide more than very limited information with respect to the sentences imposed in three cases that had been dealt with in the Magistrates' Court. On its face, it was incapable of providing a reliable indication of general sentencing practices in that jurisdiction, and could be of no assistance at all with respect to the sentencing of offenders under the then recently enacted provisions applicable in the County Court. The evidence was, as has been asserted in the written submissions of the appellant with which we have been provided, selective and adduced without notice against the legitimate objection of counsel appearing for the appellant, who was in no position to endeavour to address it. I appreciate, that the judge was concerned to gain some understanding of the sentencing practices that had been adopted in the Magistrates' Court in relation to an offence that had only a fairly short time before come within the jurisdiction of the County Court, and that he was mindful of the limited value of such evidence. However, the reception of anecdotal material from a single witness was clearly not the way to secure that guidance.

After hearing from the witness, the judge obviously recognised that this was the case, and he made clear in his sentencing remarks that no reliance whatever had been placed upon the evidence in the determination of an appropriate sentence. In this context, he said:

"Further, I have no real detail as to the nature of the offences nor the circumstances of the individuals who committed those offences, and I was told by Detective Acting Senior Sergeant Doig that one of those sentences was under appeal. In the circumstances I do not rely upon the evidence of the sentences imposed in other matters in determining an appropriate sentence to impose upon you."

As his Honour not only disregarded the evidence concerned, but also made it obvious that he had done so, and as there is no indication, either in his sentencing remarks or the sentence imposed, that he may have been influenced by it, I can see no justification for the intervention of this Court by reason of its wrongful admission. In my opinion, grounds 1 to 4 must fail.

Prior to 22 November 2000, the possession of child pornography was a summary offence punishable by a maximum term of imprisonment for a period of two years. As a consequence of the amendment of the Crimes Act effected by s.6 of the Crimes (Amendment) Act 2000, to which Royal Assent was received on 21 November 2000, it thereafter became an indictable offence with a maximum penalty of five years' imprisonment. The appellant was found to be in possession of such material three days later. The argument has been advanced before us that his Honour failed to take into account the evidence that the possession of the appellant had commenced long before the penalty had been increased. This, it was contended, should have resulted in the sentence imposed upon him being determined by reference to the earlier maximum penalty.

I have difficulty with this argument on more than one basis. The offence was committed on 25 November 2000 as the appellant was in possession of the material on that day. However the fact that he had retained possession of it for a lengthy period could well be perceived as an aggravating circumstance when consideration was being given to the seriousness to be attributed to his possession at that time. As the material was retained after a legislative change had been made to increase the applicable maximum penalty, it could, I consider, be sensibly argued to be a further circumstance of aggravation that in spite of that change he had continued to retain it. I do not understand that the suggestion was ever advanced that the appellant may have been unaware of the increase in the maximum penalty applicable for the possession of such material. The fact that the applicant kept the discs for the lengthy period involved, and continued to do so after his potential liability for doing so had increased, must also cast considerable doubt upon his assertion that it had been his intention to destroy them.

I note that his Honour specifically adverted to the statement of the appellant that he had had the discs for six to twelve months, that there had been an increase in the maximum penalty applicable for the offence and its characterisation as an indictable offence, and the fact that the amendment had become operative three days prior to the execution of the warrant. He had clearly not overlooked these aspects.

I also consider that the sentence imposed was within the range of those properly available to the sentencing judge prior to the enactment of the amendment.

Finally, I am unable to detect the commission of any error with respect to the period of time during which the appellant had possession of the material or the change in the applicable maximum penalty by reference to the sentence itself.

Although the appellant did not enter a plea of guilty to the possession of child pornography until he was acquitted on some other charges, that had proceeded to trial, counsel for the appellant contended that he had earlier indicated he was prepared to do so. They submitted that the stage at which he accepted responsibility should have been taken into account and that there is no indication in his Honour's remarks that this had been done.

The time at which the plea of guilty was entered was raised before the sentencing judge in the following passage:

"Your Honour, there is one matter that I've omitted to place before Your Honour and it's the plea of guilty and just for completeness, I should say, that in my submission, Mr Curtain is entitled to, if not the full benefit of that, a substantial benefit and I put it this way, sir, that clearly that's been on the presentment, the two other matters which were the more serious matters which he was facing and until it was severed, he was never in a position to really deal with that matter and nor for me to advise him. So it's really been only at the conclusion of those two matters that this matter's been dealt with. In other words, it's always been a matter that's been put to the side until the other matters were dealt with. It's not a situation where he's pleaded guilty at the last minute. He has, but it's been because of the other matters being dealt with first and because they were always on that same presentment. So it's just for completeness that I make that submission, sir."

It does not appear that his Honour was informed of the appellant's preparedness to plead guilty at an earlier stage. Indeed, as the extract set out above makes clear, counsel's submissions were directed to the provision of an explanation of the reason for a late plea. In any event this was not a case in which, in my opinion, the point of time at which the plea was entered could be regarded as affecting significantly the sentence to be imposed. The case against the appellant was simple and overwhelming and his plea could hardly have been perceived as indicating the presence of any substantial sense of remorse. The appellant was entitled to have his plea of guilty taken into account in reduction of penalty and his Honour indicated, by specific reference to it, that he was mindful of this consideration. I have detected no error in his approach to this aspect in the circumstances.

It has been stated on a great many occasions that the assertion that a sentence is manifestly excessive in the circumstances is not one that can be the subject of substantial debate. It is either apparent from the sentence imposed that the exercise of judicial discretion has miscarried or it is not. Each of the matters to which reference was made in the course of argument, or which can be found set out in the outline of submissions produced on behalf of the appellant, was addressed by the sentencing judge.

Some reliance has been placed in argument supporting the claim that the sentence imposed was manifestly excessive, upon the explanation given by the appellant as to the circumstances under which he came to be in possession of the material. It was asserted that it had been sent to him with the indication that he was depicted as a young person engaging in sexual activity with a man named Les Lane. His acceptance of the material in that circumstance was, the argument proceeded, both understandable and devoid of any suggestion of a criminal motivation. How it came about that he was contacted by an unidentified male was never made clear. The only image of the appellant which was extracted from the material and tendered before the sentencing judge depicted him as a fully clothed adult. Accepting, however, that it may have been the case that some material was sent to him in the circumstances claimed, and accepting that reception of material which depicted him as a young person might operate as a mitigating factor, those circumstances could only have significance with respect, at most, to two of the computer discs. No explanation was ever provided why seven discs were sent to the appellant, or why he retained all of these discs for approximately twelve months.

With respect to the argument advanced in the written submissions provided to the Court on behalf of the appellant, that the sentence imposed should be regarded as manifestly excessive as this was a case of mere possession of the material concerned, Parliament clearly introduced the original provision, which carried a maximum penalty of two years' imprisonment, in order to address one aspect of the sexual exploitation of children: the distribution in the community of descriptions, pictures or images of violation. For a number of reasons it was decided to deter those who may be so inclined from collecting, retaining or disseminating such material by rendering its mere possession a criminal offence punishable by imprisonment. The increase in penalty and the categorisation of the offence as indictable were obviously intended to "send a clear message", to use the expression employed by the Attorney-General in his Second Reading Speech[1] introducing the amendment, of the serious view that was taken of the possession of child pornography by this community and to increase the deterrent effect of the law. The appellant had a large quantity of such material in his possession for a long period of time and without any adequate explanation for its retention. This material contained literally thousands of images of the sexual abuse of children. There can be no doubt that Parliament was concerned to address this precise situation.

26 Having perused the transcript of the plea and his Honour's sentencing remarks, I do not consider that the sentence imposed here could be properly described as manifestly excessive in all of the circumstances, including those which militate in favour of mitigation of penalty.

In my opinion this appeal should be dismissed.

I agree, for the reasons given by Vincent, J.A., that this appeal should be dismissed. I simply add this. Grounds 1 to 4 of the grounds of appeal were not relied upon except to support ground 5, namely, that the sentence imposed was manifestly excessive. I agree with Vincent, J.A.'s comments that this evidence was of no use to the judge below and that his Honour had correctly discarded it. There is nothing in the material which suggests to me that the judge's sentence has, contrary to his stated intention, been wrongly influenced by the matters advanced in respect of grounds 1 to 4. The sentences imposed were well within the range available to his Honour in this case.

The formal order of the Court is that the appeal is dismissed.

[1] Mr Hulls (Attorney-General) Hansard, Legislative Assembly, 5 October 2000 at p.945.

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