R v Finch [2006] QCA 60

SUPREME COURT OF QUEENSLAND

CITATION: R v Finch; ex parte A-G (Qld) [2006] QCA 60

PARTIES: R v FINCH, Roderick Alexander (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)

FILE NO/S: CA No 319 of 2005 / DC No 429 of 2005

DIVISION: Court of Appeal

PROCEEDING: Sentence Appeal by A-G (Qld)

ORIGINATING COURT: District Court at Maroochydore

DELIVERED ON: 10 March 2006

DELIVERED AT: Brisbane

HEARING DATE: 17 February 2006

JUDGES: Williams and Keane JJA and Muir J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES - where the respondent pleaded guilty to one count of knowingly having in his possession child abuse computer games - where the definition of "computer game" includes "a computer generated image" - where the offence occurred before 4 April 2005 - as a consequence the respondent was sentenced under s 26(3) of the Classification of Computer games and Images Act 1995 (Qld) as opposed to the newly inserted s 228D of the Criminal Code - whether the sentence was manifestly inadequate / Criminal Code 1899 (Qld), s 207A, s 218A(2)(b), s 228D / Classification of Computer Games and Images Act 1995 (Qld), s 26(3) / Penalties and Sentences Act 1992 (Qld), s 9(2)(a), s 9(5), s 9(6) / R v McGrath [2005] QCA 463, CA No 239 of 2005, 9 December 2005, considered / R v P G Finch, unreported, Maroochydore District Court, 7 March 2005, considered / R v Reid; ex parte Attorney-General [2000] QCA 218, CA No 46 of 2000, 2 June 2000, applied / R v Shew [1998] QCA 333, CA No 13 of 1998, 23 October 1998, considered / R v Smith, unreported, Gladstone District Court, 23 October 2003, considered

COUNSEL: M J Copley for the appellant / S R Lewis SC for the respondent

SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Ryan & Bosscher for the respondent

WILLIAMS JA: This is an appeal by the Attorney-General of Queensland against a sentence imposed in the District Court at Maroochydore on the respondent on 22 November 2005. On that date the respondent pleaded guilty to a charge that on 9 July 2004 he "knowingly had possession of child abuse computer games." That was an offence pursuant to s 26(3) of the Classification of Computer Games and Images Act 1995 (Qld) ("the Act").

That Act defines "child abuse computer game" as meaning "a computer game that is an objectionable game because it depicts a person who is, or who looks like, a child under 16 years (whether the person is engaged in sexual activity or not) in a way likely to cause offence to a reasonable adult." The Act also defines "computer game" as including "a computer generated image". The section provides that the maximum penalty is "250 penalty units or imprisonment for two years".

A search warrant was executed on the respondent's dwelling on 9 July 2004 as part of a police investigation in relation to credit card purchases of pornography on the internet. An analysis of 18 compact discs seized on that occasion identified 55,935 images and movies containing child pornographic images. Police located a further 3,312 images on the respondent's hard drive stored within the file "My documents". In the circumstances it is not necessary to go into detail of the images in question. It is sufficient to say that they covered a wide range of sexual activity, much non-consensual, and mainly involving young boys. Counsel for the appellant designated the most objectionable as being an image of a young girl about three years of age being forced to swallow ejaculate.

The respondent informed police that he had been downloading the images over a period of some four years, and he admitted using his credit card to purchase such material on the internet. The respondent was born on 13 October 1958 making him age 45 at the time of offence and age 47 when sentenced. He had a minor, relatively old, criminal history; significantly it did not contain any offences of a sexual or like nature. He had never previously been imprisoned.

It was accepted that the respondent was not involved in the sale or circulation of child pornography. The material in his possession was used for his own private purposes. Prior to sentencing, the respondent underwent counselling for sexual offending and completed a course for his long term alcoholism at Moonyah Rehabilitation. He pleaded guilty to an ex-officio indictment, and the psychologist's report tendered on sentencing indicated that he had gained insight into his offending.

The experienced learned sentencing judge regarded the conduct as a serious example of the offence. In the course of his sentencing remarks he acknowledged that the respondent had taken "significant and substantial steps towards rehabilitation" and had addressed his alcoholism. The learned sentencing judge regarded the "sheer volume of material possessed, and the awful depravity of the acts depicted, particularly those involving very young children" as the aggravating features of the case. He also noted that the conduct of the respondent in purchasing such material encouraged the "utterly depraved persons who throughout the world sexually exploit vulnerable children for monetary gain."

The Crown prosecutor at first instance submitted for a custodial sentence coupled with probation.

Against all that background the sentence imposed was four months imprisonment to be followed by three years probation. It is from that sentence that the Attorney-General appeals.

There was reference, in submissions to the sentencing judge, in the sentencing remarks, and in submissions to this court, to the sentences imposed in R v Reid; ex parte Attorney-General [2000] QCA 218, R v Shew [1998] QCA 333, R v Smith, unreported, Gladstone District Court, 23 October 2003, and R v P G Finch, unreported, Maroochydore District Court, 7 March 2005.

Reid had pleaded guilty to two counts of dishonestly applying property of the Department of Education, two counts of knowingly possessing a child abuse publication, and seven counts of knowingly possessing a child abuse computer game. In respect of one count of fraud, one count of possessing a child abuse publication, and three counts of possessing a child abuse computer program he was fined $10,000, and in respect to the other counts he was also fined $10,000. The Attorney-General appealed contending the sentence was manifestly inadequate. The computers used to gain access to the offending material were located in a primary school of which he was the principal. Again, without going into detail, it can be said that some of the images were examples of the worst kind of pornography. After reviewing a number of authorities, this Court dismissed the appeal. It was said that the penalties imposed were substantial on a man of previously unblemished character. He had also lost his career and superannuation entitlements. There was in that case no likelihood of re-offending. Relevantly for present purposes the following passages appear in the judgment, which was essentially the judgment of the court:

"The legislation creating the offences did not suggest that the occupation or social position of the offender is particularly relevant to penalty. The depravity of the act depicted in the material, the volume of material possessed and the use to which it was put would seem to me more pertinent to that issue. The cases suggest that the evil which the legislation seeks to address is that the acquisition of such material necessarily creates a market for the sexual exploitation, corruption and moral degradation of children. . . . In this case, none of the images had been shown to other people. They had, in fact, been deleted from the computer disk. Possession of the images was transitory. They were not put into a lasting form."

All of those remarks except the last apply in the present case. Here, the material had been downloaded from a computer but stored on disks, so in this case the images had been "put into a lasting form".

Shew was charged with the same offence as the respondent here. He had some 172 images in all and was convicted after a trial. The images were on a number of computer disks which the jury found had been in the offender's possession. It appears that the defence at trial was that his former wife had planted the disks at his premises. The sentence in that case was 12 months imprisonment. There was an appeal against conviction which was dismissed after a hearing by this Court. The offender did seek leave to appeal against the sentence but that was abandoned. The reasons of the Court of Appeal do not refer to the criminal history of Shew, but it appears from remarks in the later case of Smith that Shew had an extensive criminal history, including a conviction for trafficking. That history obviously impacted on the sentence of 12 months imprisonment.

Smith pleaded guilty to 20 counts of knowingly having possession of a child abuse computer game. Some of the images involved very young girls. Smith had no relevant criminal history and would appear to have been relatively young. He was sentenced to 12 imprisonment to be served as an intensive corrections order.

P G Finch pleaded guilty on 7 March 2005 to one count of possessing a child abuse computer image. Those images were stored in two folders kept by the offender in his computer. Again some of the images depicted very young girls engaged in sexual acts. There was some 8,840 images in all involved. The learned sentencing judge, who was also the sentencing judge in the instant case, commented that the legislature had not seen fit to increase the penalties for such offences in the light of the earlier decisions referred to. Again there was no commercial aspect to the offending. The images were used for the offender's own purposes. The sentence imposed was 12 months imprisonment to be served by way of an intensive correction order.

In a number of those cases the observation was made that the penalty provided for in s 26(3) of the Act was inadequate when it came to an offence involving possession of serious pornographic material. Further, the terms of s 26(3) were not apt to cover the situation where a person was dealing in or had possession of serious pornographic material, particularly depicting young children involved in depraved acts. It was not until 4 April 2005, well after the commission of the offence with which the court is now concerned, that the legislature amended the law by inserting s 228D into the Criminal Code. That section provides that a "person who knowingly possesses child exploitation material" commits an offence carrying a maximum penalty of five years imprisonment. "Child exploitation material" is defined in s 207A as meaning "material that, in a way likely to cause offence to a reasonable adult, describes or depicts someone who is, or apparently is, a child under 16 years . . . in a sexual context . . ." The Code also creates further offences dealing with child exploitation material but it is not necessary to refer in detail to those provisions.

Anyone found after April 2005 possessing a pornographic material of the type in issue here will fall to be sentenced under the Code and sentences imposed for breaches of s 26(3) of the Act could no longer be regarded as comparable. But importantly for present purposes the respondent must be sentenced on the basis that he pleaded guilty to an offence under s 26(3) of the Act with the penalties thereby imposed. In consequence the sentences imposed in the cases referred to in paragraph [9] hereof set the guidelines for present purposes.

In the course of his sentencing remarks the learned District Court judge said:

"It is true that, for reasons that escape me, the legislature did not see fit to include offences of this nature in the amended s 9(5) and (6) of the Penalties and Sentences Act, so the principle of imprisonment as a last resort applies in your case."

The extent of operation of s 9(5) and (6) was considered by this Court in R v McGrath [2005] QCA 463. The offence in question there was under s 218A(2)(b) of the Code of using the internet with intent to expose a child under 16 to indecent matter. In a carefully reasoned judgment Mackenzie J concluded that s 9(5) applied so as to make s 9(2)(a) inapplicable, although there was in that case no actual child under 16 involved. The offender believed he was communicating with a child under the age of 16 years and in consequence in terms of s 9(5) there was an "offence of a sexual nature committed in relation to a child under 16".

On the hearing of this appeal counsel for the Attorney-General submitted that the offence here was also one within the scope of operation of s 9(5). However, it is difficult to conclude that the offence here was "committed in relation to a child under 16 years". Whilst the expression "in relation to" is generally given a wide meaning, there is certainly no identifiable child under 16 years with respect to whom this offence was "committed". In my view it is unhelpful to say that the images depict children under the age of 16 years.

In the circumstances, I would conclude that in the absence of specific statutory provision, s 9(5) of the Penalties and Sentences Act 1992 (Qld) does not apply to an offence under s 26(3) of the Act.

But in any event the issue is of little practical relevance here. In fact a sentence of imprisonment was imposed even though the sentencing judge was of the view that s 9(2)(a) of the Penalties and Sentences Act applied. All that one could say, and this was essentially the submission of counsel for the Attorney-General, is that the sentence may have been somewhat lower because the judge considered that imprisonment should be imposed only as a last resort.

Having regard to the maximum penalty applicable to an offence against s 26(3) of the Act, the fact that the material was in the respondent's possession solely for his own private use, the finding based on substantial evidence that the respondent had taken significant and substantial steps towards rehabilitation and had addressed his alcoholism, the fact that the prosecutor on sentence contended for a period of imprisonment coupled with probation, and the level of sentencing established by the cases referred to in paragraph [9] hereof, I am of the view that it cannot be said that the sentence imposed was manifestly inadequate. As already noted offences against the provisions now found in the Criminal Code may well attract greater penalties, but that does not mean that the sentence here was in the light of all the relevant circumstances manifestly inadequate.

The appeal should be dismissed.

KEANE JA: I agree with the reasons of Williams JA and with the order proposed by his Honour.

MUIR J: I agree with the reasons of Williams JA and with the order he proposes.