R v Fowler [2007] ACTCA 4

Court of Appeal (ACT)|2007-04-03|Before: Higgins CJ, Tamberlin JJ, Crispin J

IN THE SUPREME COURT OF THE ) No. ACTCA 26 - 2006

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. This is a Crown appeal against the sentence imposed on the respondent, John Dunbar Fowler, in respect of one count of possessing child pornography, contrary to s 65 of the Crimes Act 1900. The respondent pleaded guilty to this offence on 14 March 2006 in the Magistrates Court and was committed to the Supreme Court for sentence. On 2 June 2006 he appeared before Justice Crispin for sentencing. He was convicted and sentenced to 12 months imprisonment to be served by way of periodic detention, and placed on a good behaviour order for three years, during which he was subject to supervision by the Director of the ACT Corrective Services and was obliged to accept directions in relation to rehabilitation or psychotherapy.

... an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.

4. The statutory basis for a prosecution appeal on sentence is found in s 37E of the Supreme Court Act 1933, and the well established principles on sentencing appeals from House v The King [1936] HCA 40; (1936) 55 CLR 499 apply. In R v Brewer [2004] ACTCA 10 (at [3]), this Court endorsed the approach that the Full Court of the Federal Court had adopted on Crown appeals in R v Tait (1979) 46 FLR 386 where it was said that (at 388):

An Appellate Court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest error.

5. It seems to us that his Honour properly recognised the significance of the offence of possession of child pornography. In his remarks on sentencing he said:

... it need scarcely be said that this is a serious offence. The legislation provides a maximum penalty of 5 years' imprisonment for offences of this character. It should be stressed that the gravity of such offences does not lie only in the revolting nature of the images concerned, or in the fact that it is morally reprehensible for people to watch such images.

The gravity of the offence lies primarily in the fact that children are exploited in order to produce images which other people may access for sexual gratification. If there were no demand for images of this kind, there would not be the motivation to produce them. Even if the images are not produced by the physical coercion or actual violence directed toward the children and young people in question, the children and young people are nonetheless exploited due to emotional or financial pressure of various kinds and are in every sense of the word, victims of the offences committed upon them. Hence, in my view, a significant sentence of imprisonment is normally appropriate for offences of this kind.

6. His Honour's remarks, it seems to us, are entirely in accord with authority, both within Australia and in comparable jurisdictions. In R v Liddington (1997) 18 WAR 394 Ipp J observed (at 403) that:

The mere fact that persons are prepared to possess child pornography, albeit for private purposes, necessarily creates a market for the corruption and exploitation of children. Children are abused, violated and degraded in order to create a market of this kind. It may also be said that people with pederastic inclinations could be stimulated to commit pederastic acts on viewing these images.

7. In Jones [1999] WASCA 24; (1999) 108 A Crim R 50, Kennedy J cited with approval remarks of the Ontario Court of Appeal in which Morden ACJO stated that:

_The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense, possessors such as the appellant instigate the production and distribution of child pornography - and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place. (_R v Stroempl (1995) 105 CCC (3rd) 187 at 191, cited at 51)

8. Remarks to similar effect have been made in the English Court of Appeal, where in The Queen v Fellows [1997] 2 All ER 548 Evans LJ said at 559:

There is enormous public disquiet at the potential which the internet offers for the international transmission of pornography in particular for those whose perverted tastes include collecting and viewing indecent photographs of children. Add to this the publics revulsion against paedophilia in all its forms and it becomes clearing our judgment that heavy deterrent sentences must be imposed when serious offences, which are not always easy to discover, come to light.

9. His Honour's sentencing remarks, and in particular his observation that "a significant sentence of imprisonment is normally appropriate for offences of this kind", are thus in accordance with authority and principle, and the Director conceded that a head sentence of 12 months imprisonment was well within range.

10. Having reached this point, his Honour then went on to consider, as he was both entitled and obliged to do, the subjective factors surrounding this offender. He observed (AB 7.23-25) that the offender had pleaded guilty and that:

... he has no previous convictions. He is a man who is now 59 years of age, and the evidence reveals that he has previously been a person of good character who has devoted much of his life to charitable causes.

11. It seems to us that these were entirely appropriate factors to take into consideration in the exercise of the sentencing discretion. While the Director made the submission that prior good character is not always a relevant sentencing factor, it seems to us that in the factors that have lead appellate courts to hold that prior good character is of limited relevance for certain types of offences, it does not apply to this type of conduct.

12. It seems to us that the well established principle is that:

if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to the circumstances (per McHugh J, Ryan v R (2001) 206 CLR 267 at 275).

13. It is well established, as it was observed in Kovacevic v R [2000] SASC 106, that prior good character is of limited relevance in sentencing for white collar offences, because such crimes are rarely committed by persons with a criminal history, for the simple reason that such persons will rarely find themselves in positions of trust with access to other people's money. A similar approach has been taken in the case of offences involving drug couriers. In R v Leroy (1984) 2 NSWLR 441, Street CJ, with whom Glass JA and Yeldham J agreed, observed (at 446-7) that:

This court and other criminal courts have said on many occasions that, in the drug traffic in particular, the circumstances that the accused person has a clear record will have less significance than in other fields of crime. Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders.

14. In sexual offences, prior good character may be of limited weight where that good character has been used by the accused to gain access to the victim, and this will be particularly apposite in cases of child sexual assault. In Ryan, the accused was a priest who had a long history of "good works", but who over many years was also committing offences against children to whom he had access because of his position.

15. These factors do not seem to us to be relevant in the case of simple possession of child pornography. As Johnson J (with whom McClellan CJ at CL and Adams J agreed) noted in R v Gent [2005] NSWCCA 370:

It cannot be said that the existence of good character places this class of offender in a position where they are more able to commit an offence (as with a white collar offender) or more likely to be selected to commit an offence (as with a drug courier). It appears that pornographic material is available generally on the internet to any person who is minded to access it, irrespective of the good character or otherwise of the person.

16. We see no reason why good character was not properly taken into account by his Honour. The community would properly expect that a person of mature years who has never previously offended would be entitled to have this favourably considered in the exercise of the sentencing discretion.

17. Taking all these factors into account, his Honour, in the exercise of his discretion, directed that the sentence of 12 months imprisonment be served by way of periodic detention, which is an option expressly available to a sentencing judge pursuant to s 11 of the Crimes (Sentencing) Act.

18. While we would endorse generally the Director's submission that for this type of offence full-time custody would be appropriate, it remains the case that in every sentencing decision the sentencing judge must weigh up all of the factors relevant to the exercise of the discretion. The New South Wales Court of Criminal Appeal has in a number of cases of offences indicated that a full-time custodial sentence should be imposed unless there are "very special circumstances" justifying some lesser disposition (Mears (1991) 53 A Crim R 141 at 145). Other State Courts of Appeal have adopted a different formulation, and this Court in R v Brewer has said (at [14] per Gray, Connolly and Gyles JJ):

The formulation adopted by the new South Wales Court of Appeal that "special" or even "very special" circumstances must be shown to justify anything other than an immediate custodial sentence, could lead to error if it were taken to mean that a non-custodial sentence would only be appropriate in circumstances that were mathematically unusual, and a sentencing magistrate or judge would err if they refused to look at the individual circumstances of the offender beyond finding that those circumstances were not unique or unusual.

19. In his written submissions, the Director included a range of sentencing decisions from around Australia in relation to the offence of possession of child pornography, which shows a range of sentencing dispositions, from significant periods of full-time custody, to cases where sentences have been suspended after a relatively short period (Prior v Malogorski [2005] NTSC 52; (2005) 156 A Crim R 122). Although in Jones [1999] WASCA 24; (1999) 108 A Crim R 50, the WA Court of Criminal Appeal held that in the circumstances of that case a suspended sentence was manifestly inadequate, we note that in Bounds v R [2006] HCA 39 a fully suspended sentence was imposed. That case went on appeal on the question of combining a summary offence with a trial on an indictable offence, but we note that Kirby J made the observation that the sentence there imposed was "eminently sensible". It seems to us that, as in all cases, the sentencing judge must exercise the discretion on the facts before him or her, and that it is not possible or appropriate to say that any particular form of disposition is necessarily erroneous.

20. The appellant has not established that the sentencing judge made an error of principle such as would enliven the grounds for a Crown appeal on sentence, and the appeal should be dismissed.

21. We note that the respondent put forward an additional argument that during the course of the sentencing submissions, when the sentencing judge made it clear that he was contemplating a sentence to be served by way of periodic detention, the prosecutor did not indicate that such a disposition would fall outside the range of appropriate disposition, or amount to appellable error. His Honour, in exchanges with counsel, had expressly referred to his then intention to consider a custodial sentence to be served by way of periodic detention, and the learned prosecutor, while he did not resile from his primary submission that the sentence to be imposed should be by way of full-time custody, did say (AB 169.38-42):

Your Honour has an ability to effectively mesh a sentence that would lead to, if your Honour's not minded to impose full-time custody - lead to a form of custody being served. Periodic detention coupled with obviously repaying something to the community by way of community service, and of course with a recognizance across the top to ensure the various aspects that both the probation and parole officer and Dr Sutton raised are followed.

22. The High Court in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 endorsed the remarks of King CJ in R v Wilton (1981) 28 SASR at 367, where his Honour said:

It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in Reg v Tait and Bartly (20) by 'double jeopardy'. In my opinion this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judges discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General.

23. It seems to us that, with the availability under statute in this jurisdiction of the option of a sentence of imprisonment to be served by way of periodic detention, it would be consistent with Everett to require prosecuting counsel, where periodic detention is clearly raised during the sentencing hearing by the sentencing judge, to squarely raise with the sentencing judge the proposition that the prosecution considers, for whatever reasons, that proposed disposition to be inadequate and falling into the range of appellable error. In the present case, no such clear submission was made.

24. That consideration lends further support to the view we take that this appeal should be dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Director of Public Prosecutions for the ACT

(Sentencing) Act 2005

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