R v Gent

Guided by Dr Clarke's diagnosis of bipolar disorder, Dr Walker considered that the Applicant's primary treatment should be by a psychiatrist rather than a psychologist (AB94). As will be seen, the learned sentencing Judge made findings which were unfavourable to the Applicant with respect to the psychiatric and psychological evidence. Those findings were not challenged in this Court.

Some Findings By the Sentencing Judge 20 I have referred to the learned sentencing Judge's description of the pornographic material. To assist an understanding of the arguments advanced in support of the grounds of appeal, it is appropriate to refer to some other findings made by Williams DCJ. 21 The Applicant gave evidence in the District Court and was cross-examined at length. It is apparent that the learned sentencing Judge did not find the Applicant to be a frank and reliable witness. Williams DCJ found the Applicant's explanation as to how he came to be in possession of the pornographic material to be "implausible" (AB169). The Applicant claimed that he obtained no gratification from looking at child pornography sites on the Internet, some of which he claimed that he had come across accidentally (AB169). His Honour rejected this explanation, holding that the images could not have ended up on the two CDs without some degree of deliberation on the Applicant's part (AB169-170). 22 His Honour referred to the reports of Dr Walker and Dr Clarke and a pre-sentence report prepared by the Probation and Parole Service which gave Williams DCJ "some cause for concern" (AB171). The Applicant had denied to the probation officer that he deliberately accessed pornographic websites, claiming that he had come across the websites by chance. The Applicant admitted that he had downloaded the images in question, but said that he had been downloading a quantity of other material at the time and claimed that he was not aware that the material included images of child pornography. The Applicant denied to the probation officer having any deviant interest in child pornography or that such material sexually aroused him (AB171). His Honour observed (AB173): "In some respects, I felt there was disingenuous acceptance of Mr Gent's version of events by Dr Walker and Dr Clarke. The fact is he was seeing both for the purposes of bettering his prospects on sentence, and not for the purpose of ongoing treatment or counselling. In fact, he has not voluntarily sought any treatment or counselling since Qatar although he is prepared to follow the treatment plan prepared by Dr Clarke and which is set out in his report." 23 Williams DCJ observed (AB173): "… Mr Gent is to be sentenced for the offence before the Court, not for any past behaviour relevant to child pornography. That past behaviour has been referred to simply to place the offending behaviour into a context." 24 His Honour summarised the mitigating factors in the case in the following way (AB176-177): "The mitigating factors in this offending would appear to be as follows: (1) there is no evidence that Mr Gent was in possession of or importing images other than for his own use. There is no evidence of distribution or showing to anyone else or that such was planned or contemplated.

(2) whilst there must be some concern as to Mr Gent's prior good character, given the admissions made in regard to two earlier instances of accessing child pornography from the internet whilst employed as a primary school teacher, it is to be noted that he has no criminal convictions.

(3) there is no evidence or any suggestion that he has interfered with young children in any way. It was stated by Mr Gent that he obtained no gratification from looking at the images, which I find somewhat difficult to accept given that the images must have been deliberately downloaded from the internet and then stored on to the two disks in question. (4) Mr Gent pleaded guilty and it is accepted that this was at an early point in time." 25 Williams DCJ summarised factors which were not in mitigation as follows (AB177): "Factors not in mitigation would appear to be:

(4) the need for adequate punishment of the offence

(5) the concern I have as to the prospects of rehabilitation and re-offending." 26 His Honour summarised the principles applicable to sentence for this offence in the following way (AB178-179): "In my view the following principles apply to the possession of and or importation of child pornography:

(1) the nature of the images is relevant to the sentence to be imposed. Possession or importation of images depicting penetrative sexual acts between adults and children and/or involving bestiality or sadism are to be regarded as creating a more serious degree of offending than less horrific images. The apparent age of the children involved in the matters depicted is also in my view a relevant factor.

(2) the number of images, whether still or moving, is relevant but not the primary factor determinative of an appropriate sentence.

(3) the passing on to others of images, with or without a charge, or the obtaining of images in return for a payment, is an aggravating factor, as both behaviours encourage the spread of child pornography and encourage the makers of child pornography to conduct further depredations on other children.

(4) the length of time involved in accessing, storing and classifying child pornography is also relevant, particularly as to an offender's state of mind.

(5) prior good character, whilst relevant, is not of primary relevance in a similar way to which lack of previous convictions has been regarded in sexual assault and drug cases.

(6) the commencement of rehabilitation and treatment of an offender is relevant on the issue of the likelihood of re-offending and the prospects of rehabilitation." 27 Williams DCJ considered that general deterrence was a significant factor in sentencing for this type of offence (AB168): "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." 28 His Honour considered that no lesser penalty than imprisonment was appropriate and that, in all the circumstances, an appropriate penalty was one of 18 months imprisonment with the only remaining question being whether the sentence should be suspended (AB180). Having considered the principles relevant to the suspension of sentence in Dinsdale v The Queen (2000) 202 CLR 321, Williams DCJ concluded that the sentence of imprisonment ought not be suspended.

The Offence of Importing Child Pornography 29 Before turning to consider the grounds of appeal, it is appropriate to examine the present statutory offence and a number of sentencing decisions of intermediate appellate courts in other States concerning the offence. When construing and applying Commonwealth legislation, this Court applies a rule of comity with respect to decisions of intermediate appellate courts of other States dealing with the same legislation: R v Mai (1992) 26 NSWLR 371 at 382; R v Hookham (1993) 31 NSWLR 381 at 390-391; R v NZ [2005] NSWCCA 278 at paragraph 156. 30 Section 233BAB was introduced by amendment to the Customs Act 1901 (Cth) which came into force on 3 April 2000, by the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000 (Cth). Section 233BAB created special offences relating to what were referred to as "Tier 1 and Tier 2 goods". When introducing the Bill, the Commonwealth Attorney-General said (Hansard, House of Representatives, 24 November 1999): "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. Last year the Minister for Justice and Customs, Senator Vanstone, launched a landmark report that explored several causes in crime in young lives and suggested some pathways to prevention. The government is continuing to support this important research, which emphasises the need to provide stable and safe environments to nurture the young people who will contribute so much to Australia's future. 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. … More serious offences, such as those involving weapons or child pornography, will attract a penalty of $250,000 and/or 10 years imprisonment. The Commonwealth's prosecution policy, implemented by the Director of Public Prosecutions, will form the basis of all decisions for the new criminal offences. … The details of goods to which the new offences will apply will be specified in schedules to the regulations, where prohibited goods are currently listed. … By any standard, these are serious penalties to address serious offences." 31 The elements of an offence under s.233BAB, as the section stood at the time of the present offence, were capable of accommodating a relatively wide range of material. Section 233BAB(1) provided that items of child pornography could constitute Tier 2 goods. Section 233BAB(3) provided as follows: "(3) For the purposes of subsection (1) an item is to be taken to be an item of child pornography if it is a document or other goods: (a) that depicts a person: (i) who is, or who appears to be, under 16 years of age; and

(ii) who is involved in a sexual pose or in sexual activity whether or not in the presence of other persons; and (b) that is likely to cause offence to a reasonable adult." 32 Section 233BAB(3) was amended by the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004 (Cth) with effect from 1 March 2005, to provide for a more elaborate particularisation of material as child pornography. Although those amendments do not apply to the present case, they reflect the increasing application of the criminal law to pornographic material accessed via the Internet. The 2005 amendments include the creation of several new offences in the Criminal Code (Cth) relating to the use of telecommunications - s.474.19 (using a carriage service for child pornography material) and s.474.20 (possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service), both offences being punishable by imprisonment for 10 years. The amendment to s.233BAB(3) and (4) extends the same definition of "child pornography" now contained in ss.474.19 and 474.20 of the Criminal Code to s.233BAB Customs Act 1901 (Cth). In the Second Reading Speech with respect to the 2004 Bill, the Parliamentary Secretary to the Minister for Finance and Administration said (Hansard, House of Representatives, 4 August 2004, page 32035): "This bill continues the Australian government's proactive approach to updating criminal laws in light of rapid technological change. … The bill contains new offences dealing with use of the Internet to access, transmit and make available child pornography and child abuse material, as well as the possession or production of such material with intent to place it on the Internet. These offences complement existing offences prohibiting the importation of such material into Australia and will carry a maximum penalty of 10 years imprisonment." 33 In R v Assheton (2002) 132 A Crim R 237, the Court of Criminal Appeal of Western Australia considered sentencing principles applicable to offences under s.233BAB(5). Malcolm CJ (Murray and Steytler JJ agreeing) said at 246 (paragraphs 35-36): "It is apparent that the maximum penalty for an offence contrary to s 233BAB(5) of the Customs Act reflects the seriousness of the offence. The offence is of a nature that, in the context of sentencing, general deterrence must be the paramount consideration given the prevalence and availability of child pornography, particularly on the Internet. As Kennedy J said in Jones (1999) 108 A Crim R 50 at 51: 'In recent times the insidious impact of child pornography has come to be better understood. The problem is an international one, which has been significantly aggravated with the advent of the Internet.' 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." 34 Malcolm CJ noted at 247 (paragraph 36): "It was also conceded that the applicant's interest in child pornography had commenced approximately 2 years prior to the detection of these offences and that the applicant had developed an obsession with child pornography. Consequently, the subject importations could not be seen as isolated incidents. The publications depicted encounters between men and young boys of a very graphic and disturbing kind." 35 Malcolm CJ rejected a submission that it was relevant that some of the publications in Assheton were freely available on the Internet. His Honour said at 247 (paragraph 37): "I accept that one of the reasons for the application of deterrent sentences in this context is precisely because such items are available on the Internet." 36 In R v C; Ex parte Commonwealth DPP [2004] QCA 469, the Queensland Court of Appeal considered sentencing principles applicable to a s.233BAB prosecution. McMurdo P said at paragraphs 16-17: "His Honour [the sentencing judge] 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 C 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.

His Honour rightly considered the offences to be relatively minor examples of their type with very limited or no commercial element." 37 McMurdo P said at paragraph 21:

"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 [Jones; Liddington] demonstrate that the sentence imposed on the Commonwealth offences, a modest fine, was manifestly inadequate. These offences warranted a custodial sentence."

38 Williams JA said at paragraph 26: "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) 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: '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 In the same case, MacKenzie J said at paragraph 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." 40 MacKenzie J continued at paragraphs 32-33: "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.

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." 41 In Holland v The Queen [2005] WASCA 140, the Court of Appeal of Western Australia applied Assheton in considering the construction and operation of s.233BAB of the Act. Roberts-Smith JA said at paragraph 189: "It is plain that the evil to which s 233BAB of the Customs Act was directed is the importation of child pornography, whether in the form of literature or photographs. The underlying purposes were both to shield the community from injury and protect children from exploitation." 42 In Holland, McLure JA said at paragraph 300: "Thus, the purpose of the law is to protect children from harm and to deter crime. It appears the legislature acted in part because of what the Executive and Parliament saw as a link between child pornography and the commission of criminal offences prohibiting sexual relations with children, as, for example, ss 320, 321 and 321A of the Criminal Code (WA)." 43 Before this Court, the Crown relied upon the statement of Morden ACJO in the Ontario Court of Appeal in R v Stroempl (1995) 105 CCC(3d) 187 at 191 to the following effect: "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."

This statement has been applied in Australia in R v Jones (1999) 108 A Crim R 50 at 51, a decision referred to by Malcolm CJ in Assheton and Williams JA and MacKenzie J in R v C .

Grounds of Appeal 44 It is appropriate to turn to the grounds of appeal.

Ground 1: His Honour erred in giving limited weight to the Applicant's prior good character 45 As noted above, Williams DCJ listed amongst the principles applicable to this offence the following statement: "(5) Prior good character, whilst relevant, is not of primary relevance in a similar way to which lack of previous convictions has been regarded in sexual assault and drug cases." 46 Mr Stratton SC, for the Applicant, acknowledges that good character has been held to carry less weight with respect to certain classes of offences. He refers to the principles in Ryan v The Queen (2001) 206 CLR 267 concerning child sexual assault offenders and R v Leroy (1984) 2 NSWLR 441 at 446-7 concerning drug couriers. He submits, however, that this principle has not been extended to the offence of importing child pornography. This was not an offence which involved a breach of trust between the Applicant and anyone who might be regarded as a victim of the offence. It is submitted that, in treating the prior good character of the Applicant as being of limited relevance, his Honour fell into error. 47 Ms Abraham QC, for the Crown, submits that there is no closed category of offences in relation to which the courts have stated that limited weight will be given to prior good character. The Crown submits that his Honour did take into account the fact that the Applicant had no prior convictions. However, the present offence was not an isolated incident given other and earlier incidents of accessing of child pornography on the Applicant's part. 48 The prior good character of an offender is relevant to sentence. With respect to federal offences, s.16A(2)(m) Crimes Act 1914 (Cth) requires a court to take into account on sentence, amongst other things, the character and antecedents of the offender: Weininger v The Queen [2003] 212 CLR 629 at 638-640 (paragraphs 27-33). 49 It has been said that there is a certain ambiguity about the expression "good character" in the sentencing context. Sometimes, it refers only to an absence of prior convictions and has a rather negative significance, and sometimes it refers to something more of a positive nature involving or including a history of previous good works and contribution to the community: R v Levi (NSW Court of Criminal Appeal, 15 May 1997, unreported, BC9703123 per Gleeson CJ at 5); Ryan at 276 (paragraph 27). 50 In Ryan, McHugh J said at 275 (paragraphs 23, 25): "It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges refer to the offender's 'previous' or 'otherwise' good character. … Second, 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 all of the circumstances."

See also the statements of Gummow J at 287-8 (paragraphs 67-68), Kirby J at 297 (paragraph 102), Hayne J at 309 (paragraph 143) and Callinan J at 317-8 (paragraph 174). 51 What weight will be given to evidence of good character on sentence depends, to an extent, on the character of the offence committed: R v Smith (1982) 7 A Crim R 437 at 442; Ryan at 309 (paragraph 143). 52 In R v Kennedy [2000] NSWCCA 527, Howie J (Simpson J agreeing) referred to factors which operate to afford less weight to prior good character on sentence. His Honour said at paragraphs 21-22: "It is unnecessary for the purposes of determining this appeal to consider the circumstances in which a court may legitimately determine that it will give less weight to prior good character as a mitigating factor. Generally speaking such a situation might arise where general deterrence is important, the particular offence before the court is serious and it is one frequently committed by persons of good character. Another situation may be where the prior good character of the offender has enabled him or her to gain a position where the particular offence can be committed.

Less weight might also be given to prior good character in a case where there is a pattern of repeat offending over a significant period of time. That will frequently be the case in child sexual assault offences because such offences are often committed during a period of an ongoing relationship between the offender and the complainant." 53 In Ryan, McHugh J said at 278 (paragraph 33): "Sentencing is not a mathematical process ( Pearce v The Queen (1998) 194 CLR 610 at 624 [46]). Various factors have to be weighed. The otherwise good character of the prisoner is one of them. It is a mitigating factor that the sentencing judge is bound to consider. But the nature and circumstances of the offences for which he or she is being sentenced is a countervailing factor of the utmost importance. The nature of the offences for which the appellant was being sentenced meant that his otherwise good character could only be a small factor to be weighed in the sentencing process". 54 In Ryan, the offender was a priest who had committed repeated acts of child sexual assault over a number of years. In concluding that the offender's otherwise good character could only be a small factor to be weighed in the sentencing process in that case, McHugh J said at 278 (paragraph 34): "First, there were multiple offences involving repeated acts committed over a number of years. [See eg Hermann (1988) 37 A Crim R 440 at 448; Phelan (1993) 66 A Crim R 446 at 448] . They were not isolated incidents which might be said to be out of character. Second, the appellant was, as his counsel conceded before Nield DCJ, leading a double life. Over many years, the appellant was doing 'good works' while he was committing grave offences. This contradiction indicates that the appellant's otherwise good character was a minor factor to be weighed. [In several decisions, including R v Levi (unreported, Court of Criminal Appeal of New South Wales, 15 May 1997 at 4) and R v Petchell (unreported, Western Australian Court of Criminal Appeal, 16 June 1993 at 10), Courts of Criminal Appeal have said that the fact that the offences were committed in secret should, of itself, mean that less weight should be given to a prisoner's otherwise good character] . Third, the appellant committed the offences in the course of his priestly duties and it was as a priest that he did the 'good works' which are at the heart of his claim of good character. This reduces the weight that ought to be given to his otherwise good character. Fourth, and related to the third point, the offences involved breaches of trust". 55 The rationale for extending less weight to prior good character may vary depending upon the class of offence. With respect to drug couriers, Street CJ (Glass JA and Yeldham J agreeing) said in Leroy at 446-7: "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 earlier 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, their past 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."

56 The Leroy approach to character has been applied with respect to federal drug importation offences to which s.16A(2)(m) Crimes Act 1914 (Cth) has application. The absence of a prior record is a matter to which relatively little weight can be given in such cases, although it is not completely irrelevant as a subjective circumstance: R v Barrientos [1999] NSWCCA 1 at paragraphs 52-57; R v Paliwala [2005] NSWCCA 221 at paragraphs 20-26. 57 The giving of limited weight to good character on sentence is not confined to child sexual assault offences or the sentencing of drug couriers. In R v MacIntyre (1988) 38 A Crim R 135 at 139, Lee CJ at CL (Hunt and Campbell JJ agreeing) applied similar reasoning to the offence of culpable driving: "His Honour took into account, of course, the good character of the respondent, and properly so. But it must be said that this class of offence is one which in many, perhaps even in most, cases is committed by persons who are not in any sense members of a criminal class or who even have criminal convictions against them, and for that reason the courts need to tread warily in showing leniency for good character to avoid giving the impression that persons of good character may, by their irresponsible actions at the time, take the lives of others and yet receive lenient treatment." 58 The principle in MacIntyre has been extended to drink driving offences in New South Wales. In Application by the Attorney-General under Section 37 Crimes (Sentencing Procedure) Act For a Guideline Judgment Concerning the Offence of High-Range Prescribed Concentration of Alcohol Under Section 9(4) Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) (2004) 61 NSWLR 305, Howie J (Spigelman CJ, Wood CJ at CL, Grove and Dunford JJ agreeing) said at 334 (paragraphs 118-119): "This Court has frequently observed that the fact that the driver convicted of an offence under s 52A is of otherwise good character is of less relevance than it might be in sentencing for other types of offences: R v McIntyre (1988) 38 A Crim R 135 at 139. This is because of the prevalence of the commission of the offence by persons of good character and the importance of general deterrence: R v Musumeci (NSWCCA, 30 October 1997, unreported).

This observation applies equally, in my view, to sentencing for PCA offences in general and high range PCA offences in particular. This is because it can be inferred that, just as persons of otherwise good character commit the offence of dangerous driving by having the prescribed concentration of alcohol in their blood, so they commit such an offence when it does not result in death or serious injury. Of 5,700 persons convicted of the offence in the five years to 2001, 77 per cent had no prior conviction for a PCA offence: Saffron and Chilvers , at 2." 59 The approach of according less weight to prior good character has also been applied with respect to white-collar offences. It has been observed that such crimes are rarely committed by people who have a criminal history: R v El-Rashid (NSW Court of Criminal Appeal, 7 April 1995, unreported, BC9504681 per Gleeson CJ at 3); R v Rivkin [2004] NSWCCA 7 at paragraph 410; R v Adler [2005] NSWSC 274 at paragraph 51; R v Williams [2005] NSWSC 315 at paragraph 61; R v IR Hall (No. 2) [2005] NSWSC 890 at paragraph 101. 60 There is a further aspect of the judgment in R v IR Hall (No. 2) which is relevant to this case. The offender was 66 years old and had no prior convictions, but had been the subject of declarations made in civil penalty proceedings brought against him by the Australian Securities & Investment Commission. Although the findings in the civil penalty proceedings did not constitute criminal convictions, Kirby J considered at paragraph 100 that they involved an aspect of the offender's character and antecedents which showed that the offence being dealt with was not an aberration and thus was relevant in applying s.16A(2)(m) Crimes Act 1914 (Cth). 61 An analysis of the authorities supports the Crown contention that there is no closed category of offences in relation to which courts have said that less weight should be given on sentence to evidence of prior good character. 62 There is authority in support of the approach of attaching less weight to prior good character for child pornography offences. In the United Kingdom, the Sentencing Advisory Panel has published advice by way of sentencing guidelines to the Court of Appeal concerning such offences. The Court of Appeal agreed to adopt these proposals subject to certain modifications: R v Oliver [2003] 1 Cr App R 28. In giving judgment for the Court, Rose LJ at 470 touched on the question of the weight to be given to good character in sentencing for this class of offence: "So far as mitigation is concerned, we agree with the Panel that some, but not much, weight should be attached to good character." 63 It appears to be a common feature of offences under s.233BAB and offences under State law for possession of child pornography that the offender is otherwise of good character, is in good employment and of sound reputation: see, for example, R v Liddington (1997) 97 A Crim R 400, R v Jones, R v Assheton and R v C. In none of these cases, however, has the court observed that less weight should be given to evidence of good character because of the nature of the offence. From time to time, the courts have observed that the offences have not been isolated events, and ought be considered in the context of other incidents of accessing child pornography. 64 There is a foundation for the approach that less weight should be attached to evidence of prior good character on sentence for offences of importing child pornography. It appears that such offences are committed frequently by persons of otherwise good character. General deterrence has been referred to as the "paramount consideration" on sentence for this class of offence (Assheton). The fact that the offence is, in a sense, committed in secret is also relevant to this issue. 65 The rationale for this approach to prior good character of child sex offenders and drug couriers does not seem to apply to the present offence. The concept of breach of trust is not applicable. Although a clear and egregious breach of trust is involved on the part of those who perpetrate acts of abuse upon children which are filmed and also by those who have direct responsibility for such action, a person who accesses such images via the Internet or obtains material in printed form containing such images cannot be said to be in a relationship of trust with the children involved. However, the public interest in stifling the possession and use of such material as a means of protecting children has been advanced to emphasise the significance of general deterrence on sentence. 66 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. Indeed, the ready availability of the material is a further factor pointing to the significance of general deterrence on sentence. 67 In a case such as the present one, the evidence may point to an offence not being an isolated incident or an aberration on the part of the offender. The findings of the Government and Related Employees Tribunal in June 2002, and the dismissal of the Applicant from his position in Qatar for similar activity, were relevant in support of such a finding concerning this Applicant. 68 I am not satisfied that error has been demonstrated on the part of the learned sentencing Judge in approaching evidence of the Applicant's lack of previous convictions as being "not of primary relevance". Although his Honour's reliance, by analogy, on the use of good character in sentencing for offences of sexual assault and drug cases may not have been apt, the circumstances here justified his Honour's assessment of the significance of this Applicant's prior, but qualified, good character. 69 Although the present Applicant had no prior convictions and there was some evidence as to his work and reputation contained in the reference of Mrs Buckley and the evidence of Ms Bates, that material was of limited significance given other evidence pointing to similar conduct on his part. 70 I reject the first ground of appeal.

Ground 2: His Honour erred in not considering whether the sentence should be served by periodic detention 71 The Applicant submits that the learned sentencing Judge fell into error in, having concluded that a sentence of imprisonment was necessary, moving directly to what was said to be the "only remaining question", namely whether the sentence should be suspended. Periodic detention is an available sentencing option for a federal offence: s.20AB(1) Crimes Act 1914 (Cth). 72 The Crown submits that no error has been demonstrated. The pre-sentence report adverted to the suitability of the Applicant for periodic detention (AB49) and his Honour's remarks on sentence referred to that part of the report (AB172). In this way, the learned sentencing Judge was alive to the fact that periodic detention was available as a sentencing option. Submissions for the Applicant in the District Court had focused upon a bond or suspended sentence as the appropriate outcome (AB162-3). No submission had been made that periodic detention was an appropriate sentence in the circumstances of this case. The Crown's submission in the District Court was that a full-time custodial sentence was required having regard to the circumstances of the case (AB50, 165). 73 The Applicant's submission, in substance, is that the failure to refer expressly to periodic detention demonstrates that the learned sentencing Judge did not consider periodic detention as a sentencing option in this case. I do not accept that such error has been demonstrated. This Court will not conclude lightly that a sentencing alternative was overlooked on sentence by an experienced District Court Judge: R v Majors (1991) 27 NSWLR 624 at 628; R v Salameh (1991) 55 A Crim R 384 at 394. 74 Having regard to the objective circumstances of the offence and paying due regard to general deterrence and the subjective circumstances of the Applicant, Williams DCJ determined that a full-time custodial sentence was appropriate in this case. In my view, it has not been demonstrated that his Honour overlooked periodic detention as a sentencing option. His Honour rightly concluded that no other sentence than one of full-time custody was appropriate to the case. 75 Accordingly, I reject the second ground of appeal.

Ground 3: His Honour erred in not taking into account the fact that the sentence could have been dealt with in the Local Court 76 The maximum penalty for the present offence is imprisonment for 10 years or a fine of 2,500 penalty units or both. Since the maximum penalty for this offence did not exceed 10 years, it was, as a matter of jurisdiction, capable of being dealt with summarily in the Local Court: s.4J(1) Crimes Act 1914 (Cth). 77 Accordingly, the Applicant submits that his Honour was required to take into account the availability of summary disposal in passing sentence. The Applicant's Counsel referred to this factor in submissions in the District Court (AB74), but the learned sentencing Judge did not advert to this matter in his remarks on sentence. 78 Mr Stratton SC relied upon the decision in R v Crombie [1999] NSWCCA 297, in which Wood CJ at CL (Simpson J agreeing) said at paragraphs 15-16: "This Court has acknowledged that the fact that a matter could have been dealt with in the Local Court, had the prosecuting authority not elected otherwise, remains a relevant consideration in the exercise of the discretion reserved to the sentencing judge, see Dalton-Morgan , Court of Criminal Appeal 14 December 1989, Jason Clyde Smith , Court of Criminal Appeal 11 September 1991, and Shepherd (1991) New South Wales Court of Criminal Appeal 162.

None of those decisions go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Moreover, where it appears that in the circumstance has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal." 79 The Crown submits that the matter was prosecuted appropriately on indictment in the District Court. The nature and seriousness of the offence was such that the District Court was the appropriate forum for sentencing this Applicant for this offence. Accordingly, the Crown submits that no error has been demonstrated in this regard. 80 In R v El Masri [2005] NSWCCA 167, I observed (Hunt AJA and Hulme J agreeing) at paragraph 29: "It is a well-established sentencing principle that a court dealing on indictment with a matter which was capable of summary disposal may have regard to that fact on sentence: R v Sandford (1994) 72 A Crim R 160 at 195; R v Griggs (1999) 109 A Crim R 484 at 485-6; Crombie , at paragraph 16; Doan , at 123ff (paragraph 35ff); R v LPY (2002) 135 A Crim R 237 at 240. But it is not a universal rule ( Sandford , at 195) nor a factor which operates universally to reduce sentence ( Doan , at 124). In some circumstances, the Court may conclude that the offender's criminality was too serious to be dealt with in the Local Court and that the matter was properly before the District Court: R v Hanslow [2004] NSWCCA 163 at paragraph 21. The significance of the loss of a chance to be dealt with in the Local Court will vary from case to case: R v Depoma [2003] NSWCCA 382 at paragraph 13." 81 That sentencing principle applies to state offences in New South Wales by reference to a statutory scheme which specifies certain offences as being capable of summary disposal: s.260 Criminal Procedure Act 1986. 82 Section 4J(1) Crimes Act 1914 (Cth) is in the following terms: "(1) Subject to subsection (2), an indictable offence (other than an offence referred to in subsection (4)) against a law of the Commonwealth, being an offence punishable by imprisonment for a period not exceeding 10 years, may, unless the contrary intention appears, be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction."

The maximum sentence if this offence was prosecuted summarily is a sentence of imprisonment for a period not exceeding two years or a fine not exceeding 120 penalty units or both: s.4J(3)(b). 83 Thus, s.4J operates in a somewhat different way from the New South Wales provisions. The Commonwealth section applies to all Commonwealth offences punishable by imprisonment for a period not exceeding 10 years unless those offences are excluded expressly from possible summary disposal. The New South Wales system operates by including a variety of offences as being available for summary disposal. It was not submitted in the present case that this distinction affected the application of the relevant principles. 84 An offence which, as a matter of jurisdiction, is capable of being disposed of summarily may be prosecuted on indictment in a number of circumstances:

(a) the offence may be one of a number of offences in relation to which the accused person is committed for trial but where the person is acquitted of, or the Crown does not proceed with, the more serious charge (see, for example, El Masri );

(b) the offence may be one where the Director of Public Prosecutions, in the exercise of discretion, has determined that the matter ought to proceed on indictment: s.4J(1) Crimes Act 1914 (Cth) ; s.260(1) or (2) Criminal Procedure Act 1986;

(c) infrequently, the offence may be one where the offender resisted summary disposal and elected for prosecution on indictment: s.4J(1) Crimes Act 1914 (Cth) ; s.260(1) Criminal Procedure Act 1986. 85 The principles in Crombie and El Masri have particular application with respect to the first class of offences referred to in the preceding paragraph. In such a case, the offender may be in a position to contend, with some force, that he or she stands for sentence in the District Court with respect to an offence which otherwise would have been disposed of summarily in the Local Court. That is not this case. 86 The Commonwealth Director of Public Prosecutions, in the present case, formed the view that this matter was appropriate to be prosecuted on indictment. That is a decision which lies within the exercise of prosecutorial discretion and in relation to which provision is made in paragraphs 5.9-5.11 of the Prosecution Policy of the Commonwealth Director of Public Prosecutions. Similar provisions exist with respect to State offences in paragraph 8 of the Prosecution Guidelines of the Director of Public Prosecutions (NSW): R v Palmer [2005] NSWCCA 349 at paragraph 10. Decisions made in the exercise of prosecutorial discretion are not readily subjected to review or appellate scrutiny by the courts: Maxwell v The Queen (1995) 184 CLR 501 at 512, 534; Hanna v Director of Public Prosecutions [2005] NSWSC 134 at paragraphs 40ff. In R v Murray [2000] NSWCCA 159, Carruthers AJ (Hulme J agreeing) said at paragraph 16: "It is a question of discretion for the Director of Public Prosecutions whether matters such as this be proceeded with in the Local Court or the District Court, and it would only be in a rare matter, I would have thought, that this Court would be prepared to express a view as to whether it was or was not appropriate for the Director to have elected to proceed in the District Court in relation to certain matters as distinct from the Local Court."

In my view, where the Director of Public Prosecutions has elected to prosecute a matter on indictment, it would require a very clear case of inappropriate prosecution of an offence on indictment before the Crombie and El Masri principles could provide an argument in mitigation resulting from a lost opportunity for summary disposal of that offence.

87 Mr Stratton SC pointed to the fact that very few sentences for this offence had been passed in the District Court in New South Wales. In the period for which Judicial Commission statistics are maintained (May 2000 to December 2004), there appear to have only been four offenders sentenced in the District Court for this offence. Two offenders were sentenced to full-time imprisonment, one was dealt with by way of a recognisance under s.20(1)(a) Crimes Act 1914 (Cth) and one was dealt with by way of dismissal under s.19B of that Act. Of the offenders sentenced to imprisonment, one was sentenced to three years' imprisonment with a non-parole period of 18 months, the other was sentenced to three years and six months' imprisonment with a non-parole period of two years and six months. 88 Fifteen offenders were prosecuted in the Local Court during this period, of whom 12 received full-time custodial sentences. The 18-month head sentence imposed upon the present Applicant was greater than any of the sentences imposed in the Local Court. 89 Caution must be exercised in the use of bare sentencing statistics: R v Bloomfield (1998) 44 NSWLR 734 at 739. The facts of individual cases are not known to the Court. Further, additional caution is required with respect to federal offences because of the effect of the repeal of s.16G Crimes Act 1914 (Cth). An increase in sentence is likely over the range of sentences imposed in pre-repeal cases which attracted a s.16G discount: R v Bezan (2004) 147 A Crim R 430 at 434 (paragraph 18). 90 This is not a case of an offence which has ended up in the District Court because a primary and more serious charge has been dismissed or discontinued. Nor is it a case, to use the language in El Masri at paragraph 43, which may be properly characterised "as a Local Court offence being dealt with in the District Court". In my view, the facts and circumstances of the present case do not attract the principles in Crombie and El Masri. It cannot be concluded that the offence was appropriate to be prosecuted in the Local Court and not the District Court.

91 No error has been demonstrated in this case by reason of Williams DCJ not adverting to the theoretical possibility of summary disposal of the matter in the Local Court. 92 I reject the third ground of appeal.

Ground 4: The sentence imposed upon the Applicant was manifestly excessive 93 Mr Stratton SC submits that the sentence imposed upon the Applicant was manifestly excessive. He submits that there was no evidence that the pornographic material imported by the Applicant was for the use of any person other than the Applicant. He was a consumer rather than a distributor of pornography. There was no suggestion that the Applicant was to receive any financial gain by committing the offence. Although it was acknowledged that there was a reasonably large number of pornographic images imported by the Applicant, it was submitted that the number needs to be kept in perspective in comparison with other cases where significantly larger numbers of images have been imported. 94 The Applicant submitted that, objectively, the matter was towards the lower end of the scale of seriousness. It was submitted that, subjectively, the Applicant had a reasonably good case, apart from other dealings with child pornography. 95 Ms Abraham QC submits that this was an objectively serious offence. Any sentence imposed must be of a severity appropriate in all the circumstances of the offence: s.16A(1) Crimes Act 1914 (Cth). The Crown submits that the sentence must reflect the seriousness of the offence including:

(b) the nature of the images - the images here involve children of all ages predominantly pre-pubescent and involve acts of full penetration and at least one act of sadistic penetration of a male child by a male adult during which the child displays obvious extreme pain. 96 Ms Abraham QC submitted that general deterrence was an important feature in sentencing for this class of offence. Further, personal deterrence was significant in this case given the Applicant's implausible explanation for his conduct, which was rejected by the sentencing Judge, and the Applicant's lack of insight as reflected in his statements to the probation officer contained in the pre-sentence report. The Crown submits that the Applicant has not demonstrated remorse or contrition. 97 This is not the occasion for any detailed classification of the levels of conduct which fall within this offence. As mentioned earlier, s.233BAB(3) has been amended, in any event, to provide a more elaborate statutory description of the offence. 98 Reference has been made to sentencing guidelines published by the Sentencing Advisory Panel to the Court of Appeal in the United Kingdom concerning child pornography offences. The Court of Appeal has agreed to adopt these proposals subject to certain modifications: R v Oliver; see Gillespie "Sentences for Offences Involving Child Pornography" [2003] Crim LR 81. Although the attention of Williams DCJ was drawn to Oliver and his Honour made passing reference to aspects of those guidelines, his Honour made clear that he was not purporting to apply principles emerging from the different legislative scheme in the United Kingdom (AB175-176). 99 As cases such as Liddington, Jones, Assheton and R v C make clear, a range of factors bear upon the objective seriousness of an offence of possession or importation of child pornography. These factors include:

(a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed;

(b) the number of images or items of material possessed by the offender;

(c) whether the possession or importation is for the purpose of sale or further distribution;

(d) whether the offender will profit from the offence.

It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised. 100 Whether an offence of importation of child pornography calls for a full-time custodial sentence will depend upon the facts and circumstances of the particular offence and offender. The Applicant's offence was objectively serious. This is not a victimless crime. The Applicant took advantage of the sexual exploitation of children. This reflects a substantial level of moral turpitude. General deterrence is a paramount consideration and specific deterrence was a significant factor in the Applicant's case. The subjective circumstances of the Applicant were not of particular assistance to him in this case. 101 I am not satisfied that the Applicant has demonstrated that the sentence is manifestly excessive. It has not been established that the sentence lay outside the permissible range of sentence for this offence. 102 Accordingly, I reject the fourth ground of appeal.

Conclusion 103 I am not satisfied that the Applicant has made good any of the grounds of appeal. Even if specific error had been identified, I am not satisfied that, in the circumstances of the present case, any other sentence was warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912. 104 I propose that leave to appeal be granted, but that the appeal be dismissed. **********

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