R v Grehan [2010] QCA 42

Director of Public Prosecutions (Commonwealth) for the respondent

[1] HOLMES JA: I agree with the reasons of Chesterman JA and the orders he proposes.

[2] MUIR JA: I agree with the reasons of Chesterman JA and with his proposed orders.

[3] CHESTERMAN JA: On 29 October 2009 the applicant pleaded guilty in the District Court of Brisbane to two counts of knowingly possessing child exploitation material, on 28 October 2008, contrary to s 228D of the Criminal Code 1899 (Qld) and one count of using a carriage service to access child pornography material between 1 March 2005 and 27 October 2008, contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth).

[4] On each count he was sentenced to three years and one day's imprisonment. With respect to counts 1 and 2 the imprisonment was to be suspended after he had served 18 months. With respect to count 3, the Commonwealth offence, a non-parole period of 18 months was fixed.

[5] The applicant had access to two computers which were kept in his parents' house where he lived. One computer was his and the other his parents'. The two counts for possessing child exploitation material ("CE material") related to images on the two computers. Count 1 related to the possession of 40,344 images of CE material, four videos and 81 cartoon images. Count 2 related to 4,572 images of CE material and 32 videos of such material.

[6] The 40,344 images of CE material consist of sexually explicit pictures of children from about two years of age to about 17 years of age. Most of the images depict pre-pubescent children (under 12 years of age). The material includes images showing children in sexual poses; images showing sexual activity between children or solo-masturbation by children; images showing non-penetrative sexual activity between adults and children including adult males being masturbated by, and ejaculating on, children; images showing the oral, vaginal and anal penetration of children by adults (including with objects); and an image of bondage involving children.

[7] The videos depict naked male children from about nine years of age to about 14 years of age displaying their genitalia, or engaging in sexual activity with each other.

[8] The cartoon images depict children in sexual poses; sexual activity between children; and non-penetrative and penetrative sexual activity between adults and children. Some of the cartoon images are accompanied by words and depict what appear to be family members engaged in sexual activity with each other (i.e. father and daughter; mother and son; sister and brother etc). There is also one cartoon depicting an adult male sexually penetrating a female child from behind whilst covering her mouth with his hand.

[9] By reference to a system of classifying CE material according to its degree of depravity, explained in R v Oliver [2003] 1 Cr App R 28, it was said that in relation to count 1 there were 39,668 images in the lowest category; 174 images in the second category; 101 images in the third category, 400 images in the fourth category and one image in the fifth or worst category.

[10] With respect to count 2 there were 4,192 images in the first category; 82 images in the second category; 87 images in the third category; 205 images in the fourth category and six images in the fifth category.

[11] With respect to the 32 videos of CE material found on the computer the subject of count 1, five were in category 1; 11 in category 2; none in category 3; 15 in category 4 and one in category 5.

[12] The applicant had used a carriage service, the internet, to gain access to the child pornography material the subject of count 3 between 1 March 2005 and 27 October 2008. In that time the applicant visited more than 200 websites to view child pornography. The images, the subjects of counts 1 and 2, were downloaded by the applicant from the pornographic sites.

[13] The applicant co-operated fully with the police investigation. He told them that he had been collecting the CE material for five or six years. He paid to download some of it. He said that he had tried to stop viewing and collecting about two years earlier and had erased material from the hard drive of the computers, but felt compelled to renew his activity, and did so.

[14] The applicant further assisted the police significantly by showing them the pathways to the computer programs to enable them to locate the images he had stored. He pleaded guilty to an ex officio indictment.

[15] The applicant further complains that his sentence is manifestly excessive. The first point taken on his behalf is that his offending is explained by a psychiatric illness, obsessive compulsive disorder, chronic in nature existing since childhood, associated with marked depression and anxiety.

[16] The applicant was examined by Mr Hatzipetrou, a clinical psychologist, who reported on 7 May 2009 that the applicant was:

"... a ... man of average intelligence with a history of chronic mental health disorder and sexual dysfunction. ... (he) reportedly demonstrated ritualistic behaviours and general anxiety throughout childhood. ... During ... assessments, (the applicant) presented with a constellation of symptoms consistent with major depression and obsessive compulsive disorder. He has suffered from obsessive compulsive disorder since early childhood which is often indicative of an intractable and treatment resistant mental health disorder. He has experienced a range of impediments due to his mental health disorders such as abnormal socio-sexual development, distressing social relationships and low self esteem. Furthermore, he developed avoidant coping strategies to manage the daily episodes of anxiety and obsessive thoughts. ... Research suggests offenders such as (the applicant) frequently make reference to complex and time-consuming rituals associated with accessing, downloading and organizing their collections ... . As a means of normalizing the behaviour, the process of collecting child pornography is considered as merely an extension of other forms of collecting behaviour, or as part of a progression through other forms of pornographic material. ... (the applicant) did suffer from a serious and chronic mental illness which consisted of obsessive thoughts and compulsive actions."

[17] Mr Hatzipetrou noted that the applicant was receiving treatment for chronic obsessive compulsive disorder from a consultant psychiatrist. The psychologist thought that the applicant's significant mental health disorders and impaired social experiences were "likely to impact on his adjustment to a custodial sentence." In prison the applicant:

"is unlikely to have regular access to a specialist psychiatrist" but "will require intensive support if .... incarcerated. Whilst most persons with no previous criminal history are likely to experience adverse adjustment to incarceration, (the applicant) is ... more susceptible ... as he presented with ineffective coping strategies and a history of social anxiety and naiveté."

"There was no evidence of formal thought disorder or paranoia. However, he did present with rigid and obsessional thoughts characteristic of obsessive compulsive disorder. He appeared to be overwhelmingly preoccupied with details and routines. He is unable to curtail repeated obsessional thoughts and compulsive behaviours... . ... (He) presented with depressogenic and catastrophic cognitions, extremely low self esteem and depressed mood. He possesses low self confidence, ineffective coping strategies and a sense of lifelong personal failure.

... (the applicant's) offending behaviour was maintained by his obsessiveness and ritualistic behaviours. He did not attribute his offending behaviours to his mental illness although the act of collecting and masturbation were perpetuated by the clinical features of obsessive compulsive disorder. Moreover, he possessed erroneous cognitions about his own sexuality and experienced persistent feelings of inadequacy and depression in response to sexual dysfunction and abnormal socio-sexual development.

The downloading of these images was likely to be maintained by pathological interest in pornography and emerging rationalisations. Similarly, his actions were likely to be maintained by abnormal socio sexual development, social incompetence and social skill deficits related to (the applicant's) personality traits and serious mental health problems pre-existing the time of the offences. The mental health disorders were not likely to cause the offending behaviour rather impair his coping mechanisms, reasoning and judgment. Furthermore, his obsessive compulsive disorder was likely to contribute to the maintenance of this behaviour. Specifically, to achieve relief from obsessive thoughts surrounding his sexual dysfunction and impaired self identity, he would view and collect pornographic images every night. According to (the applicant), these images were stored yet not re-opened as the compulsive act to collect was complete."

[19] Mr Hatzipetrou had this to say with respect to the applicant's prospect of rehabilitation:

"(The applicant) presented with insight into the seriousness of these actions and appeared motivated to continue to address these deviant behaviours and thought processes. He will benefit from participation in ... programs and treatments. ... the risk of recidivism is likely to be reduced. ... (the applicant) possesses the intellectual capacity and moral reasoning to benefit from the recommended treatment strategies. Coupled with the ongoing employment or structured day activity, these steps may provide protective factors against future offending. ... He has access to a network of social supports and participates in treatment for sexual deviant behaviour and mental illness. ... these present ... significant protective factors. ... (the applicant) demonstrated appropriate remorse ... and ... appeared to be highly distressed about the potential impact of the offences upon his family. Importantly, (the applicant) appeared to be disappointed and remorseful about his own behaviour and he appeared to make a significant commitment to changing his behaviour."

[20] The applicant was 30 when sentenced and between 26 and 29 when the offences were committed. He had no previous criminal history. He had been in regular employment as a tertiary qualified health and occupational safety officer. It should, perhaps, be noted that his qualifications for that vocation were the second he acquired. He was first awarded a degree in Town Planning but felt unable to leave the security of university and enter the workforce. He therefore enrolled in another course which led to his graduation and employment as a safety officer.

[21] Mr Hatzipetrou's report was put before the learned sentencing judge who took into account his "observations as to (the applicant's) unfortunate background in terms of (his) development and obsessive compulsive disorder" and his "isolation, loneliness and difficulty with sexual relationships" as well as "depression". His Honour also noted that the applicant had sought treatment and counselling since being charged with the offences and had attended "psychologists and psychiatrists in relation to counselling and treatment" which, in his Honour's words, stood to his credit.

[22] The learned judge noted, correctly with respect, that the enormous number of images which the applicant possessed was explicable by his psychiatric illness, the obsessive compulsive disorder which led him to download and file the images which were not looked at again.

[23] It is this point which forms the basis for the applicant's submission that the sentences are, in the circumstances, excessive.

[24] The point was expressed by Fryberg J (with whom McPherson JA agreed) in R v Neumann; ex parte A-G (Qld) [2005] QCA 362:

"[27] In R v Dunn this court cited with approval the statement of Bray CJ in R v Kiltie, approved in R v Masolatti, that 'low intelligence and diminished responsibility falling short of insanity will (if otherwise relevant) operate on sentence as a mitigating factor.' It diminishes the moral culpability of the offender. Further, as was observed in R v Elliott by Davies and Thomas JJA (McPherson JA concurring), 'Mental abnormality falling short of insanity may be a significant mitigating factor. Apart from the question of culpability, it makes it difficult for the court to apply a factor such as general deterrence.' That reflected (albeit without direct reference) what was written by Gleeson CJ in R v Engert:

'The circumstance that an offender suffers from a mental disorder may well be of considerable significance in a number of respects to the sentencing task. One of those respects depending upon the facts and circumstances of the individual case may relate to the matter referred to by this Court in the case of R v Scognamiglio (1991) 56 A Crim R 81. At 86 the passage in a judgment of the then Chief Justice of Victoria was cited with approval. That passage was in the following terms:

"In sentencing generally, it is necessary to balance personal and general deterrence on the one hand with rehabilitation on the other, but in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should often be given little weight.

General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."'

That decision also demonstrates that it is not essential that there be a causal relationship between the abnormality and the commission of the offence; although causation must be taken into account in assessing the circumstances of the case." (footnotes omitted).

[25] In R v Elliott [2000] QCA 267 Davies and Thomas JJA said:

"[11] It was submitted for the applicant that the sentence in question fails to give sufficient regard to the applicant's personal circumstances including his mental disorder. The abnormal mental state of the applicant is certainly the dominant feature of these offences which were committed in a quite hysterical manner after he had been attacked by Carmody. Mental abnormality falling short of insanity may be a significant mitigating factor. Apart from the question of culpability, it makes it difficult for the court to apply a factor such as general deterrence. Of course such a factor is two edged, and where such a person is a danger to the public, this factor may be brought into account in increase of sentence. Brennan J in Channon v R noted that:

'Psychiatric abnormality falling short of insanity is frequently found to be a cause of, or a factor contributing to, criminal conduct. The sentencing of an offender in cases of that kind is inevitably difficult. The difficulty arises in part because the factors which affect the sentence give differing significance to an offender's psychiatric abnormality. An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period. The abnormality may seem, on one view, to lead towards a lenient sentence, and on another to a sentence which is severe.'" (footnotes omitted).

[26] Although the learned sentencing judge made reference to the psychologist's report his Honour was not referred to the principles which emerge from the authorities just cited, nor did he refer to them. The omission is submitted to be an error in the exercise of the sentencing discretion. With respect to his Honour, I think it was. The report demonstrates a deep seated and long lasting psychiatric disorder which in large part explains the applicant's offending. His personal, psychological, inadequacy and consequent inability to have normal adult relationships, together with the obsessive compulsive disorder, must be seen as a significant influence on the applicant's accessing the pornographic sites and storing the CE material by way of computer image.

[27] Sentences of imprisonment are imposed for offences against s 228D of the Criminal Code (Qld) primarily by way of deterrence. Keane JA in R v Gordon; ex parte Cth DPP [2009] QCA 209 at [22] noted that:

"... general deterrence must be the paramount consideration given the prevalence and availability of child pornography, particularly on the Internet."

By way of authority his Honour referred to: R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 at 38; R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 at 51; R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP [2004] QCA 469 at [21], [26], [31]-[33]. It is often said, though, as far as I am aware, without scientific basis, that severe punishment for those who view and possess CE material will discourage those who exploit and abuse children in the making of the images. But as the authorities point out offenders afflicted by a mental disorder relevant to their offending are not proper candidates for a sentence which operates by way of deterrence.

[28] It is a common feature in cases of possessing CE material that the offender has much the same defects in personality as this applicant has. The inability to make and sustain normal adult relationships, particularly intimate relationships, lack of self confidence, low self esteem, anxiety, depression and isolation seem to be attributes associated with this particular offence. What distinguishes the applicant from such similar cases is the fact that he has a psychiatric disorder of such severity as to amount to a mental illness.

[29] In addition to this point which would, itself, justify this Court's interference with the sentences imposed on the applicant there is another. A review of the authorities suggests that the sentences imposed on the charge of possessing CE material were excessive.

[30] The applicant in R v Verburgt [2009] QCA 33 was sentenced to 12 months imprisonment with release after three months on recognizance for an offence of using a carriage service to access child pornography material and a sentence of 12 months imprisonment, with release on parole after four months, for possessing CE material. The number of images were small: four images downloaded constituted the first count and six images retained on a computer gave rise to the second count. The applicant was a 39 year old single man who lived alone and had a good work history. He had learning difficulties, was anxious and depressed.

[31] The applicant had been in custody for two months when the appeal was heard. The court reduced the sentence by suspending that imposed for the Queensland offence immediately and by ordering his immediate release on recognizance with respect to the Commonwealth offence. Holmes JA said:

"Counsel for the respondent pointed, correctly, to this legislative change which postdates (earlier) authorities, as relevant: s 9(6A) of the Penalties and Sentences Act renders the 'last resort' principle inapplicable to s 228D offences, among others.

It is certainly the case that a constraint upon the imposition of a sentence involving actual imprisonment has been removed with the introduction of s 9(6A). It does not, however, follow that any person convicted of an offence under s 228D must be sentenced to actual imprisonment."

"I emphasise that the introduction of s 9(6A) and s 9(6B) to the Penalties and Sentences Act ... does not have the result that actual custody is inevitable for offences against s 228D of the Criminal Code ... (Qld)."

[33] In R v Carlton [2009] QCA 241 the applicant pleaded guilty to four counts of distributing CE material and one count of possessing it. He was sentenced to three years' imprisonment for the distribution and 12 months' imprisonment for the possession. He had no prior convictions, was 23 and had prospects of rehabilitation. He was, apart from the offences in question, of good character, remorseful and ashamed of his offending and had made real efforts to change lifestyle and behaviour since his arrest. By majority the sentences were not disturbed but I noted, at [103], with the agreement of Mullins J:

"The sentence for possessing child exploitation material may be, looked at in isolation, excessive. If the applicant, with his relevant factors in mitigation, had been convicted of count 3 only there may have been a strong argument that he should not have been incarcerated."

The material in that case was described by the President as the worst her Honour had "yet come across". It consisted of 2,490 still images, 725 animated cartoons, 292 movie files and 32 text documents. There were altogether a total of 16,888 still images.

[34] In R v Vantoosten [2009] QCA 54, Muir JA, with whom Keane JA and Daubney J agreed, undertook a review of the relevant cases. Vantoosten pleaded guilty to two counts of possessing CE material and was sentenced to 12 months' imprisonment on each count. An order that he be eligible for parole after serving four months was made. He, too, suffered anxiety and had in the past been diagnosed with a major depressive disorder. It is difficult to know how many images of CE material were in his possession. The material consisted of files of material containing numerous images and 33 videos of CE material.

"[7] Counsel for the respondent submitted that the sentences imposed were supported by R v Rogers, R v Richardson; ex parte A-G (Qld); R v Riley; and R v Plunkett. In Rogers, the 40 year old offender was sentenced after pleas of guilty to three years imprisonment on one count of possessing child exploitation material, and to 12 months imprisonment on another such count and on a count of making child exploitation material. The sentences were suspended after 10 months with an operational period of four years.

[8] Count 2 concerned in excess of 48,000 images on a computer of children aged between two and 15 years in a sexual context. Twenty-six images involved acts of cruelty and bestiality perpetrated on children. Over 500 of the images involved penetrative sexual activity. Count 3 concerned 1,094 images and 20 videos on another computer. The images were placed there when the applicant was on bail in respect of count 2. He had no previous convictions, was married and in receipt of a disability support pension. He suffered from a congenital birth defect of the left foot, which left him significantly disabled and in chronic pain. He entered an early plea of guilty, co-operated with the Authorities and made extensive efforts to rehabilitate himself. He was remorseful and it was accepted that he had "reasonably promising prospects of rehabilitation." Leave to appeal against sentence was refused.

[9] The respondent in Richardson was a 25 year old with a good work ethic and no criminal history. He pleaded guilty at an early stage and was sentenced on three counts of knowingly possessing child exploitation material to 12 months imprisonment wholly suspended with an operational period of three years. One count concerned a folder containing 165 video files of child pornography. Two of the files showed the brutal sodomy of a boy by an adult. Another video file on another computer showed a young male child masturbating and a further laptop contained a video file with a similar content. The appeal by the Attorney-General was dismissed.

[11] The applicant in Riley, who pleaded guilty, was sentenced on each of two counts of knowingly possessing child exploitation material to six months imprisonment suspended after two months with an operational period of 12 months. It was held that the sentencing discretion had miscarried, for reasons other than the severity of the sentence, and was required to be re-exercised. The sentences were varied so that they were suspended immediately. The applicant had served 15 days imprisonment by the time of the hearing of the appeal. He had a good employment history and held a degree in Information Technology.

[13] In the reasons of the Court it was said that R v Daw, R v Wharley and R v Richardson demonstrated that the sentence imposed was not manifestly excessive. Attention was drawn to the fact that the applicant neither created, nor acquired the material commercially, did not distribute it and did not burn it to disk. The age of the children in the images was considered a relevant factor, as was the fact that none of the images included "patent force or brutality". The applicant co-operated with the Authorities, entered an early plea of guilty and demonstrated remorse.

[14] The 38 year old applicant with no criminal history in Plunkett was sentenced after a plea of guilty to 18 months imprisonment suspended after three months with an operational period of 18 months on a count of knowingly possessing child exploitation material. His application for leave to appeal was refused, by a majority. He had downloaded from the Internet approximately 16,000 images of females aged between 10 and 16 years and had organised the images into labelled directories and folders. None of the images showed children engaged in sexual conduct with others. The applicant co-operated fully with the Authorities." (footnotes omitted).

[36] Rogers is a more serious case. The offender was older and was convicted of making CE material as well as possessing it. Making such material carries a maximum sentence of 10 years. He possessed even more images than the applicant in this case and the content appears to have been of more serious acts of depravity and exploitation. One of the offences was committed when Rogers was on bail. His sentence of three years suspended after 10 months makes the present sentences look high.

[37] The number of images collected and stored by the applicant is vast. Moreover they were collected over a period of about three years. There was, to that extent, some persistence in the offending. On the other hand there can be no doubt that it was the compulsive obsessive psychiatric disorder which led to the persistence in the collection over that time. The images were, it will be remembered, not looked at after their initial collection and storage.

[38] The learned sentencing judge should have had regard to the principles expressed in Neumann and Elliott, and ameliorated the sentence for the reason explained in those cases. As well the authorities which I have reviewed suggest that, regardless of that principle, the sentences imposed were excessive. The huge number of images collected, and the time over which they were collected would ordinarily make it appropriate to sentence the applicant to a term of actual imprisonment. But it must be remembered that the scale of offending was the product, at least in part, of the applicant's mental illness.

[39] His Honour picked upon three years and one day for the sentences in order to ensure that the applicant would be released on parole and have the benefit of that supervision. Had the applicant been sentenced to three years or less, s 19AC of the Crimes Act 1914 (Cth) would have obliged the sentencing judge to make a recognizance release order fixing the date on which the applicant would have been released. By sentencing to more than three years s 19AB allowed his Honour to fix a non-parole period after which the applicant could be released on parole.

[40] One understands his Honour's approach but the cases suggest that three years was too long. Moreover the applicant had already made a commitment to psychiatric treatment and psychological counselling to address his disorders and shortcomings. The need for parole supervision was not, therefore, obvious. The applicant had formed what appears to have been a stable and supportive relationship with a woman in recent years and had taken up residence with her. This appears a positive aspect of rehabilitation, given the applicant's past isolation, and what it led to.

[41] It is also a relevant consideration that the applicant's psychiatric illness and personality inadequacies will make prison for him considerably more difficult than for the ordinary prisoner. This is not a factor which received any recognition, as it should have.

[42] My review of the authorities, which I do not warrant to be complete, indicates that the courts have not imposed a sentence greater than 18 months' imprisonment on charges of possessing CE material simpliciter. There have been longer sentences in cases where the offender distributed the material, or made it. The cases also suggest that where the Commonwealth offence of using a carriage service is joined with possession the two offences, though different and with different maximums, are punished to the same extent. The number of images possessed and their content are, rightly in my opinion, considered highly relevant to sentence.

[43] I have not given any separate consideration to the Commonwealth offence, the subject of count 3. It was not dealt with separately in submissions and although it carries a longer maximum penalty, 10 years, we were not asked to differentiate between the State and Commonwealth offences with respect to penalty.

[44] I would give leave to appeal against sentence, allow the appeals and substitute for the sentences imposed on each of counts 1 and 2 a sentence of two years' imprisonment to be suspended after serving six months, with an operational period of two years. On count 3, the Commonwealth offence, I would impose a sentence of two years' imprisonment and order that the applicant be released upon recognizance after serving six months.