R v Howe [2017] QCA 7

SUPREME COURT OF QUEENSLAND

CITATION: R v Howe [2017] QCA 7

PARTIES: R v HOWE, Jesse John (applicant)

FILE NO/S: CA No 94 of 2016 SC No 696 of 2015

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane – Sentence Date: 17 March 2016

DELIVERED ON: 7 February 2017

DELIVERED AT: Brisbane

HEARING DATE: 7 October 2016

JUDGES: Fraser and Philippides JJA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The application for leave to appeal is refused.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where defendant convicted on his own plea of guilty to six offences – where defendant sentenced to four years imprisonment for child exploitation offences – whether sentence was unreasonable or plainly unjust – where offending occurred over a long period of time – where general deterrence is the primary sentencing consideration – whether sentencing judge gave sufficient weight to mitigating factors, including defendant’s youth, remorse, and psychological condition / Criminal Code (Cth), s 474.24(A) / Director of Public Prosecutions (Commonwealth) v Garside [2016] VSCA 74, cited / R v Davis [2012] QCA 324, cited / R v De Leeuw [2015] NSWCCA 183, cited / R v Edmondson, unreported, P Lyons J, Supreme Court of Queensland, SC No 219 of 2014, 17 December 2014, cited / R v Linardon [2014] NSWCCA 247, cited / R v Martin (2014) 246 A Crim R 477; [2014] NSWCCA 283, cited / R v Porte [2015] NSWCCA 174, cited / R v Templin, unreported, Boddice J, Supreme Court of Queensland, SC No 315 of 2013, 26 August 2013, cited

COUNSEL: J P Benjamin for the applicant K Breckweg for the respondent

SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Commonwealth) for the respondent

FRASER JA: I agree with the reasons for judgment of Douglas J and the order proposed by his Honour.

PHILIPPIDES JA: I agree with Douglas J that the application for leave to appeal against the sentences imposed be refused for the reasons given by his Honour.

DOUGLAS J: The applicant was convicted of four counts of using a carriage service to access or make available child pornography material, of a fifth count of using a carriage service to make available child pornography material on three or more separate occasions and involving two or more people and one count of possessing child exploitation material. The first four counts were offences against s 474.19(1) of the Criminal Code (Cth) while count 5 was an offence contrary to s 474.24(A) of the Criminal Code (Cth). Count 6 was an offence pursuant to s 228D of the Criminal Code (Qld).

The applicant pleaded guilty and was sentenced on 17 March 2016 to two years imprisonment in respect of each of counts 1 to 4 and count 6 and to four years imprisonment in respect of count 5. On counts 1 to 5, the Commonwealth offences, pursuant to s 19AB of the Crimes Act 1914 (Cth), a non-parole period of one year and nine months was fixed. The sentence on count 6 was ordered to be suspended after the applicant had served a period of one year and nine months with an operational period of four years.

The applicant’s antecedents

The applicant was born on 10 September 1986 and was 23 to 24 years at the time of count 1, 27 years old at the time of counts 2 to 5, 28 years old at the time of count 6 and 29 at the time of sentence. He had a minor and irrelevant criminal history. He lived with his mother and grandmother, acting as their carer and had little previous employment.

In October 2010 he shut down a child pornography site, feeling tormented and guilty, thus indicating a wish to stop further offending at that stage. He told a clinical psychologist that he became obsessed with a child pornography internet site for the social involvement it provided him and had to maintain his downloading of child pornography material to maintain those social contacts. He had struggled with his sexuality in his teenage years and was abused in an earlier relationship with a man.

He has sought treatment since being charged and had undertaken 17 treatment sessions with a psychologist since September 2014. The opinion of that psychologist was also that he participated in the child pornography forums more for the social interactions they provided and less so for the need to seek out child pornography material actively himself. That psychologist also expressed the view that he presented with a serious and very high risk of self-harm which would be particularly heightened if he were to be imprisoned.

The facts related to the offences

Investigators seized computer equipment from his home where he lived with his mother. When the computers were forensically examined they revealed the presence of many file sharing programs with files and folders consistent with them having been used to download child pornography including files and folders configured for the sharing of child pornography with other users. Child pornography had been viewed on a second laptop as well.

Count 1 involved seven separate instances of conduct between 11 May 2010 and 11 October 2010 where the applicant used a peer to peer program to access 19 items of child pornography with the majority of the material, 12 videos, at the category 4 level, featuring penetrative sexual activity between adult men and male children.

Count 2 involved three distinct occasions between 17 January 2014 and 22 January 2014 where he made 380 child pornography files available to other users of which 36.5 per cent or 140 files were similarly at the category 4 level.

Count 3 involved him making available 823 image files and 13 movie files on six separate occasions between 20 May 2014 and 3 September 2014. Of those, eight files were category 5 images, involving sadism, bestiality or humiliation, 225 were category 4 images and the remainder were less serious.

Count 4 covered the applicant using a peer to peer program to access three video files, two at the category 4 level and one at category 3. Those offences occurred on 3, 7 and 10 September 2014.

Count 5 was an aggravated offence of making available child pornography on three or more separate occasions and involving two or more people. On 1 and 10 September 2014, the applicant made eight child pornography images available to several other users of a peer to peer program and, on 7 and 10 September 2014, he made 50 child pornography images available to other users of that program. The majority of the images (22) were category 1, namely depictions of children with no sexual activity, with nine images at category 3 and 11 category 4 images.

Count 6 covered the applicant’s possession of 4,325 items of child pornography on six data storage devices. Of that material, 40.8 per cent was rated category 1 with 21.7 per cent in category 4 and 31.6 per cent in categories 2 and 3. The charge also covered his possession of two copies of an electronic magazine entitled “BL” and an electronic book title “HPCL” that described how to sexually abuse a child and provided advice about that process.

The classification of child pornography materials to which I have referred was described in a document provided to his Honour in these terms:

CATEGORY/LEVEL CETS/ CATEGORY GUIDE

1 CEM – No Sexual Activity Depictions of Children with No Sexual Activity – Nudity, surreptitious images showing underwear nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination.

2 CEM – Child Non-Penetrate Non-Penetrative sexual activity between children or Solo Masturbation by a child.

3 CEM – Adult Non-Penetrate Non-Penetrative sexual activity between child(ren) and adult(s). Mutual masturbation and other non-penetrative sexual activity.

4 CEM – Child/Adult Penetrate Penetrative sexual activity between child(ren) or between child(ren) and adult(s) - Including, but not limited to, intercourse, cunnilingus and fellatio.

5 CEM – Sadism/Bestiality Sadism, bestiality or humiliation (including but not limited to urination, defecation, vomit, bondage or acts of child abuse etc).

6 CEM – Animated or Virtual Animation, cartoons, comics and drawings depicting children engaged in sexual poses or activity.

While his home was being searched, the applicant made admissions to investigators and provided passwords to enable them to assume his on-line identities for the purposes of further investigation.

One of the psychologists who reported on him concluded that he suffered from “chronic mainly moderate to severe depressed mood, anxiety (including marked social anxiety) and low self-esteem”.¹

He described the incident affecting him when he was 15 as rape by an unknown man who appeared to have groomed him by online chat sites. That psychologist assessed him as being a “mild to moderate risk of re-offending should he not maintain psychological treatment, maintain regular care and supervision by his general practitioner and possible involvement with a psychiatrist”.²

There was also a report from his treating psychologist who said that there were significant predisposing factors and traumatic events when he was 15 which contributed to his propensity towards exposure to various forums online and subsequent offending behaviour. He confirmed that the applicant had shown considerable remorse and struggled with the shame and embarrassment caused to his family and himself. He confirmed the other psychologist’s opinion that the applicant was at a significant risk of self-harm.

Matters referred to by the sentencing judge

The learned sentencing judge referred to the applicant’s age, early plea of guilty, remorse and irrelevant prior criminal history. He also discussed his cooperation with the authorities by the admissions he made, the care he provided for his mother and grandmother and his history of little previous employment.

As well as referring to the circumstances of the offences and the psychological evidence his Honour pointed to the fact that the offences occurred over a long period of time. He also referred to the need for general deterrence as the primary sentencing consideration for these types of offences, said that a sentence involving a period of actual imprisonment was to be the norm in sentencing for this type of offending and that regard was to be given to the nature and content of the material including the number of items involved, whether the material was for sale or distribution and the number of children shown and thereby victimised which, in this case, was probably in excess of 5,000.

Here the applicant was involved in the distribution of material to others but did not profit from the offending. His Honour also drew attention to the maximum penalty for count 5 as 25 years imprisonment, reflecting the seriousness with which the Commonwealth parliament viewed the offences.

The offending occurred in two separate periods of about five months in 2010 and a further period of more than four months in 2014. He had one of the identities he used to access and distribute and make available the material for more than five years. The shutting down of the site in October 2010 indicated a wish to stop further offending at that stage.

Submissions

Mr Benjamin for the applicant drew our attention to a number of comparable decisions as did Ms Breckweg for the respondent. The focus of Mr Benjamin’s submission was that, although the head sentence imposed on each account was supportable from the comparable authorities, particularly the head sentence of four years imprisonment imposed in respect of count 5 adequately reflected the totality of the applicant’s offending conduct. He submitted that, however, when considering the matters in mitigation and the applicant’s lack of any relevant or serious prior offending, it was manifestly excessive to require him to serve one year and nine months before his parole release date and suspension date.

Ms Breckweg for the respondent argued that the offending was objectively extremely serious affecting many thousands of child victims who were predominantly pre-pubescent male children aged on average between eight and 10 years with images of infants also.

She made some helpful general submissions for offences of this nature. They were not said to be contentious and it is useful to set them out in detail. They were (footnotes included):

“7.3General deterrence is the primary sentencing consideration for offending involving child pornography³ given the prevalence and ready availability of pornography involving children, particularly on the internet⁴ and the need to protect children from sexual abuse;⁵

7.4There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime – the possession of child pornography material creates a market for the continued corruption and exploitation of children⁶ and children are sexually abused in order to supply the market;⁷

7.5Whilst the Respondent had no relevant prior convictions, it is well settled that prior good character carries less weight in sentencing for child pornography offending;⁸

7.6Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as an accessible means of allowing people to access and obtain child pornography;⁹

7.7Offending involving child pornography is difficult to detect given the anonymity provided by the internet;¹⁰

7.8The fact that an offender does not pay to access a child pornography website, or was not involved in the distribution or sale of child pornography, does not mitigate the offending;¹¹

7.9The maximum penalties provide an unequivocal indication that the offences, in particular Count 5, can only be viewed as being extremely serious.¹² Further, the changed legislative landscape represented by penalty increases is of considerable importance in assessing the objective seriousness of the offending.¹³”

She also submitted that the sentences imposed in this case showed a degree of leniency as no accumulation was ordered between the sentences despite the existence of several separate and distinct forms of offending involving separate acts of serious criminality.¹⁴ She argued that the sentences on counts 2, 3 and 5 also showed a degree of leniency because they were “rolled up” charges, each involving numerous instances of offending that were each capable of constituting a separate offence so that the criminality involved in each of the charges was greater than with the charge involving only one episode of criminal conduct.¹⁵

She pointed out that no orders were made for accumulation between the charges while conceding that the prosecutor on the plea did not submit that accumulation was required. She submitted that specific deterrence remained of importance given the findings of the psychologists as to the prospects of the applicant reoffending and the fact that while he ceased offending in 2010, he subsequently reoffended.

She submitted that there was a need for consistency nationally in sentencing for federal offences and argued that the period of time to be served in this case was not outside the range for appropriate sentences for serious offending of this nature when regard was also had to sentencing patterns throughout Australia for comparable offending.

She drew our attention to one of the few relevant intermediate appellate decisions involving s 474.24A of the Criminal Code (Cth). That was the decision in R v Linardon.¹⁶ That decision was also the subject of submissions by Mr Benjamin for the applicant.

There had been a Crown appeal against sentence for overall offending involving the possession of 4,530 child pornography images and 40 videos where the majority of material was category 1. There had been the transmission of 256 videos, images and texts to 12 email accounts where the majority of material was category 4 and the accessing of 130 images and videos from four email accounts with most material classified as categories 1, 3 and 4. The respondent also was sentenced for sending indecent communications to a nine year old girl consisting of 199 child pornography files and 13 text files, all classified as levels 3 and 4 and an aggravated offence involving the sending of 14, 18 and 54 images and videos to three to four email accounts. The majority of that material sent was level 1.

It has been said of level 1 materials that they are not innocuous as they encompass a wide range of activity including close up images of children exposing their genitals and engaging in masturbation.¹⁷

In Linardon the respondent was ultimately sentenced to five years imprisonment with a non-parole period of three years.

In arguing that it had not been shown that the sentences imposed in this case were manifestly excessive she referred us to a number of decisions, submitting that they showed an identifiable existing sentencing pattern for offences of this type which should provide an appropriate yardstick for comparison, notwithstanding that this case also involved an aggravated offence carrying a maximum penalty of 25 years imprisonment. The decisions were analysed by her as follows.

“(a)In R v Davis,¹⁸ an appeal against a sentence involving 16 months imprisonment to serve for accessing and possessing 49,817 images and 305 videos was dismissed;

In R v Martin,¹⁹ a Crown appeal against a sentence involving possession of over 126,000 items of child pornography, accessing child pornography material over a four year period and a further three month period, the production of three videos and the sharing of over 47,000 items was upheld. The Court resentenced the offender to a term of 5 ½ years’ imprisonment with a non-parole period of three years in circumstances where he was not sentenced for the aggravated offence pursuant to s 474.24A;

In CDPP v Garside,²⁰ the majority, whilst exercising its residual discretion not to intervene, held that offending involving the access and possession of 6,018 child pornography items (with the majority at category 1) should have warranted an ‘immediate and substantial period of imprisonment’;

In R v Porte,²¹ a Crown appeal against sentence was upheld in respect of the access and possession of 34,143 items of child pornography, with the majority of images classified as level 1 and the majority of videos classified at level 4. In that case, which did not involve transmission, making available, or an aggravated offence, the Court resentenced the offender to a period requiring that he serve 18 month imprisonment before release on parole; and

In R v De Leeuw,²² the Court upheld a Crown appeal against a sentence imposed for three counts of accessing child pornography material and one charge of possessing over 32,600 items of child pornography over seven years. The majority of images were classified as level 1 and the majority of videos were classified as level 4. In that case, there was no charge of making available or sharing child pornography, nor was there an aggravated offence charge. The Court resentenced the offender to three years imprisonment with a non-parole period of nine months.”

Mr Benjamin also drew our attention to a number of other decisions apart from Linardon.

R v Edmondson²³ involved two counts of the aggravated offence pursuant to s 474.24A. On the first of the counts, Edmondson transmitted more than 1,066 files to 34 recipients on three occasions. On the second count over a period of nearly three months he transmitted 126 files to 34 recipients. He was also sentenced for three offences of transmitting or making available child pornography material, three counts of accessing that material, one count of making child exploitation material and one of possessing such material. He submitted that Edmondson had compelling mitigatory circumstances including favourable reports about his progress at rehabilitation. He was sentenced to four years imprisonment for the second of his aggravated offences and shorter concurrent terms for the remaining offences with an order that he be released forthwith on a recognizance for the Commonwealth offences and on an immediate suspension for his State offences.

R v Templin²⁴ involved a sentence for three counts of accessing child pornography, two counts of making it available and a single count of the aggravated offence of making material available. The offender also faced a single count of possessing child exploitation material as a State offence. His aggravated offence involved him making an increasing number of files available over 12 separate occasions. He began by making 76 files available which increased to 233 files over less than a year. He was sentenced to three and a half years imprisonment on that count and shorter concurrent periods on the remaining counts with a recognizance release order after serving 12 months. For the State offence he was sentenced to 12 months imprisonment suspended after four months.

Mr Benjamin submitted that the applicant has demonstrated good prospects of rehabilitation having regard to his cooperation with the authorities in providing his passwords and account details, his early pleas of guilty and his voluntarily seeking counselling and that it would be appropriate to fix a non-parole period for counts 1 to 5 at 12 months and to suspend the State sentence on count 6 after he had served 12 months with an operational period of four years as was the case before the learned sentencing judge.

Conclusion

The decision in R v Linardon as well as, in particular, those in R v Martin and R v Porte, were ones where significant non-parole periods were imposed. The nature of the offending described in those decisions permits some reasonable comparison between those cases and this one. I recognise that no cases are precisely the same but there is a degree of consistency in the decisions in fixing significant non-parole periods where a non-parole period is set.

When one compares the facts of those three cases with this one it cannot be said, in my view, that the sentence imposed was inappropriate. This was very serious offending affecting the most innocent members of society by assisting in their corruption and exploitation. Having regard to the pattern of sentencing for Commonwealth offences such as these, it cannot be said, in my view, that the non-parole period fixed by his Honour or the period of suspension after one year and nine months for the State offence could be said to be manifestly excessive. It was consistent with other similar other sentences.

Order

The order should be that the application for leave to appeal is refused.

Footnotes

1. See ARB 51. ↩

2. See ARB 51. ↩

3. DPP (Cth) v Watson [2016] VSCA 73 at [47]; DPP (Cth) v Garside [2016] VSCA 74 at [20] R v De Leeuw [2015] NSWCCA 183; R v Porte [2015] NSWCCA 174; Fitzgerald v R [2015] NSWCCA 266 at [33]; DPP (Cth) v Zarb [2014] VSCA 347 at [34]; DPP (Cth) v Guest [2014] VSCA 29 at [23-24]; Heathcote (a pseudonym) v The Queen [2014] VSCA 35; DPP (Cth) v D’Alessandro (2010) 26 VR 477 at 483-4, [21]; R v Mara (2009) 196 A Crim R 506 at [20]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; R v Gordon [2009] QCA 209 at [43]; R v Fulop (2009) 236 FLR 376; R v Gent (2005) 162 A Crim R 29*; R v Jongsma* (2004) 150 A Crim R 386 at [395]. ↩

4. Assheton v R (2002) 132 A Crim R 237 at [35]; R v Gent (2005) 162 A Crim R 29 at [100]; CDPP v D’Alessandro (2010) 26 VR 477 at [21]; R v Jongsma (2004) 150 A Crim R 386 at 405 [35]-[36]. ↩

5. R v Gent (2005) 162 A Crim R 29 at [65]. ↩

6. R v Coffey (2003) 6 VR 543 at [552]; R v Cook; Ex Parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma (2004) 150 A Crim R 386 at 395, [14]; Heathcote (a pseudonym) v The Queen [2014] VSCA 35 at [40]. ↩

7. R v Jones (1999) 108 A Crim 50 at [9]; DPP v D’Alessandro (2010) 26 VR 477 at 484, [23]. ↩