R v Jones [1999] WASCA 24

Appeal allowed. Sentence of 18 months immediate imprisonment substituted for 2 year suspended sentence.

Appellant : Acting State Director of Public Prosecutions

Britten v The Queen, unreported; CCA SCt of WA; Library No 940079; 21 February 1994

R v Dao, unreported; CCA SCt of WA; Library No 990015; 22 January 1999

R v Dickson, unreported; CCA SCt of WA; Library No 990203; 23 April 1999

R v Dinsdale, unreported; CCA SCt of WA; Library No 990021; 2 February 1999

R v GP (1997) 18 WAR 196

R v Percy [1975] Tas SR 62

R v Ritchie, unreported; Ontario Court of Justice (Provincial Division); [1997] OJ No 5564; 18 September 1997

R v Thomas (1997) 96 A Crim R 32

R v Valentini [1980] FCA 133; (1980) 2 A Crim R 170

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wallwork J, with which I am in agreement. I also agree with the orders which his Honour proposes.

2 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.

3 In this State, the Indecent Publications and Articles Act 1902 was amended in 1992 by inserting s 2A, which deals with child pornography as a separate category of material. The section created a number of offences, including exhibiting child pornography in a public place, possession of child pornography, having possession of child pornography with intent to sell or supply to another and selling or supplying, or offering to sell or supply, child pornography to another. In the case of an individual, the penalty provided was a fine of $4000 or imprisonment for a term not exceeding 12 months, except in the case of possessing child pornography with intent to sell or supply it to another, and selling or supplying, or offering to sell or supply, child pornography to another, which carried a fine not exceeding $25,000 or imprisonment for a term not exceeding 5 years.

4 In 1996, the new Censorship Act was passed, in which some additional offences with respect to child pornography were introduced, and penalties were increased. By s 60(4), under which the respondent was charged, a person who possesses or copies child pornography is guilty of a crime, and is liable to imprisonment for 5 years. For possessing or copying child pornography with intent to sell or supply it to another, the penalty has been increased to 7 years.

5 Reference may be made to two decisions from other jurisdictions in order to illustrate the growing problem of child pornography. The first is a Canadian decision. In R v Stroempl (1995) 105 CCC (3d) 187, Morden ACJO, in the Ontario Court of Appeal, was considering the case of a person who had been convicted of possessing 12 magazines, over 300 photographs, 16 drawings and 10 video cassettes, and some additional material. At 191, he said:

"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."

6 In the second decision, the Court of Appeal in R v Follows [1997] 2 All ER 548, was concerned with a case in which the offender had been convicted on four counts of possessing indecent photographs of a child, and one count of having an obscene article for publication for gain. He was sentenced to 3 years' imprisonment and appealed against that sentence on the ground that it was appropriate to a commercial pornographer, but not appropriate to a computer enthusiast who had electronically swapped material with like minded people without financial motive. Evans LJ, delivering the judgment of the court, said as to this contention:

"We cannot agree. As the judge said, in other cases where financial gain was in prospect or the defendant set out to corrupt others who previously were innocent, an even longer sentence might be inevitable. There is enormous public disquiet at the potential which the internet offers for the international transmission of pornography, in particular for those whose perverted tastes include collecting and viewing indecent photographs of children. Add to this the public revulsion against paedophilia in all its forms and it becomes clear, in our judgment, that heavy deterrent sentences must be imposed when serious offences, which are not always easy to discover, come to light."

7 It is apparent that, by its recently having increased the penalty for simple possession of child pornography, the Parliament is inviting courts vigorously to pursue the objectives of general deterrence and denunciation in sentencing offenders.

8 In the present case, the offence for which the respondent was to be sentenced was one of possession alone. He was to be sentenced on the agreed footing that he had not purchased any of the material and that he had no intention of distributing it. Nor had he shown it to any other person. Whilst accepting, as he had to, the fact that the content of the material was deviant, the respondent claims, and it must be accepted, thathe does not, and has not, engaged in any sexual behaviour with children. Nevertheless, he became engrossed in the process of collecting child pornography and collating over 80,000 separate images.

9 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.

10 IPP J: I have read the reasons to be published by Wallwork J. I agree with them and his Honour's conclusions. I have nothing further to add.

11 WALLWORK J: The respondent pleaded guilty in the District Court at Perth on 15 January 1999 to a charge that on 2 September 1998 at Hillarys he possessed child pornography contrary to the provisions of s60(4) of the Censorship Act 1996. Section 60(4) of the Act provides that a person who possesses or copies child pornography is guilty of a crime and is liable to imprisonment for five years. Section 60 also provides for offences of possessing child pornography with intent to sell or supply, or selling or supplying child pornography. Those last mentioned offences carry a maximum term of imprisonment for seven years. A person who displays, exhibits or demonstrates child pornography commits an offence and is liable to imprisonment for five years.

12 The facts given to the learned sentencing Judge were that on 2 September 1998 detectives from the Child Abuse Unit executed a search warrant at the respondent's home in Hillarys. During the search a large quantity of computer equipment was seized, including eleven CD-Rom disks and a personal computer containing three hard drives. The respondent was questioned at his home in relation to those items, but declined to make any comment about them.

13 When the CD-Roms and hard drives were investigated by the police officers, they found a large number of images of child pornography together with other pornography. The learned Judge was told that in total the hard drives and the CD-Roms contained in excess of 162,600 imagesof child pornography. Allowing for duplication, it was assumed that there were in excess of 80,000 separate images. The images were of children under the age of 16 years. Some of them were naked, some of them semi-naked and some were engaged in sexual contact with other children and also with adults. An effort had been made to arrange the images into an alphabetically organised series of directories.

14 Counsel for the respondent told the learned Judge, amongst other things, that the respondent was then 43 years of age. Until September of 1998 he had been a partner in a leading accountancy firm in Perth. He had been married for 24 years. He had two teenage daughters. He had no criminal record at all. It was said that the respondent had had a very deprived childhood. His mother had died when he was aged 4. It was said that after that time he had been maltreated by his father. Also that for some reason, and perhaps because of the way he had been brought up, he had not developed or could not develop a proper empathy with people. He had become an obsessive collector and collator.

15 Counsel said that the respondent was extremely intelligent. He had drifted for some time after he was ejected from his home at the age of 16 years. He had then met his wife. He had begun to work very hard and ultimately he passed the Public Service exams. He had then progressed through the Commonwealth Public Service until, in the late seventies he had commenced studying part time for a Bachelor of Commerce degree. In 1987 he had left the Public Service and obtained work with a firm of accountants. Due to hard work he had ultimately become a partner in a leading firm of accountants.

16 It is apparent from all the evidence that the respondent was regarded by those who knew him as hard working and competent. He was highly regarded by both clients and peers and also by the regulatory bodies with which he dealt in connection with his work. He was involved with various professional committees. By the financial year 1997/1998 he had achieved a very high personal income. As a result of being apprehended for the relevant offence he had retired from the partnership. This will result in the loss of a huge sum. The respondent regarded himself as being virtually unemployable in Perth.

17 It was said for the respondent that although he had been successful in his career, in private he had been quite depressed. He had withdrawn from his family and from people other than those with whom he worked. It was in this situation that he had become involved in collecting the offensive material. Once he had started collecting it, it was said that the collating had followed. It was said that the large number of images was explained by his characteristic of being an obsessive collector and collator. He had not disseminated the material which he had downloaded in any way. He had been careful to keep this activity from his family. He had not purchased any of the material. It was said that he did not view it all. He had not engaged in any sexual behaviour with children.

18 It was submitted that the effect of the offence on the respondent had been catastrophic. If he had worked until he was 60 years of age his income would have potentially been millions of dollars. After his apprehension, he had determined to take his own life, but his wife had talked him out of that. It was his intention to try and remain in Western Australia. He had suffered much media exposure and his family had been greatly embarrassed. It was said that he felt a great deal of genuine remorse. He was in need of therapeutic intervention and intended to undergo that. His wife had indicated that she would stay with him on the condition that he continued his therapy. A number of character reports were given to the Judge which, in short, described his character as excellent. It was said that he was in no way a risk to the community.

19 Counsel for the prosecution submitted to the learned Judge that people who possess child pornography provide a ready market for those who profit from the violation and exploitation of children. Children are corrupted and degraded in the course of the production of the offending material. It was said that this case fell at the most serious end of the scale due to the nature of the material and the sheer quantity of it.

20 In sentencing the respondent the learned Judge said that the images which the respondent had had in his possession involved appalling perversion and degradation of young females. There was no doubt that the activities pictured had caused enormous harm to the children involved. The learned Judge said that it was necessary for the Court to demonstrate the condemnation of the community in order to deter others and to ensure that the respondent did not offend again in that way. A sentence of imprisonment was required. The only issue was whether or not it should be suspended.

21 The learned Judge said that the issue concerning the suspension of the sentence involved a balancing of the seriousness of the offence against all the circumstances relevant to the offence and the respondent's personal circumstances. There was a distinction between possessing or copying child pornography contrary to s60(4) of the Act and other offences created by s60. The possession charge contained no element relating to the involvement or potential involvement of any person other than the offender. The offence could be committed by a person within the privacy of his or her own home without the involvement or intended involvement of any other person. However, the maximum punishment of five years imprisonment was the same as the maximum term of imprisonment for the publication and exhibiting of child pornography.

22 The learned Judge noted that Lord Lane CJ in R v Russell (1986) 8 Cr App R (S) 368 had said in effect, that the distribution, whether for profit or not, of this type of material is to be sharply discouraged, because there is a clear public interest in preventing any access to child pornography. The Judge accepted that no other individual had been directly involved and that the offence did not form a part of any other criminal conduct. The learned Judge remarked that at that stage the Act was fairly new and the respondent had been only the second person to come before the Courts in this State for this offence . The Judge said, "There is some concern that people are simply looking at this and really that is about all they are doing and that they are not really aware of the damage that it does."

23 The learned Judge said that the respondent had no record of any description. He had bought the material and had not passed it on. He was a married man with two children. Nobody had spoken of any problems involving him in any sexual deviance or inappropriate sexual behaviour. A report from a very well respected forensic psychologist had revealed that the respondent had been an extremely emotionally abused child. It was unlikely that he would again become a partner in a major accounting firm. His family had been publicly humiliated. His reputation was in tatters, as was his career. He had pleaded guilty on the fast track system. In reality all that he had left was his wife and children. In all the circumstances it was not appropriate to send him to prison for the first time. However, it was appropriate to sentence him to two years imprisonment to be suspended for two years to mark the gravity of the offence and to express the condemnation of the community.

24 On this appeal it was argued for the appellant that the seriousness of the offence together with the need to demonstrate the condemnation of the community for such offences outweighed all other factors so as to make a suspended sentence inappropriate. It was submitted that although this case was not the worst imaginable, it was extremely serious by virtue of the sheer quantity of images found in the respondent's possession. The number of images involved in R v Liddington (1977) 18 WAR 394, had been about 455, whereas this offence was concerned with more than 80,000 separate images.

25 It was submitted that a suspended sentence was disproportionate to the seriousness of the conduct and was manifestly inadequate. The number of images pointed to a sustained and persistent course of offending conduct. The sentence had failed to send any clear indication of the proper condemnation of the Court and the community for the behaviour involved. It had failed to reflect the need for general deterrence in order to protect children. It was submitted that the learned sentencing Judge had erred in failing to give sufficient weight to the fact that the possession of child pornography creates a market which involves the corruption, violation and exploitation of children.

26 In my view it is relevant in considering this appeal that in Liddington (supra) Malcolm CJ said at 395:

"While it may well be that I might have come to a different conclusion from the learned sentencing Judge, I do not consider that it is possible to say in the context of a Crown appeal, that the discretion which the learned sentencing Judge had to suspend the sentence miscarried."

"...Speaking for myself I doubt whether I would have imposed a suspended sentence. That however is not the question to be answered in this appeal."

"The issue in this case seems to me, as it does to the Chief Justice and to Ipp J, to be finely balanced."

29 Those words from the learned Judges in Liddington indicate that the crossover point between a suspended sentence and a sentence of immediate imprisonment must have been very near in that case. In this case the large number of images which were found in the respondent's possession in my view make this offence far more serious than that in Liddington. That is because the aspect of the degradation of the children is more serious because there is a much larger number of images involved.

30 I accept the proposition advanced by the Crown in Liddington which was referred to by Ipp J at p403 of that report:

"The mere fact that persons are prepared to possess child pornography, albeit for their private purposes, necessarily creates a market for the corruption and exploitation of children. Children are abused, violated and degraded in order to create a market of this kind."

31 It is also significant that the children concerned are not usually in a position where they can protect themselves.

32 Accepting that the respondent's freedom is in jeopardy for a second time on this Crown appeal, and also that before the appeal can succeed, it must be established that the suspended sentence imposed was so inadequate as to manifest error - R v Grein [1989] WAR 178 at 180 - it is my opinion, that due to the very large number and type of images involved and the extent of the degradation of the children, the sentence should not have been suspended and error has been established in this case. This Court must then impose the sentence which ought to have been passed - s689(3) of the Criminal Code.

33 The maximum sentence which could have been imposed upon the respondent was five years imprisonment. The learned Judge correctly took into account, amongst other things, the fact that the respondent was a first offender. He had worked extremely hard to establish himself. He had supported his family. The offence had resulted in a huge financial penalty to him with the loss of his position and income. He had not directly involved any other person in any sexual activities or with the offensive material. He had not distributed the material in any way. There were also the questions concerned with his unfortunate childhood. Finally, he had pleaded guilty on the fast track system and thereby saved the State the considerable cost of a trial. He was entitled to a substantial reduction in an otherwise appropriate sentence for that.

34 In my view the sentence of two years imprisonment which was imposed by the learned Judge (leaving to one side the suspension) was within the appropriate range in all the circumstances, particularly in view of the fact that no other persons had been directly involved and taking into account the mitigating factors personal to the respondent including his fast track plea of guilty. However, as stated above, the suspension of the sentence was not correct.

35 In R v Rudd, unreported; CCA SCt of WA; Library No 940630; 10 November 1994, Rowland J, with whom Owen J agreed, said the fact that that appeal was a Crown Appeal:

"...must, to some extent, temper the resentencing that the court undertakes on appeal to take into account the double jeopardy aspect to which the respondent is now subjected (R v Tait (1979) 46 FLR 386; Ferrer-Esis (1991) 55 A Crim R 231, at 236 per Hunt J, with whom Gleeson CJ and Lee CJ at CL agreed; and Foster and D'Anna (1992) 59 A Crim R 14, at 22 per Seaman J, with whom Malcolm CJ and Ipp J agreed)."

36 Applying those principles to this case, and taking into account the time which has passed since the respondent was sentenced on 15 January 1999 and the uncertainty which has attached to his future arising from this appeal, in my opinion the appeal should be allowed and a sentence of eighteen months imprisonment substituted for the two year suspended sentence which was imposed by the learned Judge.