R -v- LEE [2013] WASCA 216 (19 September 2013)

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4)

Crimes Act 1914 (Cth), s 16, s 16A, s 16BA, s 17A, s 20(1)(b), Pt 1B

Criminal Code (WA), s 220, s 320, s 321, s 321A, s 378(7)

Customs Act 1901 (Cth), s 233(1), s 233BAB(5)

Judiciary Act 1903 (Cth), s 68

Misuse of Drugs Act 1981 (WA), s 6(1)

Sentencing Act 1995 (WA), s 6(4), s 39(3)

Assheton v The Queen [2002] WASCA 209

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638

Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464

Collins v The State of Western Australia [2007] WASCA 108

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477

Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370

Director of Public Prosecutions (Cth) v Ison [2010] VSCA 286

Director of Public Prosecutions (Vic) v Groube [2010] VSCA 150

Director of Public Prosecutions v Smith [2010] VSCA 215

Furber v The Queen [2008] WASCA 233

Gent v The Queen [2005] NSWCCA 370; (2005) 162 A Crim R 29

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Hill v The State of Western Australia [2009] WASCA 4

Phinthong v The Queen [2011] WASCA 192

Ponniah v The Queen [2011] WASCA 105

R v Cook; ex parte Attorney-General (Qld) [2004] QCA 469

R v Cruz; ex parte Director of Public Prosecutions (Cth) [2010] QCA 90

R v Davis [2012] QCA 324

R v Gordon; ex parte Director of Public Prosecutions (Cth) [2009] QCA 209

R v Oliver [2008] EWCA Crim 2561; [2003] 2 Cr App R (S) 15

Smit v The State of Western Australia [2011] WASCA 124

The State of Western Australia v Johnson [2010] WASCA 187

The State of Western Australia v Munda [2012] WASCA 164

Vagh v The State of Western Australia [2007] WASCA 17

VIM v The State of Western Australia [2005] WASCA 233

1 McLURE P: This is a Commonwealth Crown appeal against sentence. The respondent was convicted after trial of one count of intentionally importing goods, being tier 2 goods comprising items depicting child pornography contained on a DVD, being reckless to the fact that the goods were tier 2 goods the importation of which was prohibited under s 233BAB(5) of the Customs Act 1901 (Cth). The offence was committed on 10 December 2010 at Perth International Airport.

2 At the same time, the respondent imported a second DVD that contained abhorrent material in contravention of s 233(1)(b) of the Customs Act. Following his conviction on the child pornography offence the respondent admitted his guilt to the abhorrent material offence and requested, pursuant to s 16BA of the Crimes Act 1914 (Cth), that it be taken into account in passing sentence for the child pornography offence.

3 On 20 December 2012 Wager DCJ sentenced the respondent on the child pornography offence to 15 months' imprisonment and ordered that he be released forthwith upon entering into a recognisance in the sum of $5,000 to be of good behaviour for 15 months.

4 The appellant relies on six grounds of appeal. They are that the sentencing judge erred in law:

(1) by releasing the offender forthwith in that her Honour gave insufficient weight to the nature and circumstances of the offending;

(2) by proceeding on the basis that there was a relevant difference, for sentencing purposes, between the offender's knowledge as to the likely content of the DVD versus his recklessness in relation to the actual content of the DVD;

(3) by releasing the offender forthwith in that her Honour gave insufficient weight to the need for general deterrence;

(4) in finding that the circumstances in which the offender had completed his incoming passenger card (IPC) were mitigatory;

(5) by releasing the offender forthwith in that her Honour gave too much weight to the circumstances in which the offender had completed the IPC and his apparent cooperation on apprehension;

(6) by imposing a sentence that was manifestly inadequate in all the circumstances of the case.

5 Leave to appeal was granted on ground 6. The application for leave to appeal on the remaining grounds was referred to the hearing of the appeal.

6 On 10 December 2010 the respondent arrived at Perth International Airport on a Cathay Pacific Airways flight. The respondent presented to a Customs marshall an IPC which he had completed and in which he had answered 'yes' to the first question which read:

Are you bringing into Australia [g]oods that may be prohibited or subject to restriction, such as medicines, steroids, pornography, firearms, weapons or illicit drugs?

7 The Customs marshall queried the respondent as to what he was declaring in answer to question 1 on the IPC. The respondent told her he had medicines. The marshall decided to refer the respondent for a full baggage examination.

8 At the baggage examination area, a second Customs officer (Officer Sanderson) asked what he was declaring in answer to question 1 on the IPC. The respondent stated that he had some medicines and pornography. On examination of the respondent's baggage, 10 DVDs containing pornographic material were located.

9 When asked about the pornographic DVDs, the respondent informed Officer Sanderson that he had purchased them from a shop in the Philippines called 'Savers'. At trial the respondent's evidence was that this was a false statement and that he had purchased the DVDs from two street vendors around six months prior to his arrival in Australia on 10 December 2010.

10 The respondent also told Officer Sanderson that he had looked at the covers and read the stories on the backs of the DVDs at the time he purchased them. At trial the respondent's evidence was that he had not read the DVD covers because he was intoxicated when they were purchased and did not have his glasses. Instead, he relied on the street vendors' advice that the DVDs did not contain 'animal farm' or 'underage' sexual activities. He also claimed to have relied on his wife's review of the DVDs and her judgment that they were all right to purchase.

11 The DVD containing the child pornography was entitled 'Child Abuse - Tanning Trio' and had the following text on the cover:

They are playful and cute but what if you see them do nasty things? These kids are really hot. Watch them play but beware for they can make you kinky and wild.

12 The cover of the DVD also contained images of naked and semi-naked female children in sexualised poses. The DVD contained four separate movies constituting child pornography, the first three having a total duration of just over three hours and the fourth just over 28 minutes.

13 The DVD the subject of the abhorrent material offence contained two movies depicting simulated sexual assaults of an adult female by a number of adult males.

14 The sentencing judge, who was also the trial judge, made findings of fact for the purpose of sentencing. She did not accept the Crown submission that the respondent answered 'medicines' to the Customs marshall's question in order to avoid further checks. The sentencing judge found that the respondent's disclosure to the Customs marshall was mitigatory in that by making the disclosure he was aware that he would bring himself to the attention of the authorities, or that it was highly likely that he would do so (ts 155).

15 The sentencing judge accepted the correctness of the admissions made by the respondent to Officer Sanderson rather than the evidence given by the respondent at trial. In particular, the sentencing judge found that the respondent was generally aware of the cover, including the written material thereon, of each of the DVDs he purchased.

16 The sentencing judge also found that the respondent did not view the DVD containing the child pornography but, being aware of the cover and the basic story of the DVD, he was reckless as to its further contents.

17 In describing the level of depravity of the child pornography, the sentencing judge used the classification levels adopted by the court in R v Oliver [2008] EWCA Crim 2561; [2003] 2 Cr App R (S) 15 (the Copine scale), which are as follows:

1. images depicting erotic posing with no sexual activity;
2. sexual activity between children, or solo masturbation by a child;
3. non-penetrative sexual activity between adults and children;
4. penetrative sexual activity between children and adults;
5. sadism or bestiality.

18 As to the cover of the DVD containing child pornography, the sentencing judge said:

So I've viewed the cover, and assessed the photographs there as being category 1 in categories of child pornography; that is, they show young children in provocative, sexual poses.

The wording on the cover, in my view, is consistent with perhaps level 2 child pornography. You were reckless you didn't check the DVD further. But I accept that the contents of the DVD itself, the severity of the material it contains, is not readily apparent from the cover ...

The pornography on the DVD was, in fact ... far more serious than the covers indicated (ts 156).

19 The sentencing judge concluded that the first movie on the child pornography DVD was in category 4 on the Copine scale, it showing two female children engaging in sexual activity with each other and with an adult man. She assessed the second movie as category 4, it showing two female children aged approximately 12 to 14 engaged in oral and penetrative activity with an adult male. The third movie she assessed as category 5, it showing a 12 to 14-year-old female child bound and gagged while forcibly engaged in sexual acts with an adult male. The final movie she assessed as category 2, it showing a male and female child aged 6 to 10 years engaged in masturbation and penetrative sexual activities. The sentencing judge found that the DVDs were for the respondent's personal use only.

20 The respondent was aged 53 when he committed the offences. He was born and educated in Western Australia. He completed year 12 at school and had a good work history, principally as a merchant seaman. The respondent has health problems including diabetes, hepatitis C, liver damage and related issues. He also suffers from depression although that did not contribute to the offences. He abused alcohol in the past but had reduced his consumption due to his health problems. The respondent's wife and three children reside in the Philippines. The respondent returns to Western Australia on a regular basis to visit family and access medical entitlements. He had no prior record.

21 The sentencing judge found that the respondent displayed little empathy or remorse for his offending but accepted that was due to his health problems. She also accepted that the respondent partially cooperated at the time of his apprehension and that the lies he told did not present any impediment to his apprehension and arrest.

22 After concluding that the child pornography in the respondent's possession was so serious that a sentence of imprisonment was the only appropriate option, the sentencing judge continued:

Given your disclosure to question 1 and your cooperation on apprehension, I consider that even despite the serious nature of the material on the DVD, your sentence can be one where you are to be released forthwith.

I also, for the reasons I have outlined, consider that yours was a situation of recklessness. You were aware of the cover, but the cover was in my view consistent with category 1 to category 2. You were reckless in respect of the real content of that DVD (ts 159).

General sentencing principles and comparable cases

23 The matters to which a court must have regard when passing sentence in respect of any person for a federal offence are listed in Pt 1B of the Crimes Act. The court must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1). Section 16A(2) lists matters that the court must take into account in sentencing. Missing from the list of mandatory sentencing matters is general deterrence, that is, the deterrent effect any sentence may have on persons other than the offender or his or her family or dependents. However, as is made clear in the opening words of s 16A(2), the list in that subsection is not exhaustive. Other matters may also be taken into account. Moreover, other fundamental common law sentencing principles, including totality and parity, do not feature in the express terms of the Crimes Act.

24 The relationship between the Crimes Act and common law principles of sentencing was addressed by the High Court in Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520. The majority said:

[Section] 16A of the Crimes Act, on its proper construction, accommodates the application of common law principles of sentencing, such as the principle of 'totality' ... Section 16A accommodates the application of that and some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression 'of a severity appropriate in all the circumstances of the offence' used in s 16A(1), as well as some of the expressions used in s 16A(2), such as 'the need to ensure that the person is adequately punished for the offence' (s 16A(2)(k)). But s 16A does not permit the making of generalisations across all forms of federal offence about how individual sentences are to be fixed [25].

25 In Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 [18], the High Court cited with approval the conclusion in Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 that s 16A of the Crimes Act accommodates the principle of general deterrence.

26 The majority in Hili also emphasised that in dealing with appeals against sentences passed on federal offenders, whether the appeal is brought by the offender or by the prosecution, there is a need for consistency of decisions throughout Australia and that such consistency is to be achieved through the work of intermediate appellate courts. After reminding intermediate courts of appeal that they should not depart from an interpretation placed on Commonwealth legislation by another Australian intermediate appellate court unless convinced that interpretation is plainly wrong, the majority continued:

So, too, in considering the sufficiency of sentences passed on federal offenders at first instance, intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts, unless convinced that the decision is plainly wrong [57].

27 However, when considering comparable cases and the sufficiency of sentences, it must be recalled that in some but not all respects, Pt 1B of the Crimes Act refers to and picks up State and Territory legislation affecting service of a sentence of imprisonment.

28 What reveals manifest inadequacy (or manifest excess) in a sentence is consideration of all the matters that are relevant to fixing the sentence: Hili [60]. The approach to implied error that is applied in this jurisdiction to State offenders is, in effect, the same as that approved by the High Court in Hili for federal offenders. See The State of Western Australia v Munda [2012] WASCA 164 [56], [57] and [59].

29 Further, under s 17A of the Crimes Act, a court must not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. This State's legislation is to the same effect: Sentencing Act 1995 (WA), s 6(4), s 39(3).

30 In respect of a number of State offences, this court has made it clear that ordinarily a term of immediate imprisonment is the only appropriate sentencing option. The State offences in this category include drug dealing contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA), stealing as a servant contrary to s 378(7) of the Criminal Code (WA) (the Code), sexual offences against children contrary to s 320 - s 321A of the Code and possession of child exploitation material (defined to include child pornography) contrary to s 220 of the Code (and its predecessor s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (the Classification Act)).

31 In relation to those offences in which a term of immediate imprisonment is ordinarily the only appropriate sentencing option, significant weight is given to general deterrence with the consequence that mitigating circumstances personal to the offender, including age and good character, are accorded less weight: The State of Western Australia v Johnson [2010] WASCA 187 (drug dealing); Collins v The State of Western Australia [2007] WASCA 108 (stealing as a servant); VIM v The State of Western Australia [2005] WASCA 233 (sexual offences against children); Smit v The State of Western Australia [2011] WASCA 124 (possession of child pornography). In cases where immediate imprisonment is the only appropriate type of sentence, the mitigating factors have a greater impact on the length of the term: Johnson [21].

32 However, even if a term of immediate imprisonment is ordinarily the only appropriate penalty, the sentencing judge is not thereby relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the ordinarily appropriate type of sentence: Collins [21]; Johnson [16].

33 The application of these principles by this court has the effect that a sentence other than immediate imprisonment for offences within this category is, as a matter of fact, exceptional. For example, of the 21 cases between 1997 and August 2013 in which this court and its predecessor has considered sentences imposed for the State offence of being in possession of child pornography, all but two confirmed or resulted in a term of immediate imprisonment. Most offenders had pleaded guilty and had no prior criminal record: Hill v The State of Western Australia [2009] WASCA 4 [28].

34 This court has applied the same principles, with the same effect, to some federal offences including the importation of child pornography contrary to s 233BAB(5) of the Customs Act: Assheton v The Queen [2002] WASCA 209; Furber v The Queen [2008] WASCA 233; Ponniah v The Queen [2011] WASCA 105; Phinthong v The Queen [2011] WASCA 192.

35 In Ponniah this court set aside a sentence of 12 months' imprisonment and an order that the offender be released after 6 months on a recognisance release order. Having served nearly all of the custodial portion of that sentence, this court re-sentenced the offender to 6 months' imprisonment to be released forthwith upon giving a recognisance to be of good behaviour for 6 months. The offender was a youthful (aged 23) Indian national studying in Australia. He pleaded guilty under the fast-track system. Most of the material did not depict real children and a substantial portion of it had been deleted. The respondent conceded that a term of immediate imprisonment was not called for.

36 Sentences of immediate imprisonment were upheld in Assheton, Furber and Phinthong. The appellant in Phinthong had pleaded guilty to one count of possessing child pornography contrary to s 60(4) of the Classification Act and one count of importing child pornography contrary to s 233BAB(5) of the Customs Act. The maximum penalty for the State offence was 5 years' imprisonment (now 7 years' imprisonment for a breach of s 220 of the Code). The maximum penalty for a breach of s 233BAB(5) of the Customs Act is (and was at the material time), relevantly, 10 years' imprisonment. The sentencing judge imposed a term of immediate imprisonment of 14 months for the State offence and 18 months, to be released on recognisance after serving 7 months, for the federal offence. The effect of the orders was that the appellant would be released after serving 14 months' imprisonment. On appeal that was reduced to 9 months because of a conceded factual error as to some commonality in the material the subject of the separate offences.

37 Mazza J (as he then was) said in Phinthong:

Whether an offender is sentenced under State or Federal Law, the sentencing principles, where an offender is found in possession of child pornography or importing child pornography, are the same. Ordinarily, a sentence of immediate imprisonment would be imposed. This is because such offences are not victimless crimes. Those who are prepared to possess or import it help fuel the demand for it, and in that way encourage the corruption and exploitation of children. In order to protect children, deterrence is the paramount sentencing consideration [24].

38 That statement of principle is consistent with the principles espoused by intermediate appellate courts in New South Wales (Gent v The Queen [2005] NSWCCA 370; (2005) 162 A Crim R 29, Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464), Queensland (R v Cook; ex parte Attorney-General (Qld) [2004] QCA 469, R v Cruz; ex parte Director of Public Prosecutions (Cth) [2010] QCA 90) and Victoria (Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477 [21]).

39 However, although the sentencing principles are largely in accord, their application by intermediate appellate courts in Queensland and Victoria more frequently results in a sentence other than immediate imprisonment, including when the scope of the cases is widened to include the federal offence of using a carriage service for child pornography material contrary to s 474.19 of the Criminal Code 1995 (Cth) (the Commonwealth Criminal Code): R v Gordon; ex parte Director of Public Prosecutions (Cth) [2009] QCA 209, R v Davis [2012] QCA 324, Director of Public Prosecutions (Vic) v Groube [2010] VSCA 150; Director of Public Prosecutions v Smith [2010] VSCA 215 and Director of Public Prosecutions (Cth) v Ison [2010] VSCA 286.

40 At this court's request, the Crown provided a schedule of intermediate appellate court decisions in appeals against sentences imposed for a breach of s 233BAB(5) of the Customs Act. The sentencing judge did not have the benefit of this schedule. The Crown had provided the sentencing judge with a schedule of sentencing dispositions in the District Court. In the 12 listed cases, all resulted in the imposition of a term of imprisonment but five offenders were ordered to be released forthwith on a recognisance release order. One of the offenders had already served 116 days in custody. All five cases involved one count of breaching s 233BAB(5). In three of the five cases the offender was a foreign national (one from China, one from Japan, one from the Philippines) in Western Australia on a working visa. In one of the cases the offender was an immigrant from Bangladesh. All had pleaded guilty and there were a range of other mitigating factors. The sentencing judges, in determining the appropriate penalty in the particular case before them, had concluded that the offending did not require the offenders to serve any period of imprisonment. The Commonwealth did not appeal those sentences. In any event, the High Court said in Hili that consistency in sentencing for federal offences is to be achieved through the work of intermediate appellate courts.

41 I propose to deal with grounds 1, 3, 5 and 6 together after dealing with grounds 2 and 4.

42 As explained in oral submissions, ground 2 has both a legal and a factual aspect. The legal aspect is best explained by reference to an example. The Commonwealth Director of Public Prosecutions submits that an offender who, with actual knowledge of the content of a DVD, imports child pornography that is level 3 on the Copine scale cannot be more morally culpable than an offender who, with actual knowledge from the DVD cover that it contains child pornography at a level which is, objectively, consistent with category 1 and category 2, imports child pornography that in fact includes category 4 and 5 material.

43 The factual aspect of the ground is to the effect that the content of the DVD cover contained clear signals that the DVD contained level 5 child pornography or, at least, signals calling for inquiry.

44 Recklessness is the fault element of the offence under s 233BAB(5). That is, it is an element of the offence that the person was reckless as to the fact that the goods were tier 2 goods comprising items depicting child pornography. In this case, that element was established by proving that the respondent had actual knowledge that the DVD contained child pornography.

45 The sentencing judge also found that the respondent was reckless as to the actual level of depravity of the material he knew to be child pornography on the DVD. It can safely be inferred that she was using the term 'reckless' as it is defined for the purpose of the offence itself. Section 5.4 of the Commonwealth Criminal Code relevantly provides that:

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

46 Having regard to that meaning of 'reckless', it can be accepted that the moral culpability of the respondent would not be less than the moral culpability of a person who, with actual knowledge of the content, imports child pornography that is category 3 on the scale of seriousness.

47 However, the sentencing judge was not undertaking a comparative exercise. What clearly emerges from her reasons is that she would have regarded the respondent as more culpable if he had actual knowledge of the content of the DVD. Although that is correct, having regard to the meaning of reckless, the increase in culpability would be at the margins.

48 As to the factual aspect, the sentencing judge made a positive finding as to the level of depravity conveyed by the DVD cover and that finding is not challenged. Sentencing judges are in a better position than appellate judges to make factual assessments of that kind. Moreover, the sentencing judge acknowledged that there was a substantial risk that the DVD would contain material higher up the Copine scale of seriousness.

49 I am unable to identify any legal or factual error of the kind of which the appellant complains. I would refuse leave to appeal on ground 2.

50 It was open to the sentencing judge to find that the circumstances in which the respondent had completed his IPC were mitigatory for the reasons she gives. The weight to be attached to that conduct is a matter to be addressed in the remaining grounds of appeal. I would refuse leave to appeal on ground 4.

51 To give inadequate weight, or too much weight, to a relevant sentencing consideration only gives rise to an express appealable error if it amounts to a failure to exercise the discretion actually entrusted to the court: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 329 - 330; Vagh v The State of Western Australia [2007] WASCA 17 [76]. That high threshold is not met in this case. Leave to appeal on grounds 1, 3 and 5 should be refused. However, the matters in those grounds are relevant in an assessment of whether the sentence was manifestly inadequate in all of the circumstances. The appellant's position is that it was not open to the sentencing judge to release the respondent forthwith on recognisance to be of good behaviour.

52 State and Territory provisions relating to the fixing of the period an offender must serve in prison before being released, or eligible for release, on parole are not picked up by s 68 of the Judiciary Act 1903 (Cth). Division 4 of Pt 1B of the Crimes Act concerning the fixing of non-parole periods and the making of recognisance release orders with respect to federal offenders makes exhaustive provision for the subject: Hili [22].

53 A recognisance release order is defined in s 16 of the Crimes Act as an order made under s 20(1)(b), which enables a court to sentence a federal offender to imprisonment but direct, by order, that the person be released either forthwith or after having served a specified period of imprisonment. Under the relevant provisions of the Crimes Act, the sentencing judge in this case had power to fix the recognisance release order to take effect at any time during the period of the head sentence.

54 In determining what recognisance release order is to be made, s 16A(1) of the Crimes Act requires the court to make an order that is of a severity appropriate in all the circumstances of the offence, determined having regard to all relevant sentencing matters. There is no judicially determined normal starting point, whether expressed as a percentage of the head sentence, or otherwise, for the period of imprisonment that a federal offender should actually serve before release on a recognisance release order: Hili [44].

55 In this case, the inadequacy of the recognisance release order is manifest from a consideration of all matters relevant to fixing a sentence of a severity appropriate in all the circumstances of the offence. The offence, having regard to the corruption and exploitation of children which is at its core, is serious. The circumstances of the respondent's offending are also serious having regard to his knowledge that the DVD contained child pornography, the levels of depravity of that material and its duration. Detection of crimes of this nature is inevitably sporadic. Not all incoming passengers or goods can or will be searched. The sentences imposed for committing the offence must have both a general deterrent and a punitive effect to discourage people from taking the risk of being caught. There is no discount for a plea of guilty in this case and no positive finding of empathy or remorse. The mitigating factors associated with the respondent's answer to question 1 on the IPC and his cooperation are at the lower end of the scale of significance. Finally, the recognisance release order made in this case is out of line with the standards of sentencing customarily imposed for the offence he committed. The recognisance release order is manifestly inadequate.

56 There is nothing in the facts or circumstances of this appeal that would require or justify the exercise by this court of its residual discretion to decline to allow the Crown appeal. As to which, see Munda [41].

57 Having regard to all relevant sentencing matters, the appropriate order is that the respondent be released after serving 10 months' imprisonment upon entering into a recognisance in the sum of $5,000 to be of good behaviour for 5 months. In those circumstances the head sentence of 15 months must commence when the respondent is taken into custody for this offence.

58 I would refuse leave to appeal on grounds 1 to 5 and uphold ground 6. Accordingly, the appeal must be allowed, the recognisance release order made by the sentencing judge set aside and in lieu thereof I would order that the respondent be released after serving 10 months'

imprisonment upon entering into a recognisance in the sum of $5,000 to be of good behaviour for 5 months.

60 HALL J: I agree with McLure P that this appeal should be allowed and the respondent resentenced in the way that her Honour suggests. I also agree generally with her Honour's reasons, but I wish to make some comments of my own.

61 The elements of the offence of importing child pornography contrary to s 233BAB(5) of the Customs Act 1901 (Cth) are that the person intentionally imported goods, that the goods were tier 2 goods and the person was reckless as to that fact and that the importation of such goods was prohibited. Items of child pornography as defined in the Customs Act are tier 2 goods that are absolutely prohibited from importation. There was no doubt in this case that the contents of the DVD contained material that constituted child pornography.

62 It is not necessary to prove that a person charged with importing child pornography has viewed that material or otherwise knows of its precise nature. It is sufficient to prove that such a person is reckless as to the fact that the item is child pornography. Recklessness is established if it is proved that the person is aware of a substantial risk that the item imported is child pornography and, having regard to the circumstances known to him or her, it is unjustifiable to take that risk: s 5 Criminal Code (Cth).

63 The conviction of the respondent necessarily implied that the jury was satisfied that he had been, at least, reckless that the DVD contained child pornography. The sentencing judge made a finding that was consistent with the jury's verdict in this regard. However, her Honour also made a finding that the respondent had not actually viewed the DVD. She treated this as being mitigatory. It is difficult to see why this would be so.

64 It may be that in some circumstances actual knowledge of the contents of an imported item may be an aggravating feature. However, it is notoriously difficult to prove that a person importing an item like the DVD in this case has viewed it, other than if admissions are made. No doubt it is for that reason that the fault element as to the nature of the goods has been designated as recklessness. This is consistent with other importation offences such as the importation of border controlled drugs: s 307.1 to s 307.3 Criminal Code (Cth). If offenders who import child

pornography contrary to s 233BAB were to be sentenced only on the basis of what they actually knew their culpability may be reduced in a way that would be inconsistent with the designation of recklessness as the fault element.

65 In the present case the sentencing judge found that the respondent knew what was depicted on the cover of the DVD but had not viewed it. The cover itself constituted child pornography, however the prosecution case was always that the pornography in this case included the contents and that is what the respondent was convicted of importing.

66 The respondent was not to be sentenced on the basis that he only intended to import child pornography of a lesser seriousness as reflected by the cover alone. He was to be sentenced for having imported the DVD reckless as to the fact that it contained child pornography that as a matter of fact was very serious in nature, including at levels 4 and 5 of the Oliver scale. The cover was relevant because it indicated the risk. The nature of the cover, that is not only the images but the words used, clearly suggested the likely nature of the contents.

67 To only sentence the respondent on the basis of what he actually knew would fail to incorporate his responsibility for recklessly importing the contents of the DVD. Undue focus on to the question of what the respondent actually knew was apt to deflect attention away from the serious nature of the material contained on the DVD.

68 I accept that it has not been established that the sentencing judge made an express error but the question remains whether the sentence imposed appropriately reflects the seriousness of the offence committed. The sentence imposed may arguably have been open if the appellant had only imported child pornography that was at a very low level of seriousness, short duration or contained few images. That is not, however, the case. The respondent was to be sentenced for having imported the DVD reckless as to the fact that it contained child pornography that was at a very high level of seriousness and included several movies of significant duration. The serious and depraved nature of that material was not reflected in the sentence imposed by her Honour. The sentence was therefore manifestly inadequate.