R v Monohan [2020] NSWDC 611 | Case summary

Nature, content and quantity of the material.

The offender used his phone to access an image source website throughout the month of January. The image source website contained galleries which the offender searched to access child pornography material. In para 4 of the facts it says: "The offender accessed the website throughout the charge period to view pornographic images between 15 to 20 year olds, including the images listed at para 12".
The images in para 12 of the facts document involve two 16 year old girls; six 15 year old girls; three 14 year old girls; and one 13 year old girl. There were two images that were not age identified, described as "jailbait" and "blonde jailbait".
When he was asked about the images of the girls between the ages of 13 and 14 he told police that he was not attracted to the girls of that age but accessed the images out of curiosity. On balance I accept that explanation.
Police were unable to recover the images. The offender provided the evidence against himself by describing the nature and content of the images. There were only 14 images. The images were categorised as category 2 images, that is, the material falls under the definition of child abuse material which is illegal in the State of New South Wales but does not fall within category 1. None of the images depicted a real pre-pubescent child involved in a sex act, witnessing a sex act, or whose anal or genital region is the focus of the depiction.
The material contained images of partially nude girls displaying their breasts; fully nude girls with breasts and vagina exposed; and girls engaged in sexual activities with themselves using items to masturbate. There were only two such images.
The number of images is small. Save for the two images involving masturbation, the gravity of the sexual activity depicted was at the low end of the scale. The material searched were not for the purposes of sale or for distribution. This does not mitigate the penalty for possession: R v Port [2015] NSWCCA 175 at [66]. Profit was not involved. The length of time of possession of the material was for one month.
The possession of the material creates a continued market for the continued corruption and exploitation of children. It is not a victimless crime and harm is ongoing due to the very fact that the material remains on the internet.
The Crown submitted that the offending is objectively serious. I do not accept that submission. In taking into account the number of victims, the duration of the offending, the images themselves, I am satisfied that the offending is at the lower end of the spectrum of objective seriousness.

SENTENCING CONSIDERATION

In the DPP (Cth) v Garside [2016] VSCA 74, Redlich and Beach JJA said at [60] - [61]: "During the course of the hearing the director accepted that Courts must be careful not to impose a standard to a sentencing task that is not prescribed by the statute. They have conceded that the use of the term 'exceptional circumstances' in Guest and thence in Zarb was 'problematic'. The Directors therefore no longer press the argument that there must be exceptional circumstances before a non-custodial disposition will be appropriate."
Each case must be decided according to its own circumstances. To say that gaol would be the usual result is incompatible with the judicial sentencing discretion: Parente v R [2017] NSWCCA 285. It is a prescriptive statement of what ought to be. The administration of the criminal law involves individualised justice: "Although general deterrence is important it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the Court": R v Moon [2000] NSWCCA 534, Howie J at [81].
The Crown provided to me a number of cases for consideration. One of the cases was DPP (Cth) v Zarb (2014) 46 VR 832.
In light of the criticism by the Victorian Court of Appeal in Garside of that decision the only point of principle to be discerned from the case according to Madam Crown was that Zarb had strong subjective circumstances. I doubt that that is a point of sentencing principle.
The Crown referred me to Peters v R [2018] NSWCCA 126. The sentencing principle which I apply in the matter before me is the paramount public interest in promoting the protection of children and the concomitant need for general deterrence.
The Commonwealth charge in Peters related to 576 files in categories 4, 5 and 6, which were retained. The facts are very different to the facts before me.
The Crown referred me to Fedel v R [2015] NSWCCA 286. The applicant was resentenced on each charge to concurrent terms of 10 months imprisonment to be served by intensive correction order. An intensive correction order is not available in this case. This offence is a prescribed sexual offence, per s 67 of the Crimes (Sentencing Procedure) Act.
At first instance the Crown had submitted that suspended sentences were not "beyond the pale". The learned sentencing judge was not bound by that acknowledgement. He imposed immediate terms of six months imprisonment. Hidden J held that the learned sentencing judge fell into error in imposing a short custodial sentence without considering whether a longer sentence to be served otherwise than full time custody was the appropriate disposition at [51]. Hidden J at [55] - [66] considered ten decisions as set out at [55]. Those cases were objectively more serious than what was before the Court of Criminal Appeal and before me.
At [62] his Honour said: "In this line of authority general deterrence is sometimes described as 'paramount' or 'the primary sentencing consideration'. It is said that absent exceptional circumstances a sentence of imprisonment involving fulltime custody is 'ordinarily' warranted. It is also said that less weight is given than in other cases to the fact that an offender has prior good character and favourable prospects of rehabilitation".
He went on at [63] to say: "These pronouncements are a guide to the exercise of discretion in child pornography cases, but of course are not prescriptive of the result in a particular case which must turn on its own facts and circumstances".
What his Honour said about prescriptive statement of what ought to be was one of the principles picked up in Parente v R which I previously referred to.
The following year, in 2016, the Victorian Court of Appeal in Garside criticised the need to find exceptional circumstances before a non-custodial disposition will be appropriate.
The Crown referred me to R v Sykes [2009] QCA 67. That case involved a significant number of images, including category 4 files of a baby performing oral sex on an adult male. The sentencing judge said: "The offences involved the exploitation and degradation of children, including babies as young as three months old in respect of the Commonwealth offence."
The offending conduct in Sykes was far more serious than this case. The applicant had been sentenced to 15 months imprisonment, to be released after serving six months upon entering into a recognisance. The appeal was dismissed.
There is no discernible principle of sentencing flowing from that decision. The ground of appeal was one of manifest excess.
The Crown has provided a four page chart of prosecution comparative cases which is a summary of the cases I have been referred to. I have read the cases in full.
Mr Hemsley has referred me to R v Verburgt [2009] QCA 33. That case was referred to in Sykes. The applicant's appeal was successful. On the Commonwealth offence he was convicted and released on a good behaviour bond for a period of two years. He had spent two months in gaol before his successful appeal. Originally he had been sentenced to 12 months imprisonment to be released on recognisance after three months. He had downloaded ten images. Three of those images showed girls being penetrated by a penis or a dildo, with the youngest child between the ages of four and eight. One image showed three adolescents lying on a bed, one of them a boy between ten and 14 years, who was having his penis sucked by another.
The offending was objectively more serious than the offending before me. There was error in sentencing.
Holmes JA considered five Court of Appeal decisions in R v Dore [2006] QCA 386. An ICO was set aside and two years' probation ordered. In R v Richardson, ex Parte A-G (Qld) [2007] QCA 294, the Attorney General's appeal against a suspended sentence was dismissed. In R v Riley [2007] QCA 391, the Court resentenced the applicant to a suspended sentence. He had served 15 days imprisonment. In R v Wharley [2007] QCA 295, the applicant was convicted after trial. He was sentenced to a sentence of six months imprisonment suspended after two months. The appeal was dismissed.
In R v Salsone, ex Parte A-G (Qld) [2008] QCA 220 the material consisted of some thousands of images and a number of video files. The Attorney General's appeal was unsuccessful. The respondent had been sentenced to 15 months imprisonment suspended forthwith for two years.
In R v Verburgt, McMurdo P agreed with Holmes JA's reasons and proposed orders. The President went on to say: "At the risk of sounding like Gilbert and Sullivan I make the trite observation that the appropriate penalty for such an offence will always turn on the circumstances of each case, primarily those set out in s 9(6B) Penalties and Sentences Act. So much was conceded, rightly in my view, by the prosecutor at first instance. Had I sentenced the applicant at first instance I would have imposed a sentence of 12 months' probation on count 1 to ensure that the applicant received counselling and treatment and to assist in his rehabilitation."
Count 1 was the Commonwealth offence of use own carriage service to access child pornography material.
Neither of the parties referred me to the DPP (Cth) v Walls [2014] VSCA 323. In that case the offender pleaded guilty to two charges of use own carriage service to transmit indecent communication, maximum penalty seven years; one charge of using a carriage service to procure a person, maximum penalty 15 years; one charge of using a carriage service to solicit child pornography contrary to s 474.19(1) of the Code, with a maximum penalty of 15 years.
The offender was 25 and 26 at the time of the offending. The complainants provided victim impact statements demonstrating real and significant harm caused to the victims. The conduct was frequent, calculated and predatory over a nine month period. The indecent material was graphic and explicit. His conduct was persistent and had a lasting effect upon his victims.
The learned sentencing judge imposed a sentence of 22 months and released the offender forthwith to be of good behaviour for 24 months. The Crown appeal was unsuccessful. Although the Court found the sentence imposed was very light, it was not persuaded that it was outside the sentences permissibly open to the judge.
The Court said at [24]: "The fact that it can be said that in cases of this kind one ordinarily expects a term of immediate imprisonment does not mean that it was not open to the judge in all the circumstances of the matter before him to impose the sentence he ultimately pronounced. Further, as has been said before, while considerations of so-called comparable cases has its role to play in determining whether a particular sentence was within the permissible range of sentences open to the sentencing judge, such assistance can only be limited having regard to the myriad of matters (which are never the same in each case) that might be taken into account by a sentencing judge."
The cases referred to me by the Crown and Mr Hemsley are comparable cases of limited assistance having regard to the myriad of matters that I must take into account which are never the same in each case.
The Court in DPP v Garside did not accept the principles stated by Johnson J in R v De Leeuw [2015] NSWCCA 183. Their Honours preferred the position of Nettle JA as he then was, in DPP v Smith [2010] VSCA 215 at [23], and the dissenting judgment of Priest JA, in DPP v Zarb at [71]. The preferred principle is that a term of immediate imprisonment will ordinarily be expected for such offending. No law of principle is needed as each case must be decided according to its own circumstances: DPP v Garside at [62]; Priest JA at [86] -[87].
In Garside the offender had 6,018 images and videos on his laptop. The files were predominantly photographs of girls in their early teens engaging in sexually suggestive poses.
Redlich and Beach, JJA, held the respondent's offending was objectively serious as it involved thousands of images, some including infants, and mostly close-up images of children exposing their genitals. The offending was not isolated and spanned a protracted period of time at [72].
Redlich and Beach, JJA, concluded that the judge's failure to impose an immediate and substantial period of imprisonment did not conform to the prevailing sentencing practice. A community correction order was not a reasonably open disposition given the nature and circumstances of the offending.
Priest JA was of the view that a community correction order was a reasonably open disposition.
The Crown submits that s 17A threshold has been crossed and that a term of immediate imprisonment is the only appropriate sentence. Mr Hemsley does not concede that the s 17A threshold has been crossed and submits that it is open to find, as Priest JA did in Garside, that a community correction order is a reasonably open disposition.
The proper approach to sentencing involves the weighing up of all relevant factors in order to reach a conclusion that a particular penalty should be imposed. There are many conflicting and contradictory elements which bear upon the sentence of an offender; for example, the paramount public interest in promoting the protection of children and the concomitant need for general deterrence. The statutory maximum, the objective seriousness of the offending, the plea of guilty, the subjective case of the offender, and his prospects of rehabilitation to name a few for consideration in this case.
After having considered all the available sentences I am satisfied that no other sentence than a sentence of imprisonment is appropriate in the circumstance of this case.
I sentence Mr Monohan to nine months imprisonment. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), he is to be released forthwith on a recognisance release order upon giving surety (without security) in the sum of $1,000 on condition that he be of good behaviour for two years.
I make the forfeiture order that is requested by the Commonwealth. The Court orders that pursuant to s 23ZD of the Crimes Act 1914 (Cth) upon the application of the Director of Public Prosecutions, the following item is forfeited to the Commonwealth by consent a Black Samsung Galaxy S5 mobile phone (property seizure number (X0002557878).

R v Monohan

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (11 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (20)