Court of Appeal (Qld)|2000-06-02|Before: Gaudron JJ, Murdo P, Pincus JA, Chesterman J

R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218 (2 June 2000)

CHESTERMAN J: The Attorney-General appeals against sentences imposed on the respondent by a District Court Judge at Gympie on 12 February last.

He also pleaded guilty to two counts of knowingly possessing a child abuse publication and seven counts of knowingly possessing a child abuse computer game.

In respect of counts 1, 3 and 5, 6 and 7, that is, the first count of fraud, one count of possessing a child abuse publication and three of possessing a child abuse computer game, the respondent was fined $10,000, in default of serving nine months' imprisonment. In respect to the other counts, he was also fined $10,000 with a similar default provision.

The appellant contends that the sentences are manifestly inadequate. As I mentioned, the respondent was the principal of a State primary school. The school was equipped with a computer with access to the Internet. Shortly after his appointment as principal, the respondent instigated the installation of a second computer located in his office. This too had Internet access. Its acquisition and use were paid for from school funds.

The respondent used the computer to access a website in the United States of America which published child pornography and to download some images and text. His possession of the material so obtained constitutes the substance of counts 3 to 11.

I have not myself seen the material and have no desire to look at it. The respondent had viewed some 331 images. Forty-four which were said to be representative were enlarged and tendered in evidence. They were described by the Judge as "disgraceful and repugnant" as involving young children in explicit and, in some cases, unnatural sexual activity.

The two publications, the subject of counts 3 and 4, the text of which had been downloaded by printing, were not put into evidence. Their contents were described by the Prosecutor as "involving a 14 year old boy having sexual relations of various kinds with a younger girl and his two child nieces with involvement of an adult as well. It involved oral sex, masturbation and fornication. The other involved a 12 year old boy engaging in acts of bestiality with his dog."

Section 26 sub 3 of the Classification of Computer Games and Images Act 1995 makes it an offence knowingly to have possession of a child abuse computer game. The maximum penalty is a fine of $18,750 and/or imprisonment for two years. A child abuse computer game is one that is objectionable and depicts a person who is or appears to be a child under 16 in a way likely to cause offence to a reasonable adult. A computer game is objectionable if it depicts matters of sex in a way that offends generally accepted standards of morality, decency and propriety.

Section 14 of the Classification of Publications Act 1991 makes it an offence knowingly to have possession of a child abuse publication. The maximum penalty is a fine of $22,500 and/or imprisonment for one year. A child abuse publication has a cognate meaning. It is one that depicts or describes a person who is or looks like a child under 16 in a way that is likely to cause offence to a reasonable adult.

The principles applicable to an appeal against sentence by the Attorney-General are well established and make the appellant's task somewhat difficult. The joint judgment of Brennan, Deane, Dawson and Gaudron JJ in Everett v. The Queen, 181 CLR at 295 at 305 noted:

"The deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a Court of Criminal Appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate where the effect of the sentencing Judge's orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation."

The appellant's submissions do not identify any error in the process of reasoning which led to the sentences imposed. Rather, it is said that the sentences are so inadequate that the sentencing discretion must have miscarried.

This approach gives rise to two further difficulties. The first is that section 9 sub 2 of the Penalties and Sentences Act admonishes Courts to have regard to the principles that (a) a sentence of imprisonment should only be imposed as the last resort and (b) that a sentence which allows the offender to stay in the community is preferable.

The second point is that the sections which create the offences and provide the maximum penalties for breach expressly contemplate the conviction may commonly be visited by a fine. Happily, the offence does not appear prevalent or at least it is not often detected and there are few recorded instances of penalties imposed.

Those to which we have been referred do not suggest that imprisonment is the norm or, putting it another way, those cases do not suggest that a non-custodial sentence is inadequate punishment.

The first case, The Queen v. Krapkat, was a decision of the District Court at Mt Isa in March 1996. The accused pleaded guilty to two offences against section 26 sub 3. He was found in possession of 67 images which he distributed to others who shared his perversion. He had some criminal convictions though it is not clear for what. He was fined $9,975.

One of his customers was the accused in the next case,

The Queen v. Bishop, heard in the District Court at Mt Isa a year later. Bishop had no prior convictions and possessed a smaller number of images. He was fined $7,500.

The third case was Sullivan, dealt with in the District Court in Brisbane in October 1998. Sullivan was 48 years old with a reasonably extensive criminal history though for four years prior to the convictions in question he had not offended. The fact of the criminal history appears to have been significant in determining the sentence imposed which was one of an intensive correction order for six months.

Another case to which we were referred is The Queen v. Liddington, a decision of the Court of Criminal Appeal in Western Australia, reported in 1997, 18 WAR at 394. The accused had pleaded guilty to three counts of possessing child pornography which carried a maximum penalty of five years' imprisonment and two counts of possessing obscene or indecent articles which carried a maximum penalty of six months' imprisonment. Altogether Liddington was in possession of, I think, 437 images. He was sentenced to two terms of two years' imprisonment, wholly suspended. The Court of Criminal Appeal rejected an argument that a suspended sentence was inappropriately low.

In all the cases, as far as one can tell from the reticent descriptions in the judgments, the images were broadly similar to the present.

Another case was referred to by the appellant but I find it of no real use. The case was Shew where a term of

12 months' imprisonment was imposed but an appeal against sentence was abandoned and nothing appears about the circumstances of the offence from the report.

The essence of the appellant's submission is that the offences of possessing the objectionable material were particularly serious because the material was obtained by the misuse of school property. This was said to be "an outrageous betrayal of trust by a public official entrusted with the welfare of young children."

This submission represents a fallacy which the learned sentencing Judge observed. It tends to coalesce the two separate categories of offence to which the respondent pleaded guilty.

The frauds involved property of small value but represented serious breaches of trust. The second count is especially offensive. The respondent used money earmarked for the assistance of disadvantaged children to pay the cost of his accessing the pornographic website.

However, the appellant does not particularly complain about the penalty imposed for the frauds. The complaints focus on the other defences. It is, however, important that emotion does not supplant reason in the sentencing process. The penalties imposed for counts 3 to 11 have to be assessed by reference to the nature of the offences charged and the circumstances of them.

The legislation creating the offences did not suggest that the occupation or social position of the offender is particularly relevant to penalty. The depravity of the act depicted in the material, the volume of material possessed and the use to which is was put would seem to me more pertinent to that issue.

The cases suggest that the evil which the legislation seeks to address is that the acquisition of such material necessarily creates a market for the sexual exploitation, corruption and moral degradation of children. This is rightly to be abhorred but is does not seem that the degree of harm increases or decreases according to the vocation of the person acquiring the material or the means by which it was acquired.

In this case, none of the images had been shown to other people. They had, in fact, been deleted from the computer disk. Possession of the images was transitory. They were not put into a lasting form.

It is obvious that the respondent's interests in such horrible pictures makes him unsuitable for any position where he is in charge of young children. But this is a consideration which is irrelevant to sentence except perhaps the decision whether to record a conviction and it is a consideration which has been separately addressed.

The respondent has been deprived of his registration as a teacher and dismissed from his position within the Department of Education. There is, however, no indication at all that his possession of the material has, in any way, affected children under his care.

It is noteworthy that the prosecutor in the District Court submitted that substantial fines were appropriate penalties for all counts save the last, in respect of which he submitted that close to the maximum term of imprisonment should be imposed.

The reason for distinguishing that offence from the others was rejected by the learned Judge. The point was apparently that the images were stored in separate sub-directories on the computer hard drive. The existence, that is the possession, of each of the sub-directories is the subject of a separate count.

Count 11 is concerned with the sub-directory of images which was stored within a facility on the computer called "My Briefcase". That facility permits the transfer of images to other computers. As I understand the record, there is no evidence that the respondent actually transferred any of the images contained in "My Briefcase".

The prosecutor argued that the circumstances of count 11 were more serious because of the location of the images within the data base. The learned District Court Judge could not see that the different location made the offence more serious, and I agree.

One is left then with the submission that fines were an appropriate penalty for counts 3 to 10 and the conclusion that count 11 is no different in kind.

The learned Judge gave careful and detailed reasons for the sentences he imposed. He remarked that he did not find it easy to decide the appropriate sentence and thought there was force in the submissions made by both Crown and defence. His Honour then indicated the facts which suggested that it was not necessary to impose a term of imprisonment.

I can see nothing wrong in his Honour's process of reasoning. The penalties imposed were substantial. The respondent is a man of previously unblemished character. He has suffered the loss of his career and very substantial superannuation entitlements. He has been disgraced and publicly humiliated. His Honour found that there was no likelihood of his re-offending. I cannot see that the sentencing discretion has miscarried.

THE PRESIDENT: The order is the appeal is dismissed.

Computer Games and Images Act 1995

Publications Act 1991

R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218

At a glance

Court

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Judgment (43 paragraphs)

R v Reid; ex parte Attorney-General of Queensland [2000] QCA 218 (2 June 2000)

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Legislation Cited (2)