Court of Appeal (Qld)|2007-09-14|Before: McMurdo P, Keane JA and Philippides J, Separate reasons for judgment of, each member of the Court, each concurring as to the order made
McMurdo P, Keane JA and Philippides J, Separate reasons for judgment of, each member of the Court, each concurring as to the order made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASESENTENCE – OTHER OFFENCES –where respondent sentenced to 12 monthsimprisonment wholly suspended for three years and conviction recorded for threecounts ofknowingly possessing child exploitation material – whethersentence reflects adequately the gravity of the offence both generallyandparticularly – whether general deterrence sufficiently taken into account– whether too much weight given to mitigatingfactorsChild Protection (Offender Reporting) Act 2004 (Qld)Criminal Code 1899 (Qld), s 228DPenalties and Sentences Act 1992 (Qld), s 9(2)(a)AB v The Queen [1999] HCA 46(1999) 198 CLR 111, citedR v Daw CA No 195 of 2006, 5 October 2006, cited
Everett v The Queen [1994] HCA 49
(1994) 181 CLR 295, cited
GAS v The Queen [2004] HCA 22
(2004) 217 CLR 198, cited
R v Horne CA No 104 of 2005, 22 June 2005, cited
R v Perez-Vargas (1986) 8 NSWLR 559, cited
R v PW CA No 102 of 2005, 30 May 2005, cited
R v Quick
ex parte
A-G (Qld) CA No 277 of 2006, 17 November 2006, distinguished
R v
Hogg, unreported, Kingham DCJ, 22 September 2006, distinguished
R v Thompson, unreported, Samios DCJ, 24 January 2006,
distinguished
R v Wilton (1981) 28 SASR 362, cited
Judgment (62 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the appellant
[2]
[1] McMURDO P: The Queensland Attorney-General's appeal against sentence should be dismissed for the reasons given by Keane JA.
[3]
[2] For these three offences against s 228D Criminal Code 1899 (Qld) Mr Richardson was sentenced to 12 months imprisonment wholly suspended with an operational period of three years. He was not required to serve any period of actual imprisonment. The main ground of appeal was that the sentence failed to take sufficiently into account the aspect of general deterrence. The principle of deterrence, both personal and general, is of considerable importance when sentencing for offences of this type. In criminalising and making punishable by up to five years imprisonment conduct like that engaged in by Mr Richardson, the legislature plainly intended to deter people from downloading from the internet and possessing images of material sexually exploiting children. A reduction in the number of individuals who download and possess such material should help to diminish the general market for it and ultimately reduce the number of children abused in the evil child pornography industry.
[4]
[3] Mr Richardson was a 24 year old without prior convictions. He discarded the worst of and the bulk of the child exploitation material in his possession before the offences were discovered, strong evidence of an intention to rehabilitate at this time. Ironically, that act of reform led to the discovery of his offending. Had he smashed the CD containing the material instead of merely throwing it away, he would probably never have been charged. He cooperated fully with the administration of justice, entered an early plea of guilty and has shown remorse.
[5]
[4] Despite the graphic and depraved nature of the worst of the material involved in these offences, the sentence imposed is, in the circumstances, sufficiently condign to be an effective personal and general deterrent. First, Mr Richardson's conviction, sentencing and now the Attorney-General's appeal have been conducted in public. At no stage has it been legally necessary to suppress Mr Richardson's name to avoid the possible identification of children involved in the offences. The open nature of these proceedings has involved an element of public shaming and provided a clear message to all of the serious view taken by the community and its courts towards those who knowingly possess sexually exploitive material relating to children. Second, the sentence imposed is not lenient: Mr Richardson has had a conviction recorded and if he commits any offence during the next three years he will be at risk of serving the suspended 12 months imprisonment. The consequences of his conviction do not end there. Mr Richardson's desired fields of employment as a teacher or in the armed services have been closed to him; it is unlikely he will be able to work with children at all, at least in the short term. There are even further consequences flowing from his convictions for these offences. Under the Child Protection (Offender Reporting) Act 2004 (Qld) for the next eight years he must report to the police commissioner annually and also report any changes to his address, place of work, description of motor vehicle and any occurrences of unsupervised contact with a child within 14 days of the change or contact occurring. These matters demonstrate that, in the present circumstances, Mr Richardson's convictions and the sentence imposed are adequate to both deter him from
[6]
re-offending and be a salutary deterrent to those who might otherwise be tempted to possess child exploitation material, thereby feeding a heinous industry involving child sexual abuse.
[7]
[5] KEANE JA: On 15 June 2007, the respondent was convicted on his plea of guilty of three counts of knowingly possessing child exploitation material in contravention of s 228D of the Criminal Code (1899) Qld. Convictions were recorded and the appellant was sentenced to 12 months imprisonment wholly suspended for an operational period of three years.
[8]
[6] The Attorney-General appeals against this sentence pursuant to s 669A of the Criminal Code on the ground that it is manifestly inadequate in that:
[9]
(a) it fails to reflect adequately the gravity of the offence generally and in this case in particular;
[10]
(b) it fails to take sufficiently into account the aspect of general deterrence; and
[11]
(c) the learned sentencing judge gave too much weight to factors going to mitigation.
[12]
[7] I shall discuss the arguments advanced in relation to these grounds of appeal after summarising the circumstances of the offences, the respondent's personal circumstances and the learned sentencing judge's approach to sentencing the respondent.
[13]
[8] The offences in question occurred between 1 April 2006 and 28 August 2006. While the respondent was in the process of moving house, another person who had been residing with him retrieved a number of computer discs that the respondent had put in a rubbish bin, one of which contained child pornography. This computer disc was the subject of count 1. It contained 165 video files of child pornography. There were other files which were inoperable. Two of the files displayed the brutal sodomy by an adult of a boy. In each case, the child was bound while he was sexually abused. In each case, the child was obviously distressed. The description of these images as falling within the worst category of material struck at by s 228D of the Criminal Code was justified. Of the other files, 29 displayed boys and pubescent youths masturbating. The video files had evidently been collected between August 2003 and some time in 2005.
[14]
[9] After this material was discovered following the retrieval of the computer disc, the police were contacted. The respondent initially declined to be interviewed but later directed police to the whereabouts of two laptop computers he had been using.
[15]
[10] One of the laptops had been lodged by the respondent with a pawnbroker as security for a loan. It contained a video file of a male child of apparently 11 years of age masturbating. This image was also located on the computer disc which was the subject of count 1. This image was the subject of count 2.
[16]
[11] The second laptop had been rented by the respondent. It contained one video file showing a teenage boy masturbating. This was the subject of count 3.
[17]
[12] The respondent agreed to be interviewed by police. In that interview, he told police that he had searched the internet for material involving older teenage boys using terms such as "boy", "twink" and "gay".
[18]
[13] It was common ground at the sentence hearing that he did not show any of the material he had downloaded to any other person and that he had not purchased any of the material from commercial sites on the internet.
[19]
[14] The respondent was 24 years old at the times the offences were committed. He was 25 years old at the date of sentence.
[20]
[15] The respondent has no criminal history. He completed grade 12 schooling, and had ambitions to become a school teacher or to join the Royal Australian Air Force. He accepts that the convictions for these offences foreclose those callings to him.
[21]
[16] The respondent has demonstrated a good work ethic; at the time of his sentence, he was working at two jobs in which he worked 12 to 13 hour days.
[22]
[17] The respondent pleaded guilty at an early stage. The uncontradicted statement of the respondent's counsel at sentence was that the respondent always intended to plead guilty.
[23]
[18] Before the learned sentencing judge, the Crown Prosecutor submitted that the appropriate sentence was one of 12 months imprisonment which, he conceded, could appropriately be served by an intensive correction order. Further, the Crown Prosecutor did not oppose the suggestion when it was put to him that the term of 12 months imprisonment might be fully suspended.
[24]
[19] The learned sentencing judge observed that the respondent's offences were serious and that the material in question was revolting and, to some extent, disturbing. His Honour had noted in the course of argument that the images the subject of counts 2 and 3 were not such as to add significantly for the purposes of sentence to the criminality of the offence charged in count 1.
[25]
[20] His Honour accepted that the respondent had downloaded this material for his own private gratification, and not for showing to, or transmission to, other people.
[26]
[21] His Honour noted that the respondent would suffer the consequences of his offending in terms of the loss of career prospects. It should also be noted here that the recording of the convictions obliges the respondent to report to police in accordance with the provisions of the Child Protection (Offender Reporting) Act 2004 (Qld). The respondent must report to the police commissioner each year changes to his address, place of work, description of the motor vehicle he drives, and any occurrences of unsupervised contact with a child within 14 days of the contact occurring. The reporting period applicable to the respondent is eight years.
[27]
[22] Importantly, his Honour came to the conclusion that the circumstances of this case were not such as to warrant the imposition of a term of actual imprisonment. Moreover, his Honour was not convinced that the respondent required counselling or guidance of the kind he would have received by a period of intensive correction. No doubt his Honour was influenced in this latter regard by the reporting requirements to which the respondent was automatically subject under the Child Protection (Offender Reporting) Act. No doubt his Honour was influenced in both respects referred to in this paragraph by the position adopted by the Crown Prosecutor that a sentence of 12 months imprisonment fully suspended was not beyond the proper scope of the judge's discretion.
[28]
[23] The appellant contends, in effect, that the learned sentencing judge was bound to conclude that actual imprisonment was necessary to impose adequate punishment on the respondent.
[29]
[24] The appellant emphasises the seriousness of the offences of which the respondent was convicted. The maximum penalty under s 228D of the Criminal Code is five years imprisonment.
[30]
[25] The appellant's first argument, formulated in his written submissions on the appeal, is that:
[31]
"there is a legitimate concern that the possession of this type of material feeds a market for the production and distribution of it [so that] it is not to the point that this respondent did not pay for the material, the demand nevertheless feeds the supply."
[32]
Accordingly, so it was submitted, considerations of general deterrence are important.
[33]
[26] It must be acknowledged that there is force in this submission, but it must also be acknowledged that the respondent's case is vastly different from that of an offender who creates such material or acquires such material commercially or distributes it to others. So far as the circumstances of the respondent's possession are concerned, they might fairly be described as in the category of less serious examples of this offence. As was said in R v Daw[1] by Jones J, with whom Jerrard and Holmes JJA agreed, "[t]o the extent that [the respondent's] actions could be seen as 'a feeding of the market for sexual exploitation' ... I consider the offence to be at a very low level."
[34]
[27] The appellant's principal argument developed orally on the hearing of the appeal focussed upon the content of the material in question rather than the circumstances of its possession by the offender. On behalf of the appellant, it was argued that the content of the material in question was such as "falls within the category of the worst type of material proscribed by the section", and that a person in possession of such material should ordinarily expect to receive a period of incarceration. Only in exceptional circumstances should a custodial sentence not be imposed.
[35]
[28] The appellant seeks to support this proposition by reference to observations made in this Court concerning the appropriate sentence for those who indecently treat children. In R v Quick; ex parte A-G (Qld),[2] de Jersey CJ, with whom Chesterman J agreed, affirmed that "the sexual abuse of children should ordinarily mean detention in custody of the offender, in the absence of exceptional circumstances." The Chief Justice went on to hold that exceptional circumstances were not relevantly established by an early plea of guilty, a lack of prior criminal history and genuine remorse which made it unlikely that the offender would re-offend.
[36]
[29] It may readily be accepted that the two images referred to in paragraph [8] are examples of the worst kind of material struck at by s 228D of the Criminal Code; but there are, I think, four obstacles in the way of accepting the proposition for which counsel for the appellant contends in this case. The first obstacle is that, even in terms of the proposition formulated by counsel for the appellant, this case can rightly be regarded as exceptional. It is a matter of considerable significance in this case that the respondent had actually thrown the computer disc the subject of count 1 away. That consideration suggests a real commitment on the respondent's part to rehabilitate himself.[3] It radically distinguishes this case from R v Thompson[4] and R v Hogg.[5] Indeed, counsel for the appellant accepted that this circumstance could be regarded as an "exceptional circumstance" in the terms of the proposition for which he contended. It must be said immediately that this concession was correctly made. It means that, in this case, it is not possible to say that the discretion of the learned sentencing judge miscarried because the exercise of the sentencing discretion was not informed or guided by the proposition advanced on behalf of the appellant.
[37]
[30] Secondly, the cases on which the appellant relies are cases of indecent treatment of children. The offence created by s 228D of the Criminal Code is undoubtedly serious; but to equate that offence with actual indecent treatment of children by the offender is to devalue the gravity of the latter offence. To adopt that course would be to pay scant regard to the circumstance that the legislature has, in s 210 of the Criminal Code, provided much heavier penalties for the latter offence.
[38]
[31] Thirdly, the appellant's submission sits uneasily with s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld). That provision obliges the sentencing court to impose a sentence of imprisonment as a last resort. The decision of this Court in R v Daw[6] confirms the application of this provision to contraventions of s 228D of the Criminal Code.[7] The adoption of the proposition advanced on behalf of the appellant would add a judicial gloss to the instruction given by the legislature which would, at best, tend to confuse the process of sentencing which is already sufficiently complicated.
[39]
[32] Fourthly, the learned sentencing judge acted upon the submissions made by the Crown below. In R v Wilton,[8] in a passage cited with approval by Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen,[9] King CJ said:
[40]
"It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when that contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in Reg v Tait and Bartley ((1979) 46 FLR 386; 24 ALR 473) by 'double jeopardy'. In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge's discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General."
"Even when it appears that the sentencing judge has erred in a fundamental way that may affect the administration of justice, fairness to the sentenced person requires that the Crown's concurrence with, or failure to object to, a proposed course of action by the sentencing judge must be weighed in the exercise of the discretion. This is particularly so when the convicted person has been given a non-custodial sentence. Private litigants who appeal against judgments and orders are not usually allowed to withdraw concessions made or concurrences expressed in the course of litigation. As a general rule, neither should the Crown be permitted to depart from a course of action that may have induced the sentencing judge to take the course that he or she did."
[43]
[34] It may be noted that this statement by McHugh J was recently referred to with evident approval by the High Court in GAS v The Queen.[11]
[44]
[35] It may be said that the fourth of the obstacles in the way of this Court acting upon the appellant's submission is, strictly speaking, a matter of discretion, but it emphasises the point that this is not an appropriate case in which to seek to apply the proposition advanced by the appellant.
[45]
[36] In any event, in my respectful opinion, the four obstacles to which I have referred, in combination, preclude the acceptance of the appellant's proposition, or its application, in this case.
[46]
[37] As to the appellant's argument that the learned sentencing judge gave too much weight to factors going to mitigation, the appellant recognises that the respondent must be given credit for his plea of guilty, but the appellant's argument gives scant regard to the value of the respondent's cooperation with police and the circumstance that this cooperation led to his being charged with counts 2 and 3.
[47]
[38] The extent of the respondent's cooperation with the authorities is relevant, not merely to the moderating of the sentence because of the savings to the administration of justice, but also to the relative importance of rehabilitation rather than deterrence.[12] The importance in this regard of the fact that the respondent's own admissions led to evidence which resulted in the respondent being charged with counts 2 and 3 should not be overlooked. Nor should the circumstance that the respondent had voluntarily thrown away the computer disc which was the subject of count 1.
[48]
[39] In my respectful opinion, it was open to the learned sentencing judge to regard actual imprisonment and the constraints of intensive correction as measures not necessitated by the circumstances of this case. Importantly in this regard, the respondent had not engaged in providing any direct support to the child sex exploitation industry; and, most importantly, had actually taken steps to rid himself of the offending images the subject of count 1 which was by far the most serious count. The learned sentencing judge was not bound to conclude that resort to a sentence involving actual custody was necessary to impose adequate punishment upon the respondent. Nor was his Honour bound to conclude that supervision, beyond that which would ensue automatically under the Child Protection (Offender Reporting) Act, was required either to protect the community or to promote the respondent's rehabilitation.
[49]
[41] PHILIPPIDES J: I agree that the appeal against sentence should be dismissed for the reasons given by Keane JA and the additional reasons given by the President. The appellant did not, in this particular matter, contend that the head sentence of 12 months' imprisonment imposed was necessarily inappropriate and outside the exercise of a sound sentencing discretion.
[50]
[42] Rather, the central submission was that a period of actual imprisonment was required to reflect the gravity of the offending, involving the possession of images of an abhorrent nature of the sexual exploitation of children, and to impose adequate personal and general deterrence. The submission, however, fails to properly acknowledge the considerable matters of mitigation in the respondent's favour, particularly that he had, by disposing of the material, unequivocally disassociated himself with his prior conduct in possessing it, that he cooperated by volunteering the location of his two computers, and that but for his cooperation the matters the subject of counts 2 and 3 would not have been detected. Those factors, when combined with the respondent's youth, his early plea and his having no prior criminal history were of particular relevance given the application of s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld). The imposition of a term of imprisonment although fully suspended, and the requirement that the sentence be operational for a lengthy period and with the conviction also triggering the provisions of the Child Protection (Offender Reporting) Act 2004 (Qld) for a period of eight years adequately addressed matters of deterrence and denunciation pursuant to s 9(1), whilst also having regard to the sentencing principle in s 9(2) of the Act.