R v Rogers

SUPREME COURT OF QUEENSLAND

CITATION: R v Rogers [2009] QCA 10

PARTIES: R v ROGERS, Ian Adrian (applicant)

FILE NO/S: CA No 336 of 2008 DC No 2553 of 2008

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 13 February 2009

DELIVERED AT: Brisbane

HEARING DATE: 3 February 2009

JUDGES: McMurdo P, Keane JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The application for leave to appeal against sentence is refused

CATCHWORDS: CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – HARDSHIP – TO OFFENDER – applicant charged with making child exploitation material and knowingly possessing child exploitation material – sentenced to three years imprisonment, suspended after 10 months with an operational period of four years – spent seven and a half months in prison prior to sentence – imprisonment was more onerous due to disability of applicant – whether sentence was manifestly excessive / CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – NATURE AND CIRCUMSTANCES OF OFFENDER – ILLNESS OR PHYSICAL DISABILITY – applicant had a significant physical disability not adequately managed in prison on remand – whether sentence was manifestly excessive

COUNSEL: R East for the applicant D R Kinsella for the respondent

SOLICITORS: Legal Aid Queensland for the applicant Director of Public Prosecutions (Queensland) for the respondent

1. McMURDO P: The applicant pleaded guilty to one count of making child exploitation material ("CEM") (count 1) and two counts of knowingly possessing CEM (counts 2 and 3). He was sentenced to three years imprisonment on count 2 and 12 months imprisonment on each of counts 1 and 3. The sentences were suspended after 10 months with an operational period of four years. Pre-sentence custody of 223 days (about seven and a half months) was declared to be time served under the sentence.

2. He was 39 at the time of his offending and 40 at sentence. He had no previous convictions. The circumstances of his offending were set out in a tendered schedule of facts.

3. At 6.45 am on 25 July 2007, police from Taskforce ARGOS executed a search warrant at the applicant's Belmont residence. He resided with his wife, their infant child and his teenage step-daughter in a mobile home with an annex attached. His parents lived in the main house on the property. The police asked him if he had anything to declare. He indicated that he had two computer hard drives in his mobile home which held CEM and gave them to the police. The police searched his mobile home and found further computer equipment. He agreed to accompany the police to the Taskforce office. The police discovered a very large quantity of CEM on the hard drives which the applicant had provided to them. A lawyer attended the office and spoke to the applicant. The applicant then declined to participate in an electronic record of interview. He was issued with a notice to appear on one charge of knowingly possessing CEM. Police subsequently located in excess of 48,000 CEM images on his computer equipment. Of these images, 41,000 were sexualised posing of children aged between two and 15 years. Twenty-six images, of which 16 were duplicates, involved the torture, cruelty or bestiality of young children. Five hundred and fifty-three images involved penetrative sexual activity, many of which were duplicate images. These circumstances constituted count 2. The applicant was granted bail on 16 August 2007.

4. During the investigation police discovered images of a teenage girl dressing and undressing. These images were of the applicant's 15 year old step-daughter. Consequently, police executed a further search warrant on the applicant's premises on 23 December 2007. The girl was unaware that she had been filmed. She kept clothes in a cupboard in the room where the applicant's computer was located. A small silver coloured web camera on top of his computer tower was activated by movement. It filmed her dressing and undressing. The sentencing judge accepted that the filming was inadvertent. The applicant however then deliberately created still images from that footage. These images showed his step-daughter in stages of undress, but even in the most explicit image she was wearing bicycle pants and a bra. He created these images before the initial police contact in July 2007. These circumstances constituted count 1.

5. During the five months following the first police visit to his premises in July 2007, the applicant obtained replacement computer equipment. The police searched this equipment in December 2007 and found 1,094 CEM images and 20 CEM videos, all newly created but including some duplicates. He co-operated with police and made admissions. These circumstances constituted count 3. This offence was committed whilst the applicant was on bail and receiving counselling in respect of count 2.

6. The worst of the images in the applicant's possession depicted the following. A female aged between eight and 10 years had an animal penis in her mouth. A female aged between two and four years was naked from the waist down, with an adult male next to her inserting his penis into her vagina. A female aged between three and five years was lying naked on her back with male ejaculate over her vagina and anus; an adult male penis was depicted near her vagina and her anus was bleeding. There were also CEM videos. In one, a female aged between six and eight years had an adult male ejaculating on her face and mouth. In another, a female aged between six and eight years was naked on a bed with an adult penis in her mouth. These grossly depraved images comprised a very small proportion of the large amount of CEM the subject of counts 1 and 3.

7. The applicant pleaded guilty at the committal proceedings which involved only hand up witness statements without cross-examination. There was no commercial element to his offending. He had not shared the images with others. His step‑daughter did not allege any physical impropriety on the part of the applicant.

8. The prosecutor at sentence emphasised that count 1 involved a significant breach of trust in that the applicant had surreptitiously made images of his 15 year old step‑daughter in a state of undress. He submitted that the most serious offence was count 2. It alone warranted a sentence of two and a half years imprisonment. Cumulative sentences of 12 to 18 months imprisonment were appropriate in respect of counts 1 and 3. Alternatively, the same effective sentence could be imposed through a longer global head sentence of about four years imprisonment with parole to recognise the mitigating factors after about one-third of that period.

9. Defence counsel at sentence, Mr East, who also appeared for the applicant in this appeal, tendered reports from geriatrician and general physican Dr Andrew Pearson, and psychologists Mr David Whittingham and Dr Aaron D J Frost.

10. Dr Pearson reported that the applicant suffers from a congenital birth defect of his left foot which leaves him significantly disabled and in chronic pain. He requires regular review by an orthopaedic surgeon as to the possibility of surgical correction which might include a future below knee amputation of the left leg.

11. Mr Whittingham noted the following. The applicant reported he lost about 30 kilograms and was anxious and stressed during his time in pre-sentence custody. He is married and his wife remains supportive of him, as are his aging parents. His step-daughter, now aged 16 and in year 11, and his biological daughter, now aged four, both reside with his parents. His wife presently resides with his niece. He keeps in regular contact with his children on weekends. He is in receipt of a disability support pension. He plans to reconcile with his wife and to buy a house with her. He has at least partial insight into his offending. He claims he will not re‑offend, stating, "I know what I did was wrong and the hell I went through in jail." Mr Whittingham diagnosed the applicant as suffering from alcohol and cannabis abuse in early remission and an adjustment disorder mixed with anxious and depressed mood. Mr Whittingham set out therapeutic programs which would assist the applicant should he be given a custodial sentence and special conditions which would assist him should he be sentenced to a community based order. These conditions included abstinence from computer access.

12. Dr Frost, a clinical psychologist, reported that the applicant had attended psychological therapy for five one hour sessions since November 2008. The applicant was an open and willing participant. In his view, a condition of any community based order requiring the applicant to abstain from access to computers would be particularly restrictive because of his physical disability which his work in the computer industry helps to alleviate.

13. A tendered reference from Centacare recorded that the applicant had attended nine one hour counselling sessions between 27 July 2007 and November 2007 to assist him in understanding his problematic behaviours, in refraining from accessing pornography, and in dealing with his remorse, depression and anxiety. It noted his "demonstrated engagement, self-awareness, a willingness to take responsibility for his behaviours, and a motivation for change".

14. The applicant's mother, a family therapist, wrote to the judge explaining the extent of the applicant's congenital physical disability, arthrogryposis; the great deterrent effect of his time in custody; and his remorse for his offending. She considered that these factors make it unlikely that he will engage in this offending behaviour again. The applicant's father wrote to the judge in similar terms. He expressed hope that the applicant will be able to operate one of his business ventures in the future.

15. The applicant's wife wrote to the judge stating that the applicant had changed for the better since his release on bail in August 2008. She believed that he had learned from his mistakes and would not re-offend because he did not want to jeopardise losing his family.

16. Mr East submitted that, taking into account the seven and a half month period of imprisonment already served, which was especially onerous because of his disability, an effective sentence of two and a half to three years imprisonment should be imposed but suspended forthwith. Mr East emphasised that the applicant's disability requires regular replacement of his footwear. It was not regularly replaced whilst he was in custody and this caused him great discomfort. His major weight loss in custody made the pin in his leg so uncomfortable that he had great difficulty sleeping. He needed but did not have a special mattress. He was a protected prisoner. Mr East submitted, that for all these reasons, his time in prison was much more difficult than otherwise and the period of actual custody imposed should reflect this.

17. The primary judge emphasised the following matters in his sentencing remarks. The offending involved over 41,000 images of sexualised posing, although some of these were duplicates. Some of the images involved torture or cruelty to very young children. Over 500 showed sexual penetration of children. The offending was made more serious because the applicant had produced images of his 15 year old step-daughter dressing and undressing, even though these images were at the lower end of the scale of seriousness. Another exacerbating factor was the continuation of his offending whilst on bail. The applicant co-operated with police and pleaded guilty at an early stage. Reports tendered on his behalf demonstrated remorse and real attempts at rehabilitation. He had spent seven and a half months in custody in circumstances which must have been more difficult for him than for an able-bodied prisoner. He had no previous convictions and apart from this offending appeared to be a good citizen. Offences of this kind involve the exploitation and corruption of children who are incapable of protecting themselves. They are not victimless crimes. The sentencing of the applicant required a penalty to act as a deterrent and to denunciate this type of behaviour. As noted earlier, the judge imposed a global and comprehensive sentence of three years imprisonment on count 2 and 12 months concurrent imprisonment on counts 1 and 3, suspending the sentences after 10 months with an operational period of four years.

18. Mr East accepts that the global head sentence of three years imprisonment was within range and that a suspension after 10 or 12 months was appropriate recognition of the applicant's prior good conduct, early guilty plea and co-operation. He argues, however, that the judge erred in returning the applicant to custody after his seven and a half months pre-sentence term of imprisonment because the applicant's severe physical disability made a custodial sentence particularly onerous. He emphasises that the applicant had recommenced counselling whilst awaiting sentence; his further incarceration interrupted his rehabilitation and for a second time uprooted him from his family. Mr East contends that in these circumstances, imposing a further two and a half months actual custody resulted in a sentence that was manifestly excessive.

19. No further material has been placed before this Court as to any current hardship the applicant is suffering whilst serving his sentence. Mr East informed us that the applicant has not found his present period of imprisonment as onerous as his pre-sentence custody. He is due for release shortly, on 28 February 2009.

20. The maximum penalty for count 1 was 10 years imprisonment and for counts 2 and 3, five years imprisonment. The experienced judge referred in his sentencing remarks to the relevant mitigating and exacerbating factors. As his Honour noted, deterrence and denunciation are unquestionably important principles in determining the sentence in cases of this kind.

21. This Court has often observed that if there were no market for the vile material of the kind the subject of counts 2 and 3, children would not be exploited in its production and distribution. Some of the images were especially grossly depraved. Those who access such material on their computers can expect to be detected, convicted, publicly shamed and sentenced to salutary penalties. Additionally, the applicant made images of his 15 year old step-daughter in a state of partial undress.

22. There were, however, significant mitigating features. The applicant entered an early plea of guilty. He co-operated with the authorities. He has made extensive efforts at and has reasonably promising prospects of rehabilitation. He is otherwise of good character. He is remorseful. There is nothing to suggest his step-daughter has been especially traumatised by the applicant's production of the images of her which constituted count 1. He faces particular difficulties whilst incarcerated because of his physical disability. These mitigating factors in combination were sufficient to have justified suspension of the effective three year sentence after seven and a half months without returning the applicant to custody. I am not persuaded, however, that the judge's decision that the applicant should serve a further two and a half months imprisonment was outside a sound sentencing discretion. The judge gave adequate weight to the fact that the applicant's disabilities made his time in custody more onerous than otherwise. The sentence was not manifestly excessive.

23. The application for leave to appeal against sentence should be refused.

24. KEANE JA: I agree that the application for leave to appeal should be refused for the reasons given by the learned President.

25. ATKINSON J: I agree, for the reasons given by the President, that the application should be refused.