R v S L J

Court of Appeal (Vic)|2010-02-05|Before: MAXWELL P and BUCHANAN JA

R v SLJ (Unreported, County Court of Victoria, Judge Howard, 24 July 2009)

CRIMINAL LAW - Appeal - Sentence - Possession of child pornography - Sentence partly concurrent with sentence imposed on separate sexual offence - Successful appeal against conviction on separate offence - Necessity for resentencing - No longer to be sentenced as serious sex offender - Changed risk assessment - Sentence reduced.

1 In circumstances which we will explain, the applicant falls to be resentenced. On the single count of knowingly possessing child pornography, he should be sentenced to ten months' imprisonment. We direct that five months of that sentence be suspended for a period of 12 months.

2 The circumstances of this sentence appeal are as follows. On 1 May 2009, the applicant pleaded guilty to one count of knowingly possessing child pornography. That offence carries a maximum penalty of five years' imprisonment. That plea followed his conviction in February 2009, following a trial, of one count of maintaining a sexual relationship with a child under 16. On that count he was sentenced to nine years' imprisonment with a minimum of six. On the child pornography count, he was sentenced on 24 July 2009 to 12 months' imprisonment of which six months was ordered to be concurrent with the sentence earlier imposed. (The direction for concurrency was necessary because of the presumption of cumulation under s 6E of the Sentencing Act 1991 (Vic), which was applicable because of circumstances to which we will refer.)

3 On 19 January this year, this Court allowed the applicant's appeal against conviction on the sexual relationship count. The conviction was set aside and the sentence quashed. That in turn meant, because of the direction for concurrency, that the applicant would have to be resentenced on the child pornography count. He had on foot an application for leave to appeal against the sentence in any event. The Court has arranged for the application to be brought on at short notice, given the circumstances which we have described. Senior counsel for the applicant conveyed his client's appreciation of the efforts of the Court of Appeal Registry in arranging this early hearing.

4 The reasons of the sentencing judge were comprehensive and detailed. We gratefully adopt what his Honour said about the circumstances of the offending and a number of other relevant matters, as follows:

The circumstances of your offending on this count may be shortly stated. ... [P]olice executed a search warrant at your home on 1 May 2008. At that time the police asked you whether you had any pornographic images on any computers, and in response you pointed out your computer which you had set up at a desk in a garage/office area. The police seized your computer which was later analysed and found to contain approximately 3000 pornographic images, of which 165 were of children engaged in sexual acts and poses.

When you were interviewed by police on the same day of the seizure, you told them that the images on your computer were 'not pornographic, just nude pictures'. An examination of a sample of the 165 images of child pornography which I have undertaken reveals that statement to be quite misleading. The sample images, which it is conceded are representative of the remainder, depict 40 photographs of females aged between 5 and 17. Most of them are of girls partly clothed in their underwear, in lascivious poses designed to expose their genital area. Eight are of older young women, fully naked, exposing their vaginas, and seven are of older young women, appearing to be aged 15 to 17, engaged in sexual conduct with adult males, including breast sucking, penis sucking or penile-vaginal penetration.

All of the 165 images were downloaded and stored in your computer. Although the offence is constituted by your possession of the material on 1 May 2008, the sample images were stored between 9 August 2007 and 30 April 2008.

No explanation has been provided by you, either to the police or on the plea, as to the reason for your possession of this disgusting and disturbing material.

Counsel briefly referred to your background and personal circumstances, but was content to adopt my description of these matters as set out at paragraphs 40 to 47 in my previous sentencing remarks.[2] In short, you are now aged 60. You were born and raised in Singapore, although you spent some of your early life and schooling in India. You are the product of a close-knit and loving family, and have the support of your three siblings, including your sister who has been present in court supporting you.

In 1978 you immigrated to Australia and are now an Australian citizen. In the same year you married the woman who sponsored you. However, after 18 years you separated. There are no children of that relationship. You divorced in 2001 ...

Your father never came to Australia, and died in 1990. Your mother came here in 1986, and lived with you and your brother in recent years. You were very close to her, and supported her until her death in September last year. Unfortunately your brother suffers from bipolar disorder, but you have provided to him important support for that condition.

You have had a lifelong interest in music, and were described by a number of witnesses on the previous plea as a talented and hardworking musician and singer. You worked full-time as a musician in Singapore, and continued that interest when you came to Australia.

Having arrived here, you initially worked with Australia Post for 10 years. Thereafter you managed your own business importing matting from India. During all this time you continued to play in two bands. You have been previously described as a weekly churchgoer and a regular tennis player.

Of significance, ... you have no prior convictions.

Five character witnesses gave evidence on your previous plea. They had all known you for a long time. In addition to attesting to your excellent work record and prowess as a musician, they spoke of you as a friendly, humorous and loyal friend, someone who was always prepared to help others, and as an honest and trustworthy person and a man of integrity. They spoke of your proper behaviour with children ...

I have received a recent letter from your three siblings in which they pledged their continuing support for you and expressed their shock that you could be guilty of this offence. They ask for you to be given a chance to make a fresh start and to prove that you can behave properly in our society.

Of course, ... your offending here took place in private, away from the keen scrutiny of others. Obviously, you hid from your family, and presumably your friends, your possession of this vile material.

In mid-2005 you suffered from prostate cancer. However, following an operation you have fortunately overcome this problem. You are presently on an annual review program, and your long-term prognosis is very good. Overall, your probability of curative treatment is in the range of 90% 5-10 year cancer-free survival. Since your incarceration your health situation remains unchanged and you do not have any medical conditions which would impact on your ability to undergo a prison sentence.

The first is that you come from a good family background. There is no suggestion of alcohol or drug problems. You have supported your family and others, and recently lost your mother, with whom you were very close.

Secondly, you have been gainfully and fully employed for all of your adult life.

Thirdly, you have no prior convictions and there is no suggestion of you having offended since your arrest and whilst on bail for this crime. Evidence as to your general good reputation was given ...

Fourthly, the fact that you are a mature offender is a relevant factor.[3] So too is the fact that you are a first offender with a previous good character, a matter which would ordinarily be expected to be of great significance.[4] ... I accept that these factors need to be taken into consideration, in that any gaol sentence I were to impose would bear more heavily upon a man of your age and background. However, good character and age alone cannot be relied upon to escape punishment or to attract lenient treatment by the courts.[5]

Finally, you have pleaded guilty to this offence, thereby saving the time, expense and inconvenience of a trial. This is an obvious utilitarian benefit for which you must receive credit. However, as conceded by your counsel, you have not pleaded guilty at the earliest available opportunity. You had pleaded not guilty to this offence at committal in October 2008. ...

In truth, there was an overwhelming case against you, and your plea is, I think, an acknowledgement of the almost certain likelihood that you would be convicted were you to go to trial. I am unable to conclude that your plea evidences any element of remorse, and none has been suggested by your counsel.

There are, of course, other sentencing considerations. It is conceded by you that you have committed a serious offence.

It is to be accepted that none of the pornographic images contain depictions of more disturbing aspects such as violence, cruelty, sadism or bestiality. Those of penile penetration are not involving pre-pubescent girls. Nor did you possess thousands of images, and those involving child pornography represent about five per cent of the total of the pornographic images which you had. In that sense, it could not be said that yours is an example of one of the worst type of cases.

As observed by the English Court of Appeal in R v Oliver and Ors,[6] the seriousness of an individual offence of this kind increases with an offender's proximity to, and responsibility for, the original abuse. In your case, there is no suggestion that you were involved in the production of this material, nor with any attempt to disseminate it. Nor is there any element of commercial gain by you which would have placed the offence at a higher level of seriousness. With possibly one limited exception, an email going back to 2001, there is no evidence of you attempting to swap these images, which would serve to fuel demand for them.

Oliver's case was a guideline judgment of the Court of Appeal concerning offences involving indecent photographs and pseudo-photographs of children. The court said that a custodial sentence of between 6 and 12 months will generally be appropriate for possessing a small number of images of penetrative sexual activity between children and adults,[7] although it was said such a level of sentence was appropriate for adult offenders after a contested trial and without prior convictions. However, there were said to be specific factors which were capable of aggravating the seriousness of a particular offence, relevantly, including the storage of images on a computer rather than mere downloading (as here); where the children were of a tender age (as partly here);[8] and particularly if some of the conduct may have induced fear or distress in the victim, and some conduct which might not cause fear or distress to an adolescent child might cause fear or distress to a child of, say, six or seven (as may well have been the case here, notwithstanding the fake smiles and jollity of the child victims in the sample photos I have seen).

I agree with the observation of the court in Oliver that some, but not much, weight should be attached to good character in cases of this kind.[9] Notoriously, in recent years throughout Australia, extensive police operations to detect child pornography offences, particularly amongst paedophile rings, have revealed the possession of child pornography by persons of otherwise good repute and standing, sadly some of them were doctors, lawyers, police officers, and childcare workers.

The relevant images are very disturbing. They were kept by you for a lengthy period of time ...

No explanation has been provided by you as to why you had these images, and your counsel specifically refrained from producing material on or submitting as to the question of whether you are a paedophile or have such tendencies. I cannot speculate about that ... Whilst it cannot be assumed that possession of child pornography means an offender will go on to abuse a child, I simply note that when speaking of the offence of importing child pornography, Malcolm CJ said in the Western Australian appeal of Assheton v R[10] that 'The capacity of child pornography to deprave and corrupt individuals is an accepted result of such importation ...' The same can be said about the possession of such material.

The principle of general deterrence looms large in a case of this kind. Before November 2000 the possession of child pornography was a summary offence punishable by a maximum term of imprisonment of two years. After that date it became an indictable offence with the maximum of five years' imprisonment which I have indicated.[11] Whilst your offence was not associated with the making or production or trafficking for commercial gain or otherwise of child pornography, your 'mere possession' of the material is serious conduct. As was noted by Vincent JA, with whom the other judges of the Court of Appeal agreed, in R v Curtain,[12] the offence is designed to address one aspect of the sexual exploitation of children, namely the distribution in the community of descriptions, pictures, or images of violation. His Honour continued:

The increase in penalty and the categorisation of the offence as indictable were obviously intended to 'send a clear message', to use the expression employed by the Attorney-General in his Second Reading Speech introducing the amendment, of the serious view that was taken of the possession of child pornography by this community and to increase the deterrent effect of the law.[13]

In that case the offender possessed up to 45,000 images of child pornography, and the sentence of 18 months with a minimum of nine months' imprisonment was upheld as being well within the range available in that case.

In a similar vein, Callaway JA, speaking for the Court of Appeal in R v Coffey,[14] emphasised that child pornography of your kind involves the corruption and violation of children, and the possession of such material as you had 'creates a market which encourages the further exploitation of children'. His Honour said that the maximum penalty for the offence you have committed is intended, among other things, '... to deter prospective purchasers and collectors of child pornography in the hope that adverse economic consequences will ensue for those who produce it.'[15]

In obtaining this material, whether you paid for it or not, you have encouraged those who produce it to exploit and abuse young children for profit. That is so, even in the absence of any evidence that you intended to disseminate or distribute this material in any way ...

In addition to general deterrence, just punishment and protection of the community are matters of importance as well. On behalf of the community I strongly denounce your offending.

I also consider that there is a need for a sentence which will specifically deter you from offending in this way in the future. Such a need is clear from the fact that you possessed this material over a substantial period of time, a fact treated by the Court of Appeal in Curtain as a matter which could well be perceived as an aggravating circumstance;[16] ... and because, as I have said, there is no element of remorse in your plea.

... I am unable to conclude that you have good or very good prospects of rehabilitation, and it was not submitted by your counsel to the contrary. I am guarded in reaching any conclusion as to that matter ...

It is conceded by you that in the sentence I impose there should be some measure of cumulation upon the sentence you are presently undergoing, because you have committed a separate offence.[17]

5 Having read the written submissions filed on behalf of the applicant and the Crown, we indicated at the commencement of the hearing that we had formed a provisional view that in re-sentencing we should re-impose the sentence of 12 months and fix a non-parole period of six months. In the light, however, of the submissions made on behalf of the applicant this morning by senior counsel appearing on his behalf, we accept that that would not be a just outcome. We agree that there should be a material reduction in the sentence, on account of the matters to which we will now refer.

6 His Honour approached the sentencing task on the basis - which was correct at that time - that the applicant was to be sentenced as a serious sexual offender. That made applicable ss 6D and 6E of the Sentencing Act 1991 (Vic) and, in particular, obliged the judge to treat the protection of the community as the principal purpose for which sentence was imposed. As the Court has said recently, the question which arises when s 6D(a) applies is no different from the question which arises on any ordinary sentencing exercise: what risk to the community does the offender present and what sentence is necessary to afford appropriate protection to the community against that risk?

7 The risk assessment to be undertaken now, in resentencing, is necessarily different from that which the judge was obliged to make when sentencing for this offence. His Honour was sentencing a person who had already been convicted of a serious sexual offence involving, as the judge had said in sentencing him, sustained sexual abuse of a young girl. Inevitably, that background must have affected the judge's view of the risk which this applicant presented. That conviction having been quashed, we must approach the task of resentencing on the basis that this was a single offence, committed by someone without prior convictions.

8 The second matter which in our view requires a reduction in the sentence concerns the assessment of the need for specific deterrence. His Honour's reasons for sentence referred to the applicant having had this pornographic material in his possession during the period to which the sexual relationship count related. We would assume that his Honour - quite understandably in the circumstances - took into account in assessing the need for specific deterrence the conjunction of the possession of child pornography with the other offending of which, at that time, the applicant stood convicted. It would, we think, be contrary to the interests of the justice if we failed to take account of the fact that, again, the assessment of specific deterrence must change when that concurrent circumstance falls away.

9 Attention has been drawn by senior counsel for the applicant to the fact that the applicant has served 196 days of detention under sentence on this count, which is to be regarded as pre-sentence detention in relation to today's resentencing. He also draws attention to a period of some four and a half months which elapsed between the date of sentence on the sexual relationship count and the date of sentence on the child pornography count. We record the fact that, in arriving at our decision on resentencing, we were not asked to and do not take any account of that period; that is to say, the four and a half months between 4 March 2009 and 23 July 2009.

10 In conclusion, we wholly endorse what his Honour said about the seriousness of offending of this kind, in particular about the harm which the creation of pornography of this kind causes to the children who are forced to participate in the filming and photography which creates the images. Our decision to impose a lesser sentence reflects no difference in view on those matters at all. The increase in the maximum for this penalty in 2000 by the Victorian Parliament reflected the clear view of the Victorian community that offending of this nature was to be viewed very seriously.

11 As we have indicated, however, matters have relevantly changed concerning the view to be taken of this applicant, who is now being sentenced for this offence alone. We think it is in the interests of justice that those changes be reflected in a reduction of the head sentence from 12 months to ten. And we think it appropriate, it not being open to the Court to fix a non-parole period,[18] to partially suspend, that course also having been urged on us by counsel for the applicant.

12 In the light of the conclusion reached on the sentence appeal and of course in the light of the quashing of the other conviction, an application has been made for bail pending the re-trial. The grant of bail is not opposed by the Crown. Subject to the imposition of the conditions to which the applicant was subject when he was previously on bail, in our view a grant of bail is appropriate in these circumstances. We grant the applicant bail subject to the previous bail conditions and on his undertaking that he will appear as required at or in connection with the re-trial, if any, and will surrender himself as and when required.

[1] References to the sexual relationship count have been omitted.

[2] R v SLJ (Unreported, County Court of Victoria, Judge Howard, 4 March 2009).

[4] Okutgen v R (1982) 8 A Crim R 262, 265-266 (Starke J). But see also, Young (Unreported, Court of Criminal Appeal, 18 May 1990) 6-7 (Brooking J).

[11] Section 6, Crimes (Amendment) Act 2000 (Vic).

[13] Cited with approval in R v Jongsma [2004] VSCA 218, [31] ('Jongsma') (Batt JA).

[15] Cited with approval in Jongsma [2004] VSCA 218, [31] (Batt JA).

[16] R v Curtain [2001] VSCA 156, [15]. An approach approved in Jongsma [2004] VSCA 218, [28], [31] (Batt JA).

[17] R v SLJ (County Court of Victoria, Judge Howard, 24 July 2009) [3]-[39].

At a glance

Court

Decision date

Before

Source

Judgment (65 paragraphs)

Parties

Cases Cited (1)