R v Salsone; ex parte A-G

[1]

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 SENTENCE - respondent convicted upon guilty plea of one count of distributing, and one count of possessing, child exploitation material - respondent used peer-to-peer software which allowed others to access child exploitation material on his computer - respondent was 21 years old at the time of the offence, co-operated with the authorities and pleaded guilty at an early stage - respondent has promising prospects of rehabilitation - judge imposed concurrent sentences of two and three year terms of probation and ordered the respondent to perform 200 hours of community service - by hearing of appeal, respondent had performed all 200 hours of community service satisfactorily - whether sentence imposed manifestly inadequate - what sentence should be imposed on Attorney-General's appeal

[2]

Penalties and Sentences Act 1992 (Qld), s 9(2), s 12(2)

[3]

R v Plunkett [2006] QCA 182, considered

[4]

R v Richardson; ex parte A-G (Qld) (2007) 175 A Crim R 244; [2007] QCA 294, cited

[5]

R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295, considered

[6]

R v Riley [2007] QCA 391, cited

[7]

R v Daw [2006] QCA 386, considered

[8]

R v Hood [2005] 2 Qd R 54; [2005] QCA 159, cited

[9]

Director of Public Prosecutions (Queensland) for the appellant

[10]

**[1] McMURDO P: Kieran Vincent Salsone pleaded guilty in the District Court at Brisbane on 27 March 2008 to one count of distributing child exploitation material (count 1) and one count of possessing child exploitation material (count 2). The offences occurred in November and December 2006. On the first count, he was sentenced without conviction to three years probation and ordered to perform 200 hours community service. On the second count he was sentenced without conviction to two years probation. The appellant, the Attorney-General of Queensland, appeals against that sentence contending that it was manifestly inadequate because it failed to reflect adequately the gravity of the offences; it failed to take sufficiently into account the aspect of general deterrence; and the sentencing judge gave too much weight to factors going to mitigation.

[11]

[2] Mr Salsone was 21 years old at the time of the offences and 22 years old at sentence. He had no criminal history.

[12]

[3] The circumstances of the offences are as follows. On 23 November 2006 police conducted an internet search for child exploitation material using the peer-to-peer program, Limewire, and the search term "six y.o.". The police officer downloaded images containing child exploitation material from an IPN address. These images were tendered as ex 1. The investigating police officers discovered that the IPN address was assigned to a house at Carina in Brisbane. Police obtained a search warrant for that address and executed it on 8 December 2006. Mr Salsone was not present. They found a computer tower which appeared to belong to him. They examined it and discovered it contained child exploitation material. Police took possession of it for further forensic examination.

[13]

[4] At about 11.40 am that day, police spoke to Mr Salsone at the Treasury Casino where he was working. He agreed to accompany them to the police station where he took part in a recorded interview. He provided the following information. The computer tower was his and he was its sole user. He was studying information technology at university but was taking a break from his studies. He had access to the internet through the internet connection belonging to the owner of the Carina premises where he was residing. He used the peer-to-peer programs, Limewire and MacroTorrid, to download pornography through networks with other computers. He downloaded the pornography into a pre-configured folder on his computer. He falsely claimed to have disabled the function on those programs which permitted others to download pornographic material from his computer. He said he did this to save money because the downloaded material was slowing the network and he was exceeding his upload limits for his internet usage. Police officers showed him the material they had obtained. He then admitted that it was in his possession and that it must have come from his computer. He said that he had been careless in not disabling the downloading function as he had intended. He thought the girls depicted in the photographs downloaded by the police were between six and 17 years old. When police referred to other material found on his computer he agreed that the children depicted were under 16 years of age. He downloaded the material to look at himself. He retained it for up to a month before deleting it. He usually saved the pornographic material in a re-named folder so that the nature of it was less obvious to people who had access to his computer.

[14]

[5] The interviewing police officer asked him, "Do you have a sexual interest in female children under the age of 16?" He replied:**

[15]

"I don't know. I don't think so because I mean, I know - I know girls of that age group in real life and I definitely don't feel any attraction to them. It's just, um, I generally don't get up to much other kind of wrongdoings and anything like that and I'm a fairly self-destructive person. I knew [the police operation codenamed Argos] existed. I knew their methods of tracking people down and I definitely wanted to get caught."

[16]

**He later added, "[f]or - for a long time it's been more about getting caught than downloading or doing things that are illegal".

[17]

[6] Later in the interview he admitted to obtaining sexual gratification from the material and that he occasionally masturbated himself whilst viewing it. He obtained access to Limewire every couple of days. He used search terms which did not make it immediately apparent that he was seeking pornographic material. He was uncertain how many images containing child exploitation material he had on his computer. At the conclusion of the interview police charged him with these offences.

[18]

[7] The computer tower contained a 200 gigabyte and a 300 gigabyte hard drive. Only the latter contained child pornography. A subsequent examination of it revealed six video files and 122 image files containing child exploitation material in the Limewire folder. The prosecutor tendered a schedule (ex 2) detailing a description of the contents of the video files. One involved a girl, aged about 12 years, rubbing her naked breasts and her clitoris. The second video involved a boy, aged between six and eight, engaging in sexual intercourse with an adult woman on a couch; the woman penetrated the boy's anus with her finger; a woman masturbated one young boy while another boy penetrated her vagina with his penis; a woman licked the penises of both boys; a man and a young boy were naked and masturbating themselves; and a man masturbated with one hand whilst touching the anus of a young boy squatting over him with the other. The third video depicted a man and a girl, aged about 12, in simulated intercourse; the man attempted to penetrate the girl's anus; he rubbed the girl's genitalia and anally penetrated her with his finger while rubbing his penis on her vagina; the girl had oral sex with the man. The fourth video depicted a man penetrating the vagina of a naked girl aged between five and seven years with his penis and having sexual intercourse with her. A fifth depicted one male and two female children, all apparently under 16, engaging in sexual conduct including masturbation and oral sex. The sixth video depicted two children under 16 engaging in heavy petting and sexual intercourse.

[19]

[8] The prosecutor tendered nine images (ex 3) which she said were a representative sample of all the images contained in the Limewire folder. Some images depicted acts of penetration of a young child by an adult and sexual activity between children. One image represented apparently sado-masochistic treatment of a child and the penetration of a girl's vagina with an object. Some of the children in the images may have been younger than six years old; Mr Salsone told police that one child seemed to be between four and six years old.

[20]

[9] The nature of the images in the other folders on the computer's hard drive was generally not as serious as those in the Limewire folder. They included 2,920 images and one video file containing child exploitation material, all created, modified and accessed between 23 November and 3 December 2006. The video was 15 seconds in length and depicted a girl of about 12 years old performing oral sex on an adult male and the adult male then engaging in sexual intercourse with her. Fourteen of the worst of the images contained in the non-Limewire folders were tendered (ex 4). The second count of possessing child exploitation material encompassed the possession of all the material located in the Limewire folder as well as the images and video contained in the other folders on the hard drive.

[21]

[10] Mr Salsone was committed for trial after a committal hearing involving hand-up witness statements with cross-examination of three police witnesses. An indictment was presented on 18 October 2007. Once Mr Salsone was informed of the rejection of the submission made on his behalf to the Director of Public Prosecutions concerning count 1, the matter was listed for sentence. It was common ground that his pleas of guilty were timely.

[22]

[11] The prosecutor made the following submissions. The first charge, distributing child exploitation material, was brought under s 228C Criminal Code 1899 (Qld). Under s 228C(2)(b), it is an offence to make child exploitation material available for access by someone, even if the material is not actually "distributed" in the ordinary sense of that word. Mr Salsone's admission that it was possible for other Limewire users to access images from the Limewire folder and download them, one at a time, was sufficient to constitute the offence of distributing child exploitation material. Mr Salsone explained to police that the default setting on the Limewire program allowed three files at a time to be downloaded by other Limewire users from his Limewire folder; because this compromised the speed and cost of his internet access, he changed the setting from "3" to "1", limiting access by other Limewire users to one file at a time; he agreed he could have changed the setting to "0" to prevent all access to his folder. Mr Salsone's culpability in respect of count 1 was not limited to the images actually distributed to the investigating police officer; it encompassed the distribution of all 109 images and six videos in his Limewire folder which were able to be accessed from the internet on 23 November 2006.

[23]

[12] The prosecutor emphasised the aggravating features as being that the images and videos in the Limewire folder the subject of the distribution charge (count 1) all approached the worst kind of child exploitation material. Some involved depraved acts of actual sexual abuse of young children by adults, including sexual intercourse. The material was available through to Limewire by other internet users. An aggravating feature of count 2 was that the Limewire folder of 122 images and six video files (the most disturbing of the material in Mr Salsone's possession) was able to be accessed by other internet users on 8 December 2006. She pointed out that the material in the Limewire folder was also saved in a lasting format on his computer. His behaviour fed the market for the sexual exploitation of children. He obtained the material for his own sexual gratification. Although

[24]

Mr Salsone was young and with no prior convictions, a strong deterrent sentence was needed to diminish the market for child pornography and ultimately reduce the number of children subjected to sexual abuse.

[25]

[13] In terms of penalty, the prosecutor submitted the following. In respect of the first count, a sentence of three years imprisonment suspended after 9 to 12 months should be imposed. On the second count, a three year probation order should be imposed to assist his rehabilitation. The hard drive used in the commission of the offences should be forfeited to the Crown.

[26]

[14] Defence counsel made the following submissions at sentence. Mr Salsone was of good character and had never before had as much as a parking ticket. His parents separated in early 2005, not long before his involvement in these offences. He had since formed a de facto relationship with a young woman who was supportive of him. She and Mr Salsone's father, who was also supportive, attended court. They each provided written testimonials, highlighting Mr Salsone's character strengths and emphasising that these offences were out of character. Other tendered references supported that submission. Certificates attesting to his commendable academic achievements, which included an "OP3" in his 2002 senior certificate, were also tendered. Other certificates relating to charity fund raising were also tendered. Since leaving school he had pursued his tertiary studies, and he had an excellent work history. He was a trainee card dealer at the Treasury Casino at the time of his arrest; he lost that position because of this investigation. At sentence, he was in full time work. He planned to return to full time study and work.

[27]

[15] Defence counsel tendered a psychological report from Mr Luke Hatzipetrou (ex 9) which set out the following information. Mr Salsone appeared to be remorseful and embarrassed by his offending. He acknowledged the importance of addressing his behaviour. He had a pervasive history of inter-personal relationship problems, dysthymic disorder and social skill impairments. He had excelled academically. He had an interest in mechanical and abstract tasks such as computer programming. His capacity to sustain paid employment has been compromised by his depressive disorder and anxiety. He had a history of mood disorder and adjustment problems. When he lived as a young teacher in China, he seemed to have suffered from bulimia in the background of a major depressive episode; he failed to seek psychiatric treatment; and he abused alcohol. He had previously been treated with anti-depressant medication. He exhibited behaviours and expressed beliefs that reflected schizoid personality disorder and perhaps pervasive developmental (autism spectrum) disorder. Although he attempted to rationalise his actions, he understood his rationalisations were poorly formed and he had reasonable insight into the seriousness and deviancy of his acts. He had pursued counselling for his behaviour. Mr Hatzipetrou opined:**

[28]

"Under the collective conditions of access to the internet, impaired social skills and experiences and ineffective coping, it appears Mr Salsone's capacities to understand the consequences of his actions or control his actions at the time of the offences were likely to be impaired but not deprived."

[29]

**He was likely to have suffered from untreated dysthymic disorder over the past five years and during the course of the offences. He should benefit from treatment by a clinical psychologist; from appropriate treatment programs to enhance his social and interpersonal skills; from maintaining structured employment and, although alcohol misuse was not connected with these offences, because of his history of alcohol misuse in China he should actively participate in alcohol and drug education and treatment. There is a strong prospect of rehabilitation if he remains in a community setting where he has access to family support, employment and appropriate treatment programs.

[30]

[16] Defence counsel emphasised that Mr Hatzipetrou's report showed Mr Salsone's promising prospects of rehabilitation with the treatment which he was then undertaking. He emphasised that Mr Salsone has undergone five or six counselling sessions over a four month period with psychologist Dr Frank Walsh. Mr Salsone instructed his counsel that he understood the seriousness of the offences and that they were not victimless crimes. He felt a great degree of shame and guilt and was adamant that he would never re-offend. In respect of the offences, defence counsel emphasised that the offending occurred over a relatively short period of less than a month. Mr Salsone looked at the material out of curiosity rather than depravity and then essentially deleted it. Many of the images, whilst technically child exploitation material, were relatively minor. The only known access to any of the images was that made by the investigating police.

[31]

[17] After referring to s 12(2) Penalties and Sentences Act 1992 (Qld) and this Court's decision in R v Daw,[1] he submitted that the appropriate deterrent sentence on each count was a three year period of probation with a condition that he undergo psychological and/or psychiatric counselling and treatment as directed, without the recording of convictions.

[32]

[18] In reply, the prosecutor emphasised that all the 122 images in the Limewire shared folder were of a type similar to those tendered in ex 3; and of the further 2,920 images, the 14 images tendered (ex 4) were the worst examples. It followed that 136 images in Mr Salsone's possession were of this most serious nature. She also emphasised that the penalty to be imposed for distributing child exploitation material should be heavier than that for mere possession of it. This was because the distribution was factually more serious than mere possession and also because the maximum penalty for distribution was 10 years imprisonment compared to five years imprisonment for mere possession. Distributing child exploitation material, she argued, was "feeding the market" and demonstrated a higher level of criminality than merely possessing the same material.

[33]

[19] In sentencing, the learned primary judge made the following observations. The first count of distributing child exploitation material was committed when Mr Salsone configured his computer to allow others to have access to a directory which contained some of the child exploitation material already downloaded by him. The Crown could not establish that anyone other than the investigating police officers in fact received child exploitation material from Mr Salsone's computer. The offences were serious. The community through parliament was concerned that material of this nature had been created and widely disseminated within the community because many children throughout the world were abused to obtain the material. These offences are not victimless. The distribution offence was the more serious of the two offences, but it was at the lower end of conduct constituting distribution.

[34]

Mr Salsone was not actively promoting, selling or advertising the material. He had, however, configured his computer in a way which allowed others to have access to and to download the material. The judge considered the tendered images were "truly offensive" and the thought of children being exploited to produce them "would disgust and horrify any right-thinking member of the community".

[35]

[20] There were no Court of Appeal decisions relating to sentencing for the offence of distributing child exploitation material. The sentencing of an offender must be fashioned to fit the particular and unique circumstances surrounding the offending. Mr Salsone's guilty plea was timely. He was remorseful. He cooperated with the investigating police officers. He was relatively young. He was an intelligent man with a promising career. Excellent references had been tendered. He had the support of his family and of his partner. Section 9(2) Penalties and Sentences Act 1992 (Qld) applied to his sentencing so that the principles that a sentence of imprisonment should only be imposed as a last resort and the principle that a sentence that allows an offender to stay in the community is preferable, have application. It was not easy to arrive at the appropriate sentence in this case. On the one hand, the mitigating factors and sentencing principles favoured leniency. On the other hand, the offences were "horrendous" and it was "just appalling to think of what these children must have been subjected to". His Honour finally determined that the appropriate sentence was one of probation and community service.

[36]

[21] Even where the offending was serious, in an appropriate case it was not necessary to record a conviction. Focussing on Mr Salsone's rehabilitation rather than punishment, this was an appropriate case in which to extend to him the further leniency of not recording a conviction: he had a bright future if he applied himself. The sentences imposed would deter Mr Salsone and others from committing these types of offences. They would also demonstrate society's condemnation of his behaviour. The judge recommended that Mr Salsone be required to undertake the counselling and other courses which are referred to in paragraph 11 of ex 9

[37]

[22] Mr Meredith on behalf of the appellant emphasised that Mr Salsone's offending included the more serious charge of distributing the material as well as possession of it. Deterrence was an important factor and one that required the recording of convictions. Daw was a less serious case than this because it related only to possession not distribution, and the images in it did not depict children positively engaged in sexual acts. The comparable possession cases of R v Plunkett,[2] R v Richardson; ex parte A-G (Qld),[3] R v Wharley[4] and R v Riley[5] demonstrated that a sentence of up to 18 months imprisonment suspended after up to six months with the recording of convictions was the appropriate sentence here. He conceded that, because this was an Attorney's appeal and because Mr Salsone had now completed his 200 hours of community service, a wholly suspended sentence was appropriate.

[38]

[23] Mr Heaton on behalf of the respondent submitted that the many mitigating factors in this case supported the sentence imposed at first instance, including not recording convictions. The penalty imposed was in fact more onerous on Mr Salsone and better protected the community than a fully suspended sentence as it involved three years supervision on the strict conditions of a probation order and 200 hours community service. It was sufficiently condign to be an effective personal and general deterrent. Mr Salsone's sentencing has involved an element of public shaming and provided a clear message to him and others that the courts and the community will not tolerate those who possess and distribute child exploitation material. He has attended as required under his probation order and completed all the ordered community service whilst also working to support himself. He has continued to receive treatment from psychologist Dr Frank Walsh. He has enrolled to recommence his tertiary studies in July 2008. He submitted the sentence was not manifestly inadequate.

[39]

[24] The maximum penalty for count 1, distributing child exploitation material under

[40]

s 228C(1) Criminal Code, is 10 years imprisonment and for count 2, possession of child exploitation material under s 228D Criminal Code, five years imprisonment.

[41]

[25] In R v Plunkett,[6] R v Daw[7] and R v Wharley[8] this Court held that s 9(2) Penalties and Sentences Act applies to offences against s 228D. The reasoning in those cases has equal application to offences against s 228C and it is not submitted that s 9(2) does not similarly apply to offences against s 228C. It follows that the learned primary judge was right to observe when sentencing Mr Salsone for these offences that s 9(2) Penalties and Sentences Act applied so that jail must only be imposed as a last resort and a penalty that allowed him to remain in the community was preferable.

[42]

[26] His Honour also rightly recognised the many mitigating factors in this case.

[43]

Mr Salsone pleaded guilty at an early stage and cooperated with the authorities. He has promising prospects of rehabilitation because he is a clever young man who is furthering his education; he has a good employment record; and he also has the support of his family and partner. The psychological report tendered at sentence demonstrated that although he has some significant psychological problems, which explain but do not excuse his commission of these sickening offences, with the counselling and treatment he has voluntarily undertaken, his prospects of rehabilitation are even further improved.

[44]

[27] As the learned sentencing judge recognised, there is no decision of this Court dealing with the sentencing range applicable to offences against s 228C. This Court's decisions concerning the generally less serious offence against s 228D provide some limited assistance. In Wharley a sentence of six months imprisonment suspended after two months with an operational period of two years was imposed for a conviction after a trial on an offence against s 228D. This Court recognised that the judge was entitled, despite s 9(2) Penalties and Sentences Act, to conclude that it was necessary to impose a short period of actual imprisonment. The seriousness of the images there seemed comparable to the present case but in Wharley there were far fewer mitigating features. Wharley was 43 years old, showed no remorse and did not co-operate with the administration of justice, whereas Mr Salsone was young, remorseful, entered a timely guilty plea, had sought and received treatment, had some insight into the seriousness of his conduct and had promising prospects of rehabilitation. This Court refused Wharley's application for leave to appeal against sentence.

[45]

[28] In Daw this Court substituted a sentence of two years probation with an additional condition as to treatment without conviction for the original sentence of nine months imprisonment to be served by way of an intensive correction order with a conviction recorded. Daw pleaded guilty to an offence against s 228D. It was common ground here and below that the images in Daw's possession were less serious than in this case. Daw, like Mr Salsone, was 21 years old at the time of his offences, had pleaded guilty and had similarly promising prospects of rehabilitation. Daw was not, however, convicted of the additional and more serious count of distributing child exploitation material under s 228C.

[46]

[29] In making the maximum penalty for offences against s 228C ten years imprisonment rather than the five year maximum penalty for offences against s 228D, the legislature plainly intended that, in like circumstances, offences against s 228C will ordinarily warrant heavier penalties than those against s 228D. Whilst the possession of child exploitation material in itself encourages the evil business of the exploitation and sexual abuse of children in the production of that material, the distribution of that material takes the offending to a higher level of exploitation of the children involved and even more significantly fosters that heinous industry. This Court has consistently recognised that deterrent sentences are appropriate for offences against s 228D. Deterrent sentencing is even more apposite for offences against s 228C. The appropriate penalty for an offence against s 228C will, however, depend on the circumstances both of the offence and the offender. Those who commit serious offences against s 228C, for example mature offenders in the business of the commercial distribution of gravely depraved child exploitation material, who have a relevant criminal history and who have not cooperated with the administration of justice, can expect to be sentenced to lengthy periods of imprisonment. Less severe examples with significant mitigating features will result in more moderate terms of imprisonment, sometimes either suspended after a short period of actual custody or absolutely, or served by way of an intensive correction order. In a special case, a lengthy probation and/or community service order may even be open. Ordinarily, the need to deter the distribution of child exploitation material would require, in the absence of remarkable mitigating factors, the recording of a conviction.

[47]

[30] The images and videos in Mr Salsone's possession which had been downloaded to the Limewire folder and which were accessible to other Limewire internet users, were serious examples of child exploitation material. Although the prosecution did not establish that anyone other than the investigating police officer had downloaded the images and videos and there was no element of commerciality, the fact that this revolting child exploitation material was available to be viewed and downloaded by other internet users makes this offence a middle of the range example of offences against s 228C. There were, however, many mitigating factors. Mr Salsone cooperated with the administration of justice and pleaded guilty at an early stage. He was remorseful and showed some insight into the seriousness of his conduct. He was a young man when he committed the offences. He has obtained treatment. He has promising educational and employment prospects and the support of his family and partner. His overall rehabilitative prospects seem extremely promising.

[48]

[31] Despite the considerable care taken by the learned and experienced primary judge in deciding this matter, in the end I am persuaded that the sentence was manifestly inadequate. The offences were so serious and the need for deterrence so great that convictions should have been recorded on each count. Despite the absence of any commerciality, the graphic nature of the images he possessed and made available to others on the internet for viewing and downloading was a serious feature. Others could continue to distribute the material to yet more internet users, further fostering the exploitation of the children depicted and the evil industry as a whole. The need for general deterrence required the recording of convictions, notwithstanding the likely detrimental impact on Mr Salsone's economic or social well-being or his chances of finding employment: s 12(2) Penalties and Sentences Act. A custodial sentence in the range of 12 to 18 months imprisonment was appropriate in respect of Mr Salsone's offence against s 228C. The many mitigating factors in his favour warranted either its full suspension or at least after a relatively short period of actual custody. Mr Salsone's conviction of the offence against s 228D allowed the suspended sentence imposed for the offence against s 228C to co-exist with a sentence of two or three years probation for the offence against s 228D: R v Hood.[9] The combined sentences would best ensure both strict supervision and treatment to support his rehabilitation and protection of the community by the imposition of deterrent penalty. Mr Salsone has now completed the 200 hours of community service ordered by the primary judge. For that reason, fairness dictates that the shorter sentence of two years probation is now appropriate for count 2.

[49]

[32] I would allow the appeal, set aside the sentences imposed at first instance, and instead order that on count 1, Mr Salsone be sentenced to 15 months imprisonment suspended forthwith with an operational period of two years. In respect of count 2, I would order that he be placed on two years probation on the usual terms and conditions, together with an additional condition that he receive psychological and/or psychiatric treatment and counselling as directed by an authorised corrective services officer. Convictions are recorded on each count.

[50]

3. On count 1, substitute a sentence of 15 months imprisonment suspended forthwith with an operational period of two years.

[51]

4. On count 2, substitute a sentence of two years probation on the terms and conditions set out in s 92(1) Penalties and Sentences Act 1992 (Qld) together with an additional condition that he receive psychological and/or psychiatric treatment and counselling as directed by an authorised corrective services officer.

[52]

**[33] FRASER JA: I agree with the reasons of the President and the orders proposed by her Honour.

[53]

[34] MACKENZIE AJA: I agree that the appeal be allowed for the reasons given by the President and that the orders proposed by her be made.**

[54]

[1] [2006] QCA 386.

[55]

[2] [2006] QCA 182.

[56]

[3] (2007) 175 A Crim R 244; [2007] QCA 294.

[57]

[4] (2007) 175 A Crim R 253; [2007] QCA 295.