R v Talbot [2009] TASSC 107

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Crown appeal - Accessing, possessing and making available child pornography material - Whether sentence manifestly inadequate.

Appellant: Director of Public Prosecutions (Cth)

Judgment Number: [2009] TASSC 107

2 Sentence of 12 months' imprisonment with effect from 4 June 2009 and recognizance release order permitting release after serving six months of that sentence, imposed in respect of counts 1 and 2 on complaint 93372/08 from the Court of Petty Sessions at Hobart, both quashed.

3 On counts 1 and 2 on that complaint, the respondent is sentenced to imprisonment for 20 months, with effect from 18 December 2009.

4 The respondent is to be released after serving 10 months of the sentence imposed today upon giving security without sureties by recognizance in the sum of $1,000 that he will be of good behaviour for two years after his release from prison.

5 Sentence of six months' imprisonment with effect from 4 June 2009 imposed in respect of count 3 on the said complaint varied to the extent that it is not to stand as a concurrent sentence with the sentence imposed today.

1 I agree with the reasons for judgment of Blow J and the orders he proposes.

2 This is a Crown appeal in respect of sentences imposed on the respondent for crimes relating to child pornography material. He accessed such material on the internet, kept such material in his possession, and made such material available to others over the internet. His activities involving the internet amounted to crimes under Commonwealth legislation. Possessing child exploitation material is a crime under State legislation. The respondent pleaded guilty to three charges, and a judge imposed separate sentences for the Commonwealth and State crimes. For accessing the pornography and making it available, the respondent was sentenced to 12 months' imprisonment, subject to a recognizance release order that permitted his release after serving six months of that sentence. For possessing child exploitation material, he was sentenced to a concurrent term of six months' imprisonment. The Crown contends that those sentences were manifestly inadequate.

3 The three charges on which the respondent was convicted and sentenced were as follows:

1 Using a carriage service to access child pornography material, contrary to the Criminal Code (Cth), s474.19(1)(a)(i), between 1 March 2005 and 31 October 2008.

2 Using a carriage service to make available child pornography material, contrary to the Criminal Code (Cth), s474.19(1)(a)(iv), between 25 July 2008 and 21 October 2008.

3 Possessing child exploitation material, contrary to the Criminal Code (Tas), s130C, on 31 October 2008.

4 The respondent's offending was detected during an Australian Federal Police investigation relating to the exchanging of child pornography and child abuse material using internet file sharing programs. On 31 October 2008, his home was searched, and computer equipment was seized. The items seized contained 30,125 different still images and 889 video files of child pornography and child abuse material. The learned sentencing judge gave a thorough description of that material. The respondent does not dispute anything in that description. It should be noted that the figures in that description include duplicate images. About 24 per cent of the images referred to were duplicates. His Honour described the seized material as falling into five categories, as follows:

"Level 1 - Images and videos depicting erotic posing with no sexual activity:

There were 23,044 images, including duplicates, and 191 videos in this category consisting of children:

• Posing in a sexually explicit manner.

• Posing naked or partially clothed, many with a focus on the genitals and breasts.

• Naked and stretching the skins around their vagina and anus;

• Urinating;

• Having a close up photograph taken of the vagina, penis and anus.

Level 2 - Images and videos depicting sexual activity between children, or solo masturbation by a child:

There were 1,811 images, including duplicates, and 74 videos in this category consisting of children:

• Performing oral sex on each other;

• Engaged in penetrative sex with each other; and

• Engaged in self penetration by hand or objects such as vibrators, pens and bottles.

Level 3 - Images and videos depicting non-penetrative sexual activity between adults and children:

There were 7,508 images, including duplicates, and 149 videos in this category consisting of children:

• Holding, touching or preparing to perform oral sex on the penis of adult males;

• Adults touching the genital and breast areas including hands stretching the skin around the vagina and anus region;

• Being ejaculated on by adult males or posing with semen on their face, vagina, anus or body;

• Being urinated on by adult males or female children urinating and defecating on adult males; and

Level 4 - Images and videos depicting penetrative sexual activity between adults and children:

There were 6,824 images, including duplicates, and 454 videos in this category consisting of children:

• Being penetrated orally, vaginally and anally by the penis, hand or tongue of adult males and females;

• Being penetrated vaginally and anally by objects such as screwdrivers and other tools, vibrators, pens and bottles being held by adult males and females;

Level 5 - Images depicting sadism or bestiality with children (child abuse):

There were 368 images, including duplicates, and 21 videos in this category consisting of children:

• Naked, gagged with their hands and feet bound together or tied and bound to a wall, bed seat or bench.

• Naked and being whipped;

• Images of female and male children aged between 5 and 15 years pictured naked and locked up in small animal cages;

• Orally, anally and vaginally penetrated by the penis or tongue of animals, including dogs, cats and larger farm animals;

• Having knives held against the head, neck and genitals."

5 The respondent admitted to the police that he had been accessing child pornography on the internet for about five years, at least once or twice per week, though he said that he had had several breaks. In particular, about two years before the police search he had wiped all the child pornography off his hard drive and not accessed any more for about nine months. The Criminal Code (Cth) did not prohibit the accessing of child pornography until s474.19(1)(a)(i) came into effect on 1 March 2005. Accordingly the respondent was charged with accessing child pornography between that date and the date of the police search.

Count 2 - Making available child pornography material

6 The respondent made child pornography and child abuse images available to other internet users by means of two file sharing programs named Gigatribe and eMULE. The undisputed facts stated by the prosecutor in relation to the making available of such files can be summarised as follows:

•

The respondent made available 18,344 image files and 455 video files using Gigatribe.

•

Gigatribe did not make those files available to all the world, but only to individuals whom the respondent accepted as Gigatribe friends. Each of his Gigatribe friends was able to access any or all of the available material freely at any time.

•

The respondent had 33 Gigatribe friends.

•

One of the investigating police officers had become one of his Gigatribe friends. The respondent made available to that officer about 7,262 files containing child pornography material.

•

Seven of the respondent's Gigatribe friends were accessing his material at the time of the police search.

•

The respondent also made available 13,562 image files and 294 video files using eMULE. It was implicit that he had made these files available to at least one other eMULE user, but no information was provided as to the number of eMULE users to whom the relevant files were made available.

7 The respondent communicated with other child pornography enthusiasts about the sorts of pornography that he and they wanted to access. He sent each of the following messages during the period of about three months covered by the charge of making available child pornography material:

•

"u have no files that im interest in, please add some hc [hard core] or I will have 2 delete u. PS or share others names who do have hc [hard core]. TIA"

•

"u don't seem 2 have any shared files, does not seem fair 4 u 2 share mine, please correct this or I nwill have 2 delete u srry. TIA"

•

"we love the same thing, thx 4 sharing, hope u enjoy my files, although it seems we have a very similar collection"

•

"nice file collection, im mainly into pthc [pre teen hard core], hope u enjoy my files"

•

"You're the greatest uncleted, thanks 4 sharing, seems 2 be a struggle 2 find people with new stuff lately, if u see anything new please let me know TIA. PS you say private files are available to verified traders, do I qualify 4 this"

•

"u must have more than that cmon dude look what ive shared with u"

•

"14 is to old I like 1 to 8 yo [year old]"

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"I like to trade preteen girls if u have any please share or I will have to say goodbye".

8 The following matters were put to the learned sentencing judge about the respondent and his circumstances:

•

He was 40 years old, and married with three children. His wife was a public servant. He was principally engaged in home duties. He went to great lengths to protect his wife and children from any exposure to the material he accessed.

•

He co-operated with the Australian Federal Police at the time of the search and when interviewed. He made full admissions. He allowed an officer to use his Gigatribe account to track down other offenders. This led to a number of enquiries and potential prosecutions, both in Australia and overseas. He offered to provide a statement to the AFP, if required, in relation to any prosecution. However, it seemed unlikely that one would be needed.

•

He pleaded guilty to all charges in the Magistrates Court.

•

He had no prior convictions.

•

As I have said, he ceased offending for about nine months, commencing about two years before the police search.

•

He obtained treatment from a clinical psychologist in order to minimise the risk of re-offending. His first treatment session was only 12 days after the police search.

•

There was a low risk of him re-offending.

•

He was remorseful. In particular, he was very conscious of embarrassing his wife and family.

9 Two aggravating factors were absent in this case. The respondent had no contact with any abused child, and his activities were not undertaken with a view to profit. Accessing child pornography material is the least serious of his crimes. All other things being equal, it is more serious to have possession of downloaded child exploitation material than simply to access it by looking at it on the internet. All other things being equal, it is one step more serious to make such material available to others than to possess it for personal use. An aggravating factor in this case was that the material made available using Gigatribe and eMULE was encrypted. That made investigation and detection more difficult for the police. In the spectrum of child pornography or child exploitation crimes, the combination of accessing, possessing and making available encrypted material places the respondent in the worst category of non-contact non-profit offenders.

10 The authorities relating to sentencing for child pornography offences were recently reviewed by this Court, differently constituted, in DPP v Latham [2009] TASSC 101. In his judgment in that case at par33, Porter J listed a series of propositions relevant to sentencing in child pornography cases. I entirely agree with that list of propositions. It reads as follows:

"• the production of child pornography for dissemination involves exploitation and corruption of children;

•

persons with pederastic inclinations can be stimulated to commit such acts on reading the material or viewing the images;

•

the collection of pornographic material is likely to encourage those who produce it, for without any market, there is less incentive to make it;

•

collection of child pornography may also have the effect of normalising the activity, both in the minds of the participants and makers, and of any children to whom it may be shown;

•

widespread collection and distribution may also have the effect of desensitising all those involved in the making, distribution and consumption of the material. This may lead to escalation in the gravity of the conduct depicted."

11 Porter J went on, in par34, to list the factors relevant to the evaluation of the objective seriousness of the possession and distribution of child pornography. I entirely agree with that list too. It reads as follows:

"• the nature and content of the images, including the age of the children and the gravity of the activity portrayed - in particular, the degree of obvious physical harm or fear or distress in the victim;

•

the number of images or items of material;

•

whether mere possession is for the purpose of further distribution, and whether there will be any profit or benefit from the activity of the offender. Actual profit or benefit will aggravate the offence, whilst absence of such profit or benefit is not mitigatory.

•

the level of personal interest in the material, as perhaps evidenced by the way in which any collection is organised on a computer;

•

whether the possession or distribution involves a risk of accidental discovery by innocent computer users."

12 In this case, the respondent's possession of the relevant material did not involve a significant risk of accidental discovery by innocent computer users at his home, and there was no thought of profit or any other benefit, but in all other respects this was a very bad case. The accessing of child pornography continued for years. It involved pornographic material of the worst kinds. Tens of thousands of images and hundreds of video files were collected. An enormous quantity of material was made available to dozens of other people for nearly three months.

13 The principles relevant to Crown appeals against sentence have been made clear in many cases, particularly Everett v R [1994] HCA 49; (1994) 181 CLR 295; R v Clarke [1996] VICSC 30; [1996] 2 VR 520; R v Allpass (1993) 72 A Crim R 561; and Attorney-General v McDonald [2002] TASSC 120; (2002) 11 Tas R 221. Crown appeals can succeed only in limited circumstances. One of those circumstances is "where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle": Everett at 300, Clarke at 522.

14 There have been so few comparable cases in Tasmania that I do not think it can be said that any tariff has been established for cases like this one. In Colbourn v R [2009] TASSC 108, which concerned an offender who had downloaded, catalogued and kept enormous quantities of child pornography material, but not supplied any to anyone else, another judge imposed sentences of imprisonment totalling 5½ years, with a non-parole period of three years. This Court quashed those sentences and substituted two concurrent sentences of imprisonment, the longer of which was for 21 months. That case and this one indicate a serious inconsistency in sentencing standards on the part of some Tasmanian judges. A sentence of two years' imprisonment was imposed in Latham (supra) after a successful Crown appeal. I consider it significant that the respondent in that case had ceased all relevant activity ten months before his home was searched and that he had a smaller quantity of child pornography than the respondent in this case. He had no videos, and over 90 per cent of his still images were small thumbnails, automatically generated by his computer when he downloaded files that he had subsequently deleted. He had forgotten about the thumbnails. I understand that thumbnails cannot be enlarged. That offender also supplied child pornography to others on dozens of occasions.

15 In other Australian jurisdictions in recent years, there have been a number of decisions of courts of criminal appeal in sentencing cases relating to child pornography: R v Liddington (1997) 18 WAR 394; R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50; R v Curtain [2001] VSCA 156; R v Coultas [2002] WASCA 131; Dodge v R [2002] WASCA 286; (2002) 134 A Crim R 435; R v Cook [2004] QCA 469; R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29; R v Plunkett [2006] QCA 182; Hutchins v WA [2006] WASCA 258; R v Wheatley [2007] ACTCA 15; R v Richardson; Ex parte Attorney-General (Qld) [2007] QCA 294; (2007) 175 A Crim R 244; R v Wharley; Ex parte Attorney-General (Qld) [2007] QCA 295; (2007) 175 A Crim R 253; R v Salsone [2008] QCA 220; Mouscas v R [2008] NSWCCA 181; R v Carson [2008] QCA 268; (2008) 187 A Crim R 435; WA v Cunningham [2008] WASCA 240; Dragon v WA [2008] WASCA 252; James v R [2009] NSWCCA 62; Saddler v R [2009] NSWCCA 83; R v Mara [2009] QCA 208; R v Booth [2009] NSWCCA 89. I have tried to exclude from this list any cases in which it was significant that the offenders were sentenced not just for accessing, possessing or making available child pornography, but also for crimes involving contact with children, such as rape and indecent assault. The cases I have listed indicate wide variations between and sometimes within the various jurisdictions as to head sentences and non-parole periods. Each of the listed cases of course turned on its own facts. However I think it can be said in the light of those cases that the sentences imposed in this case were markedly more lenient than those likely to have been imposed in a similar case in most, if not all, other Australian jurisdictions.

16 In my view the sentences imposed did not properly reflect the scale, duration and seriousness of the respondent's criminal conduct. In my view the sentences were manifestly inadequate, and so inadequate that a Crown appeal should be allowed.

17 The respondent was released from prison after serving four months of his concurrent sentences, and after being granted a remission of two months of each sentence in accordance with the Corrections Act 1997, s86, and the Corrections Regulations 1998, reg23. As his sentences took effect from 4 June 2009, he must have been released on 3 October 2009. The Crown could have arranged for this appeal to be heard in August or September, before his release, but appeal books were not filed until 30 October 2009. The result is that the respondent, having been to prison and released, today stands to be sentenced a second time.

18 The Criminal Code (Tas) has recently been amended so as to prohibit that fact from being taken into account in re-sentencing. Section 402(4A) of that Code provides as follows:

"(4A) The Court, on hearing an appeal that does or may require it to impose a sentence, or to vary a sentence imposed, on a person for an offence (whether the appeal was brought, made or lodged by the person or by the prosecutor) -

(a) may take into account any matter relevant to the sentence that has occurred between when the court of trial dealt with the person and when the appeal is heard; but

(b) despite paragraph (a), must not take into account the fact that the Court's decision may mean that the person is again sentenced for the crime."

19 The Commonwealth has not introduced any legislation preventing a court that allows a Crown appeal against sentence from taking into account the fact that an unsuccessful respondent is to be sentenced a second time for the same crime. Under the Crimes Act 1914 (Cth), s16A(1), when a court is determining the sentence to be passed for a federal offence, that court must impose a sentence "that is of a severity appropriate in all the circumstances of the offence". Prior to the enactment of s402(4A), it was clear that "double jeopardy" in the re-sentencing process following a successful Crown appeal was to be taken into account in favour of the respondent: R v Hayes (1987) 29 A Crim R 452; R v Clarke (supra); R v Harland-White 23/1997; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321; Attorney-General v McDonald (supra). In my view s402(4A)(b) is inconsistent with the general requirement in s16A(1) to impose a sentence that is of appropriate severity, and therefore does not apply to re-sentencing under Commonwealth legislation: Constitution, s109. Counsel did not submit otherwise at the hearing of the appeal.

20 The "double jeopardy" factor in re-sentencing is more significant than usual when the respondent has been to prison, has served a sentence, has been released, and then faces a return to prison. R v Carngham [1978] HCA 48; (1978) 140 CLR 487 was such a case. The respondent in that case had served six months of a sentence, had entered into a recognizance to be of good behaviour, had been released, had obtained employment, and had received a promotion. Gibbs ACJ, with whom the other members of the High Court agreed, said at 494 that those circumstances were "to be given full weight, together with all the other circumstances of the case, in deciding whether ... a sentence should be substituted which would require the respondent to serve a further term of imprisonment."

21 There is no legislation that permits a single global sentence to be imposed upon the respondent for a mixture of Commonwealth and State offences. Separate sentences will therefore have to be imposed under Commonwealth and State legislation. There is no general rule as to whether cumulative sentences or concurrent sentences should be imposed in a situation like this: Cahyahi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.

22 In my view, the respondent should have been sentenced to at least 27 months' imprisonment for his three crimes. It would have been appropriate for him to have been sentenced to 21 months' imprisonment under Commonwealth legislation in respect of counts 1 and 2, and to a cumulative term of six months' imprisonment under State legislation in respect of count 3. I therefore see no point in disturbing the six-month sentence that was imposed in respect of count 3, except to the extent of making orders whereby it will not be a concurrent sentence. I think he should be re-sentenced in respect of only counts 1 and 2.

23 But for the "double jeopardy" factor, I think it would have been appropriate to sentence him on those counts to a cumulative term of 21 months' imprisonment, and to make a recognizance release order permitting his release after serving 11 months of that sentence. Because of the "double jeopardy" factor, and because the respondent must suffer the misfortune of going to prison a second time after a period of liberty, I would reduce each of those periods by one month.

24 I would therefore allow the appeal, quash the sentence imposed in respect of counts 1 and 2 and the related recognizance release order, sentence the respondent on those counts to 20 months' imprisonment with effect from today, in addition to the sentence already served in respect of count 3, and make a recognizance release order in similar terms to his original one, permitting him to be released after serving 10 months of the sentence imposed today.

25 I agree with the reasons for judgment of Blow J and with the orders which his Honour has proposed.