R v Vantoosten [2009] QCA 54

Judgment (32 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Muir JA. I agree with those reasons and with the order proposed by his Honour.

[3]

[2] MUIR JA: The applicant pleaded guilty to two counts of knowingly possessing child exploitation material and was sentenced on 12 January 2009 in the District Court to 12 months imprisonment on each count. 12 May 2009 was set as the parole eligibility date. He seeks leave to appeal against his sentence on the ground that it was manifestly excessive.

[4]

[3] The applicant was born on 7 June 1975 and had a minor, and largely irrelevant, criminal history. Little of his personal circumstances was put before the Court at first instance. The learned sentencing judge was informed that the applicant left school after Year 11, that he had "a history of mental health issues" and that he had been diagnosed in the past "as suffering from anxiety and major depression (sic) disorder." It was further said that he had taken medication, been treated and undergone counselling for his condition.

[5]

[4] The subject offences came to light when children in a house in which the applicant boarded found compact disks containing pornographic material in his bedroom. Police executed a search warrant at the house and seized the applicant's desktop computer and a number of compact disks. Child exploitation material was found on the computer hard drive and on four of the disks. Count 1 relates to material on the hard drive. An agreed statement of facts reveals that the hard drive contained:

[6]

"... 3 child exploitation picture files titles such as '13yr my little sister posing nude' and 'pedo-mom and daughter'

[7]

... 68 are child exploitation material. The names of the files include:

[8]

The images are of girls around 6 to 9 years old. They include images of naked children alone and in sexual acts with other children and adults, including vaginal penetration of young girls by male children, and penile and digital penetration of young girls by adults. The images also depict young girls being orally penetrated by erect adult penis."

[9]

[5] Five of the compact disks contained a total of 33 child exploitation video files. They are the subject matter of count 2. The agreed statement of facts contains the following information about them: the videos were mainly of young girls, some as young as five, being vaginally and anally penetrated by adult males. There are images which include: "a bound girl being vaginally and anally penetrated; group sexual activity with girls as young as 3 years of age and a video file entitled '3 little girls 7 yo 8 yo 11 yo sucking grampa dick - 11 yo girl fucked by the ass for other olderman'."

[10]

[6] The applicant voluntarily participated in an interview with police. He admitted possessing the computer and to having the compact disks in his possession, but denied knowledge of any of the child exploitation material. In an interview about six months later, the applicant told police his computer password but continued to deny knowledge of the existence of the child exploitation material on the computer or on the compact disks. The applicant indicated that he intended to plead guilty on the Friday of the week preceding the week in which the trial was to commence.

[11]

[7] Counsel for the respondent submitted that the sentences imposed were supported by R v Rogers,[1] R v Richardson; ex parte A-G (Qld);[2] R v Riley;[3] and R v Plunkett.[4] In Rogers, the 40 year old offender was sentenced after pleas of guilty to three years imprisonment on one count of possessing child exploitation material, and to 12 months imprisonment on another such count and on a count of making child exploitation material. The sentences were suspended after 10 months with an operational period of four years.

[12]

[8] Count 2 concerned in excess of 48,000 images on a computer of children aged between two and 15 years in a sexual context. Twenty-six images involved acts of cruelty and bestiality perpetrated on children. Over 500 of the images involved penetrative sexual activity. Count 3 concerned 1,094 images and 20 videos on another computer. The images were placed there when the applicant was on bail in respect of count 2. He had no previous convictions, was married and in receipt of a disability support pension. He suffered from a congenital birth defect of the left foot, which left him significantly disabled and in chronic pain. He entered an early plea of guilty, co-operated with the Authorities and made extensive efforts to rehabilitate himself. He was remorseful and it was accepted that he had "reasonably promising prospects of rehabilitation." Leave to appeal against sentence was refused.

[13]

[9] The respondent in Richardson was a 25 year old with a good work ethic and no criminal history. He pleaded guilty at an early stage and was sentenced on three counts of knowingly possessing child exploitation material to 12 months imprisonment wholly suspended with an operational period of three years. One count concerned a folder containing 165 video files of child pornography. Two of the files showed the brutal sodomy of a boy by an adult. Another video file on another computer showed a young male child masturbating and a further laptop contained a video file with a similar content. The appeal by the Attorney-General was dismissed.

[14]

[10] In the course of his sentencing remarks, Keane JA, with whom the other members of the Court agreed, said that the respondent: had not engaged in providing any direct support to the child sex exploitation industry and had taken steps to rid himself of the offending material which was the subject of the most serious offence. The respondent's early plea of guilty and co-operation with the Authorities were also remarked on.

[15]

[11] The applicant in Riley, who pleaded guilty, was sentenced on each of two counts of knowingly possessing child exploitation material to six months imprisonment suspended after two months with an operational period of 12 months. It was held that the sentencing discretion had miscarried, for reasons other than the severity of the sentence, and was required to be re-exercised. The sentences were varied so that they were suspended immediately. The applicant had served 15 days imprisonment by the time of the hearing of the appeal. He had a good employment history and held a degree in Information Technology.

[16]

[12] The hard drive on his computer contained 55 images and 21 videos containing child exploitation images. They were of females between 12 and 13 years of age, usually naked, engaged in various sexual activities, mainly masturbation, or participating in sexual conduct with a second or third girl. There was one video which depicted a 13 or 14 year old girl engaged in seemingly consensual intercourse with an adult male and one similar still image.

[17]

[13] In the reasons of the Court it was said that R v Daw,[5] R v Wharley[6] and R v Richardson demonstrated that the sentence imposed was not manifestly excessive. Attention was drawn to the fact that the applicant neither created, nor acquired the material commercially, did not distribute it and did not burn it to disk. The age of the children in the images was considered a relevant factor, as was the fact that none of the images included "patent force or brutality". The applicant co-operated with the Authorities, entered an early plea of guilty and demonstrated remorse.

[18]

[14] The 38 year old applicant with no criminal history in Plunkett was sentenced after a plea of guilty to 18 months imprisonment suspended after three months with an operational period of 18 months on a count of knowingly possessing child exploitation material. His application for leave to appeal was refused, by a majority. He had downloaded from the Internet approximately 16,000 images of females aged between 10 and 16 years and had organised the images into labelled directories and folders. None of the images showed children engaged in sexual conduct with others. The applicant co-operated fully with the Authorities.

[19]

[15] In his reasons, the Chief Justice considered that the sentencing judge was entitled to order actual imprisonment because of the applicant's age and the "sheer volume of material involved".

[20]

[16] Counsel for the respondent pointed out that although Plunkett's case concerned rather more images than this case, the children depicted in Plunkett were significantly older and the images did not show sexual conduct involving adult males.

[21]

[17] As the offences were against s 228D of the Criminal Code, the matters to which the sentencing judge was required to have primary regard, were those set out in s 9(6B) of the Penalties and Sentences Act 1992 (Qld). As the learned sentencing judge recognised, the sentencing principle in s 9(2) Penalties and Sentences Act 1992 (Qld) that "a sentence of imprisonment should only be imposed as a last resort" is made inapplicable by s 9(6A).

[22]

[18] To my mind there will often come a point at which the number of images or files ceases to be of much, or any, relevance as an aggravating circumstance if the material was obtained and kept for personal viewing and if it was acquired in a way which did little, if anything, to sustain or encourage the production of such materials.

[23]

[19] In this case it is sufficient to note that the quantity of offending material was substantial. In my view the quality of material rather than its quantity will often be more determinative of the gravity of the offending conduct. At least as a general proposition, the greater the cruelty, degradation and corruption depicted and the more the material offends against community values, the more reprehensible the offending conduct.

[24]

[20] In his careful sentencing remarks the sentencing judge said, by reference to the descriptions in the statement of agreed facts, "The material in this case contains some of the more abhorrent and serious images which one can imagine involving children." That may be overstating the position a little: the material does not appear to contain depictions of obvious torture, sadism, masochism or bestiality. But this is not to diminish the abhorrent nature of the materials under consideration or to disagree with the primary judge's implicit conclusion that the nature of the materials increased the seriousness of the applicant's offending conduct.

[25]

[21] No error in the sentencing judge's reasoning was identified. The comparable sentences discussed earlier demonstrate that the sentence imposed was not manifestly excessive. Accordingly, I would order that the application be dismissed.

[26]

[22] DAUBNEY J: I respectfully agree with the reasons for judgment of Muir JA, and would also order that the application be dismissed.

[27]

[1] [2009] QCA 10.

[28]

[2] (2007) 175 A Crim R 244; [2007] QCA 294.

[29]

[3] [2007] QCA 391.

[30]

[4] [2006] QCA 182.

[31]

[5] [2006] QCA 386.