R v Wheatley [2007] ACTCA 15

The sentencing Judge imposed a sentence upon the respondent of 12 months imprisonment, but ordered that it be fully suspended immediately upon the condition that he enter into a recognizance, himself in the sum of $2,000, to be of good behaviour for a period of 18 months and obey any reasonable directions of the Director of Adult Corrective Services in relation to further counselling.

The offence came to light on 29 August 2003 when the police executed a search warrant at the respondent’s home and found a black bag containing seven compact disks. The disks were subsequently examined both by the Australian Federal Police and by a paediatrician and found to contain numerous pornographic images and videos depicting young children in sexual poses and/or engaged in sexual acts with other children and adults. The paediatrician made an assessment of the age of the children shown in the images in the videos and noted that they included children as young as four.

The principles that govern appeals of this nature are well established. A sentence is a discretionary judgment and an appellate court may interfere with it only if some error can be identified. It may, of course, be an error of principle or an error of fact. It may be an error that is evident only in the manifest inadequacy or manifest severity of the sentence. It is, however, clear that an appellate court will not intervene merely because it would have imposed a different sentence if sentencing the prisoner res integra.

In Crown appeals the principle is as stated by Barwick CJ in Griffiths v R (1977) 137 CLR 293 at 310 where his Honour said, and I quote: An appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.

The principle referred to by his Honour in that judgment has subsequently been held to extend to intervention to avoid manifest inadequacy or inconsistency in sentencing standards, see, for example, Everett v R (1994) 181 CLR 295 at 300.

Offences involving the possession of child pornography have emerged in recent years as a matter of real concern. The gravity of such an offence lies not merely in the revolting nature of the image concerned nor in the reprehensible nature of the conduct involved in watching it, but essentially in the fact that children are exploited in order to produce images that others may access for their sexual gratification. Hence, in an earlier judgment, the correctness of which was affirmed by this Court in R v Fowler [2007] ACTCA 4 (3 April 2007), I observed that if there were no demand for images of this kind there would not be the same motivation to produce them. Furthermore, even when images of this kind are not produced by physical coercion or actual violence, the children or young people in question may nonetheless be exploited by emotional or financial pressures of various kinds and, in a very real sense, are victims of the offences committed upon them. A significant sentence of imprisonment may therefore be appropriate for offences of this kind.

In the present case, the sentencing Judge acknowledged the potential seriousness of such offences, observing that the material comes into existence only because of the demand for it and, as his Honour put it, somewhere in the world there are children who are forced to undergo appalling procedures to make it available.

His Honour was, however, obliged to consider not only the gravity of the offences, serious as they were, but also the subjective circumstances of the respondent. His Honour noted that save for one minor property offence some 25 years ago, the respondent had otherwise been a law-abiding person and there had been no hint of any prior record of sexual offending.

His Honour referred to successive reports by a psychologist who had noted that the respondent had initially come across child pornography, “somewhat fortuitously” as he was downloading a different type of film.

Following his arrest in 2003, the respondent became involved in a series of counselling sessions which were maintained over a period of some three years. Initially, these sessions occurred on a weekly basis, before being reduced to fortnightly, then monthly intervals and gradually tapering off. During the course of that three-year period the clinical psychologist observed considerable improvement in the respondent’s condition. In a later report provided in September 2006, the clinical psychologist concluded that the respondent had responded very well to treatment and made considerable change in his personal, emotional and intellectual life, that he had undergone significant loss due to his actions, had gained significant insight, and shown significant and consistent remorse. He was highly unlikely to re-offend. It seems to me that his Honour was entitled, and indeed bound, to take into account this material.

In support of the appeal it is argued that his Honour, nonetheless, fell into error by failing to have sufficient regard to the severity of the offence and, in particular, to the nature of the material provided.

We have been referred to the decision of the Court of Appeal in R v Oliver & Ors [2003] 2 Cr App R (S)15 at page 64, in which the two primary factors were suggested as determinative of the seriousness of the particular offence. Those factors were the nature of the indecent material and the extent of the offender’s involvement in it. Insofar as their Lordships’ opinion is confined to these general propositions I would, with respect, agree with it.

However, their Lordships went on to suggest (at 65) a series of categories of child pornography, they being: (1) images depicting erotic posing with no sexual activity, (2) sexual activity between children or solo masturbation by a child, (3) non-penetrative sexual activity between adults and children, (4) penetrative sexual activity between children and adults, (5) sadism and bestiality. With due respect for their Lordships’ views, I must say that in my opinion such a rigid sub-division of categories may not necessarily be helpful since it fails to acknowledge other factors that are directly relevant to the nature of the indecent material. For example, the age of the child or children might also be a relevant consideration.

The second factor was the nature of the offender’s activity. It was suggested that the seriousness of an individual offence increases with the offender’s proximity and responsibility for the original abuse. Whilst I agree that this factor may be relevant, it should be noted that, in this jurisdiction at least, complicity in the original abuse would be likely to involve the commission of further and even more serious offences. The present respondent was charged simply with possession of the material in question.

In the present case, the crucial question is whether, having regard to the particular nature of the material and the circumstances in which the offender acquired it, a more severe sentence was required, notwithstanding the subjective material to which I have referred.

As I have mentioned, the offence was a serious one. However, it seems to me that the range of options open to his Honour were somewhat limited by the manner in which the proceedings were conducted. As I understand the position, it had not been suggested by the Crown that a sentence of immediate full time imprisonment was required. On appeal, it was argued that a sentence of periodic detention or at least some response extending beyond a suspended sentence should have been imposed. However, the proceedings before his Honour were finalised in the context of a tacit agreement by counsel for both parties that no pre-sentence report would be sought. Hence, such a report was never prepared. That necessarily meant that there was no material before his Honour as to the suitability of the respondent for a sentence to be served by way of periodic detention or indeed for a community service order as required by sections 78 and 89 of the Crimes (Sentencing) Act 2005 respectively. Consequently, his Honour could not have imposed sentences of the kind now suggested. The approach actually taken was entirely open to him.

In making this observation I do not wish to suggest that in other cases of this kind a much more severe sentence may not need to be imposed, but in the particular circumstances of this case, I am of the opinion that no appellable error has been demonstrated. Accordingly, I would dismiss the appeal. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour President Crispin.