Sabel v R; R v Sabel

Introduction 2The appellant, Ralph Warren Sabel, was charged with four child pornography offences, namely, two offences that he accessed child pornography using a carriage service, contrary to the Criminal Code 1995 (Cth) (the Code), s 474.19(1)(a)(i) (the access offences, being counts 1 and 2 on the indictment) and two offences that he possessed child pornography contrary to the Crimes Act 1900, s 91H(3) (the possession offences, being counts 3 and 4 on the indictment). The charges were laid after police executed a search warrant at the appellant's home on 10 December 2008. 3An offence contrary to s 474.19(1)(a)(i) of the Code carries a maximum penalty of 10 years imprisonment. An offence contrary to s 91H(3) carries a maximum penalty of 5 years imprisonment. The appellant was also charged with possession of a small quantity of cannabis. 4The appellant pleaded guilty to the two access counts and to the cannabis charge. He pleaded not guilty to the two possession counts but was found guilty of each by Puckeridge ADCJ in a judge alone trial pursuant to the Criminal Procedure Act 1986, s 133. 5There was no dispute at trial that the appellant had the material in his possession and that the material fell within the definition of "child pornography" in s 91H. Rather, the appellant contended by way of defence that he had the material in his possession for a genuine scientific purpose and that his possession of the material was reasonable for that purpose: s 91H(4)(c) of the Crimes Act (now repealed). The Crown bore the onus of establishing beyond reasonable doubt that, having regard to the circumstances in which the material was produced, at the time that the appellant was in possession of the child pornography material, he was either not acting for a genuine scientific purpose or that his conduct was not reasonable for that purpose. 6The appellant had also raised a defence under s 91H(4)(a) to the first possession count that he was not aware that he had the material in his possession. That was rejected by the trial judge and is not in issue on the appeal. A defence of scientific purpose pursuant to s 474.21(2)(d) of the Code was not available to the appellant in respect of the access charges as he did not have the written approval of the Minister to conduct research, as required by that section. 7On 15 February 2012, Puckeridge ADCJ rejected the defence under s 91H(4)(c) that the appellant possessed the material with the intention of using the material for a scientific purpose and that such possession was reasonable. His Honour found the appellant guilty of both possession offences. 8On 3 July 2012, Puckeridge DCJ sentenced the appellant as follows: (1) Without proceeding to a conviction, his Honour discharged the appellant in respect of the first access count (count 1) pursuant to the Crimes Act 1914 (Cth), s 19B and ordered him to enter into a recognisance to be of good behaviour for a period of 2 years. (2) The appellant was convicted of the second access offence and ordered to enter into a recognisance to be of good behaviour for a period of 2 years pursuant to the Crimes Act, s 20 secured by a surety in the sum of $500. (3) The appellant was convicted of the first possession offence (count 3) but, pursuant to the Crimes (Sentencing Procedure) Act 1999, s 9, the appellant was ordered to be released on entering into a $500 good behaviour bond for a period of 2 years. (4) The appellant was convicted of the second possession offence (count 4), but, pursuant to the Crimes (Sentencing Procedure) Act, s 9, the appellant was ordered to be released on a good behaviour bond for a period of 2 years. (5) The cannabis charge was dismissed pursuant to the Crimes (Sentencing Procedure) Act, s 10. 9In sentencing the appellant, Puckeridge ADCJ rejected the Crown's submission that the appellant had an erotic interest in child pornography material. It will be necessary to return to this issue when dealing with the appeal against sentence. 10His Honour also ordered that the laptop and the Western Digital hard drive be forfeited.

The appeal 11The appellant now appeals from his convictions in respect of each of the possession offences. He also seeks leave to appeal against the sentences imposed in respect of the convictions for the possession offences and against the sentence imposed for the second access offence. 12The Crown appeals pursuant to the Criminal Appeal Act 1912, s 5D against the sentence imposed in respect of the first access offence. 13The Court will maintain the references to the Crown and to Mr Sabel as the appellant throughout these reasons.

Issues on the conviction appeal 14The appellant raised the following five grounds on the conviction appeal: (1) The trial judge erred in his interpretation of the defence under s 91H(4)(c); (2) The trial judge erred by taking into account the appellant's failure to notify the authorities of his conduct; (3) The trial judge erred in finding that the appellant did not need to download child pornography; (4) The trial judge erred in finding that the Asset.dbf file included image or video files; (5) The verdicts were unreasonable and not supported by the evidence. 15The issues raised on the sentence appeal are dealt with separately below.

The legislation 16The offence of possessing child pornography is provided for by s 91H(3) of the Crimes Act as follows: "A person who has child pornography in his or her possession is guilty of an offence." 17Section 91H(4)(c), as at the date of the offences, provided the following defence to an offence under s 91H(3): "[t]hat, having regard to the circumstances in which the material concerned was produced, used, or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant's conduct was reasonable for that purpose."

The case advanced at trial 18The first access offence (count 1) occurred on or about 21 November 2007 in the United States, when the appellant used an internet carriage service to access three digital video files comprising child pornography. The appellant had downloaded the files onto his Sony laptop computer and, at the time of his arrest in December 2008, they were found in a subfolder on the laptop entitled "HP Print Systems". This was the subject of the first possession charge (count 3). In the trial, the files were referred to as "WebCam", "Spycam" and "Tara". 19A further 269 images, which had been automatically created by the operating system, were also located on the laptop in a thumb cache. A thumb cache is a repository record of parent files that have been deleted from a computer. It is created automatically by a computer's operating system and is not accessible once the parent file has been deleted unless a user has the required viewing software. The appellant was not charged in respect of those images. He claimed that he did not know that the thumb cache images had been created. 20The second access offence (count 2) and the second possession offence (count 4) occurred between 23 November 2008 and 11 December 2008 in Sydney, when the appellant used a carriage service to access 365 child pornography image and video files. Copies of these files were located on a Western Digital external hard drive and were the subject of the second possession offence (count 4). Both hard drives were found in a study in the garage of the appellant's Sydney home during a search of his premises in Sydney on 10 December 2008. 21The appellant's case at trial was that he had possession of the child pornography material the subject of counts 3 and 4 as part of his research directed to the development of a method to identify the transmission of child pornography over peer-to-peer file sharing networks and possibly to develop a means to monitor or block transmission of such material. However, at the time that he was arrested, his research was still at a preliminary stage. The appellant first raised this explanation in a recorded police interview made on 10 December 2012 (the ERISP). 22The appellant identified his 'research' as comprising three stages. The first stage occurred in November 2007 when he downloaded material onto his Sony laptop. The second stage occurred in March 2008 when he used certain computer programs to gather further information. The third stage occurred in November/December 2008 when he downloaded images onto the Western Digital hard drive. The Western Digital hard drive had been named "Idea Data", which was the name of his company. 23The Crown case at trial was that the appellant had possession of the child pornography material for an erotic purpose and that he had an erotic interest in child pornography depicting underage girls, reflected in the nature of the majority of the images on the files the subject of the possession charges. It was also part of the Crown case at trial that there were features of eMule that made it an ideal tool for the appellant to use to illegally download child pornography whilst minimising the risk of detection. The Crown resisted any suggestion that the appellant possessed the material for genuine scientific purposes as being implausible, contradictory and inconsistent with the objective computer forensic evidence adduced in the Crown case.

Location and nature of the child pornography material 24The evidence established that on 18 November 2007 at 1:47:51 pm AEST, the appellant downloaded onto a Sony laptop computer a free peer-to-peer software program called eMule. By 2:13:08 pm, within half an hour of downloading the eMule program, the appellant entered the following search terms into the program: "PTHC special", "pthc", "fuck", "pthc cum" and "pthc jen". The evidence established that "pthc" was an abbreviation for "pre-teen hard core". 25On 21 November 2007 at 7:20:45 pm, 7:20:45 pm and 7:20:43 pm respectively, three child pornography videos: (i) "Spycam - 9undress p100(1).mpg"; (ii) "Tara 7yo girl-eat-cum-pthc.avi"; and (iii) "Webcam - likskooolgrl-0.avi", were saved onto the Sony laptop computer. The three files were saved in an obscure file-path entitled '000MYFILES\Program Data\Hewlett-Packard\HP Print Settings'. These three files were the subject of the first access and the first possession charges. There was no evidence before the court to indicate that the appellant had viewed the three videos after they were initially downloaded. However, multiple copies of the three video files were found on the Western Digital hard drive. As previously noted, a large number of thumb cache images files were also located on the Sony laptop. 26An Asset.dbf file was also found on the Sony Laptop. The Asset.dbf file was a database within a photo management software program called ACDSee, that allowed the user to catalogue photos on the computer. The Crown witness, Federal Agent Kris Wilson, a member of the AFP Computer Forensic Team, gave evidence that the file was created on 8 November 2007 and was last accessed on 9 April 2008. Mr Wilson was not able to open the file and it appeared that all the images had been deleted. However, he found 12,529 file names. 27Many of the file names on the Asset.dbf file suggested that the images were child pornography material. An example given in oral evidence was "!!!New Webcam Tied to Bed Pthc 7 YO Xkb.zip". Some of the file names corresponded with the three child pornography video files found on the Sony laptop. Many of the files were JPEG image files and included such names as "tara 7yr.jpg" and "pthc_ptsc jenny_9yo daughter swallowing cum, new.jpg". This file name was consistent with the search term "pthc jen" located by Mr Wilson in the eMule search strings file. 28Other child pornography was located on the external hard drive. The appellant had set up his computer so that eMule would download child pornography directly to a folder on the Western Digital hard drive that he had created for that purpose. He agreed that he had done this to ensure that whenever he downloaded child pornography it did not end up on his laptop. 29In total, 381 child pornography files were found on the Western Digital hard drive. Of these files, the evidence disclosed that 18 of the 381 files had a different 'last accessed' date from the date of creation, although it was not established that the appellant had viewed these files after they were downloaded. The access date could have been an automated date created by the computer. 30The file copies on the Western Digital hard drive were hidden in a complex structure of three file paths using what were described as "anodnye" numerical file names. Two of the locations were associated with the use of the eMule program. The file paths ran many layers deep, so that it was extremely difficult to read the contents of the hard drive and very difficult for a person unfamiliar with the structure of the file paths to find all copies of the three files. 31Most of the copies of the three video files on the Western Digital hard drive had the same MD5 hash number (described in the evidence as a fingerprint of a computer file) as the copies on the Sony laptop. This meant that most, if not all, of the copies of the three files on the external hard drive were identical to the three files on the laptop. The Crown contended that this demonstrated the appellant's erotic interest in child pornography. The appellant's case was that, unbeknown to him, the three video files must have been copied across when he copied material from the laptop to the hard drive. The Crown further contended that the appellant's erotic interest in child pornography was demonstrated by the fact that many of the files found on the Western Digital hard drive had names reflecting underage girls engaging in sexual acts with adults or in erotic poses.

Appellant's statements in his ERISP 32The appellant participated in a record of interview (ERISP) which commenced at the time of the execution of the search warrant on 10 December 2008. When the appellant was informed by Federal Agent Randall of the subject matter of the search warrant the appellant's reaction was that if his wife knew, "that would cause a divorce" and "that would completely destroy everything, everything". When it was suggested that his wife was "going to find out eventually anyway", he responded, "[b]ut this will destroy my business. It'll bankrupt me. This is, this is really traumatic for me and I ----". 33When asked about these responses in his evidence in chief, the appellant explained his reaction was due to his experience a few years previously when he had been in a parlous financial position. He said that when the police arrived and located the child pornography "all I saw at that moment of time was a complete loss of ... financial credibility ... and a complete loss for my family and home". He said this was because he felt that there would be a "misconception" or "misreading" of his activities which would end up bankrupting his business. 34However, earlier in his evidence, the appellant had said that he had discussed with his family on several occasions whether a product he had developed, NetFlow Auditor, could be used in finding paedophiles who were accessing child pornography online. He said that he had first discussed this with his father in early 2007 and with his wife prior to going to the United States with her. 35The appellant also said in his ERISP that he had only looked through the material once and that had been over the previous few nights. The questions and his responses were as follows: "Q52. But it is a pretty serious allegation that's been put to you. A It is but I, I am prepared to, to you know, front up and face, face the, the reality and I'm also prepared to, you know, I mean, this is not something that ah, this, this was, you know, I, I decided to go once to have a look. I had a, I had a look through. Q53. Yes. A And I just didn't expect this. Q54. Okay. When you said once, when was that? Do you know the exact date? A Um, this was over the last couple of nights. Q55. The last couple of nights you've had a look. A Yeah. Q56. Okay. What programs? Are they video files? Are they images? A Yes. They are video files. Q57. And what are they video files of? A Ah, some are of child pornography. Q58. Can you describe to me what a couple of the videos are? A Um, I think they might be some of the names that were here and I discovered them when I was downloading some other movies. Q59. Okay. A And that's what I--- Q60. How did you find the - what were you downloading? A What was I downloading? Q61. Yes, what movies? A I downloaded Times Masters, Star Gate, Atlantis. I downloaded, I downloaded Star Wars and I think I came across them during one of the movies and I double clicked through, through into user and in the user there were all of these files and I thought I would have a look and I downloaded them and I, I had a look and I downloaded more the following night and I had a look and then I failed to delete them from my computer. Q62. Okay. When you say you downloaded more files, what were those files? A Those files were files - some were numbered, some were just, you know, may, may have had some names. I haven't, I haven't barely got in and looked at all of the--- Q63. Were they child pornography files? A Yes. Q64. Okay and what happened? You've stored - you put them on to your hard drive? A Yes. ... Q66. Okay. What did you intend to do with those? A I was planning to look at them once more and, and, and I was planning to delete them. Q67. Okay. A I, I had, I had no intention of, of, of - I, I, I saw it once and I thought well this, this is, this is what the, everybody is, has been talking about in terms of what is child pornography and um, I had a look. I had no desire to continue but I did look. Q68. Okay. A And I'm sorry for looking now. ... Q74. How did you - yes. A I used a program called EMule. Q75. EMule, and what type of program is that? A It's a peer to peer program. Q76. Okay. How long have you used that for? A I've used the peer to peer for a long time but I haven't downloaded anything else, I mean any - I, I've downloaded movies. Q77. You've-- A But I haven't downloaded any child pornography until the last couple of days. Q78. Okay. Did you look at pornography much on the internet? A Not at all." 36The appellant admitted in cross-examination that his answer to Q 54 was not completely correct and that the answer to Q 77 was incorrect. His explanation in relation to Q 77 was: "Q. You lied to him, didn't you, about where you downloaded child pornography? A. Yes I did. Q. At question 77 you said, 'I haven't downloaded any child pornography until the last couple of days'? A. It was untrue. Q. Because you believed, did you not at that stage, that at the very most that's what the police might be aware of? A. That's true." 37The appellant also admitted in cross-examination that he was only prepared to admit to police what he thought they were already knew; that he had lied, when in Q 77 he said that he had not "downloaded any child pornography until the last couple of days"; and agreed that he "wanted to admit to [the police] as little as [he] thought he could get away with". 38The appellant said in the record of interview that he had only accessed eMule to download child pornography "[o]ver the last three days", whereas the "Tara" video had been accessed on 21 November 2008 and the file "333333" on 30 November 2008. The appellant said later in his ERISP, at A 175: "... [that was] very strange [unless] my dates had changed over that period but it hasn't been any period except for over the last, you know, five, five days or so ... since around [20-21 November 2008]." 39The appellant explained to the police interviewer that his objective in "looking up child pornography" was for "work purposes". He said that the work was "not shared" with his co-workers because it was illegal. He repeated this in his evidence. He said that he was trying to understand "where the opportunity lay in forensic analysis of pornography, in particular, child pornography". He wanted to see if there was an opportunity to provide solutions "into the universities and the ISPs" (Internet Service Providers). 40In his answer to Q 194, the appellant said that he had only engaged in downloading material on three or four occasions over the previous months, or since the middle of November 2008. He said that he had only had a "cursory and initial look" to see if there was "an opportunity or not". He said he did not retain the filenames and had deleted the recent material. He continued: "[A194] ... once I'd gone and I was looking, I'd, I'd numbered the, the, the downloads to see how fast the downloads took. I took a, a group and I renamed them one. I took a group, I renamed it two. A group, took a group, I renamed it three and then I was going to proceed in adding up the bytes to identify how much data could actually be downloaded over a particular session. So that's the, that's the gist of my actions. I, I placed no encryption on it because I, I, I was not, I was not going to be keeping and retaining any of the files ..." 41The appellant was also asked about looking at the pornographic materials: "Q195 ... When we first came in when we had a discussion in the car, you said that you were planning to look at them once more and then delete them. A. Not look at them, look at the file sizes and --- Q196: You said look at them. A, --- and look at the names and I don't mean look at the content. I, I have no desire to, to sit there looking through the content. The names are important to me. The key words are important to me, understanding what can be sniffed and what can't be sniffed. Q197: You also said you 'had no desire to continue but I did look'. A. I looked at this and that's true because once, once they were - the, the email provides a list of files, some in download phase and some in completed phase. Those in the completed phase I doubled clicked on a, on a couple of files to, to see what the content was. When I saw the content, I don't, I, I, I didn't retain the, the, the, the, the media player open at all. I, I simply left it and progressed on with my other work and, you know, if you check on, on, on your dates and what other work that I was doing at the time, that would confirm that." 42He was then asked to explain how one of the files had been downloaded in November 2007. His answer was as follows: "Q203. What can you tell me about that? A Because I do change the date on my computer, so I, I'm quite certain that anything in a, in a previous date would be most likely, because of the times, then change on my computer. Q204. One year times stamp change. A Well, it's one year to the, the period um, and I, I do, I do admit I did look initially in my initial analysis of different peer to peer applications um, you know, probably a year ago but I, I never, I never retained anything and I, I did attempt to do some downloads but I don't believe that - I, I believe it was a generic download. In this particular case ah, I, I came upon some key words during my, my searches of other software and I found as you go into the user you can say display what the user's files are and I displayed those, saw that they had some files that were, were, had particular keywords. Um, I looked at those keywords. I then progressed to search on those keywords on the, on the EMule." 43He explained that he had transferred the material onto the hard drive because he was concerned that his family and his children might be exposed to it.

The appellant's evidence explaining his research 44The appellant was the managing director of an information technology company known as Idea Data. In the course of carrying on that business, he had designed, developed and sold software capable of monitoring data moving across networks, including a program called NetFlow Auditor. He had received awards from the Government recognising the developments he had made in security and business software. 45In 2003/2004, the appellant had lodged a patent application in respect of a software program he had invented. He said that this related: "... generally to a method and apparatus for recording a transfer of data [that had] exclusive application to recording data transferred between electronic devices via a communication network". 46Gradually, business opportunities with various major Australian companies presented themselves. The appellant also commenced to develop relationships with overseas technology companies that enabled the appellant to demonstrate his product in their trade shows. However, his business was adversely affected by what he described as the 'tech-wreck', when there was a downturn in IT businesses generally. 47In 2007, the appellant travelled to the United States for a period of about six months, attending various trade shows and following up business leads. He said that issues were arising at that time with the sharing of files, particularly in the music industry, including through the Napster network. The appellant said that he started to research peer-to-peer technology such as eMule, which allows users worldwide to connect to computer servers hosted by the peer-to-peer programs and to share files they have stored on their own computers. 48The appellant said that he was interested to know how fast a television program would come down on the peer-to-peer site, what the relevant technology was and whether it was causing "pain" to the television networks. He also said that the eMule program was of particular interest as: "... it offered an opportunity to change the program and users to create ... a crawler, so something that I could use to ... extract information out of the program itself." 49His "driver" at that time was to see whether his business could create a product that would identify the music downloaders and where that music was on the peer-to-peer networks. He shelved that concept due to a lack of any commercial opportunities. 50In November 2007, the appellant downloaded eMule to see if he could pick up a science fiction television series called "Stargate Atlantis" he had been watching on cable television. He said that he accidentally came across file names that suggested to him that the files might contain child pornography. He said that there were hundreds of names that began with "PTHC", which he described as a naming convention, but said that he knew nothing about that naming convention at that stage. He said that he first Googled these letters in March 2008. 51About half an hour later, using another computer, he entered the terms he had come across to ascertain what files with those names contained. His explanation for using another computer was that his computer had crashed and he had purchased a new computer to which he transferred his data. 52The particular terms the appellant entered at that time were: "PTHC", "PTHC special", "PTHC fuck", "PTHC cum" and "PTHC Jen". He said that he had made a mental note of these terms and searched them to identify more about that genre, although his initial evidence had been that he "took down various key words out of the data". He said that he "thought about it greatly before ... downloading [the files]". He said that when he entered the search terms thousands of results came up. He denied in cross-examination that he had wanted to find examples of the genre because he was interested in looking at pornography involving children who were not yet teenagers. 53Having collected the file names that possibly indicated child abuse material, the appellant decided to download files with those names. Over a period of about 12 days, he downloaded between 1,000 and 2,000 files which he believed could contain child pornography. These files were contained within about 5-10 archived files. Archive files are computer files that contain other computer files. The appellant discovered 5,000-10,000 computers that were prepared to share child pornography material. 54The appellant said that he was aware that the Australian Government and other governments had been trying to filter child pornography on the internet, but that having seen the amount of material distributed on peer-to-peer networks such as eMule, he came to the view that the existing approaches were completely misdirected as they focused on child pornography on websites. The appellant, who described himself as being a person who had innovative ideas and who could "create unique things and ... make a particular difference", said his company had already developed software that was able to handle and store more internet traffic than other programs and collect a large amount of information at the core of peer-to-peer networks. In particular, the program developed by his company was able to store information in a granular manner, which he explained meant storing "the reference of every source, destination, internet address, and the related applications that they were being used for". 55The appellant said that it occurred to him that, using his existing knowledge, he might be able to develop a program that would monitor or filter out child abuse material. He said that the notion he had at that time was to build a database of IP addresses containing child pornography and then: "... bringing that back into a collector at the centre of an ISP to add and to automatically create a block list ... to filter that IP address serving its information to anybody else." 56His idea, or as he described it, his "gut feel ... trying to understand what was coming down, trying to understand key words of that data and [his] attempts to build a keyword list", became the first stage of what was described in the appellant's case as research directed to determining whether it was possible to develop a product to filter child pornography. 57The appellant saved the three video files the subject of the first access count into the print directory, a sub-folder on the laptop. It was accepted at trial that this was an obscure location in which to place the files. He gave a number of explanations as to why he had done so, including that that file path happened to open at the time. In essence, however, his explanation was that he had saved them in that location because he "didn't want [them] right in his face in the desktop". 58The appellant next downloaded a program called ACDSee, which is used to build thumbnail images of files. The appellant explained that as the program goes into an archived file it builds a database of the file names within the archived file and it may also, in another database, generate thumb nail images of what is contained in the archived files. The appellant said that his purpose in using the ACDSee program was to build a list of filenames out of the archives. 59The appellant said that he then deleted the archived files from his laptop using a program called Eraser, because he "didn't want the files" or "to even have access to that information". He said that he had not attempted to encrypt the data on his laptop because he thought he had deleted it. The appellant said that at that time, he believed he was only creating a database of names and that he did not know that he was storing any images, as he had deleted any other related files. However, the three video files saved in the print directory had not been erased and were still on the laptop when the police searched and seized his computers in December 2008. 60The appellant's explanation for why those files had not been deleted was because he had probably forgotten that he had left them in an obscure directory. The appellant also said that his children had access to his laptop and that he would not have knowingly left the child pornography videos on his laptop where his children might come across them. Multiple copies of the three video files were located on the Western Digital hard drive, although the appellant said he was not aware that they had been copied across and that this had apparently occurred automatically. It should be noted that Mr Wilson gave evidence that the video files had only been accessed in 2007. 61In response to the suggestion in cross-examination that he had downloaded the files to find out what was in them, he said that his purpose in doing so was to "speed up the collection of file names" so that he could build up a database of file names. He said he needed an easy method of extracting names into a database format to ascertain what the key words of the genre were. He also said his objective in downloading the files was to understand the nature of the particular community of users, how profuse the files were, the methodologies used to share the files, as well as the processes that he would need to go through in order to block or monitor the material. 62When engaging in this first stage of 'research', the appellant did not adopt any particular method. Nor did he make notes or keep records of his 'research'. Rather, he claimed to have relied upon his own "gut feel" as to what he was dealing with and the making of mental notes. This was so, notwithstanding his acceptance in cross-examination that it was critical to locating child pornography to have accurate search terms and MD5 hash numbers. (A MD5 hash number is a random configuration of 32 letters and numbers that operates as an identifier of a particular file.) In this regard, he agreed that it had become known to him that the MD5 hash numbers were essential to build an effective program such as he had in contemplation. He also agreed that it was "beyond most human capacity" to recall an MD5 hash number, but that he had not kept a record of any of them. 63The appellant had earlier said that his 'research' was at an early stage and that he "was still mulling around". He said that this was his "style of development" and that even when developing his NetFlow Auditor, he had not "made many notes". When tested in cross-examination on his failure to keep a note of search terms, he said that his research required "a lot of prior experience in terms of understanding architecture and [that] recalling some of the search terms was relevant". He did not accept that the search terms were the "heart and soul of this research", but said it "was the beginning of the research". He said that he had maintained and stored a database made by a program called ACDSee (which created the Asset.dbf file) which he retained underneath one of the application folders. The appellant also agreed that "to be effective" his research required him to know "for certain" the history of each file, although he qualified his answer, saying he only needed to know the history of each file at the end of the research. 64This evidence was the essential aspect of the appellant's case in respect of the first stage of his research, namely, that he had had downloaded the files as part of his 'research', that he had deleted all other files he had downloaded at that time with a program called 'Eraser' and that he had overlooked that these files were on the computer, thus explaining why they remained in his possession. He contended he did not know and could not reasonably have been expected to know that he was in possession of the material during the period between 21 November and 11 December 2007, being the period of possession alleged in the indictment. As indicated, this aspect of his defence is not pursued on the appeal. 65The appellant said that he did nothing further until March 2008, as he was "pretty shell shocked" and felt he had "to leave it alone for a while and just to mull it over in my head and think about what I'd learnt, and how it could be applied to technology". The trial judge accepted this evidence. The appellant also said he had other work tasks to attend to. 66The appellant identified the second stage of his research as occurring in March 2008 when, in an attempt to advance his research, he conducted a series of tests relating to a repacked inspection method using programs called Wireshark and Colasoft Capsa, in conjunction with the eMule downloads. The appellant said that he returned to his research at that time because there was discussion in the media about filters and he again thought that it was misdirected as it ignored peer-to-peer technology. 67The appellant explained that his purpose in using the Wireshark and Colasoft Capsa programs was to ascertain if child pornography could be identified as it traversed his network interface card. He described this approach variously as "using a sniffer approach" or as involving "deep packet inspection". He said Wireshark was not an easy tool and that Colasoft Capsa was easier to use, in the sense that if he: "... plug[ged] in a string into a field and saying 'search PTHC. If you see PTHC in the content, then [that] alert[s] me to the packets that contained that content'" 68The appellant said he had limited success with this method and that there were aspects of it that he did not understand. In particular, he did not understand the level of obfuscation or encryption that was occurring. The appellant said that he purged all the material that he had downloaded at this time and all related back files and applications from the 'experiment' because the data had the potential to form actual images or videos of child pornography on the computer. He said at this time he did not know whether the police had the capability to check MD5 hash numbers in the manner he was researching. 69The appellant said that in about September/October 2008, there was again a peak in media coverage relating to filtering child pornography. He said that as he had already "put in the effort", he "needed to progress on some final thoughts and experiments relating to the MD5 signatures", as well as considering "how [he] would go about creating the active caller". He said that at this time he looked at a number of articles, to which he returned in about November 2008. He had read those articles some years previously which, he accepted, did not relate to child pornography. He said, however, that he drew on the knowledge within them when he was performing his research. 70The articles were contained within a WIP folder on the desktop. The folder had been created on 24 November 2008 the day prior to the first eMule download during this period of 'research'. Mr Wilson, who had not located this folder at the time of his search, admitted that he had not entered the search term "peer-to-peer", but conceded that the folder contained files relevant to peer-to-peer detection research. It should be noted, however, that the appellant conceded in cross-examination that none of the articles analysed how the particular content of a file might affect the flow of information over peer-to-peer networks, as opposed to the size of the file. The appellant also agreed in cross-examination that one of the articles that he had pointed out as relating to file content was in fact about "packet inspection" which involved examination of digital information comprising part of the file but did not involve the opening of the file or looking at it to see what it depicted. 71One of the articles contained within the WIP folder was entitled "Peer-to-Peer Behaviour Detection by TCP Flows Analysis", by C Soldani of the University of Liège, published in the academic year 2003-2004. He said that he understood from the Soldani paper the importance of keywords and trying to identify how to discover fingerprints of files as they crossed a network gateway. 72Another article, "Paedophile key words observed in eDonkey", by Matthieu Lataby & Ors, had emphasised the importance of collecting key words from such data. He said that that paper gave him an understanding that certain key words could be used to build a filter and there were other keywords that although relevant, were not as useful for that purpose. The appellant accepted that the article related to the need to confirm the key words and that there was nothing in the article that suggested it was necessary to look at the material. The appellant said, however, that the information in the article caused him to think that the kind of filter that was needed was one into which keywords were put into an active caller which would identify the MD5 hash number or signatures of a file. He explained that he was interested in the MD5 signatures because they were "the absolute fingerprint of a known file". 73This was the genesis of the third stage of the research. In essence, that stage involved four downloads of a total of 365 digital images using eMule (the second access and second possession counts). The appellant downloaded the images late at night or in the early hours of the morning. He said that he was awake at those times, but agreed that he did not need to communicate with anyone in the United States at that time. 74The appellant said that the purpose in downloading the images was to observe the behaviour of the peer-to-peer connections on eMule as the number of downloaded files grew. During this stage of the 'research', the appellant used a program called PacketTrap. This program was not particularly successful for that purpose. Indeed, he said that it produced less information than Wireshark and Colosoft Capsa, and he had difficulty installing and running it. However, the appellant said that it allowed him to capture information about the physical IP addresses of the peers connecting to eMule in a much clearer way than the other tools and was closer in its functionality to the NetFlow Auditor program he had previously developed for other applications. The appellant said this was important to him because "if we were going to ... create an active caller to drive our software, then it would be a similar level of information". The appellant also installed an MD5 tool to assist in the process. The appellant's evidence was that in this third phase of his research, he was interested in the electronic signature of the files. 75Some of the files located on the Western Digital hard drive were part files stored in a directory marked T1. In his evidence in chief, the appellant explained his purpose in having the part files, as follows: "... the way that eMule works is that it has an incoming directory and it has a temporary directory. One of the suppositions I had was that one could revolve the part files around and around and around in a circle and so by doing that in an active caller, be able to continually or to find the files that were in the temporary directory more frequently as the time of day passed which is why I called it T1." 76If the part files were clicked on, they produced an image. However, the appellant said he did not look at the part files, but waited for them to complete. The appellant said that he had used a program called WinRAR on the part files as a general extraction. There were numerous other files found on the hard drive, including JPEG files. The appellant said the JPEG files could have been produced as a result of using the WinRAR program. The part files were contained in an archive and the JPEG files were contained within an inner archive. The appellant said he looked at a "few" of the JPEG files. He said he took a sampling out of that group and thought that there was a "high propensity" that the rest were also child pornography. 77The appellant, in response to the question whether it was necessary to open every file for the purpose of the work he was doing, stated that he had installed MD5 tools and had checked that the subset of information related to child pornography, but he "hadn't formed a method to start building the MD5 database". 78The appellant also renamed the complete files he had downloaded using a numerical file name which, he said, he used as an electronic fingerprint because he had no desire to look at the names of the files at that stage. He said that his objective in giving the files various anodyne file names was to segregate each of the sessions in which the downloads occurred to correspond with his periods of research. The appellant said he did not rename the last download as the Federal police arrived at his premises the following morning, before he had time to do so. The appellant denied that his intention in renaming these file using numerical names was to camouflage his erotic interest in child pornography. He maintained that he was renaming them for experimental purposes related to his research. He also said that he had no desire to look at the actual file names, which caused him "a fair bit of discomfort". 79The appellant gave evidence that after his arrest he continued to work on his method but did so unconnected with child pornography. In August 2009 he published an article titled "Using Low auditor to assist in identifying Distributed Denial-of-service (DDoS) attacks and other network behaviour anomalies". He said that this article was based on his findings on peer-to-peer networks from his three phases of work and that it presented a working method to assist in developing NetFlow Auditor to a stage capable of filtering out child pornography in the near future.

The trial judge's reasons on the defence of scientific research 80It is convenient to note at the outset that His Honour generally accepted the appellant as a person of credit, notwithstanding that he had admitted to lying to the police in his ERISP (referred to below). His Honour considered that the lie went to the appellant's possession of the material and not to his defence. But in any event, he considered that the credibility of the appellant was not relevant to the determination of the question whether the Crown had established that there was no reasonable possibility that the appellant produced, used or intended to use the three video files for a genuine scientific or other public purpose. 81It is also convenient to note that the Crown had sought to rely on the presence of the copies of the video files on the hard drive, the thumb cache images and the data indicating the content of the files in the Asset.dbf file as tendency and/or coincidence evidence to establish that the appellant possessed the three video files for an erotic purpose. His Honour rejected the Crown's applications. It appears that as part of the consideration of the Crown's tendency and coincidence evidence applications, the appellant sought a direction that the purpose of the Asset.dbf file was to create a database without images or video files. His Honour noted in that regard that the file located by Mr Wilson in fact did contain images or video files. This observation is the subject of ground 4 of the appeal. 82A further matter that needs to be noted is his Honour's finding that the appellant's main concern in possessing the three child pornography video files "was to utilise the technology which he had developed for commercial use and for his own benefit". As his Honour observed: "... the evidence of the [appellant] is quite specific in that regard. He stated that he was not making any notes about anything to do with research at the time other than mental notes." 83His Honour accepted that the appellant did not access the three video files other than at the time that he first downloaded them. His Honour also accepted the appellant's evidence as being truthful, that having downloaded the three videos, he felt he had to "leave it for a while and mull over it in his head and think about what he had learnt and how he could apply it to technology". However, his Honour concluded that the appellant did not intend to use the three video files for research. Rather, the appellant's intention was to use the data from the three videos for the purposes of his research. That being so, his Honour concluded that it was not reasonable that the three video files remained on the computer. It followed, in his Honour's view, that the Crown had discharged its onus in relation to the first possession charge in showing that there no reasonable possibility that the accused produced, used or intended to use the three video files for genuine scientific research. In coming to that conclusion, his Honour took into account the appellant's good character when assessing the likelihood of having committed the offence. 84His Honour then dealt with count 4, relating to the appellant's possession of two groups of files. One group was the 365 image files located on the Western Digital hard drive, being files and part files produced by eMule. The second group consisted of the multiple copies of the video files originally located on the laptop. The charge in count 4 involved possession of the material downloaded during what the appellant described as the third stage of his research. 85His Honour's reasons for rejecting the appellant's defence under s 91H(4) in respect of the second possession charge (count 4) were similar to those given for rejecting the first possession charge. He accepted that the appellant was concerned with creating a business opportunity by adapting software that he had developed to filter out certain material on the peer-to-peer networks. His Honour accepted the appellant's evidence that he had referred to a number of articles during each phase of his 'research'. His Honour accepted that these articles were relevant to peer-to-peer behaviour and internet traffic analysis and were relevant to his attempts to adapt the software he was developing for the commercial purpose he had in mind. His Honour then posed the question whether the appellant's possession of the material the subject of count 4 was for a genuine scientific purpose, having regard to the circumstances in which the material was used or intended to be used, and whether his conduct was reasonable for that purpose. His Honour determined both aspects of this question in the negative. 86In doing so, his Honour had regard to the dictionary definitions of "genuine" and "scientific". He found that "genuine" meant "properly so-called" and "scientific" meant "according to rules laid down in exact science for performing observations and testing the soundness of conclusions": see the Australian Concise Oxford Dictionary. His Honour found that the appellant's possession of the material was not for a genuine scientific purpose for the following reasons. First, there was no method involved in the 'research' undertaken by the appellant. The appellant was not acting in accordance with any rules laid down by science. For example, he made no notes, contending that "he was thinking and [made] notes in his own mind". Secondly, the appellant was aware that possessing the material was illegal. Thirdly, the appellant made no official approach to any law enforcement agency in respect of the prospective development of a filtering program. He had made a cursory inquiry only to ascertain if law enforcement officers were interested in any filtering method. 87His Honour referred to the submission of the Crown that PacketTrap (a program the appellant said he used in conjunction with eMule in the third phase of his research) could not be used to analyse the content of child pornography material on the internet. The appellant had not challenged that evidence, but contended that his purpose in using that program was to obtain information about all of the point to point IP connections. In this regard, it was relevant that the appellant's case was that he had developed a method to monitor and filter out child pornography on the Internet as opposed to having developed a working product that would achieve that result. However, it was his intention to adapt software that he had already developed to do that. 88His Honour concluded that there was no necessity for the appellant "to have regard to the child pornography for the purposes that he intended" and rejected that the appellant's conduct was reasonable for the purpose he had in mind. His Honour made the observation that a commercial purpose did not exclude the possibility of a scientific purpose but reiterated that at this time the appellant was only making mental notes whilst carrying out his analysis. In his Honour's view, the only rational inference was that the appellant did not possess the material for a genuine scientific or other public benefit purpose, notwithstanding that he accepted the appellant was a genuinely innovative person, anxious to develop his own software. 89Important to his Honour's determination was the appellant's evidence that it was not necessary that he download child pornography material for the development of a software product that would filter out pornographic material. The appellant challenges this finding as not being supported by the evidence (see ground 3).

Ground 1: the trial judge erred in his interpretation of the defence under s 92H(4)(c) 90Section 91H(4)(c) provides a defence in circumstances where the person was acting for a genuine scientific purpose. The appellant contended that the trial judge's interpretation of the adjective "scientific" in s 91H(4)(c) was unduly narrow and failed to reflect the broader context of scientific purpose in the section provided. In particular, the appellant contended that his Honour's interpretation of the provision imposed a requirement of "scientific method" which was not required by the legislation. The appellant also argued that a person could be acting for a genuine scientific purpose within s 91H(4)(c), even if the steps taken for that purpose were of a preliminary nature. 91Accordingly, the appellant submitted that his Honour erred by placing emphasis upon the absence of any scientific method in the "research" the appellant claimed he was undertaking, that is, that he had not acted according to a set of rules laid down in exact science and had not made notes. The appellant submitted that a person could engage in genuine scientific research without engaging in any form of scientific method, as his Honour appeared to consider was necessary. He further submitted that a broad construction of "scientific purpose" was consistent with the objects of the section which was to prohibit the possession of child pornography except for limited purposes and, relevantly to this case, for a genuine scientific purpose. 92The appellant also pointed out that reliance upon dictionary definitions can be of limited utility: see House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at 505 and that, in any event, his Honour erred in too narrowly confining the meaning of "scientific ... purpose" in s 91H(4)(c) by referring to a portion only of the dictionary definition of "scientific" and then from one dictionary only, namely, the Australian Concise Oxford Dictionary. The complete entry in that dictionary is as follows: "Scientific -adj. 1a. (of an investigation etc) according to rules laid down in exact science for performing observations and testing the soundness of conclusions. b. Systematic, accurate. 2. Used in, engaged in, or relating to (esp natural) science (scientific discoveries, scientific terminology). 3. Assisted by expert knowledge." 93The appellant submitted that a person could be engaged in genuine scientific research without taking notes and without performing an experiment according to the rules laid down in exact science. In this regard, the appellant relied upon his evidence as to how he had developed applications in the past and had undertaken research without note taking, namely, by "learning about the technology, learning about the data, by getting a good gut feel of the data and progressing forward in the next step". The appellant explained that this was how he got his "flashes of genius". 94The Crown emphasised the necessity for the purported scientific purpose to be genuine and that an analysis of what the appellant did demonstrated his assertion to be spurious. The Crown submitted that the appellant's case, that he was engaged in scientific research consistent with a scientific purpose, was simply implausible and that his evidence was false and inconsistent. We will return to the bases upon which the Crown supported its submission shortly. Before doing so, however, it is necessary to consider the terms of the statutory defence and the challenge that is now made by the appellant to his Honour's approach to it. 95The defence under s 91H(4)(c) is made out where, relevantly: "... having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine ... scientific ... purpose and the defendant's conduct was reasonable for that purpose." 96The appellant's case at trial was that, having stumbled across search terms that contained terms that indicated to him that child abuse material might be involved, it occurred to him that he could possibly develop a commercial product that would permit such material to be filtered and blocked. To that end, he said he engaged in research and that his possession of the material was part of, or for the purpose of, that research. 97Although his Honour referred to the appellant 'producing' the three video files on his computer when they were stored in the obscure directory path, the appellant did not in any real sense 'produce' the child pornography in those files. For that reason, we do not consider that part of the defence under s 91H(4)(c) is available to him. Rather, the appellant accessed child pornography, downloaded it, saved it (and was thus in possession of it) and subjected it to a number of computer programs. In that way, he "used" the material as comprehended by the defence under the section. It was his case that he did so as part of the very early testing of an idea that he might be able to develop into a commercial product. To that extent, he claimed that he also intended to use the material for research. It was in that context that the nature of his 'research' was relevant to the determination of whether the Crown had excluded the defence. 98It should be noted immediately that s 91H(4)(c) does not speak in terms of research, nor, as the appellant pointed out, was there any express requirement that a person apply or utilise a scientific method if using or intending to use the material for a genuine scientific purpose. We accept that it is possible that the research into and development of a commercial product could involve "producing, using or intending to use child pornography material for a genuine scientific purpose". His Honour accepted that possibility. On that premise, it was appropriate for his Honour to consider whether the activities undertaken by the appellant had the attributes of genuine research to ascertain whether a commercial product could be produced. 99His Honour, by reference to a dictionary meaning of "scientific", found that it did not. As already stated, the appellant has complained that his Honour's reliance on a specific dictionary meaning of the term "scientific" was too narrow. However, even if the complete definition of "scientific" is considered, the appellant's activities could not be described as "systematic or accurate". There had been no systematic logging or recording of search terms and their MD5 hash numbers, both being tasks essential to what the appellant said he was trying to do as a first step in his research. 100Subject to one matter to which we will turn, the same conclusion is reached when consideration is given to the meaning of 'research', which was the activity in which the appellant contended he was engaged. According to the Oxford English Dictionary, research means: "1. The act of searching carefully for or pursuing a specified thing.; 2. systematic investigation or inquiry aimed at contributing to knowledge of a theory topic etc by careful consideration, observation or study of a subject; investigation undertaken in order to obtain material for a book, article or thesis etc; the product of systematic investigation." 101There was nothing systematic about what the appellant did in the course of any phase of his 'research'. We are satisfied that what the appellant did could neither be described as scientific nor readily described as research in the dictionary definitions where emphasis is given to systematic investigation and careful observation or study. However, the appellant's evidence was that he was pursuing a particular end, namely, seeking to ascertain whether he could develop or adapt technology that would act as a filter for child pornography material. 102The appellant's use of the Wireshark and Colasoft Capsa programs in March 2008 and PacketTrap in November/December 2008 provide some support for this claim as none of these programs actually gave him access to the child pornography material as distinct from other information or data in the download files. The appellant's possession of the material could thus be said to be for the purpose of an investigation or 'pursuing a specified thing'. In other words, it could be said that he had possession of the material by way of a preliminary investigation to ascertain whether it was worth proceeding with the attempted development of a commercial product. 103The real question, therefore, is whether, at the preliminary stage of his investigation, could be said to be engaged in research, such that his possession of the material was for a "genuine scientific purpose"? Although the Court has not found this question easy to resolve, we have come to the conclusion that the trial judge was correct to conclude that for the purposes of s 91H(4)(c), a person would not be engaged in the research stage of a project, so as to have possession of material for a genuine scientific purpose, unless what was being done involved proper scientific method. 104We are further of the view that the appellant's possession of the material on either the Sony laptop (the first possession charge) or on the Western Digital hard drive (the second possession charge) was not reasonable for any genuine scientific purpose. The possession charge in respect of the three video files found on the Sony laptop was in respect of the period 23 November 2007-10 December 2008. Even on the appellant's case, he did not have possession of those files on that computer during that period for a genuine scientific purpose. Rather, he was in possession of the material for that period because he did not realise the video files had not been erased and/or had forgotten that they were located in the obscure print directory. 105Even if the appellant's initial possession had been for a scientific purpose, a proposition that the Court rejects, there was no evidence to support a case that the continued possession of the videos was reasonable for that purpose. On the appellant's own case, he had not intended to conduct any further research on or relating to those files so that his continued possession was not reasonable for a genuine scientific purpose. The fact he forgot that the files remained on his laptop may be relevant to sentence, but that is a distinct and different question. Further, for the reasons given at [*125], we consider that the possession of the files on the Western Digital hard drive was not reasonable for genuine scientific purposes. 106Having come to that conclusion, it not necessary to deal with the specific arguments raised by the Crown in relation to this ground of appeal. Those arguments are better dealt with in relation to ground 5, namely, that the guilty verdicts were unreasonable and not supported by the evidence.

Ground 2: the trial judge erred by taking into account the appellant's failure to notify the authorities of his conduct 107The appellant submitted that his Honour erred in taking into account the appellant's failure to notify authorities as a factor relevant to the reasonableness of his conduct in possessing the pornographic material. The appellant contended that his Honour took this fact into account as a determinative factor, notwithstanding that his Honour recognised that there was no obligation upon the appellant to do so. 108The appellant's failure to make an official approach to authorities was one of three reasons that his Honour gave for rejecting the appellant's defence and so was an important factor in his Honour's reasoning. The question, therefore, is whether it was an error for his Honour to have regard to that matter. 109In the opinion of the Court, his Honour did not err as alleged. His Honour understood there was no requirement upon the appellant to make any such enquiries. However, as the evidence emerged in this case, the fact that the appellant had not made formal enquiries of authorities in relation to his proposed commercial product, particularly in an area as serious and sensitive as the possession of child pornography, which, as the appellant knew, was illegal, was relevant to but not determinative of the question whether it was reasonable to have the material in his possession for his purported scientific purpose. A person who had possession of such material for a genuine scientific purpose might have been expected to have made enquiries of relevant authorities to ascertain whether the development of a commercial product would be of interest to them, or what their requirements might be in relation to any such product. 110It might also be of interest to a person proposing to develop a product to ascertain from the authorities whether there was already research in the field and, if so, what the nature and extent of that research was, as it would be pointless to replicate existing research. Additionally, an enterprising IT product developer might decide to build on such research. In other words, it would seem unusual for a person embarking upon the development of a new product not to seek to ascertain whether any proposed product would interest the authorities to whom it was likely to be marketed. 111We would reject this ground of appeal.

Ground 3: the trial judge erred in finding that the appellant did not need to download child pornography 112A factor the trial judge considered relevant to whether the defence of genuine scientific purpose had been excluded by the Crown was what his Honour stated to be the appellant's "agreement" that it was unnecessary for that purpose to download the child pornography material. His Honour also stated that there was no necessity for the appellant to view child pornography for his alleged purpose of scientific research. 113The appellant submitted that he had not agreed that it was unnecessary for him to download child pornography. He further submitted that his Honour's finding that there was no necessity to have regard to the child pornography was contrary to the evidence. 114The appellant relied upon the following evidence given in his evidence in chief: "Q. At that point in time you saw the child pornography. What did you think that you could do? A. Well, initially, I didn't know how big a problem it was. I'd tried downloading Stargate and I'd tried downloading top ten hits and I'd - I'd had a feel for - for what that profile of traffic was so it was purely, at that stage, just an understanding of, you know, what is - what is child pornography and I - I progressed to - to download a couple of files at that stage to - to analyse if - if this was - if the names were - that were indicative of the - or the key words that I'd seen in my initial browse were, in fact, child pornography. (Trial Tr 308) ... Q. If I can sort of take you back and ask this question. Do you recall the first time you downloaded a child pornography material, and what the purpose was of that download? A. The purpose was simply a research purpose, and to qualify that it even was child pornography. Q. Why did you need to know whether it was child pornography or not? A. No point in stamping around in the dark if it - if you, you know, if it's not. Then its perhaps not - there's actually a couple of reasons. Firstly, files can be polluted and its difficult to know whether that data is in fact pornography or not pornography until you download. Q. Is it possible to have done the type of research that you were attempting to do without actually downloading child pornography. A. I don't believe so." (emphasis added) 115The appellant explained that it was only "when you start clicking on, and commencing a download [that] you get any idea ... of the community that is serving up the files". 116The appellant was cross-examined about the purpose of downloading the child pornography material as follows: "Q. But you certainly don't dispute that firstly when you downloaded all of the files on pages 1 to 6 that you intended to download child pornography? A. I intended to download child pornography for the purpose of my experiment, yes." 117The appellant referred to other evidence he gave, including that the eMule program was rich in observable statistical data, including how many files were being shared, the size of files and how long it took for those files to come down. The appellant contended that the depth of his understanding of the processes he was observing was consistent with the fact that he was conducting scientific research. His contention was, as submitted on the appeal, that "he needed child pornography ... to understand what was happening". 118In cross-examination, the appellant agreed that the position at the conclusion of the 'first stage' of his 'research', was that he had a number of files of child pornography downloaded on his computer, but disagreed that that was the net effect of his research. Rather, he said he was left with a great deal of knowledge of the nature of child pornography on peer-to-peer networks. He conceded that the knowledge he obtained was that there were a lot of people using peer-to-peer networks to obtain access to child pornography, but qualified that concession in terms that it was "one observation" he had made. He added that that observation was a driver for continuing to identify and build a method to block access to child pornography. 119The Crown contended that his Honour's recording of the appellant's concession and his finding that it was unnecessary to have regard to the child pornography was open on the evidence adduced by the Crown and on the appellant's own evidence. The Crown pointed to the evidence of Mr Boag and Mr Wilson as being relevant to this issue. 120Mr Boag was the Managing Director of an IT company. His duties mostly involved sales and support of the company's software. He was not cross-examined on his report. The PacketTrap program, which the appellant was using in December 2008, being the third stage of his 'research', was one of the company's products. Mr Boag explained that that program allowed users to monitor traffic flow volume on the application level only. No information could be obtained by the use of this program regarding the content of a file. Nor could that program be used to analyse the content that was transmitted on peer-to-peer networks. 121The appellant accepted the correctness of this evidence and in fact relied upon his own evidence that he had limited success using the PacketTrap program. He explained, however, that in using the program he was trying to ascertain the number of peers of the physical IP addresses. 122Mr Wilson also gave evidence on this point. He read the papers and articles tendered by the appellant. These articles were directed to types of files in the context of peer-to-peer networks, but did not specifically discuss content. In particular, he said that none of the articles concerned child pornography, nor did they analyse how the content of a file might affect the flow of information over peer-to-peer networks. The articles were concerned only with an examination of the size of a particular file. The appellant had accepted that to be the case in cross-examination, in that the one paper that he had referred to as relating to file content was, in fact, about "a packet inspection", which involved examination of digital information (numbers and letters) comprising part of the file, but did not involve a person opening the file and watching it or looking at it to ascertain what it depicted. 123The Crown also relied upon the fact that the appellant's contention, that he had used the programs Wireshark and Colasoft Capsa as part of his scientific research, was undermined by his concession that neither program enabled a particular file to be identified as one depicting a picture of a child being abused by an adult. 124The appellant argued that this evidence did not entail the concession for which the Crown contended because, as he explained in his evidence, although the two programs referred to did not enable the content of the file to be depicted, they enabled information from a file which had been identified by its MD5 signature, to be collected and matched against a known list of files. In other words, the information obtained from the use of those programs gave the user the capacity to infer information as to what was being worked towards, in this case, the detection of child pornography. 125The essential point, however, on the Crown argument, was that there was no need to retain the child pornography for the purposes of research. Rather, the names of the files and the MD5 hash numbers were the relevant research tools, not the child pornography material itself. There is some support for this submission in the appellant's own evidence, in that he thought he had erased all files downloaded in November 2007. If he had intended to erase the files, there was no need to retain them. Thus, whilst the appellant did not make the direct concession attributed to him by his Honour, it could be thought that the concession is implied in this evidence. 126However, we consider that his Honour's finding was directed to what he thought was an express concession by the appellant that there was no need to download the child pornography for the purposes of his research. There was no such express concession. The Court has concluded, therefore, that this ground of appeal has been made out. 127That in itself would not be sufficient for the appellant to succeed on the appeal, if in fact it was established that there was no need to download child pornography or to retain the material for the research purposes he contended he was pursuing, or alternatively, it was not reasonable for him to do so. As this consideration more readily arises under ground 5, it is convenient to consider it further when considering that ground.

Ground 4: the trial judge erred in finding that the Asset.dbf file included image or video files 128The appellant's evidence was that he created an Asset.dbf file using a program called ACDSee, as he wanted to build a list of file names out of the archives into a database format. He said that, in his understanding, he was not storing any images. 129The trial judge referred to this file when ruling on the Crown's application relating to tendency and coincidence evidence. His Honour rejected those applications. In doing so, he observed that the appellant's evidence was that the purpose of the file was to create a database without images or video files. His Honour then added, "it is further noted that the file located by Mr Wilson in fact did contain images or video files". 130The appellant contended that this finding was erroneous, as Mr Wilson's evidence was to the contrary. The Crown did not concede that the trial judge erred as alleged. It is thus necessary to look at the evidence in the context in which it was given. 131Mr Wilson was cross-examined about the Asset.dbf file. He agreed that the program had collected a wealth of data beyond the video and image files. He agreed "absolutely" that of the 12,529 files contained within the Asset.dbf file, not all would be indicative of child pornography and that whilst a file name might suggest child pornography, that could not be verified unless the file was opened. He agreed that the original files from which the data in the Asset.dbf files had been collected had probably been deleted from the computer, so that he had not been able to look at the original files and could not and did not say that the Asset.dbf files contained video or image files. He also agreed that it was not possible to determine whether the items in the database file were created when the computer was first turned on. Importantly, he agreed that it was not possible to know whether the programme had operated over one or two days or continuously. 132The appellant is correct in his submission that Mr Wilson did not give the evidence recorded by the trial judge. Having said that, it is possible that the judgment reflects a typographical error, with the word "not" having been omitted before the words "contain images or video files". The possibility of typographical error makes his Honour's observation read more naturally and is consistent with his findings on the sentence hearing. 133If his Honour in fact made the finding as recorded in the judgment, the appellant contended it was significant, in that his case was that he had used the Asset.dbf file to create a database of filenames and additional data such as file size, but had deleted the parent image files and parent video files. On his case, the retention of this data, as opposed to the video or image files, was inconsistent with an erotic interest in child pornography and consistent with scientific research. He submitted that the failure of the trial judge to understand this must have had a significant and erroneous impact upon his Honour's assessment of whether the Crown had established that there was no possibility that the material was possessed for a genuine scientific purpose. 134The Crown submitted that his Honour's statement subject of this ground of appeal could be read as a statement that the Asset.dbf file contained a database of the names of video and image files that were apparently files the contents of which could be inferred to be child pornography. On that reading, the Crown submitted there was no error. We do not accept this submission. Although we consider that his Honour's judgment may possibly contain a typographical error, what is suggested by the Crown involves inferring that his Honour meant to make a complex finding itself based upon inferences that might be drawn from the evidence. We do not consider that is a proper or available reading of his Honour's words. 135The Crown further submitted that if there was the error as alleged, it was not significant as his Honour had only had regard to the evidence in the course of determining the Crown's application that such evidence be treated as tendency or coincidence evidence. Having rejected those applications, his Honour did not further take it into account in determining the guilt of the appellant on the possession charges. 136For the reasons we have given, we consider that even on the appellant's case, his research was at such a preliminary stage that his possession of the material could not be considered to constitute genuine scientific research. Further, the appellant did not suggest in his case that, when he returned to his research in late 2008, he was proposing to build on or otherwise utilise the file names he had catalogued in the Asset.dbf file. 137It follows from what we have said that his Honour either made the error alleged in this ground of appeal, so that the ground should be treated as having been made out, or alternatively that his Honour's observation should be treated as containing a typographical error. If his Honour made an erroneous finding in relation to the file, it would not have been of any significance as the appellant did not give any evidence of the intended ongoing use of the information stored in the files.

Ground 5: the verdicts were unreasonable and not supported by the evidence 138As the Court has noted, the appellant was tried by a judge alone. The Criminal Procedure Act, s 133 provides that a judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. 139The Criminal Appeal Act, s 6(1), provides, relevantly, that an appeal against conviction is to be allowed if the court is of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. 140The task of the Court of Criminal Appeal pursuant to s 6(1) is, as stated in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, by Mason CJ, Deane, Dawson and Toohey JJ: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (citation omitted) 141In MFA v The Queen [2002] HCA 53; 213 CLR 606, McHugh, Gummow and Kirby JJ stated, at [58], that the reference to "unsafe and unsatisfactory" in M was the equivalent of the statutory test in s 6(1) of the Criminal Appeal Act that the verdict is "unreasonable" or "cannot be supported, having regard to the evidence". 142Their Honours noted that for the purposes of s 6(1), the starting point was that the jury had the primary function in determining the guilt or innocence of the accused. It was integral to that proposition that the jury had seen and heard the witnesses. However, as had been stated in M by the majority, at 494: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred." 143Earlier in M, at 492, their Honours had said: "In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand" (citations omitted). 144In SKA v The Queen [2011] HCA 13; 243 CLR 400, French CJ, Gummow and Kiefel JJ reiterated, at [14], that: "In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'" (citations omitted). 145In R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201 at [3]-[4], Wood CJ at CL (Foster AJA and Adams J agreeing) stated the principles that apply where there is an appeal from a verdict given by a judge sitting alone as follows: "The Court of Criminal Appeal is a court of error, and does not proceed by way of rehearing in a way that permits it to substitute its own findings of fact for those of the jury, or of the trial judge where acting alone: Kyriakou (1987) 29 A Crim R 50, and Kurtic (1996) 85 A Crim R 57. Where, as in the present case, the relevant ground is that the verdict, or more accurately the finding on the question of guilt by the trial judge (s 17, Criminal Procedure Act 1986 (NSW)) should be set aside upon the ground that it is unreasonable, or cannot be supported, having regard to the evidence (s 6(1), Criminal Appeal Act 1912 (NSW)), then it can only intervene if, after making its own independent assessment of the evidence, it concludes that it was not open for the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant: M (1994) 181 CLR 487 at 493; 76 A Crim R 213 at 216, and Jones (1997) 98 A Crim R 107. In that event error permitting the substitution of a verdict of acquittal is established: Coombe (1997) 93 A Crim R 81 at 87-88." 146This statement of principle has been consistently applied by this Court: see Keir v R [2007] NSWCCA 149 and authorities cited therein; Hedges v Regina [2011] NSWCCA 263 per Beazley JA (as her Honour then was) at [46]; FB v Regina [2011] NSWCCA 217 per Whealy JA at [113]. 147In Hedges, Beazley JA further said: "47 In Fleming v R [1998] HCA 68; 197 CLR 250 the High Court observed, at [26] 262, that the first limb of s 6(1) must be seen through the prism of the Criminal Procedure Act, s 33(1). The Court continued: 'The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing [the question is] is that finding 'unreasonable' or one which 'cannot be supported'?' 48 The High Court considered it unnecessary to determine whether in cases under the first limb on an appeal from a judge alone an appellate court will only intervene, relevantly, where there was no evidence to support a particular finding, or the evidence was all one way. See also Keir v R [2007] NSWCCA 149 ; Arun v Regina [2010] NSWCCA 214. That is not the case here. I consider that the Court should approach the matter by asking the question whether, upon the whole of the evidence, it was not open to the trial judge to have been satisfied beyond reasonable doubt of the guilt of the appellant." 148This Court must, therefore, apply the principles stated in M in its determination as to whether the verdict was unreasonable or cannot be supported having regard to the evidence. 149In accordance with the principles in M, it has been necessary to consider all of the evidence, essential aspects of which have been discussed in the preceding paragraphs of these reasons. Other evidence is considered below. Before turning to consider that evidence, it should be noted that, as there was no dispute that the appellant had child pornography in his possession, the question whether the verdict was unreasonable or not supported by the evidence essentially centres around the defence raised under s 91H(4)(c). 150The Court's rejection of ground 1 means that is it is difficult for there to be a basis upon which ground 5 can succeed. Nonetheless, it is necessary to consider the submissions advanced by the parties, should our conclusion on ground 1 be wrong, or should the submissions in respect of this ground raise different considerations that either require that conclusion to be revisited or, alternatively, which reinforce that conclusion. 151Ground 5 also has to be considered having regard to the onus on the Crown to establish beyond reasonable doubt that the appellant did not have the material in his possession for a genuine scientific purpose, or that his possession was not reasonable for that purpose. The gravamen of the Crown case was that the appellant's possession of the material was for an erotic purpose. 152Whilst it is not an element of the offence that child pornography material be possessed for an erotic purpose, it was the Crown case that this was the appellant's purpose. On the basis that an erotic purpose was inconsistent with a genuine scientific purpose, the Crown's position was that if it established that the appellant's possession was for an erotic purpose, it would have established beyond reasonable doubt that the appellant did not have the protection of the defence under s 91H(4)(c). There was no suggestion in this case that the two purposes could or did co-exist. 153The Crown submitted that the contemporaneity of downloading the eMule program and entering the search terms in November 2007 supported the inference that the appellant's purpose in doing so was to locate child pornography material on the network and to download it. The Crown submitted that the search terms entered by the appellant were consistent with his having an erotic interest in child pornography depicting underage girls and inconsistent with a genuine scientific purpose. 154The Crown also contended that the location of the files within the obscure print settings indicated that the appellant had deliberately hidden the three video files downloaded onto the Sony laptop and was consistent with his knowledge that the files contained child pornography, with his knowledge that it was illegal to possess the files and with his desire to avoid another user of his computer accessing the files, rather than having them for any genuine scientific purpose. The Crown also argued that the lack of any method in the downloading and cataloguing of the files was inconsistent with the asserted scientific purpose and that his continued possession of the material files was unnecessary for such purpose. 155The Crown further contended that the making of multiple copies on the Western Digital hard drive, their hidden location in a complex structure of file paths on the hard drive and the fact that the file structure was consistent with the appellant having "backed up" multiple copies of the material, indicated his interest in their pornographic content rather than any interest in the data for research purposes. 156The Crown submitted that the creation of the Asset.dbf database in November 2007 at the first stage of the 'research' indicated a tendency to possess and access large quantities of child pornography material, reflecting an interest in such material unconnected with any legitimate research purpose. Many of the names in the 12,529 image files in the Asset.dbf file were consistent with the appellant being a prolific downloader of child pornography with a special interest in depictions of underage girls. The Crown submitted that the use of the ACDSee photo management software gave rise to an inference that the appellant had used the software to catalogue some or all of the images he had downloaded. 157Likewise, the Crown submitted that the names and content of the child pornography files found on the Western Digital hard drive demonstrated the appellant's interest in child pornography depicting underage girls. The anodyne numerical file names given to many of the files, and their location on a separate hard drive that the appellant used specifically for this material, was also said by the Crown to give rise to an inference that the appellant had intended to conceal the child pornography material from others because he knew it was illegal to possess it and because he was deeply ashamed should anyone know that he had an erotic interest in such offensive material. In support of this argument, the Crown pointed to the appellant's answer in his ERISP that: "I'm really concerned about this because I really didn't want anything to break up our family". However, it must also be noted that in the record of interview the appellant also stated that his objective in downloading child pornography "was a positive outcome for the business". 158In summary, the Crown's case that the appellant possessed the material was only because of his erotic interest in it, was supported by the following matters which rendered his defence implausible: (i) the manner in which the files were stored was not consistent with any method by which scientific research might be undertaken; (ii) the files were 'hidden' on the computer in the sense that the appellant had filed them in obscure computer files where they would not ordinarily be expected to be found; (iii) the names of files had been anonymised so as not to be easily identified; (iv) the appellant knew that his activity was illegal so that it was unlikely he would have risked detection if he was undertaking research; (v) the failure to inform authorities, when he knew his conduct was illegal which further undermined any likelihood that he was engaging in research; (vi) the failure to inform his work colleagues that he was engaging in research for a commercial product and his engaging in activities late at night in his garage, both of which also undermined any suggestion he was engaging in research. 159The Crown also relied upon the fact that the appellant had lied in respect of a number of matters relating to the possession of the material, had given contradictory evidence, and that particular parts of his evidence were simply implausible and ought not be believed. The evidence relating to these matters has, for the most part, already been considered. For example, the lies the appellant told in his ERISP have already been referred to and standing on their own, and without condoning them, might be thought to be understandable. However, it is necessary to give further consideration to some of the contradictory evidence and the aspects of the appellant's evidence said to be implausible. The lies may be seen differently in the context of the totality of the evidence. 160The contradictory evidence related mainly to his evidence as to why he saved the three video files subject of the first possession charge to the obscure HP Print Settings directory on the Sony laptop. The appellant gave a number of explanations as to why he saved the video files in the print directory. He said that his initial reaction had been to put the video files in an obscure directory and that he had thereafter forgotten about that directory. 161His explanation of his initial reaction was that he was "scared of the nature of the content ... I had print settings open, I copy pasted the path and I put it into the incoming directory of the email". He expressly denied that he had looked at some of the files because he enjoyed looking at the material. Later, he said that he had purchased a printer when he was in the United States and that: "... as I was progressing forward with my research I just arbitrarily took that particular directory. It was kind of distant from myself and I placed them there." 162The asserted inconsistency in this evidence was that the appellant had said that he set eMule to store files in the print settings directory first. If that were so, it would support the Crown case that his conduct did not relate to any research purpose, but that he had intentionally used the eMule program in November 2007 for the purposes of accessing child pornography which he then saved. However, the appellant, on being specifically questioned on this, denied that he had set eMule to store files in the print settings directory before he came across the child pornography. It cannot therefore be said that, when regard is had to the whole of the evidence on this topic, there was the inconsistency asserted by the Crown. 163Another matter upon which the Crown relied was the asserted inconsistency in the appellant's conduct in purging many of the files but retaining others. The appellant's explanation was that he had retained certain files so that there was a record of the MD5 hash number, which would enhance the capacity for peers to join his computer. He also said that he retained the files to ascertain if he could identify or find any other further identifiers. He said: "I was looking at the time it took to download and retain - at least there were various sessions where the files were downloaded after a period of time and it was how quickly did those particular files land up in that particular experiment." 164The appellant said that this was an experiment to watch the peer growth over the period of the three or four sessions he had conducted. He said maintaining a record of the MD5 hash number would provide him with more peers connecting to his computer. When it was suggested to him in cross-examination that, in contradiction to that, he had deleted other child pornography files, he replied "[t]hat was certainly the case in March [2008]". 165Some of the files located on the Western Digital hard drive were part files only, being the result of partial downloads. The appellant agreed that the effect of a partial download would be to cause a file to have a different MD5 hash number from that of the complete file from which the part file was created. The Crown contended, therefore, that given the importance of the MD5 hash number to the appellant's research, there was no point in maintaining part files on the computer, being another indication that the appellant had possession of the material for an erotic purpose. The appellant responded that the creation of the part files occurred during the downloading process and was an automated aspect of the eMule application. He also said that the MD5 hash number was maintained within other areas of the application and that once the part file populates all of its pieces it became that file's fingerprint. There was no evidence that contradicted this evidence. 166There were, however, some inconsistencies in the appellant's evidence. Thus, although the appellant agreed that he looked at the files, his evidence differed slightly, in that he first said that he looked briefly at the files to confirm that they were child pornography and that he saw adults and children in a state of undress. However, he agreed that he had earlier said in his evidence that he had clicked through the files and "there would have appeared to be some abuse". 167The appellant had also admitted that he had given false answers to the police in the course of his record of interview. In particular, he agreed that his answer to the police that he had looked at the material once was not true, nor was he providing a complete picture to the police by saying that he had only downloaded child pornography over the couple of nights prior to his arrest. The appellant also agreed that he only told police what he thought they already knew. It must also be said that the appellant never explained why he had kept the three video files at all. 168The Crown also submitted that the appellant's evidence that, having downloaded and saved the files, he had forgotten about them was transparently false. However, his Honour found the appellant to be a credible witness. We consider that in determining whether the Court accept that assessment, the principles stated in Fox v Percy [2003] HCA 22; 214 CLR 118 apply, at least by way of guidance if not directly. 169The Crown has not pointed to any incontrovertible evidence, nor has the Court found any, that would establish that his Honour's assessment was flawed. Nor has it demonstrated that the trial judge misused his advantage in some way. Nor could it be said, subject to one aspect of the case to which we will come, that the appellant's evidence was glaringly improbable or contrary to compelling inferences. Rather, the Crown asks that the appellant's evidence not be accepted and that the Court draw inferences from the evidence to establish beyond a reasonable doubt that the appellant did not possess the material for a genuine scientific purpose but for an erotic purpose. 170There are two aspects of the evidence in particular that point to the appellant having an erotic interest in the child pornography, namely, there being 12,529 file names on the Sony laptop and the retention of the 365 images on the Western Digital hard drive. Although the appellant was not charged in respect of the thumb caches on the laptop, the only conclusion that can be drawn from this evidence was that it involved a significant quantity of downloaded material. Given that at this stage of his research the appellant said he was only interested in ascertaining what the search terms he entered would produce, it is implausible that he needed to download that quantity of material. 171The retention of the 365 images on the Western Digital hard drive bears the same implausibility. If the appellant was concerned to understand how fast and how much material would download, the lack of notation of the results is inexplicable. The retention of the material would not have assisted him to advance that aspect of the research. Having said that, the Court accepts that downloading the material was probably necessary if the appellant's evidence as to research is accepted. 172The Crown also relied upon an experiment the appellant undertook about a week before the trial, which the Crown contended demonstrated that the appellant's evidence as to how he accidentally came across the child pornography was implausible. It will be recalled that the appellant claimed that he had inadvertently stumbled across child pornography when using the eMule program to find copies of a television series. A week prior to the trial he undertook the same task he had undertaken in November 2007, downloading 47 pages of eMule screen shots on a screen similar to that used at the time of the downloads in November 2007. However, the appellant did not find any reference to terms that indicated child pornography or otherwise stumble across child pornography. 173The Court accepts that this was useful evidence in the Crown case. However, we do not consider it would be safe to rely upon a single experiment to conclude that the appellant lied about how he came across the material in the first place. There could be explanations as to why no child pornography came up on that single occasion. There was no evidence that the vagaries of peer-to-peer networks were such that what the appellant said happened could never happen. No repeat experiments were undertaken to demonstrate the statistical unlikelihood of what the appellant said had occurred. 174There was other evidence that cast doubt upon the appellant's case or which was unsatisfactory. The appellant's case that the Eraser program did not pick up the three video files might be thought to be doubtful. But the Crown did not establish that that could not have happened. Likewise, the appellant's evidence that the three video files must have been copied over when he copied over everything from his laptop to the Western Digital hard drive was unconvincing, but not disproved by the Crown. However, the one matter that the Court could not dispel, on reading the evidence, is that the appellant may have had the material for some proposed technological development. Whilst not having the same degree of conviction on this as the trial judge, it is sufficient to cast doubt on the Crown case that there was no such purpose. 175Two aspects of the appellant's account were consistent with his "playing with" or "mulling over" such a possibility. The first was the appellant's stated reaction to what he had come across and the nature of the activities undertaken in March 2008. Child pornography, put starkly, is horrific. The trial judge, who viewed the child pornography material, stated the three video files found on the Sony laptop were "particularly abhorrent". The appellant said that that was his reaction to it and was one of the reasons he put it aside and did not come back to 'advancing' any research until March 2008. Secondly, the programs he used in March 2008 were directed at volume, not content and the appellant did not retain any child pornography on that occasion. 176However, the further consideration we have given to the evidence under this ground has not persuaded us that our conclusion on ground 1 is wrong. For that reason, ground 5 is rejected and the appeal on conviction should be dismissed.

The sentence appeals 177The appellant raised the following three grounds of appeal on the sentence appeals: (1) That given the objective findings in relation to the offences and the subjective circumstances of the appellant, the trial judge erred in imposing a conviction in relation to counts 2, 3 and 4. (2) The trial judge erred in failing to take into account the impact that the offender has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 or the consequences of being convicted under the Commission for Children and Young People Act 1998 in relation to the sentence imposed for count 2. (3) The trial judge erred by finding that the appellant did not need to download child pornography as part of his research. 178The Crown appealed against the sentence imposed for the first access offence on the basis of manifest inadequacy.

Ground 1 179As the Crown submitted, this ground, although not framed as such, is in essence a complaint that the sentences which involved convictions on each of the three counts and the imposition of good behaviour bonds were manifestly excessive. The maximum penalty for the access count was 10 years and 5 years for the possession counts.

The trial judge's findings 180The trial judge made the following findings as to the objective circumstances of the appellant's offending in respect of count 2 (the second access count) to which the appellant had entered a plea of guilty. 181First, his Honour held that he could not be satisfied beyond reasonable doubt that the appellant had accessed the child pornography material for an erotic purpose. The child pornography consisted of the 381 digital image files and multiple copies of the three video files accessed between 23 November 2008 and 11 December 2008 and located on the external hard drive. His Honour accepted the appellant's evidence that he had forgotten about the three video files on the Sony laptop and that they had been saved on to the Western Digital hard drive when a broader collection of work files were backed up. Specifically, his Honour accepted that there was a reasonable possibility that the appellant had no specific intent to save multiple copies of those three files on the hard drive. 182His Honour further stated that he took into account the appellant's evidence that the hard drive was used as a storage device for data obtained in the course of his 'research' to understand the operation of peer-to-peer technology. The Court understands that his Honour accepted the appellant's evidence on this matter. His Honour also took into account the appellant's evidence that he had renamed the files to anodyne numerical filenames as he had no desire to look at the names of the files at that stage of his research. His Honour further took into account that the files were not possessed for further sale or distribution so he would not profit from any sale of the files. 183His Honour also noted that the evidence before him was that the appellant's motivation in accessing the files was to stop the trade in child pornography. His Honour noted that the files on the hard drive were password protected and the appellant had provided the password to the Australian Federal Police. 184His Honour had earlier, in giving reasons for the sentence imposed in respect of count 1 (the first access count the subject of the Crown appeal), referred to the appellant's subjective circumstances, namely, that he was 47 as at the date of sentence, that he was married with two children and that he had no previous criminal convictions. His Honour considered those matters to be relevant to sentence, notwithstanding the Crown's submission that such personal circumstances were common in offences of this nature. 185His Honour also took into account the matters raised in the report of Dr Nielssen, psychiatrist. Dr Nielssen had commented upon the appellant's use of cannabis for its antihistamine effect on his sinus condition. Dr Nielssen had expressed the view that the use of cannabis would have caused the appellant to experience a period of "elevated mind" associated with an increased propensity to act on impulse when taking cannabis, and an impaired recognition of both the correct procedure to follow and the possible consequences of his actions in accessing material that he knew to be illegal. 186Dr Nielssen had also referred to a possible diagnosis of a bipolar disorder. This possible diagnosis was based upon a history of: "... two periods of hypomania triggered by medication known to have mood altering effects and the corroborative information provided by his wife." 187Dr Nielssen also noted a history of the appellant having periods of abnormal energy and enthusiasm in the course of developing his programs which Dr Nielssen considered were consistent with periods of "subclinical elevated mood". 188His Honour also took into account that the appellant had pleaded guilty to the offence. 189In relation to count 3, the first possession charge unsuccessfully defended at the trial, his Honour expressly found that the appellant was not in possession of the three video files between 17 December 2007 and 11 December 2008 for erotic purposes. 190His Honour rejected the Crown submission that the creation of the thumb cache on the Sony laptop was the act of a collector of child pornography for erotic purposes from which it could be inferred his possession of the three video files were for the same purpose. His Honour accepted that the thumb cache was automatically created by the computer's operating system. He further accepted the appellant's evidence that the images in the thumb cache were not accessible to the user without specific software and, more particularly, that such software was not stored on the computer. 191Likewise, his Honour was not satisfied beyond reasonable doubt that the presence of the Asset.dbf file and its contents were consistent with the appellant being a prolific downloader of child pornography with a special interest in images depicting underage girls. His Honour accepted the appellant's submission that if he had a special interest in underaged children, it would be expected that the images in the Asset.dbf file would have been retained. His Honour considered that the fact the appellant had deleted the images, but retained the database, substantially undermined the Crown's submission that the appellant possessed the material for an erotic purpose. 192In considering the purpose for which the appellant possessed the material, his Honour took into account that there was no evidence that it was downloaded using web browsers or via email but, as reflected in his finding on count 1 (the first access count), he downloaded the files whilst browsing through eMule and chancing upon file names that appeared to him to relate to child abuse material. His Honour also noted that the appellant's evidence that he had downloaded the material for the purposes of creating a database. 193His Honour concluded that on the evidence, it was reasonably possible that the appellant had created the database to keep a record of the names and files he had downloaded. His Honour observed that whilst he had not been satisfied that the appellant possessed the child pornography material for genuine scientific research, he was satisfied that he was retaining records in the database for the purpose of analysing the operation of peer-to-peer network systems for a commercial purpose. In this regard, his Honour observed that the appellant was certainly acting alone and not in a collaborative network of like-minded persons. 194His Honour referred to the fact that the appellant had admitted that he had looked at child pornography images but had only looked at a couple for a short period of a few seconds. 195In dealing with count 4 (the second possession charge), although defended unsuccessfully at trial, his Honour relied upon the various matters to which he had referred in considering the previous counts. His Honour reiterated that the appellant was a person of good character and, in the opinion of Dr Nielssen, had good prospects of rehabilitation. Dr Nielssen's opinion was based upon the absence of any history of significant substance abuse, any pattern of other forms of antisocial conduct and the appellant's strong community ties. Dr Nielssen had also expressed the view that the appellant was at low risk of further offending. His Honour, who was sentencing the appellant approximately three and a half years after the last offence, considered that Dr Nielssen's opinion would appear to have been well based.

The appellant's submissions on sentence 196The appellant submitted that the compelling findings made in his favour and, in particular, his Honour's acceptance that he had no erotic purpose in accessing or possessing the material the subject of counts 2, 3 and 4 and that his ultimate objective was to produce a product to prevent access to child pornography, should have attracted the operation of s 19B(1)(d) of the Crimes Act (Cth). 197The appellant was particularly critical of the sentence imposed in respect of count 3, contending that his Honour lost sight of the fact that the charge related only to three video files which had not been accessed since the date of their download in November 2007. The Court does not accept this submission. His Honour expressly noted that the prosecution did not rely upon the contents of the thumb cache on the laptop as part of the material the subject of that offence. Rather, the Crown had relied upon the material as evidencing an erotic purpose in the appellant's possession of the material, a submission which his Honour rejected 198The appellant also complained that there was a "curious reference" to the material being downloaded via email. The Court accepts that whilst this was an erroneous remark, there was reference in the evidence to an email in respect of the downloading of the material in November 2007: see [*41] above. Notwithstanding this error, we do not consider that it impacted in any way upon the sentencing process. 199The appellant next contended that the effect of his Honour's finding that the defence under s 91H(4)(c) was not made out was because his Honour had concluded that there was no reasonable possibility that the appellant's conduct in possessing the three video files was for a genuine scientific purpose, objectively considered, and, further, it was not reasonable that they remained in an obscure directory on the computer. It was submitted that where his Honour was nevertheless satisfied that the appellant had a genuine belief in the commercial prospects of his analysis, the gravity of the offending was extremely low. The appellant also submitted that if his evidence that he had forgotten about the files were accepted, his continued possession of the files could only have been due to recklessness and not to a specific intent to view child pornography on an ongoing basis. 200The appellant submitted, therefore, taking into account his good character and his subjective circumstances, the circumstances of this offence were such that, although finding the offences proved, his Honour should not have proceeded to record a conviction under s 19B. 201We reject this submission. Both in accessing and possessing child pornography, the appellant engaged in activity known by him to be illegal. Whilst we have accepted on the appellant's evidence the reasonable possibility that he saw a need to download the material, we do not accept that there was any necessity for him to save the material for any legitimate commercial or other purpose. Even if the appellant's possession of the files thereafter was reckless, because there is a reasonable possibility he had forgotten they had been saved, his conduct in saving the files in the first place was criminal and serious. While that conduct is of course the specific conduct the subject of the first access offence the subject of the Crown appeal, the interaction between the accessing and possessing of the material in counts 1 and 3 is unmistakable. We consider that the appellant's subjective circumstances and his Honour's acceptance that the appellant had a commercial purpose in downloading the material and had not retained the files in his possession for an erotic purpose, was appropriately reflected in the good behaviour bond imposed by his Honour on count 3. 202In relation to count 4 (the second possession offence of which he was found guilty after trial), the appellant contended that the trial judge's error in finding that it was not necessary to download child pornography in order for the appellant to undertake his research was relevant to an assessment of the objective seriousness of that offence. The Court has dealt with this issue in relation to ground 3 on the conviction appeal. As we have indicated, there is a likelihood the statement in his Honour's reasons was a typographical error. In any event, it is not evident that his Honour took that matter into account on sentence. The only point at which he possibly did so was in his reference that the circumstances giving rise to count 4 occurred as part of the third stage of the appellant's research. Nor is there anything to indicate that his Honour considered this to be an aggravating factor in the commission of the offence. Had he done so, it would be expected that there would have been reference to it in his Honour's remarks. 203The remarks we have made in the preceding paragraph are also sufficient to dispose of ground 3 of the sentence appeal, save for one additional matter pursued by the appellant in support of that ground. 204The appellant also submitted the fact that of the 398 files subject of count 4, only 18 had been accessed after they had been created in the folders also indicated that the appellant's offending in respect of count 4 was "still at the lowest end of the scale". In conjunction with all of the objective and subjective factors to be taken into account, the appellant submits that the offence should have been dealt with under s 19B. 205For the reasons we have given in respect of counts 2 and 3, the Court rejects this submission.

Ground 2 206The appellant complained that in sentencing him in respect of count 2, his Honour should have but failed to have regard to the fact that his conviction may have constituted extra-curial punishment because of the possibility that he may become a registrable person under the Child Protection (Offenders Registration) Act: see R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [21], or because he may become the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004. 207The appellant referred the Court to the Crimes (Sentencing Procedure) Act, s 24A, which provides: "24A Mandatory requirements for supervision and other prohibitions to be disregarded in sentencing (1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the fact that the offender: (a) has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence ..." 208The appellant pointed out that as count 2 was a Commonwealth offence, s 24A did not apply. It followed that his Honour should have had regard to these possibilities. 209The premise that s 24A did not apply was erroneous and so it is not necessary to consider the appellant's submissions advanced in support of his ground. Section 24A applies to Federal offenders pursuant to the operation of the Judiciary Act 1903: see s 68(1) or s 79(1). Accordingly, his Honour was required not to take these matters into account.

Ground 3 210We have already referred above, at [*], to ground 3. The appellant made a further submission in support of ground 3, namely, that the fact an offender suffers adverse consequences when a conviction is recorded, including legal and social consequences, is a relevant consideration in the sentencing process: Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 122 A Crim R 568 at [38]; R v Ingrassia (1997) 41 NSWLR 447 at 449. 211We have already rejected ground 2, in which it was contended that the appellant may suffer adverse legal consequences as a result of his conviction. To the extent that the appellant's further submission relates to adverse social consequences, we are of the opinion that even if the remarks made in the authorities to which we have referred continue to be good law in the context of fraud and tax evasion, they do not apply in relation to the offences under consideration here. Any social embarrassment or consequence that the appellant may suffer from being convicted of accessing and possessing child pornography is a direct result of his offending conduct, the underlying nature of which is exploitative of children. The Crown submission in this regard is particularly relevant, namely, that the appellant could have engaged in his primary research, particularly that involving packet inspection software, using files with legal content, including adult pornography. 212It follows that the appeal against sentence should be dismissed.

Crown appeal on sentence: manifest inadequacy 213His Honour published separate reasons for sentence on count 1, as the first access offence of the two access offences to which the appellant entered pleas of guilty. It was the only offence dealt with under the Crimes Act (Cth), s 19B(1)(d). The sentencing reasons on that count preceded his Honour's sentencing reasons for counts 2, 3 and 4 by ten days for reasons that are of no present importance. 214Section 19B of the Crimes Act (Cth) provides: "19B Discharge of offenders without proceeding to conviction (1) Where: (a) a person is charged before a court with a federal offence or federal offences; and (b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to: (i) the character, antecedents, age, health or mental condition of the person; (ii) the extent (if any) to which the offence is of a trivial nature; or (iii) the extent (if any) to which the offence was committed under extenuating circumstances; that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation; the court may, by order: (c) dismiss the charge or charges in respect of which the court is so satisfied; or (d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order; (ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay): (A) on or before a date specified in the order; or (B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs-by specified instalments as provided in the order; and (iii) that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed." 215One of the questions that arises on the Crown appeal is whether the precondition to the exercise of the power to discharge the appellant without proceeding to conviction under s 19B(1)(b)(i), (ii) or (iii) was satisfied such as to allow for the positive finding that it was "inexpedient" to impose a punishment on the appellant for accessing child pornography other than the nominal punishment of requiring him to enter into a good behaviour bond. 216In the remarks on sentence there is no reference at all to the operation of the section. The two stage process of enquiry requires was discussed by this Court in Commissioner of Taxation v Baffsky. Those considerations are as follows: "(a) Section 19B(1)(b) itself consists of two stages. The first is the identification of a factor or factors of the character specified in subparagraphs (i), (ii) and/or (iii) of the paragraph. The second stage is the determination that, having regard to the factor or factors so identified, it is 'inexpedient to inflict any punishment' or to reach the other conclusions provided for in the paragraph; (b) Section 16A(2) of the Crimes Act identifies the matters that must be taken into account in exercising the second stage of the discretion in s 19B; (c) The application of s 19B to revenue offences does not require 'exceptional circumstances' to be established. The statute formulates a test of whether punishment is 'inexpedient'. That is the test to apply; (d) The significance of the conduct regulated by the statute which creates the offence is a consideration to which a sentencing judge must have regard in deciding whether it is 'inexpedient' to impose punishment in a particular care; and (e) General deterrence remains a relevant principle for sentencing Commonwealth offenders and it is appropriate to take such matters into account in determining whether to exercise the discretion under s 19B." (citations omitted) 217When we dealt with the appellant's challenge to the sentence imposed on count 3 (the first possession offence charged), we noted that the three video files the subject of count 1 were accessed on 21 November (the date of charge) after the appellant downloaded them whilst browsing eMule to better understand the technology involved in peer-to-peer networks. While his Honour was satisfied that the appellant chanced upon file names suggestive of child abuse material, he was also satisfied that the appellant deliberately downloaded the particular video files knowing it was illegal, a matter his Honour regarded as of significance when considering the objective seriousness of an offence attracting a maximum penalty of 10 years. His Honour did accept, however, the reasonable possibility that the files had not been accessed after they were downloaded, notwithstanding that they were retained in the appellant's possession thereafter. His Honour also found that the content of the three video files was "particularly" abhorrent which was relevant to his assessment of the objective seriousness of the offending. 218The Crown submitted that this Court, in R v Gent [2005] NSWCCA 370; 162 A Crim R 29 stated there were four factors to be taken into account when assessing the seriousness of the offence of importing child pornography, as follows: "(a) The nature and content of the material including the age of the children and the gravity of the sexual activity portrayed (the degree of its depravity); (b) The volume of pornographic material imported or accessed or possessed; (c) Whether the material was intended by the offender for personal use or for distribution to others; and (d) Whether the offender will benefit from the offence." (Crown further subs (36)) 219The range of factors relevant to an assessment of the objective seriousness of the transmission and dissemination of child pornography under the Criminal Code (together with possession offences both under the Criminal Code and under the Crimes Act) have recently been the subject of both restatement, elaboration and refinement in Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. At [94], R A Hulme J enumerated a non-exhaustive list of factors of significance as follows: "1. Whether actual children were used in the creation of the material. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. 4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted. 5. n a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. 7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission. 8. The proximity of the offender's activities to those responsible for bringing the material into existence. 9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. 10. Whether the offender acted alone or in a collaborative network of like-minded persons. 11. Any risk of the material being seen or acquired by vulnerable persons, particularly children. 12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. 13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence." 220Counsel for the appellant referred his Honour to Minehan as he did in his written submissions in response to the Crown appeal. Although his Honour makes no reference to the decision, his sentencing reasons reflect that consideration was given to at least some of the enumerated factors in the judgment, including (10), (11) and (12). In addition, as the appellant emphasised, in respect of factors (4) and (5), there were only three video files accessed and his Honour was satisfied that the appellant's purpose in accessing them was not self-gratification of an erotic interest in underage girls but in the first stirring of an interest in developing software to frustrate the internet trade in child pornography. 221The Crown submitted that in the sentence for the first access offence, his Honour had allowed the absence of an erotic purpose (or proof of it to the standard in this case) to overwhelm proper consideration of the need for general deterrence. The Crown further submitted that in affording the appellant the benefit of having no conviction recorded under s 19B(1)(d), his Honour has failed altogether to have regard to general deterrence by implicitly accepting that it is inexpedient to inflict any punishment. This failure, in addition to his failure to approach the section in a principled way, was said to have contributed to the inadequacy of the sentence. 222The Crown acknowledged that an offender's purpose in accessing child pornography is one of the factors involved in an assessment of the seriousness of the offence. However, the Crown submitted that even on the appellant's case, accessing the video files had an inherent financial motive in so far as the sentencing judge accepted that the appellant's purpose in accessing (and possessing) the child pornography was to develop software which he could exploit for commercial gain. 223The appellant countered with the submission that to advance that argument on a Crown appeal against the inadequacy of sentence is specious given that the Crown's approach to disproving the appellant's "scientific purposes" defence was to seek to prove his erotic interest in underage girls. While the Crown succeeded in disproving the defence, it failed to prove his interest was sexually deviant. 224The appellant submitted that even were a financial motive attributed to him by his desire to develop software to frustrate the trade in child pornography, that is a motivation diametrically opposed to the great majority of offenders who access and possess child pornography for sale or dissemination to end users. We regard the appellant's commercial motives as neutral on the question of sentence. The Crown referred to recent authority of this Court in which it has been held that the absence of any benefit or profit being obtained by an offender does not mitigate the offending: see Saddler v The Queen [2009] NSWCCA 48 at [54]; DPP v Latham [2009] TASSC 101 at [33]. 225The appellant's subjective circumstances were also taken into account by his Honour in dealing with the appellant under s 19B. In particular, his Honour appeared to take into account what he understood Dr Nielssen noted in his report in the following way: "The Court also takes into account what was stated by Dr Nielssen in the report which was tendered, where he refers to the offender taking cannabis for the antihistamine effect on his sinus condition. Dr Nielssen notes that the period of his elevated [mood] would have been associated with increased propensity to act on impulse while taking cannabis, and impaired recognition of the correct procedure to follow and the possible consequences of his actions in accessing material he knew to be illegal." 226As we read Dr Nielssen's report, there is no suggestion of any causal connection between what the appellant reported to Dr Nielssen of his "elevated mood" whilst developing his software programs and the particular offending the subject of count 1. Neither do we see it suggested in the report that there is a causal connection between the appellant's cannabis use at that time impairing his capacity to appreciate the consequences of accessing child pornography he knew to be illegal. 227The Crown also submitted that his Honour should have taken into account the fact that on the appellant's own admission at trial he downloaded between 1,000 and 2,000 child pornography files in November 2007 and that this undermined any suggestion in Dr Nielssen's report that the access the subject of count 1 was isolated or impulsive. The Crown further submitted that his Honour should have taken into account the additional files the appellant downloaded so as to place the circumstances of the first access offence into context. As we see it, his Honour was entitled to take into account the extent of the downloading in November 2007 in considering the appellant's character and antecedents generally and, in particular, for the disciplined and principled approach under s 19(1)(b)(i). 228The Crown referred the Court to Weininger v The Queen [2003] HCA 14; 212 CLR 629 where the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) stated, at [32]: "Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration." 229Limited in this way, there would be no breach of the principle in The Queen v De Simoni [1981] HCA 31; 147 CLR 383 as contended for by the appellant, were his Honour to have taken the appellant's admission to having downloaded a massive number of files into account. Again, as we see it, the extent of downloading impacts directly on the "triviality" of the offending (s 19B(1)(b)(ii)) and, to a lesser extent, whether the offence was committed under extenuating circumstances (s 19B(1)(b)(iii)). 230The Crown further submitted that it was apparent from the schedule of comparative cases provided to his Honour that the offence should not have been dealt with under s 19B of the Crimes Act (Cth). In our view, limited assistance can be gleaned from the cases to which the Crown referred given the unique features of this case. What the Crown has to establish is that the sentence was plainly unreasonable or unjust where the criminal conduct the subject of count 1 was effectively unpunished. In addressing that question it is not necessary to identify any error in sentencing principle: it is the sentence itself that is scrutinised. In this case, however, we are of the opinion that his Honour's approach to s 19B was fundamentally flawed and that his sentencing discretion miscarried for that reason. 231Even if it might be said that the context in which the offending occurred reduced the need for general deterrence, what cannot be ignored is that accessing pornography (and the possession of the material accessed) creates a market for the material irrespective of the motives of the person accessing the material. The fact that s 91H(4)(c) has been repealed and replaced with a provision that requires a person to obtain permission from the relevant authorities before undertaking research reduces the need for general deterrence. That does not, however, in our view, adequately address the question whether there was error in his Honour's approach to sentence in the sense discussed, resulting in an inadequate sentence. We are satisfied that the sentence was inadequate. 232The Court retains a residual discretion under s 5D of the Criminal Appeal Act not to interfere even where the Crown has demonstrated error and a manifestly inadequate sentence has resulted: see Bugmy v The Queen [2013] HCA 37; 302 ALR 192 at [24]. The primary purpose of a Crown appeal was recently stated by the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1] "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". Despite the fact that the principles relating to child pornography offences have been recently restated by this Court, as the Crown's submissions recognise, and that the proper approach to whether the discretion in s 19B(1)(d) is enlivened is well settled, we are satisfied the inadequacy of the sentence actually imposed in this case cannot be ignored and that there is no warrant for the exercise of the residual discretion in the appellant's favour.

Re-sentence 233The substituted sentence on count 1 will satisfy the need for general deterrence and punishment and will conform with the principle of totality. Not only was there nothing in the offence or the offending the subject of count 1 to attract the operation of s 19B (it being offending which should have resulted in a conviction being recorded), it was, in a real sense, conduct which precipitated the course of offending which followed and should be treated consistently with the sentences imposed on counts 2, 3 and 4 for that reason.

Orders 234The Court's orders are:

1. Appeal against conviction dismissed;
2. Grant leave to the appellant to appeal against the sentences imposed in respect of counts 2, 3 and 4 on the indictment;
3. Dismiss the appellant's appeal against sentence in respect of counts 2, 3 and 4;
4. Uphold the Crown appeal against sentence in respect of count 1. Quash the order made under s 19B of the Crimes Act 1914 (Cth) and impose the following sentence: The appellant is convicted of accessing child pornography using a carriage service on 21 November 2007, contrary to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth). In accordance with s 20(1)(a) of the Crimes Act 1914 (Cth) he is released without passing sentence upon his giving security in the amount of $500 to be of good behaviour for 2 years.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2014