Court of Appeal (WA)|2008-11-28|Before: Miller JA, Steytler P, Buss JA

THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [2008] WASCA 240 (28 November 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [2008] WASCA 240

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Sentence - Possession of child pornography (two counts) - Sentence of 14 months' imprisonment on each count suspended for 2 years - Whether sentence manifestly inadequate - Whether sentence of immediate imprisonment only option open

Criminal law - Appeal - Prosecution appeal against sentence - Applicability of Criminal Appeals Act 2004 (WA) s 41(4)(b) - Double jeopardy principle no longer a relevant consideration on prosecution appeals

Sentences of 14 months' imprisonment imposed on each count, to be served concurrently

1 STEYTLER P: I have read the judgment of Miller JA. It reflects my own reasons for joining in the decision to allow the appeal and to make the orders referred to by Miller JA.

2 BUSS JA: I allowed the appeal and made the orders on 12 November 2008 for the reasons expressed in Miller JA's judgment.

3 MILLER JA: At the hearing of this appeal, the appeal was allowed, the sentences imposed by the sentencing judge quashed and, in lieu thereof, sentences of 14 months' imprisonment to be served immediately were imposed on each count, to be served concurrently and with effect from the day of the hearing. The respondent was ordered to be eligible for parole. The court undertook to publish its reasons and these are my reasons for joining in the decision of the court.

4 The respondent was charged with two counts of possession of child pornography contrary to the provisions of s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (the Classification Act). Each count was in the same terms and was as follows:

(1) On 29 April 2008 at Nannup James Patrick Cunningham had in his possession child pornography, in the form of computer data.

(2) On the same date and at the same place James Patrick Cunningham had in his possession child pornography, in the form of computer data.

5 Section 60(4) of the Classification Act is in the following terms:

(4) A person who possesses or copies child pornography is guilty of a crime, and is liable to imprisonment for 5 years.

6 'Child pornography' is defined in the Classification Act as follows:

child pornography means an article that describes or depicts, in a manner that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a child under 16 years of age (whether the person is engaged in sexual activity or not);

7 The respondent pleaded guilty in the District Court at Perth to both offences on 1 September 2008.

8 The facts put before the court revealed that on 29 April 2008 police attended at the respondent's address in Nannup and there executed a search warrant for the purpose of locating and seizing child pornography. Police located several items which included two computer hard drives, writable compact discs and numerous computer generated printouts containing photographs and images. Analysis of the computer generated printouts displayed images of children engaging in sexual activity. Further scrutinisation of the seized property revealed images of children aged between 10 and 16 years engaging in sexual activity, an image of a naked female child aged approximately 10 years, and an image of the vagina of a small female child. There were 122 images contained on five discs of children (both male and female) aged between 12 months and 12 years, all engaging in sexual activity with adult persons (male and female), 252 duplicated images on a further eight discs of this same activity, 157 images contained on five discs of children (male and female) aged approximately 2 years to 12 years in naked or provocative positions and poses, and 354 duplicated images on a further four discs of the same naked and provocative positions and poses. Police also located numerous links to child sex sites in the material.

9 The sentencing judge first dealt with the facts of the case, pointing out that count 1 related to printout material and count 2 to the computer discs. He described the offences as very serious 'both in terms of the volume but more particularly perhaps the nature of the material contained'. He noted that the maximum penalty on each count was 5 years' imprisonment.

10 The sentencing judge referred to the respondent's contention that the images had initially been downloaded by a friend, but pointed out that it was clear that the respondent had retained the images both in printable form and on compact discs. His Honour did not accept the respondent's contention that he was so naive that he did not know how to place a disc in the computer and reproduce the images for his own gratification.

11 The sentencing judge described the material as 'graphic pornographic material'. He said that the images were of a gross pornographic nature, involving very, very young children, some of whom were babies, and who were subjected to the degradation of oral sex and penile penetration of the vagina. His Honour noted also that there were disturbing images which suggested methods of picking up young girls walking on the side of the road. There were images suggesting that sexual activity within the family was acceptable.

12 The sentencing judge's description of the pornographic material is an understatement of the nature of it. In the appellant's written submissions the material is described as 'the worst kind of child pornography' in that 'it depicted vile and disturbing situations of child abuse'. Examples are given and I reproduce them as follows:

babies being vaginally and orally penetrated by the penises of adult males;
small children being penetrated by adult males and visibly suffering pain;

pictures of babies and young children covered in ejaculate;

children in visible distress as they were being forced upon; and
an image of a small naked child with the words 'slut' and 'hurt me' written on her stomach.

I have looked at the material. The appellant's description of it is accurate and I agree that it is to be classified in the worst category of child pornography.

13 The sentencing judge referred to the personal circumstances of the respondent. He was 51 years of age and a single man. He had experienced an unhappy childhood, but had been employed consistently in the same position for 20 years. He had a history of chronic alcohol abuse and a psychological report of Mr Geoff Trainer concluded that the respondent suffered from alcohol dependence. The report of Mr Trainer dated 21 August 2008 expressed the opinion that the respondent's interest in child pornography was not evidence of any significant pathology, but was associated with a reversion to emotional maturity of a child as a possible result of childhood trauma and highly dependent relationships, especially when intoxicated. Somewhat inappropriately, Mr Trainer suggested that 'a jail term will serve no significant purpose for Mr Cunningham or society'.

14 The sentencing judge noted that the respondent had a record of prior convictions. In particular, he had convictions in the District Court at Bunbury on 8 May 1998 for the offences of common assault and burglary. The sentencing judge recorded the facts of these offences. The respondent had entered a young female child's bedroom and tapped her on the forehead. He was confronted by the child's father and the police were called. There was a suggestion that the offence revealed an abnormal interest in the young female child. The respondent was placed on an intensive supervision order for 2 years. This, he successfully served. Other offences were motor vehicle related, with the exception of one offence of cultivation of cannabis in 1981.

15 A pre-sentence report informed the sentencing judge of the respondent's background. A psychological report ordered by the court (Mr Steve Jobson) informed the sentencing judge that the respondent was in the medium-high risk category for sexual offending, but qualified that assessment by acknowledging that it was an assessment for 'contact sexual offences'. Mr Jobson concluded that if the respondent was to receive a custodial sentence, it was likely that he would be assessed for placement on an appropriate treatment programme whilst incarcerated. Given his offences, he might be assessed as suitable for placement upon both a sex offender treatment programme and a substance abuse programme.

16 The sentencing judge took account of the fact that, since being charged with the matters the subject of the indictment, the respondent had undergone nine therapy sessions and was said to understand the wrongfulness of the possession of child pornography. It was said that until spoken to by police, the respondent had not contemplated 'the plight of the poor children who are forced to engage in sexual activity to provide the images on these pornographic sites'.

17 The sentencing judge took account of the respondent's plea of guilty and of his background. He weighed up the respondent's personal circumstances and the serious nature of the offending, acknowledging that the seriousness of the possession of child pornography is:

[I]n the demand it creates for such images to be produced. I think it is generally believed that often these images are produced in poor countries where people revert to the abuse of children in order to obtain money. Further, the trade of child pornography encourages sophisticated criminal organisations becoming involved and can lead to such offences as child abduction so that the children are available for the purposes of producing this sort of material

18 The sentencing judge concluded that a term of imprisonment was the only appropriate sentence that could be imposed, but because of the respondent's personal circumstances his Honour decided to suspend the term of imprisonment to be imposed on each count. As a result, sentences of 14 months on each count were imposed, to be served concurrently and suspended for a period of 2 years.

19 The appellant was, on 24 September 2008, granted leave to appeal on the following single ground:

The learned sentencing Judge erred in law by ordering suspension of the term of imprisonment.

(a) The offences were extremely serious and at the upper end of the scale, having regard to the fact that:

(i) The images were in the category of the worst kind of child pornography available; and

(ii) There [was] a large number of images.

(b) There were no significant mitigating factors placing the offender in a different position to other offenders who have been sentenced to immediate imprisonment for similar offences.

20 An urgent appeal order was also made. Hence, this appeal has been listed for hearing within three months of the sentence imposed in the District Court.

21 Prosecution appeals are no longer subject to the 'double jeopardy' principle (for a statement of which see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at 340 - 341). Section 41(4)(b) of the Criminal Appeals Act 2004 (WA) now provides that the double jeopardy principle is no longer a relevant consideration when the appeal court is determining the sentence to be imposed on a State appeal: The State of Western Australia v Wallam [2008] WASCA 117, at [29] (McLure JA) and at [54] (Miller JA). This section applies to all cases in which the sentence appealed from dates after 27 April 2008: The State of Western Australia v Richards [2008] WASCA 134. See also The State of Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310 at [20] (Steytler P).

22 The result is that the appeal in this matter falls to be decided in accordance with the general principles that relate to the hearing of appeals against sentence: Wallam at [66] - [67] (Miller JA) and see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505 (Dixon, Evatt and McTiernan JJ); Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. In short, some error must be shown in the exercise of the discretion exercised by the sentencing judge, either by a wrong principle being employed, some extraneous or irrelevant matter guiding or affecting the sentencing judge, a mistake as to the facts, failure to take into account some material consideration, or, alternatively, the sentence is unreasonable or plainly unjust.

23 The ground of appeal contends that the sentencing judge erred by ordering suspension of the term of imprisonment. The particulars contend that the sentencing judge was in error because the offences were extremely serious and at the upper end of the scale, and there were no significant mitigating factors which placed the offender in a different position from any other offenders sentenced to immediate imprisonment for similar offences.

24 A helpful table of sentences for 'child pornography' considered by the Court of Appeal is annexed to the appellant's written submissions. This table analyses 11 cases between 1997 and 2006. It reveals that, in all but one case (the first), sentences of imprisonment to be served immediately were considered appropriate by the Court of Appeal.

25 In several of the cases, offenders were also convicted with other offences. The following summary is limited to the offences of possession of child pornography contrary to s 60(4) of the Censorship Act 1996 (WA) (the Act was renamed the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) on 10 June 2006). In cases decided before the application of the transitional provisions, sentences are shown in post-transitional terms.

26 The cases are: R v Liddington [1997] 18 WAR 394: three counts_,_ 266 images, no prior convictions, low risk of reoffending, guilty plea, 2 years' imprisonment (16 months post-transitional) on each count to be served concurrently, suspended for 2 years; Kirk v The Queen (Unreported, WASCA, Library No 980067, 4 February 1998): one count, numerous images, fast-track plea, co-operation with authorities, 2 years' imprisonment (16 months post-transitional) concurrent with 8 years' imprisonment for having a sexual relationship with the child in the images; R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50: one count, more than 80,600 images, 'appalling degradation', images alphabetically organised, 2-year suspended sentence increased to 18 months' immediate imprisonment (12 months post-transitional); Lee v The Queen [2000] WASCA 73: 14 counts_,_ 14 images, convicted after trial, 2-year sentence imposed on each count to be served concurrently, reduced to 1 year (8 months post-transitional); Pendleton v The Queen [2002] WASCA 4: six counts, one handwritten story, images, videotapes, indecency varying from relatively low to very high, collected over several years, 1 year's imprisonment on each count to be served concurrently (8 months post-transitional); R v Coultas [2002] WASCA 131: 94 counts, thousands of images, some children under the age of 7, fast-track plea, longstanding interest in child pornography, actively trading images (non-commercially), 18 months' imprisonment on each count to be served concurrently (1 year post-transitional); Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237: three counts, one videotape, 3,019 images and 502 videos in electronic format, 1 year's imprisonment on each count to be served cumulatively (effective 2 years' post-transitional); Dodge v The Queen [2002] WASCA 286; (2002) 134 A Crim R 435: one count, 16 fictional stories described as 'disgusting and depraved', fast-track plea, co-operation with authorities, had been in prison since 1993, 18 months' imprisonment reduced to 12 months' (8 months' post-transitional); G v The State of Western Australia [2005] WASCA 150: two counts, 4,092 images, no prior convictions, fast-track plea, co-operation with authorities, 2 years' imprisonment for the first count, 20 months' concurrent for the second count; Hutchins v The State of Western Australia [2006] WASCA 258: two counts, 59 images, 51-year-old offender, no prior convictions, late guilty plea, 4 months' on the first count and 8 months' on the second count served cumulatively; The State of Western Australia v Rock [2007] WASCA 121: eight counts, 2,662 images, collected over several years, collection organised, convicted by trial, 12 months' imprisonment on count 1, 8 months' imprisonment on the other counts, to be served concurrently.

27 Although the facts of each case differ, and in some cases there are many more images of child pornography than in others, as a general rule it can be said that the range of sentences imposed over the last 10 years for the offence of possession of child pornography is between 8 months and 2 years' immediate imprisonment. This range is a 'post-transitional' one (Sentencing Legislation Amendment and Repeal Act 2003 (WA) s 2).

28 With the exception of Liddington, in each of the cases dealt with by the Court of Criminal Appeal or Court of Appeal, a sentence of imprisonment to be served immediately has been imposed. The question in this case is whether it was open to the sentencing judge to impose a sentence of suspended imprisonment. If a sentence of suspended imprisonment was open to the sentencing judge, this court should not interfere with the decision which was made.

29 Generally speaking, this court has made it clear that the offence of possession of child pornography contrary to s 60(4) of the Classification Act (previously the Censorship Act 1996) is a serious offence: see Hutchins v The State of Western Australia [2006] WASCA 258 at [18] (McLure JA).

30 The reason why the offence is to be regarded seriously is summarised by Kennedy J in Jones at [9]:

The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims. In my opinion, a sentence of immediate imprisonment was called for.

31 Similar observations were made by Ipp J in Liddington:

The mere fact that persons are prepared to possess child pornography, albeit for their private purposes, necessarily creates a market for the corruption and exploitation of children. Children are abused, violated and degraded in order to create a market of this kind. It may also be said that people with pederastic inclinations could be stimulated to commit pederastic acts on viewing these images: see Russell (1986) 8 Cr App Rep 367 and Travell (1997) 1 Cr App Rep 52.

32 The observations of Kennedy J are even more pertinent today than they were in 1999. It is a fact of which judicial notice can be taken that use of the Internet has dramatically increased, in at least the western world, during the last decade. Child pornography is likely to be more readily available to those who wish to have recourse to it than it was in the past. Little can be done to control the supply of child pornography on the Internet, but what can be achieved is the prosecution of those who choose to take possession of child pornography. Section 60(4) of the Classification Act is clearly directed at preventing that evil.

33 In many cases of possession of child pornography, the offender has positive personal circumstances. Often, the history of antecedents are excellent in the sense that there are no prior convictions. The present case is different in that the respondent did have prior convictions and a troubling conviction for burglary involving his touching of a young female child in her own house.

34 Personal circumstances were considered to be important in Liddington, which is the one case where the Court of Criminal Appeal declined to interfere with the sentencing judge's conclusion that a sentence of suspended imprisonment was appropriate. As McLure JA pointed out in Hutchins at [19], the decision was finely balanced. Each of Ipp J (at 405) and Steytler J (at 406) said that the issue was finely balanced. Malcolm CJ (at 399) said that the question was 'a difficult one'. The court was not satisfied that the sentencing judge had erred in the exercise of his discretion in finding that suspended imprisonment was an appropriate disposition in the circumstances.

35 The facts in Liddington revealed that police had seized the respondent's computer and examined its contents. On the hard drive, they found 226 images. They were of children, in some cases as young as 5 years of age, posing naked and semi-naked. The children were portrayed in various stages of sexual activity, which included performing fellatio, cunnilingus and sexual penetration with adult males and females, and with other children. There were also images of child bondage. All of these offences constituted the first count faced by the respondent. The second count concerned 211 images found on a floppy disc. They were the same as those on the hard drive that had been downloaded onto a floppy disc. A third count involved the possession of books and magazines showing male and female children as young as 7 years of age in various forms of undress. There were another two counts which related to images found on floppy discs involving offences under s 59(4) of the Censorship Act 1996.

36 The court was clearly influenced by the personal circumstances which related to the respondent. He was 49 years of age, and was involved in what was described as a strong supportive friendship with a woman. He had a tertiary education and a BCom degree, but was working as a taxi driver at the time of his arrest. He had no relevant criminal convictions and had been a law-abiding and productive member of society. Psychometric testing revealed no indicators of a sexual deviance or abnormal sexual preference. It was said that there was little likelihood of his reoffending. There were references tendered which described his character in positive terms.

37 Ipp J concluded that he doubted whether he personally would have imposed a suspended sentence, but pointed out that that was not the question which required to be answered. It should also be appreciated that Liddington was a Crown appeal against sentence, to which the general principles then applicable to Crown appeals were applied (cf Ipp J at 400).

38 In my opinion, the case of Liddington stands out as the one exception to the general rule that in cases of possession of child pornography contrary to s 60(4) of the Classification Act (previously the Censorship Act 1996), where the pornographic material comprises or includes a substantial number of images of young children engaged in sexual activity with adults or other children, offenders will receive sentences of immediate imprisonment. The essential reason why sentences of immediate imprisonment are generally appropriate is that which was advanced by Kennedy J in Jones; namely, that the production of child pornography of this kind involves the exploitation and corruption of children who are incapable of protecting themselves. Further, the collection of such pornographic material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted to recruit and use those children for the purpose of recording and distributing the results. This has been made clear in cases decided since Liddington.

39 In Hutchins, McLure JA (at [23]) pointed out that in the District Court, most persons charged in recent years with possession of child pornography had been sentenced to immediate imprisonment. Her Honour added:

This is consistent with authority and reflects the paramount public interest in protecting children from sexual abuse and the weight given to general deterrence. Further, it is apparent from Her Honour's reasons that she was in a position to assess the relative perversion and debauchery of the images in question. The level of perversion and debauchery is a relevant factor in assessing the seriousness of the offending and the culpability of the offender.

40 In the present case, I have had the advantage of assessing for myself the degree of perversion and debauchery in the images which constitute the offences committed in the present case. As I have already said, they are in the worst category of child pornography. They are properly described by the appellant as depicting 'vile and disturbing situations of child abuse'.

41 The present respondent does not have the advantage of excellent antecedents. He has convictions which are of some relevance. The psychological reports of Mr Trainer are limited in value. It is not clear from the report of Mr Trainer dated 21 August 2008 whether he was fully aware of the respondent's prior convictions. Reference is made to the psychologist having extensively explored the respondent's sexual behaviours and previous incidents of interest in children, but no specific mention is made of the offences committed in 2008. Indeed, the psychologist makes mention of the fact that the respondent reported 'never to date acting out in committing sexual acts with children'.

42 A later report of Mr Trainer was put before the court. This report is dated 1 November 2008. It contains an unfortunate concluding paragraph in which the psychologist expresses his own view about the justice of the respondent being sentenced to imprisonment. That conclusion can and should be ignored. The report indicates that the psychologist does not believe that the respondent is a risk to the community and his chances of inappropriate sexual behaviour towards children are said to remain 'very low'. He is progressing through therapy and has significantly reduced his intake of alcohol. The psychologist says that his 'current growth is exceptional'.

43 Despite Mr Trainer's views, and despite the fact that the respondent has shown positive steps towards rehabilitation, it seems to me that the seriousness of the offending in this case is such that only a sentence of imprisonment to be served immediately is the appropriate disposition of the two counts on the indictment. The appellant did not suggest that sentences greater than 14 months' imprisonment on each count should be imposed, but only that those sentences should be sentences of finite imprisonment to be served immediately. I agree. The facts and circumstances of the case put it in the worst category of offending and the need for deterrent sentences in this case means that the personal circumstances of the respondent, such as they are, although important, cannot outweigh the need for the imposition of sentences of imprisonment to be served immediately. The corruption of the children involved in the pornographic images the subject of the two counts on the indictment is a factor of utmost importance. It is for that reason that deterrent sentences are called for. It is for that reason that I considered that sentences of 14 months' immediate imprisonment on each count (to be served concurrently) were appropriate. Those sentences take account of the respondent's pleas of guilty and the transitional provisions.

(Publications, Films and Computer Games) Enforcement Act 1996

Legislation Amendment and Repeal Act 2003

THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [2008] WASCA 240 (28 November 2008)

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THE STATE OF WESTERN AUSTRALIA -v- CUNNINGHAM [2008] WASCA 240 (28 November 2008)

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