Brett Pettersen v The Queen

[2013] VSCA 185

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0052

BRETT PETTERSEN	Applicant
V
THE QUEEN	Respondent

---

JUDGES	NETTLE, OSBORN AND COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 July 2013
DATE OF JUDGMENT	22 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 185
JUDGMENT APPEALED FROM	DPP v Pettersen (Unreported, County Court of Victoria, Judge Wilmoth, 21 February 2013)

---

CRIMINAL LAW — Leave to appeal against sentence — Producing child pornography — Possession of child pornography – Plea of guilty – Total effective sentence of 1 year 6 months’ imprisonment — Non-parole period of 9 months fixed — Sentence imposed not manifestly excessive – Child pornography in possession close to being in the worst category – Leave to appeal refused.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr S Moglia	Dr M Marich
For the Respondent	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

1. I invite Coghlan JA to deliver the first judgment.

COGHLAN JA:

1. On 18 February 2013 the applicant pleaded guilty to one charge of producing child pornography and one charge of possession child pornography.

1. On 21 February 2013, he was sentenced as set out below.

charge on indictment	offence	maximum	sentence	cumulation
1	Producing child pornography [s 68 of the Crimes Act 1958]	10 years imprisonment [s 68(1) of the Crimes Act 1958]	6 months	3 months
2	Possession of child pornography [s 70 of the Crimes Act 1958]	5 years imprisonment [s 70(1) of the Crimes Act 1958]	15 months	Base
Total Effective Sentence:		1 year 6 months’ imprisonment
Non-Parole Period:		9 months
Pre-sentence Detention Declared:		Nil
6AAA Statement:		2 years’ imprisonment with a non-parole period of 15 months
Other orders: Pursuant to s 34 Sex Offenders Registration Act 2004, length of reporting period is 15 years; Forfeiture Order pursuant to s 32 Confiscation Act 1997.

1. The offending was stated by the learned sentencing judge in her Honour’s sentencing remarks:[1]

   [1]DPP v Pettersen (Unreported, County Court of Victoria, Judge Wilmoth, 21 February 2013) (‘Sentencing remarks’) [3], [5], [6].

Charge 1 relates to a 14 year old girl whose family's computers were serviced by Forrest Computing, the company where you were working. In the course of your work as an IT technician, you copied the images you found on one of the family's computers to your own computer. These were images of the girl in her school uniform and others of her in a naked state and of her school friends, male and female, all under the age of 18 and all naked. There were 241 of these images. 18 of them fall into Category 1 of the child exploitation tracking system

known as CEM which includes images of children with no sexual activity, but naked.

…

As to Charge 2, you collected and kept in your possession over several years a large number of child pornography movies and images which are the subject of that charge. Approximately 1,171 of the 1,964 movie and image files depict children under the age of 18 years in various sexually explicit and pornographic poses. The majority of children were under 10, some as young as a few months old, who were being subject to digital or penile penetration either orally, anally or vaginally. Many of these children were being penetrated in other ways by various objects and by animals. A number of children seen in the movie files were heard screaming in pain and crying out for their mothers. A number of the image and movie files also depicted children being exploited by the use of sadism, bestiality and humiliation by way of urination, defecation and bondage. You were not identified as being in any of the images or movies.

Also found on your computer were graphic stories of child pornography told in particularly revolting detail. All categories of child pornography employed by the Child Exploitation Tracking System, save for Numbers 7 and 9, which are both at the less serious end of the scale, are represented in the movie files. As for the images, all categories are represented except 5, 6, 7 and 9.

1. The matters came to light on 2 April 2012 when the police, after the Victorian Police Sexual Crime Squad Internet Child Exploitation team, had, by way of an automated software tool, identified the applicant as a person suspect for receiving material of the kind described.

1. When his computer was searched, the material subject to both charges was discovered.  The applicant was interviewed on the day of the search about the material relating to charge 2 which he said he had been downloading for years and that he accessed the material about once a week.  He was never interviewed in relation to charge 1.  He pleaded guilty at committal, the earliest opportunity for these purposes.

1. By notice dated 10 May 2013 he makes application for leave to appeal against those sentences on the following grounds

1.The Learned Sentencing Judge erred by misapprehending the maximum penalty applicable to count 2 - possessing child pornography, (contrary to s 70(1) of the Crimes Act 1958 (Vic)), thereby resulting in the imposition of an excessive sentence.

2.The Learned Sentencing Judge erred in her sentencing discretion by imposing individual sentences which in all of the circumstances were manifestly excessive, having regard to the applicant's pleas of guilty, admissions and cooperation with authorities, lack of prior convictions, age and employment history, and excellent prospects of rehabilitation.

3.In consequence of ground 2, the Learned Sentencing Judge erred by imposing a total effective sentence which infringed the totality principle of sentencing.

Ground One — Misapplication of maximum penalties

1. It was conceded at the hearing of the appeal that in light of the judge’s report which is stated below that this ground would not be pursued.  In the report, her Honour said:

I have read the submissions filed by the Applicant and the Respondent and wish to comment on Paragraph 22 of my Reasons for Sentence, in the interests of clarity.

I was in error in transposing the maximum penalties applicable.  I was not under a misapprehension as to the correct maximum penalties.

However, I tended to fix a longer sentence (15 months) for Charge 2, which has the lower maximum sentence of 5 years’ imprisonment.  I intended the gravity of the possession in this case to be reflected in that sentence.

Similarly, I intended that the sentence for Charge 1, which has a maximum penalty of 10 years’ imprisonment, should be lower (6 months) to reflect the criminality which was at the lower end of the range of seriousness.

Ground 2 & 3 — Manifest Excess

1. Complaint is made that the individual sentences are manifestly excessive having regard to the matters in mitigation (ground 2) and as a result the total effective sentence is manifestly excessive (ground 3).

1. The criminality involved in charge 1 is somewhat different from that relating to charge 2.  The pornographic material ‘made’ in that charge is at a much lower level.  It is, however, accompanied by a particularly serious breach of trust.  Material, which is stored on computers these days, is often sensitive both in a personal and commercial sense.  The one thing which might be expected of computer technicians is that they would regard such material as confidential.  To unnecessarily access such material, to read it or look at it is bad enough but to copy it and kept it for your own private purposes is another thing.  It is not apparent to me how the applicant ‘found’ that material except that it was in the course of his examination of the computer generally. 

1. It fits into a different category to the material in charge 2. I do not think that the offending in charge 1 was addressed in terms of either of the psychological reports provided on the plea.  The material relating to the charge was forwarded to both of the psychologists.  It seems to follow that the applicant kept that material for almost three years prior to its discovery.

1. The maximum penalty for the offence is 10 years.  A sentence of 6 months is in my view clearly within the range notwithstanding the material in mitigation.

1. In relation to charge 2, much reliance was placed on the plea and in the written submissions of the cases of DPP (Vic) v Groube[2] and DPP(C’th) v Ison.[3]

   [2][2010] VSCA 150, [14], [21] and [24].

   [3][2010] VSCA 286, [18] and [29].

1. It should first of all be noted that those appeals were both appeals by the Director of Public Prosecutions, one from the state and one from the Commonwealth.  They were appeals from sentences in which immediate custodial sentences were not imposed.  I doubt that unsuccessful Directors’ appeals are particularly useful to demonstrate sentences which may be otherwise within the range.  It is true that the court in Ison accepted that the sentence was within the range.  That case is not entirely dissimilar in circumstances to the present case.  The respondent in that case had been released on a suspended sentence of 18 months on one count and on a two year community based order with a long work component on the other count.

1. I think all that can be said of a consideration of the decided cases is that although a non-custodial term of imprisonment is open, probably in exceptional circumstances, it does not follow that an actual custodial sentence is outside the range.[4]  Rather the opposite.

   [4]See DPP v Ison [2010] VSCA 286, [28]; DPP v Smith [2010] VSCA 215; DPP v D’Allesandro [2010] VSCA 60.

1. The sentencing snapshot referred to on the plea demonstrates the same point.

1. On charge 2, a large amount of the material possessed by the applicant was particularly abhorrent[5] and must be taken to being at least close to being within the worst category.[6]  Larger quantities of material have been possessed by other offenders but the amount of material possessed in this case was significant.

   [5]See DPP v Ison [2010] VSCA 286, [4].

   [6]It may be that a large amount of highly depraved material fits into that category in cases of this kind.

1. The reasons stated by her Honour for sentence were careful and her Honour took into account all matters that she was obliged to.

1. Ultimately her Honour concluded that:[7]

All those factors enable me to apply some leniency in sentencing you. But I must also take into account as a matter of significant weight the need for general deterrence. That is, to send a clear message to others who might be inclined to offend in the same way. The production and possession of child pornography are serious crimes and the community, through various means, has expressed a high degree of intolerance for the perpetrators.

[7]Sentencing remarks, [22].

1. Her Honour then had regard to the cases of Groube and Ison to which she had been referred to.

1. The submissions made in writing and repeated orally here seek to reinforce the matters put on the plea but in particular the applicant’s depression, the loss of his long term relationship, the fact that he was found not to be a paedophile and the time which elapsed between the plea and the hearing.

1. In submissions, reliance was placed on what was said by the learned presiding judge in DPP v Smith.[8]  Those remarks had referred to Ison.

   [8][2010] VSCA 215.

1. In Smith his Honour quoted the four categories which govern the seriousness of offending of this kind:[9]

   [9]Ibid, [23].

The precepts which apply to the sentencing of offenders for offences of possessing child pornography are tolerably clear.

1)  First, the nature and gravity of the offending ordinarily falls to be determined by reference to the four criteria adumbrated by Johnson J in R v Gent:

(a)  The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted.

(b)  The number of images or items possessed.

(c)  Whether the material is for the purpose of sale or further distribution.

(d) Whether the offender will profit from the offence.

1. In the case of child pornography for personal use, the number of children depicted and thereby victims is also regarded as a relevant consideration.

1. Counsel argued that in relation to the categories set out above that although some material possessed did fall into the higher or highest category, the amount of material possessed was brutal and the material was not kept for distribution or sale.  Although nothing was submitted about the last reference to child pornography, it does appear that a number of very young children were depicted in the material in this case.

1. In expanding his submission counsel referred to the deep depression from which the applicant had been diagnosed as suffering.  He placed particular emphasis on the fact that he had immediately sought treatment for the depression and any underlying cause to his offending and undergone almost 12 months of that process.  He submitted that he had acted quickly and appropriately to tell his fiancé about his position and that lead to the end of a longstanding relationship.  It was submitted that not enough weight was given to that consideration in the sentence imposed. 

1. Her Honour did have regard to that consideration.  It cannot be avoided that those who lead secret lives suffer consequences when their secrets are exposed but some weight is to be given to those personal consequences.

1. Her Honour did accept and sentenced the applicant on the basis that he was not a paedophile.

1. The delay, although greater than desirable, was not all that outside the ordinary and the applicant used his time well for which her Honour gave him credit.

1. It was the prosecution’s submission that the sentence was within the range and in written submissions referred to a number of cases in which custodial sentences had been imposed.[10]

   [10]See Davey v R (2011) 207 A Crim R 266; R v DCP [2006] VSCA 2; R v Fulop (2009) 236 FLR 276; R v Jongsma (2004) 150 A Crim R 386.

1. Counsel emphasised the need for general deterrence in cases such as this.

1. The task of counsel in seeking to establish manifest excess is a difficult one as Winneke P said in R v Boaza:[11]

In the absence of specific error it is, of course, not an easy task for an applicant to demonstrate to an appellate court that the sentencing discretion has miscarried on the ground that the sentence imposed is a manifestly excessive one. It is trite to say that before an appellate court can interfere it would need to be persuaded that the sentence imposed by this very experienced judge was wholly outside the range of sentencing options available to him.

[11][1999] VSCA 126.

1. Mr Moglia, who appeared on behalf of the applicant before us, pressed the case as firmly as he was able within proper bounds. 

1. I am not satisfied that the sentence on charge 2 is manifestly excessive.

1. That leads to the consideration of ground 3.

1. The accumulation in this case was moderate and appropriate.

1. It is worth noting that the range submitted on behalf of the prosecution was a sentence of between two and three years with a non-parole period of one to two years.

1. I do not regard the total effective sentence as being outside the range.  I regard it as being at the lower end of it.

1. It may have been that if ground 1 had come to be dealt with differently, leave might have been granted.

1. In relation to grounds 2 and 3, I would refuse leave to appeal.

NETTLE JA:

1. I entirely agree.  The degree of depravity of the material the subject of Charge 2 was surely approaching, if not of the worst possible kind.  The number of images was significant, if not large.  And the period of retention was, relatively speaking, extensive. 

1. As has been explained in previous decisions of this Court, other things being equal, offences of this kind may be expected to attract an immediate term of imprisonment.  Nothing about the circumstances of this case is sufficient to dictate an alternative disposition. 

1. All things considered, I am clearly of the view that the individual sentences, order for cumulation and thus total effective sentence and non-parole period were well within the range. 

1. For those reasons I, too, would refuse the application for leave to appeal.

OSBORN JA:

1. I also agree.

NETTLE JA:

1. The order of the Court is that the application for leave to appeal against sentence is refused.

- - -