CDirector of Public Prosecutions v Hornidge
[2016] VCC 1638
•3 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00454
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK HORNIDGE |
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| JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 1 & 22 August 2016 | |
| DATE OF SENTENCE: | 3 November 2016 | |
| CASE MAY BE CITED AS: | CDPP v Hornidge | |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1638 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Access and possess child pornography
Cases Cited:DPP v Garside [2016] VSCA 74; DPP v Smith [2010] VSCA 215; DPP(Cth) v Thomas [2016] VSCA 237; Atanackovic v The Queen (2015) 326 ALR 159
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Mr A. Albore | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr D. Dann QC | Chris McLennan & Co |
HIS HONOUR:
1Patrick Hornidge, you have pleaded guilty to one charge of using a carriage service to access child pornography material, which carries a maximum penalty of 15 years' imprisonment; and one charge of knowingly possessing child pornography, which carries a maximum penalty of five years' imprisonment.
2You were born on 14 October 1989 and are currently 27 years of age. The offending relating to charge one, access child pornography, occurred between 28 December 2012 and 4 November 2015. You were aged between 23 and 26 years old at the time of the offending. The offending relating to charge two, possession, concerns a single day being 5 November 2015, the day of your arrest.
CIRCUMSTANCES OF OFFENDING
3A prosecution opening was tendered on the plea. It is an agreed summary. On 5 November 2015 members of the Joint Anti-Child Exploitation team executed a search warrant at your home where you live with your parents. Police seized a laptop which had a total of 406 files on it, a Sony Z3 mobile phone which contained one file, a Western Digital hard disk drive which contained 8 files and a Toshiba USB flash drive which contained 21 child pornography files.
4You were in possession of a total number of 436 child pornography files over the devices seized. Of the 436 files, 418 files were unique and 18 files were duplicates.
5Child Pornography is classified in accordance with the categorisation model for Child Exploitation material for the Australian National Victim Image Library. These categories are defined in a schedule attached to these reasons. The material that you possessed was categorised as follows:
Category 1 – 257 files
Category 2 - 147 files
Category 3 - 14 files
Category 4 – nine files
Category 5 – three files
Category 6 – six files
6According to the Federal Agents, the child pornography files identified on your laptop had creation dates between 28 December 2012 and 4 November 2015. This is the basis for the dates in charge one.
7A sample of the files seized was tendered by the prosecution and I have viewed them.
8The files accessed by you across the 5 categories depicted victims ranging in age from approximately 18 months to 16 years old.
9By way of example, one category 4 video depicted one female child, approximately 6 years old, being vaginally penetrated by a pubescent male child’s penis. At the same time, the female child is forced to perform oral sex on an adult male. Another category 5 video depicted a dog licking a pre-pubescent female’s vagina. A category 5 image depicts an adult male urinating on a female child.
10The material found included both images and videos. One video at category 5 level spanned for one hour, four minutes and 25 seconds.
11On 5 November 2015 you participated in a record of interview and made full and frank admissions. You said you started viewing child pornography when you were 14 or 15 years of age and that sort of went away and now every few months you will have a frenzy. You said your viewing of child pornography only happens three or four times a year out of curiosity and boredom. You feel bad after watching it. You were searching for children of 13 or 14 years of age - usually children by themselves or in pairs but not with adults. You said that you delete the images and videos you download that depict rape or "hurt stuff" because "that basically disgusts me".
NATURE AND GRAVITY OF OFFENDING
12When assessing the objective gravity of the offending I must do so by reference to the principles recently summarised and confirmed by our Court of Appeal in DPP v Garside [2016] VSCA 74 (in particular see [18]-[24]]).
13As to the number of items or images, namely 436 child pornography files, this is relatively small by comparison with a number of cases of this type which come before the courts. That said, 436 files could hardly be described as insignificant.
14As to the nature and content of the material, the point is made on your behalf that the majority of the files you possessed were classified as categories 1 or 2, and there were relatively few in the higher categories. That is true, and that is relevant, but the absence of significant material in the higher levels of classification does not minimise the objective gravity of possession or access of lower level categories of material. [1] Further, the fact that most of the files fall within category 1 and category 2 should not distract from the highly disturbing files which fell within the higher categories, albeit in comparatively very small numbers.
[1] [71] Garside
15It is clear from the material found, that your attention was primarily directed towards lower category material. Your instructions to your counsel are that you do not recall looking at those images falling within the more serious categories. But you still fall to be sentenced in relation to those files found on your devices which do fall within the higher categories.
16All the images are exploitative. The images in the higher categories in particular are vile and disturbing.
17It is apparent – even from a viewing of the sample material - that a significant number of children are involved.
18As to the length of time over which the pornographic material was accessed, the charge covers a period of nearly three years. Thus your access offending was sustained over a long period of time and involved multiple instances of access. As the prosecution have pointed out, you were accessing material right up to the day before the warrant at your house was executed. I take into account, however, that this access arose in the context of intermittent but frenzied behaviour, (three or four times a year according to your interview). It was not frequent or daily. That all said, on no view was this offending isolated.
19You used multiple devices to commit your offending – a laptop, a mobile phone and two hard drives.
20I am conscious that you fall to be sentenced on the basis that your access and possession were for personal use. You did not access or possess the material for the purpose of sale or for further distribution and you did not profit or seek to profit from your offending.
21In my view, when regard is had to all the circumstances, including the lengthy duration of the offending and the gravity of some of the images, your offending sits above lower level offending, and is towards the middle level of seriousness.
EXPLANATION AND ASSESSMENT OF MORAL CULPABILITY
22Your counsel relied upon evidence placed before me at the plea to the effect that at the time of the offending you had become socially isolated, withdrawn, anxious and lacking in self-confidence. Reliance was placed upon a report and an addendum to that report prepared by Mr Bernard Healey, Consultant Clinical Psychologist, a letter from you to the Court, and a letter of reference from your father.
23Your counsel submitted that you have made significant steps towards your own rehabilitation by engaging in sessions with Mr Healey and in making positive changes to your lifestyle to ensure this does not happen again. He submitted that this is the way in which he principally relied upon the evidence concerning your social isolation.
24I do accept that this appears to have been the context in which the offending occurred, and, as will become apparent shortly, I find that your efforts you have undertaken with Mr Healey reflect well on your prospects.
25However, your counsel relies upon your social isolation in a further way. Your counsel submitted that your decision to commence the charged offending as an adult was influenced by a habit, or to use your words ‘an addiction’, developed as an adolescent, at around 14 or 15 years of age, when you were immature. He submitted that your conduct, which commenced as an adolescent and which continued into adulthood against the background of progressive social isolation, was to be viewed differently from the depraved voyeurism of socially mature adults. This reduced your moral culpability, he submitted. Your counsel called in aid the reasoning in the case of DPP v Smith[2], although he accepted any reduction you get for this is a question of degree.
[2] [2010] VSCA 215
26I accept that these matters do bear, to a limited degree, upon my assessment of your culpability. However, for the following reasons they do not significantly reduce your moral culpability:
·First, while your decision to access child pornography as an adolescent mitigates to some degree your decision to embark upon this charged offending at first instance at aged 23, it does not fully explain why you continued to offend as an adult, or why you did so for such a lengthy period of time. Its mitigating effect diminished with time.
·Next, you also do not fall to be punished for conduct engaged in by you as a child offender. Your offending occurred whilst you were an adult, albeit a relatively youthful one. Your offending concluded at age 26. Whatever might be said about your conduct as a child, in my view you did ultimately engage in depraved voyeurism as an adult.
·Further, whatever you may have thought as an adolescent, at the time of your offending as an adult you were well aware of the harmful effects of the material you accessed. As you said in your interview, you felt bad after watching the child pornography files, and you described feelings of disgust with respect to the worst material.
·Next, your social isolation was also not extreme, a point realistically accepted by your counsel. As Mr Healey noted in his reports, you have been in a relationship with two adult females, and one of those relationships overlapped with the offending period. Your father noted that you have always been a member of a small circle of close friends. During the offending period you were engaged in some part time work and you undertook university studies. This all fits with your own perception of yourself, which emerged from your police interview, namely that you did not see yourself as being very isolated.
·In my view, you are some distance from the kind of circumstances to be found DPP v Smith[3]. There, the court found the offender’s moral culpability to be towards the lower end of the range because the offending was the addictive consequence of curiosity on the part of a socially very immature human being living an extraordinary lonely existence, who lacked insight into the effect on the victims until after he was arrested[4]. That is just not you.
·Finally, your counsel specifically disavowed any reliance upon any limb in Verdins or any suggestion that general deterrence should be given reduced weight in your case as a result of your adolescent habit and social isolation. I note that Mr Healey did not address, at least not directly or in any detail, this question of your habit or addiction, developed as an adolescent, and its link to your offending as an adult.
[3] [2010] VSCA 215
[4] Ibid [26]
OTHER PERSONAL AND MITIGATING CIRCUMSTANCES
Personal Circumstances and Background
27Following school you completed a Bachelor of Arts at Monash University. You then completed one year of a Masters in Journalism. You returned to study in 2015, commencing a Masters in Education. I was told at the plea hearing that you had almost completed this degree, with only a thesis left to submit this year.
28You have engaged in some casual, part-time work whilst studying.
29You are currently living with your parents. Your mother is a teacher and your father was also formerly a teacher. Your family, including your sister, were present in court at your plea to support you.
Good character, no priors
30You have no criminal history. You are therefore entitled to rely on your good character.
Relative youth
31You were at the time of the offending and remain, relatively youthful, although you are today, at 26 to 27 years of age, approaching the outer limits of youth. I give more weight to encouraging rehabilitation than would be the case for an older offender.
Admissions and guilty plea
32To your credit, you made full and frank admissions when interviewed by the police.
33You pleaded guilty at the earliest possible opportunity at committal mention. This has saved the expense of a committal hearing and a trial. You are entitled to the discount for the utilitarian value of the plea, and I cite the recent decision of DPP v Thomas[5].
[5] DPP(Cth) v Thomas [2016] VSCA 237
Insight and remorse
34Your counsel tendered a letter you wrote to the Court. You expressed remorse and regret in this letter and identify how your offending impacts on others. Mr Healey in his report makes reference to your shame. I accept that your full admissions which you made to the authorities and your plea of guilty also reveal a significant level of remorse.
35With one qualification, I accept you are insightful into your wrongdoing. I harbour some concerns that you have never clearly explained why you possessed the small amount of material in the higher categories. While in your interview you said you would delete this material, the fact is you did not delete all of it. Your instructions to your counsel are that you do not recall looking at anything like that.
Prospects of rehabilitation
36As to your prospects of rehabilitation, I make the following comments.
37You have a supportive family.
38I accept that the context to your offending involved a level of social introversion, withdrawal and anxiety. Mr Hornidge, I also accept that you have made significant steps towards your own rehabilitation by engaging in sessions with Mr Healey and in making positive changes to your lifestyle to ensure this does not happen again, and I was informed this morning that over the last several months since the first plea hearing in August, you have continued to see Mr Healey.
39Mr Healy conducted the Static-99 Risk of Sexual Recidivism test, which indicated you are a low risk.
40You are highly educated and have a future, even with the restrictions that these matters will place upon it.
41You are still relatively youthful and are otherwise of good character.
42Notwithstanding my reservations concerning your less than fully developed insight into your offending involving the small amount of material in the worst categories, I assess your prospects of rehabilitation as good. Your prospects will improve with further appropriate counselling.
Delay
43It was put to me today that I should also take into account the delay in this matter since August of this year when the first plea hearing occurred. This matter was adjourned pending the court of appeal decision on the question of whether you were entitled to a utilitarian benefit. In the meantime, you have continued to see Mr Healy, as I mentioned before. It was put to me, and I accept, that you have experienced further anxiety during that intervening period, given your knowledge that you were at risk of immediate imprisonment.
RELEVANT SENTENCING PRINCIPLES
44While moderate weight needs to be given to specific deterrence in your case, significant weight must be attached to general deterrence. General deterrence is the paramount sentencing consideration in this kind of offending. The authorities make clear that the sentence I impose must deter like-minded people from engaging in this conduct. The Court of Appeal said this in DPP v Garside [2016] VSCA 74 at [71]:
The increasing risk that the international child pornography industry poses, that the possession of child pornography material creates a market for the continued corruption and exploitation of children and that those who possess such material, whether for profit or not, are more than mere passive recipients of material but are active participants in the market, must remain at the forefront of the sentencing task in order that general deterrence, in particular, is given its necessary weight.
45Against the need for just punishment, denunciation and general deterrence, I need to balance the mitigating factors advanced by your counsel including your age, good character, and prospects of rehabilitation. Your good character must, however, be seen in the context that offending such as yours is frequently committed by people of good character.
46On the question of imprisonment the Court of Appeal recently stated in that decision of Garside [2016] VSCA 74 at [62]:
Access to child pornography is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending.
47Their Honours went on to say:
No broader principle needs to be laid down as each case must be decided according to its own circumstances.
48Your counsel has submitted that I should impose a non-custodial sentence, namely a community correction order (CCO). At the conclusion of the plea hearing I directed that you be assessed for CCO. I made clear that I would also be considering a CCO in conjunction with a term of imprisonment. You have been assessed as suitable for a CCO. Corrections recommended a condition regarding mental health treatment, under which you could continue the psychological counselling you have commenced. Offender behaviour programs were also recommended, specifically a condition regarding assessment and participation in the Sex Offender Advice and Treatment Services (SOATS), given the nature of the charges I am sentencing you for. Your general offending risk was assessed by Corrections as low – an assessment by SOATS will determine your risk of sexual re-offending according to the Corrections report.
49Like s.5(3) of the Sentencing Act, s.5(4C) imports the principle of parsimony, but in a more specific way. I have applied these provisions and this principle when considering the appropriate sentence for the state offence in this case. However, the guideline judgment of Boulton[6] and the Victorian provisions which regulate CCOs are not picked up and made applicable to sentencing for federal offences.[7]
[6] Boulton & Ors v The Queen [2014] VSCA 342
[7] Atanackovic v The Queen (2015) 326 ALR 159 at [82]
50In sentencing you for the Federal offence of accessing child pornography using a carriage service I have taken into account the matters referred to in s.16A(2) of the Commonwealth Crimes Act so far as they are relevant and known to me. Section 17A(1) of that Act imports the principle of parsimony, and requires that I not impose a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case.
Conclusion
51I have reached the conclusion that, having regard to all the circumstances of the offences and to your personal circumstances, a sentence of actual imprisonment is required. The sentencing requirements of just punishment, denunciation and general deterrence cannot be adequately vindicated by a non-custodial disposition, such as a CCO. Some immediate imprisonment is required. I have, however, concluded that a shorter rather than a long term of imprisonment, followed by a period of supervision, will pay sufficient regard to general deterrence, yet at the same time recognise your competing personal circumstances including your relative youth and your positive prospects of rehabilitation.
52Finally I am conscious there is a significant overlap in the offending between Charge 1, being the access charge, and Charge 2 being the possession charge. I must avoid any double punishment. I must structure the sentence so that the overall sentence properly reflects the totality of your offending.
SENTENCE
53Mr Hornidge, would you please stand.
54Now Mr Hornidge, I am going to read to you what my proposed sentence is, because then I will have to ask you whether you will agree to one aspect of it.
55In relation to Charge 1, being the Commonwealth charge, I propose that you be convicted and sentenced to 15 months' imprisonment, but I will direct that you be released after three months' gaol, upon you entering into a recognisance of the sum of $2,000 to be of good behaviour for a period of two years. That sentence, I propose, will commence this day.
56In relation to Charge 2, being the state offence, I propose convicting you and sentencing you to a term of imprisonment of two months to be immediately followed by a Community Correction Order for two years in the terms and conditions which I will set out shortly, and I will be asking whether you will agree to.
57I propose directing that the State sentence on Charge 2 is to commence two months after the commencement of the Commonwealth sentence imposed on Charge 1.
58This means on my proposed sentence, that you will be required to serve in total four months' imprisonment before being released.
59Now, I need to explain two things to you, Mr Hornidge. The first is this, with respect to the Commonwealth sentence.
Explanation of Commonwealth Sentence
60As I have said, in relation to Charge 1, being the Commonwealth charge, I make an Order that you be released onto a Recognisance Release Order, which will require you to be of good behaviour for a period of two years after your release.
61I will explain the conditions of this Order and the consequences if you do not comply with it. If you commit a further offence in breach of the recognisance to be of good behaviour in that two year period after your release, then unless you can show a reasonable excuse for committing a further offence or offences, you will be dealt with for that breach and re-sentenced. You may have to pay $2,000 and you may have to serve immediately the remaining term of imprisonment, which is 12 months. I should also tell you that you or an authorised person, may apply to the court to vary or discharge the recognisance in accordance with s.20AA of the Commonwealth Crimes Act (1914).
62I will shortly ask you to sign the Order, when I formally pronounce them, to indicate that I have explained the purpose and effect of this order, the consequences if you do not comply, and that you agree to be bound in accordance with the terms of those orders.
Explanation of CCO and conditions
63I now turn to explain to you the community correction order and the conditions under the community correction order, which you will be bound by upon your release from prison.
64In order for you to be placed on a Community Correction Order, you must consent to the order and its conditions, so I will read the conditions to you now. There are mandatory terms which apply to all community correction orders which are as follows:
·You must not commit another offence for which you could be imprisoned during the time that the order is in force;
·You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011
·You must report to, and receive visits from the Secretary (or delegate);
·You must report to the Community Corrections Centre within two clear working days of the orders starting;
·You must let a community corrections officer know within two clear working days of you changing your address or job;
·You must not leave Victoria without first getting permission to do so from the Secretary (or delegate);
·You must obey all lawful instructions from and directions of the Secretary (or delegate);
65In addition, the following specific will form part of this community correction order:
·Supervision – you must be under the supervision of a Community Corrections Officer of a period of 2 years.
·Treatment and Rehabilitation – You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
·You must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager. This includes the SOATS program which I mentioned before, the Sex Offender Advice and Treatment Service program.
66Lastly, the Community Correction Order is to commence upon your release from prison, after you have served the sentences imposed on Charges 1 and 2. The CCO will then run for two years from your release date.
67Mr Hornidge, do you understand these conditions and do you consent to those conditions being made?
68OFFENDER: Yes.
69HIS HONOUR: All right, you may still remain standing, please, Mr Hornidge. In fact, you can sit down for the minute. Mr Albore, you have heard the proposed orders. Is there anything about them which
is - - -70MR ALBORE: Yes, Your Honour. I'm just a little bit concerned in relation to the release date on the recognisance release order.
71HIS HONOUR: Yes.
72MR ALBORE: If Your Honour would be minded just to stand down this matter briefly, just if I could take some instructions in relation to the operation of the recognisance release order, whether the release of the defendant after three months upon the recognisance would be in conflict with the term of imprisonment and CCO attached to the state charge, whether the accused has to be released on recognisance after the three month period has been served, and whether there's any conflict in relation to the state charge and the operation of the total effective sentence of four months.
73HIS HONOUR: Yes, because I have ordered that the state charge continue for one month.
74MR ALBORE: Yes.
75HIS HONOUR: That is addressed, I think you will find, in the Commonwealth sentencing manual that you provided to me, but I am happy to stand it down for you to check that.
76MR ALBORE: If I could just briefly take some very brief instructions.
77HIS HONOUR: Certainly, so I will stand the matter down for five minutes.
78MR ALBORE: As Your Honour pleases. Thank you.
(Short adjournment.)
79MR ALBORE: Thank you for that opportunity, Your Honour. My instructions are, the sentence is valid.
80HIS HONOUR: Thank you. All right, in that case I will now proceed to formally announce that sentence. Mr Hornidge, I will have to ask you to stand again while I do this. So I will formally announce the sentence.
81In relation to Charge 1, being the Commonwealth charge, of using a carriage service to access child pornography, you are convicted and sentenced to 15 months' imprisonment, but I direct that you be released after three months' gaol upon you entering into a recognisance release of $2,000 to be of good behaviour for a period of two years. The sentence is to commence this day.
82In relation to Charge 2, being the state offence, of knowingly possessing child pornography, you are convicted and sentenced to a term of imprisonment of two months, to be immediately followed by a community correction order for two years in the terms and conditions which I have already outlined to you.
83I direct that the state sentence on Charge 2 is to commence two months after the commencement of the Commonwealth sentence imposed on Charge 1. This means that you are required to serve in total four months' imprisonment before being released. I have already explained to you the terms and effect of the recognisance release order. I have already explained to you and outlined to you the CCO and the conditions, and you have indicated to me that you would consent to those CCO conditions being made.
84Before my associate comes up and asks you to sign the relevant documents, I will complete my sentence. You may now sit down, thanks, Mr Hornidge.
Sex Offender Registry
85These crimes are registrable offences pursuant to s.7 of the Sexual Offenders Registration Act 2004 (Vic). By your plea to two Class 2 offences, you will be a required to be subject to reporting conditions for a period of 15 years. You will be given a document which sets out your obligations under the legislation.
86My associate will now bring you all of the relevant documents to sign in relation to the Sex Offenders Registration Act, the CCO and the recognisance release order.
87Yes, the Commonwealth. You have prepared it?
88MR ALBORE: Yes, I've prepared a copy for the recognisance release order.
89HIS HONOUR: Yes, all right, thank you.
90MR ALBORE: Your Honour, the other document that Mr Hornidge has already signed is a consent to dispose of the seized property.
91HIS HONOUR: Yes.
92MR ALBORE: I'll hand that up to Your Honour.
93HIS HONOUR: Yes, thank you. Do I need to make an order on that?
94MR ALBORE: No, no order needs to be made.
95HIS HONOUR: No order needs to be made. Has this already been signed?
96MR ALBORE: Yes, it's already been signed by Mr Hornidge and witnesses.
97HIS HONOUR: Yes. So do you simply retain this?
98MR ALBORE: A copy's retained for Your Honour's court file.
99HIS HONOUR: All right, thank you.
100MR ALBORE: And then a copy's made for the prosecution and the defence.
101HIS HONOUR: Thanks, Mr Albore.
102MR DANN: Your Honour, can I just seek leave to assist your associate?
103HIS HONOUR: Of course, yes, please. You can sit down, Mr Hornidge, thank you.
6AAA
104Lastly, pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I indicate that had you not pleaded guilty, I would have sentenced you to a total effective sentence of two years and four months' imprisonment, with an effective overall minimum term of 14 months' imprisonment.
105Nothing else, gentlemen?
106COUNSEL: No, Your Honour.
107HIS HONOUR: Yes, the prisoner can be taken away, please. Yes, Mr Hornidge, just wait a moment. Your father wishes to say goodbye. Yes, adjourn the court, please.
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SCHEDULE
The categorisation model for Child Exploitation material for the Australian National Victim Image Library
Category 1: Depiction of children with no sexual activity. Includes nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on genital area, and solo urination.
Category 2: Solo Masturbation by a child or sexual acts between children. Includes the use of penetrative sex toys by victims.
Category 3: Non- penetrative sexual activity between children and adult. Includes mutual masturbation and other sexual activity.
Category 4: Penetrative sexual activity between children or children and adults. Including, but not limited to intercourse, cunnilingus and fellatio.
Category 5: Sadism, bestiality or humiliation (urination, defecation, vomit, bondage etc…) or child abuse.
Category 6: Anime, cartoons, comics and drawings depicting children engaged in sexual poses or activity.
0
4
0