Dartnall v The State of Western Australia

[2012] WASCA 251

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   DARTNALL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 251

CORAM:   McLURE P

NEWNES JA
MAZZA JA

HEARD:   5 NOVEMBER 2012

DELIVERED          :   4 DECEMBER 2012

FILE NO/S:   CACR 86 of 2012

BETWEEN:   WARWICK BRUCE DARTNALL

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :STONE DCJ

File No  :IND 1144 of 2011

Catchwords:

Criminal law - Sentencing - Possession of child pornography - 38 video files and 6 image files - Material in upper range of child pornography - Material kept for possible future viewing after inadvertently downloaded from internet - Appeal against sentence of 18 months immediate imprisonment dismissed

Legislation:

Classification (Publications, films and Computer Games) Enforcement Act 1996 (WA), s 60(4)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr A D Hills­Wright

Respondent:     Mr B Fiannaca SC

Solicitors:

Appellant:     Adam Hills-Wright Barrister & Solicitor

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Chan v The Queen (1989) 38 A Crim R 337

Hill v The State of Western Australia [2009] WASCA 4

Hutchins v The State of Western Australia [2006] WASCA 258

Smit v The State of Western Australia [2011] WASCA 124

The State of Western Australia v Cunningham [2008] WASCA 240

Wilson v The State of Western Australia [2010] WASCA 82

1. McLURE P:  I agree with Newnes JA.

2. NEWNES JA: This is an appeal against sentence. On 16 March 2012, the appellant was convicted on his own plea of the possession of child pornography, contrary to s 60(4) Classification (Publications, films and Computer Games) Enforcement Act 1996 (WA) (the Act). He was sentenced to 18 months’ immediate imprisonment, with eligibility for parole.

3. On 23 July 2012, the appellant was granted leave to appeal on the ground that the sentence was manifestly excessive.

Background

1. On 30 November 2009, police executed a search warrant at a unit in Churchlands where the appellant was living with his de facto partner.  The appellant arrived at the unit during the execution of the search warrant.  He was carrying a backpack containing a number of compact discs.  More compact discs were located in the main bedroom and on the computer desk in the living area.  The police seized all of the discs together with a desktop computer.

2. Subsequent analysis of the discs and desktop computer revealed the following child pornography:

   •6 image files on the desktop computer;

   •24 video files on a disc marked 'Data', located in the appellant's backpack;

   •One video file on a disc marked 'Data backup 27105', located in the appellant's backpack; and

   •13 video files on a disc marked 'MYOB10', located in the main bedroom.

3. The appellant was therefore in possession of a total of 38 video files and 6 image files of child pornography.  The material had been downloaded from the internet and burnt onto discs.  The appellant had burnt the disc marked 'Data backup 27105' in about 2005, the disc marked 'MYOB10' in about 2007 and the disc marked 'Data' in about 2008. 

4. The material depicted acts of sexual penetration of children by adults, adults by children and children by children, as well as

masturbation involving children.  It included adult sexual penetration of a child in the form of both oral and vaginal sex, anal penetration of children, and objects being inserted into the anus of children by children, or the child doing so by him or her self.  The children were aged 10 years and above. 

1. The appellant pleaded guilty to one count of possession of child pornography, contrary to s 60(4) of the Act. He also pleaded guilty, by way of a s 32 notice, to one count of possession of an indecent or obscene article, contrary to s 59(5) of the Act, for which he was fined $1500. There is no appeal in relation to the latter sentence.

The sentencing remarks

1. The sentencing judge described the material in the appellant's possession as falling into the upper range of child pornography.  His Honour noted that whilst it was accepted that the appellant had inadvertently received the material on his computer, he had then downloaded it onto disc and retained it in his possession for at least 12 months.  The appellant knew the nature of the material because he had viewed it briefly and ascertained what it was.  There was a substantial quantity of material and, having been burnt to discs, it was easily accessible.  His Honour noted that while the appellant had not done more than view the material briefly, he admitted that he had been curious about it and that he may at some stage have gone back to look at it. 

2. The sentencing judge accepted that the appellant had previously deleted child pornography when it came up on his computer but in this instance had not done so because he did not want to risk deleting parts of the adult pornography he had collected.  His Honour observed that the appellant was entrenched in adult pornography and sexually stimulated by it.  His Honour did not, however, make a finding that the appellant was sexually stimulated by child pornography.

3. Turning to the appellant's personal circumstances, the sentencing judge noted that the appellant was 39 years old and in a de facto relationship.  He had a son aged 14 and a daughter aged 11 from a previous relationship.  The appellant had a minor criminal record involving possession of cannabis and traffic offences, and he had a prior conviction, in August 2005, for possession of an indecent publication, for which he was fined $1,000.

4. The sentencing judge took into account that the appellant had pleaded guilty at an early opportunity and had made some limited admissions to police.  He accepted that the appellant had some insight into the offending behaviour and was remorseful.  His Honour also noted that the appellant had not sought out the material but had come by it inadvertently.  He found that the appellant was at low risk of reoffending.

5. His Honour concluded that the only appropriate sentence was a term of immediate imprisonment.  He sentenced the appellant to 18 months' imprisonment with eligibility for parole.

The ground of appeal 

1. The sole ground of appeal was that the sentencing judge erred in law by imposing a sentence that was manifestly excessive in all the circumstances of the case.

Particulars

1.The appellant inadvertently downloaded the child pornography material;

2.The appellant viewed the material briefly;

3.The appellant did not utilize the material for sexual gratification;

4.The appellant previously deleted child pornography material from his computer;

5.The appellant entered an early plea of guilty;

6.The appellant demonstrated remorse;

7.The appellant had insight into his offending behaviour;

8.The appellant was a low risk of future sexual offending of a more serious nature;

9.The appellant’s personal circumstances.

Disposition of the appeal

1. A ground of appeal asserting manifest excess relies upon the implication of error from the sentence itself.  The implication arises where, although it is not possible to discover the exact nature of the error, the sentence is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred:  Wilson v The State of Western Australia [2010] WASCA 82 [2]. It is not, however, sufficient that the appellate court might have imposed a different sentence.

2. When determining whether a sentence is manifestly excessive the court must have regard to the maximum sentence for the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that sort, the standards of sentences customarily imposed in respect of the offence, and the personal circumstances of the offender:  Chan v The Queen (1989) 38 A Crim R 337, 342. However, whilst it is appropriate to review sentences for like offences in an attempt to achieve consistency in sentencing, caution is needed when comparing the severity of a particular sentence by comparison with those imposed in other cases because there will inevitably be differences in the circumstances of offenders and offences.

3. At the relevant time, the maximum sentence for the offence was 5 years' imprisonment.  In Hill v The State of Western Australia [2009] WASCA 4, McLure JA (with whom Steytler P and Miller JA agreed) observed that the offence will ordinarily attract a sentence of immediate imprisonment:

   The recent cases reveal that ordinarily a sentence of immediate imprisonment will be imposed for possession of child pornography contrary to s 60(4) of the Act: Hutchins [v The State of Western Australia [2006] WASCA 258] [23]; The State of Western Australia v Cunningham [2008] WASCA 240. As previously noted, the offence of possessing child pornography is not a victimless crime. The generation and existence of demand for possession of child pornography stimulates the supply side to the incalculable harm to the children involved. The creation and satisfaction of demand for child pornography is exponentially facilitated by the internet and there are significant difficulties in detecting the offences. These factors result in significant weight being given to general deterrence and correspondingly less weight being given to matters personal to the offender. Indeed, positive personal antecedents and a reduced or absent need for personal deterrence are relatively commonplace amongst offenders in possession of child pornography [28].

4. The level of perversion and debauchery of the child pornography in the possession of an offender is a relevant sentencing consideration, regardless of the extent to which the material is viewed:  Hill [19]; Hutchins v The State of Western Australia [2006] WASCA 258 [23]. The mere fact that an offender had viewed only part of the material is not itself mitigating. However, the motivation for such conduct may affect the position. If the offender ceased viewing the material because he was offended by it, that would be a relevant mitigating factor: Hill [18].

5. The sentences imposed in a number of earlier cases were summarised by Miller JA in The State of Western Australia v Cunningham [2008] WASCA 240 [26] and some subsequent cases were summarised in Smit v The State of Western Australia [2011] WASCA 124 [21]. It is sufficient to repeat the latter summary which was as follows:

   Dragon v The State of Western Australia [2008] WASCA 252: suspended sentence on two counts overturned on appeal, [concurrent] sentences of [16 months' and four months'] immediate imprisonment reduced for time spent in custody imposed in lieu thereof, one further count involved six images at the very low end of the scale of seriousness, a fine of $1,200 imposed on that count; Hill:  two counts, 38 still images and an 11-minute video of very depraved material, fast-track plea of guilty, police officer, total sentence of 2 years' immediate imprisonment; DAR v The State of Western Australia [2010] WASCA 72: one count (with other offences for indecently recording five-year-old grand-daughter and supplying child pornography), plea of guilty, images of naked females stored on mobile phone, 18 months' imprisonment; Young v The State of Western Australia [2011] WASCA 13: six counts, fast-track pleas of guilty, 84,663 images and 24,477 video files, concurrent sentences of 2 years' immediate imprisonment on each count.

6. In Hill, the offender pleaded guilty to two counts of possession of child pornography contrary to s 60(4) of the Act. The first count related to 38 still images depicting naked girls posing, a naked girl with two naked men and an image of a naked girl performing a sexual act. The ages of the children ranged from 6 to 16 years. The second count related to an 11 minute video which depicted two naked female children, estimated to be aged between 9 and 11, performing oral sex on a hooded adult male, using a sex toy on each other, masturbating the adult male and ultimately having sexual intercourse with him. The offender, who was a serving police officer, was aged 47 at the time of sentencing. He had an entrenched addiction to adult pornography which led him to access child pornography. He was stimulated by child pornography, in part because of the risk involved in viewing it. The offender had no prior convictions and after the offences had undergone counselling with a psychologist in order to cease accessing all forms of pornography. On appeal, a sentence of 2 years' immediate imprisonment was described as being high but not so severe as to be outside the appropriate sentencing range.

1. In Smit, the offender had 43 still images on his computer.  Twenty nine of the images depicted a female child, apparently under the age of 13, in a clothed but provocative pose.  Of the remaining 14 images, 11 concerned a pre‑pubescent female child being sexually penetrated in the vagina by the penis of an adult male and three depicted the same child exposing her genitals, covered with what appeared to be semen.  The offender was 61 years old and had no significant criminal record.  He had pleaded guilty at the first opportunity.  A court‑ordered psychological report had concluded that the offender posed some risk of further offending, leading to a need for personal deterrence.  An appeal against a sentence of 22 months' immediate imprisonment was dismissed.

2. In this case, the appellant had not sought out child pornography but it had come into his possession when he inadvertently downloaded it from the internet in the course of downloading adult pornography.  It is evident that the appellant was in the habit of downloading adult pornography for the purpose of sexual stimulation.  The sentencing judge did not make a finding that the appellant was sexually stimulated by child pornography, but, as the appellant's counsel conceded, nor did the sentencing judge make the positive finding asserted in particular 3 of the grounds of appeal. 

3. In any event, once the material was downloaded the appellant was aware that it was child pornography.  He was also aware that there was a considerable quantity of it and, having looked at it, he must have been aware that it depicted acts of a high level of depravity.  The appellant chose not to delete it but to keep it with a view to possibly viewing it at some future time.  It was kept in a readily accessible form and it had been in the appellant's possession for some time when the offending came to light.  No weight can be given to the fact that the appellant had not gone back to view it by the time the offence was detected.  There was no suggestion that he had not done so because he found the material offensive.

4. While the sentence of 18 months' imprisonment is high, I do not consider it to be so high as to fall outside an appropriate sentencing range.  I would dismiss the appeal.

5. MAZZA JA:  I agree with Newnes JA.