Dodge v The Queen

[2002] WASCA 286

DODGE -v- THE QUEEN [2002] WASCA 286

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 286
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:94/2002	Heard:	10 SEPTEMBER 2002
Coram:	WALLWORK J MURRAY J ANDERSON J	Delivered:	18/10/02
No of pages:	9	Judgment Part:	1 of 1
Result:	Leave granted Appeal allowed Effective 3 year sentence reduced to 12 months
Category:	A
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Parties:	MARTIN FRANCIS DODGE THE QUEEN
Catchwords:	Criminal law Sentence Prisoner supplying child pornography in a prison Writing not images Given to fellow prisoner Fast track pleas Whether 3 years' imprisonment too severe
Legislation:	Censorship Act, s 60(1)(b), s 60(4)
Case References:	R v Coultas [2002] WASCA 131 R v Jones (1999) 108 A Crim R 50 R v Liddington (1997) 18 WAR 394 Jarvis v The Queen (1998) 20 WAR 201 Lee v The Queen [2000] WASCA 73 Lowndes v R (1999) 195 CLR 665 Ma v The Queen (2001) 125 A Crim R 349 Miles v The Queen (1997) 17 WAR 518 R v Ward (1999) 109 A Crim R 159 R v White [2002] WASCA 112 Radebe v The Queen [2001] WASCA 354 Sikaloski v The Queen [2000] WASCA 387 Veen v The Queen (No 2) (1988) 164 CLR 465

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DODGE -v- THE QUEEN [2002] WASCA 286 CORAM : WALLWORK J

MURRAY J
ANDERSON J

HEARD : 10 SEPTEMBER 2002 DELIVERED : 18 OCTOBER 2002 FILE NO/S : CCA 94 of 2002 BETWEEN : MARTIN FRANCIS DODGE

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Sentence - Prisoner supplying child pornography in a prison - Writing not images - Given to fellow prisoner - Fast track pleas - Whether 3 years' imprisonment too severe

Legislation:

Censorship Act, s 60(1)(b), s 60(4)

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Result:

Leave granted

Appeal allowed
Effective 3 year sentence reduced to 12 months

Category: A

Representation:

Counsel:

Applicant : Ms G A Archer
Respondent : Mr P J Urquhart

Solicitors:

Applicant : Legal Aid of Western Australia
Respondent : State Director of Public Prosecutions

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

R v Coultas [2002] WASCA 131
R v Jones (1999) 108 A Crim R 50
R v Liddington (1997) 18 WAR 394

Case(s) also cited:

Jarvis v The Queen (1998) 20 WAR 201
Lee v The Queen [2000] WASCA 73
Lowndes v R (1999) 195 CLR 665
Ma v The Queen (2001) 125 A Crim R 349
Miles v The Queen (1997) 17 WAR 518
R v Ward (1999) 109 A Crim R 159
R v White [2002] WASCA 112
Radebe v The Queen [2001] WASCA 354
Sikaloski v The Queen [2000] WASCA 387
Veen v The Queen (No 2) (1988) 164 CLR 465

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1 WALLWORK J: On 10 May 2002 the applicant was sentenced to imprisonment for one offence of supplying child pornography to a fellow prisoner in a prison and for a further offence of having in his possession in the prison, child pornography in the form of written material. He was sentence to 18 months' imprisonment for each offence. The terms were ordered to be served cumulatively upon each other and upon any sentences which the applicant was then serving. As it happened, the applicant was only a few days away from being released from prison where he had been serving sentences of imprisonment for offences against children. He had already been in prison for a long time, since 1993.

The Facts

2 On 7 May 2002 the learned prosecutor had advised his Honour that the applicant came before him after pleading guilty to the two charges by fast track pleas. The applicant had an extensive record for child sex offences and had been serving a prison term as stated above. On 23 January 2002 officers at the prison had conducted a random search of a cell belonging to another prisoner. They found a document containing child pornographic writing. That prisoner informed the officers that the pornographic writing had been supplied to him by the applicant.

3 A short time later the applicant's cell was searched and a further 16 documents containing pornographic writing were seized. All the writing was concerned with adult males performing sexual acts on young children, or having young children perform sexual acts on men. In most instants the children spoken of in the documents were young males under the age of 10. The documents were very explicit in their detail of the sexual acts which described all sorts of sexual activity between children and adults.

4 When interviewed on video the applicant admitted having supplied the other prisoner with the pornographic material. He said that the children depicted in the documents were all under the age of 16 years and in most cases were much younger.

5 The Judge was told that the applicant had used the documents for masturbation purposes since he had acquired them in 1995, approximately seven years before they were seized. As stated above, the applicant had been in prison since 1993. He was due to be released the week after he was sentenced on these charges. The Judge was told that the documents comprised stories with no pictures. They were quite disgusting and depraved.

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6 The Judge was told that the video record of interview was quite significant because there were substantial indicators of remorse on the part of the applicant who had admitted he was the owner of the material and that he had supplied it to another prisoner. He had also named the author of the material who had given it to him in 1995.

7 The learned Judge was told that the applicant had not taken part in sex offender treatment programmes in prison because he was concerned for his physical safety within the prison. It was submitted on his behalf that the reason he had responded to this type of material related to his sexual experiences as a young child. Counsel said that the applicant acknowledged he needed treatment but the prison environment had not offered him sufficient safeguards to deal with his problems.

8 The Judge was told that the applicant had been advised by counsel to enter plea of not guilty because the fictitious persons described in the writing were not persons as defined in the section. However, the applicant had not wished to plead not guilty. He admitted that the material was unacceptable. He said he did not want to play legal games.

9 It was submitted that the applicant had been co-operative with the authorities and the court in entering his pleas of guilty. It was stressed that real children had not been exploited such as occurred where there was photographic material. There had not been real victims. The characters were fictitious.

10 During an exchange with counsel the learned trial Judge said:

"I'm not going to punish him for not attending a programme. I can't punish him for not attending a programme. My job is to take into account the danger to the public and the danger has been assessed as very high."

11 When counsel persisted his Honour said:

"But I'm here to give him an appropriate sentence for these offences and I'm entitled to take into account that his release into the community would be a very great danger. The inference is that he's learnt absolutely nothing from his period of time in custody."

12 Those remarks related to the fact that the applicant had been assessed as being dangerous to children. With respect to his Honour, the applicant

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on this occasion was to be punished for the possession and supply to another prisoner of pornographic material.

13 Counsel continued with his proposition that being in possession of fictitious material where there were no victims was materially different to offending against individuals who have feelings and suffer consequences. It was stressed that only one copy of the material had been made available to another prisoner for no monetary charge or commercial benefit. It was said on behalf of the applicant that although he had re-written one of the stories in order to make it legible, he had not been the creator of the ideas.

14 It was submitted that the applicant would seek treatment when he was released from prison; that if he was given an environment where he could undergo treatment in safe circumstances, he would do that.

Sentencing

15 When sentencing the applicant the learned Judge said that the applicant was entitled to a credit for his fast track pleas. His Honour said that the relevant documents contained child pornographic literature, all of which related to adult males performing sexual acts on young children, or having the young children perform sexual acts on them. In most instances the children were young males under the age of 10 years. The documents were very explicit in their detail of the sexual acts.

16 The learned Judge said he accepted that there were no images in the material of children who could be considered victims. He said he agreed, as had been submitted to him by the learned prosecutor, that the material was disgusting and depraved and that a sentence of imprisonment was appropriate by way of general deterrence. He referred to the applicant's previous offences against children and to reports which described the applicant as being an extreme danger to children in the community and an unacceptable level of risk to the community, and in particular children.

17 Importantly, the learned Judge concluded his sentencing remarks by saying:

"Mr Dodge, it is quite apparent from those reports that you have learnt absolutely nothing since you were described by Anderson J in the Supreme Court in 1994 as a dangerous and incorrigible paedophile. In my view, you remain today the same danger as you were to the community in 1994. In my view, there being no mitigating factors, the appropriate sentence

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in relation to each of these offences is a term of imprisonment of two years each. You are entitled to a discount of 25 per cent by pleading guilty on the fast track system. That would reduce each sentence to a term of 18 months imprisonment. In my view, they should be cumulative upon each other and cumulative on any sentences that you are presently serving. That results in a head sentence of 3 years. In my view, there is absolutely nothing that would trigger – there was nothing in 1994 to trigger eligibility for parole and in my view nothing has changed and I do not propose to make you eligible for parole. The effect of all that is that you have a head sentence of 3 years cumulative on any sentences that you are presently serving and you are not eligible for parole."

18 In my view, and with respect, the learned Judge erred in saying that there were no mitigating factors other than the pleas of guilty on the fast track system. The applicant had been in prison continuously since 1993. He had co-operated totally with the authorities insofar as these charges are concerned. He had not only pleaded guilty on the fast track system, but he had given the authorities all the information they wanted about the material, where he had got it from and what he had done with it. In my view, by concentrating on the danger that the applicant is said to be to the community the learned Judge erred. The applicant was to be sentenced for the possession and supply of the offending material in an adult prison.

The law

19 In R v Liddington (1997) 18 WAR 394 at 403 Ipp J said:

"Senior counsel for the appellant submitted that the aim of the offence under s 60(4) of possessing and copying child pornography is to limit, as far as possible, the market for material of this kind. 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 R v Russell (1986) A Crim R (S) 367; R v Travell (1997) 1 Cr App Rep (S) 52. In summary, to paraphrase Lord Lane CJ in Russell (at 368) the distribution whether for profit or not, of this type of image is to be sharply discouraged, particularly at times such as these

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when the prevalence of indecent acts perpetrated upon children seems to be increasing. There is a clear public interest in preventing as far as possible any access to child pornography."

20 Counsel submitted that the applicant had been in custody since early 1993 and had obtained the literature in 1995.

21 In my opinion, the time that the applicant had served in custody was an important consideration in the sentencing for these offences. Any sentence imposed on a person after that person has been in prison for 8 years continuously should take into account the fact that the offender has been without his freedom for that length of time prior to sentencing.

22 In this case the maximum term of imprisonment for the offence of supplying the material was 7 years' imprisonment and for the possession of it 5 years' imprisonment. The maximum sentence of 7 years' imprisonment for supply is intended to cover such activities as the corrupting influence of the material concerned and the supplying of it on a commercial basis. In cases of photographic material it takes into account the corrupting of the children involved.

23 In this case, counsel questioned both the length of the two sentences and the order that they be served cumulatively. It was submitted that one of the aims of the relevant legislation is to endeavour to prevent the corruption of children concerned, as when photographs are taken of them in sexual situations.

24 In my view, there is a difference between supplying photos of children engaged in sexual acts and the situation in this case where one of 17 pieces of fictitious writing was supplied to another prisoner in a prison. I realise that the supply of such material might have flow-on effects after the person, to whom it has been supplied, has read it. But it is a different offence to the supply of material where children have been corrupted in the making of it. Similar considerations apply to the charge of possession of the material.

25 In my opinion, the criminality in this case, so far as the supply of the material was concerned, is that it could have stimulated the recipient, or other people with depraved tendencies towards children.

26 Most of the previous decisions in this area of the law have involved photographs of children engaged in sexual activity. There was nothing of that nature in this case. In some previous cases where terms of imprisonment have been imposed there were hundreds of photographs. In

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this case, the applicant had retained 17 items of writing for seven years before supplying one to someone else. They were different offences to offences which involve the downloading and supplying of photographic images by using computers.

27 Another important consideration is that in this case there was no suggestion of any financial gain to the applicant.

28 Counsel for the applicant emphasised that the applicant had willingly and voluntarily named both the person from whom he had obtained the material in 1995 and the person to whom he had supplied one part of it. It was submitted that the applicant had been remorseful, which was demonstrated by the video interview and his free and frank admissions.

29 Counsel for the applicant relied on the reasons for decision in R v Coultas [2002] WASCA 131 where there were 94 counts of supplying, involving the supply to three different people. The offences were committed on 20 separate occasions. There was one count of possession. There were thousands of photos involved. The offender received a sentence of 18 months' imprisonment. Reference was also made to R v Jones (1999) 108 A Crim R 50 where there were in excess of 80,000 images. It was held in that case that a sentence of 2 years' imprisonment was within range but that it ought not to have suspended.

Conclusion

30 In my view, having in mind all the circumstances, including that there was no involvement of live children in the production of the written material concerned, no financial gain to the applicant, and so far as these cases go, a relatively low number of items involved, and also taking into account the time that the applicant had been in prison, his co-operation and his fast track pleas of guilty, a sentence of 12 months' imprisonment for each offence, to be served concurrently, would have been a sufficient punishment.

31 I would grant leave, allow the appeal and reduce both the sentences to terms of 12 months' imprisonment without eligibility for parole. I would order that the sentences be served concurrently.

32 MURRAY J: I respectfully agree with Wallwork J for the reasons given by his Honour, that leave to appeal should be granted, the appeal allowed, and the sentences imposed quashed. In lieu thereof two sentences of imprisonment for one year should be imposed without parole eligibility, to be served concurrently, but cumulatively on the then unexpired term.

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33 ANDERSON J: I have had the advantage of reading in draft the reasons to be published by Wallwork J. I agree that leave should be granted, the appeal allowed, and both sentences reduced to 12 months' imprisonment to be served concurrently.