DPP -v- Little

[2008] NSWLC 19

Local Court of New South Wales

CITATION:	DPP -v- Little [2008] NSWLC 19
JURISDICTION:	Criminal
PARTIES:	Director of Public Prosecutions Little
FILE NUMBER:
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	11/14/2008
MAGISTRATE:	Deputy Chief Magistrate P S Cloran
CATCHWORDS:	Sentence – child pornography.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Police v Power [2007] NSWLC 1 R v Carroll [2008] NSWCCA 218 R v Doan (2000) 50 NSWLR 115 R v Dodd (1991) 57 A Crim R 349 R v Gent [2005] NSWCCA 370 R v King (2004) 150 A Crim R 409 R v MA (2004) 145 A Crim R 434 R v Stroempl (1995) 105 CCC (3d) 187
TEXTS CITED:
REPRESENTATION:	Ms. Nightingale for Director Defendant - unrepresented
ORDERS:

1 The offender stands charged with possession of child pornography contrary to s. 91H of the Crimes Act in January 2006.

2    The offender was found guilty on 7th November, 2008.

Facts

3    The facts in this matter are set out in the judgement delivered on 7th November.

4    The maximum penalty for the offence on which the offender stands for sentence is 5 years imprisonment if dealt with on indictment. The matter presently under consideration is one to which the principles enunciated by the Court of Criminal Appeal in R –v- Doan (2000) 50 NSWLR 115 per Grove J. at [35] apply.

Assessment of the Criminality

5    The salient features of this matter are that there were only two images of child pornography found in the offender’s possession and that was amongst a large amount of adult pornography. It should be stressed that the court did not form the view that the offending images could have been inadvertently mixed with the adult pornography particularly in view of the fact that both children in the images are pre-pubescent.

6    For the purpose of proceeding to sentence I am of the opinion that this matter falls towards the lower end of the category of this type of offence because of the number of images.

7    In determining the objective seriousness of the material possessed and the accused’s conduct in the commission of the offence, the Court in R v Gent 162 A Crim R 29; [2005] NSWCCA 370 set out a number of factors to be considered, including:

q The nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;

q The number of images or items of material possessed by the offender;

8    In the case of Police v Power [2007] NSWLC 1, the prosecution lead evidence of the COPINE (Combating Paedophile Information Networks in Europe) Reference Database. The COPINE collection contains examples of most of the material publicly available on the Internet. A descriptive analysis identifies 10 levels of severity, based on increasing sexual victimization. Material may therefore, be classified and apportioned according to the 10 levels of COPINE categorisation as follows:

Level 1	Indicative (non-erotic/sexualised pictures)
Level…