Green v Tasmania
[2022] TASSC 5
•8 February 2022
[2022] TASSC 5
COURT: SUPREME COURT OF TASMANIA
CITATION: Green v Tasmania [2022] TASSC 5
PARTIES: GREEN, Paul
v
STATE OF TASMANIA
FILE NO: LCA 2386/2021
DELIVERED ON: 8 February 2022
DELIVERED AT: Hobart
HEARING DATE: 3 February 2022
JUDGMENT OF: Estcourt J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether sentence manifestly excessive – Single count of possessing child exploitation material – Sentence of imprisonment of six months, wholly suspended for a period of three years – Not manifestly excessive – Motion dismissed.
Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Cth), s 74A.
Director of Public Prosecutions v Latham [2009] TASSC 101, 19 Tas R 281, considered.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: P Monk
Respondent: E Belonogoff
Solicitors:
Applicant: Tasmania Legal Aid
Respondent: Director of Public Prosecutions
Judgment Number: [2022] TASSC 5
Number of paragraphs: 15
Serial No 5/2022
File No LCA 2386/2021
PAUL GREEN v STATE OF TASMANIA
REASONS FOR JUDGMENT ESTCOURT J
8 February 2022
The application
This is a motion by Paul Green, to review a sentence of imprisonment of six months, which was wholly suspended for a period of three years, imposed on 17 September 2021 by Magistrate C Webster upon the applicant's plea of guilty to a single count of possessing child exploitation material contrary to s 74A of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Cth). The applicant contends that the sentence was manifestly excessive in all of the circumstances.
As noted by counsel for the respondent, Ms Belonogoff, in her written submissions, the role of this Court considering the question of manifest excess is well established. Magistrates have a very wide sentencing discretion, and an appellate court must not interfere unless a material error is shown (Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 per Kirby J at [57]-[60]). It must be shown that the sentence imposed is "unreasonable or plainly unjust" (Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1, 28 Tas R 1 per Pearce J at [8], citing House v The King (1936) 55 CLR 499 at 505). The Court has no charter to "tinker" with sentences imposed (Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]).
Ms Monk, counsel for the applicant, accepts in her written submissions that an appellate court only sits to rectify a genuine error (Dinsdale v The Queen (above)) and that where, as here, no specific error is alleged the court must be persuaded that the sentence imposed is "unreasonable or plainly unjust" (House v The King (above)). This requires something beyond being too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of judicial discretion (Bresnehan v The Queen (1992) 1 Tas R 234).
The offending
In her written submissions, counsel for the applicant notes:
"4 The facts are summarised as follows:
aA search warrant was executed at the Applicant's address in Battery Point on 25th March 2020. His mobile telephone was seized. The phone was submitted for forensic download and found to contain six images deemed to be child exploitation material. The images were located in the 'deleted' folder on the phone.
bThe images were of pre-pubescent female children of Asian appearance aged approximately 8-12 years. The images were categorised according to the ANVIL scale as follows:
cTwo images were category one, depicting sexually suggestive posing and a full-frontal image of genitals.
dOne image was category two, depicting solo masturbation of a child.
eTwo images were category three, depicting an adult male performing oral sex on a child and kissing the child's chest.
fOne image was category four, depicting penile-vaginal penetration of a child by an adult male.
gThe Applicant attended the Hobart Police Station on 20th August 2020 and participated in a video recorded interview. He made full admissions, including:
hThe phone was his, it is password protected and nobody else has access to it.
iHe had downloaded child exploitation material to the phone previously, he would later feel ashamed and delete it.
jHe didn't know which sites he used to access the material, he would use search terms that weren't too obviously related and would navigate to the 'dodgy porn'.
kHe gets it in his head, and he searches for it, he knows that it is wrong and that it is against the law.
lHe was advised he would receive a summons in relation to the matter."
The relevant sentencing considerations
As submitted by counsel for the applicant, in Director of Public Prosecutions v Latham [2009] TASSC 101, 19 Tas R 281, Porter J at [33]-[34], summarised the relevant case law and outlined a number of principles applicable to sentencing in child exploitation cases. They are:
· The production of child pornography for dissemination involves exploitation and corruption of children.
· Persons with pederastic inclinations can be stimulated to commit such acts on reading the material or viewing the images.
· The collection of pornographic material is likely to encourage those who produce it, for without any market, there is less incentive to make it.
· Collection of child pornography may also have the effect of normalising the activity, both in the minds of the participants and makers, and of any children to whom it may be shown.
· Widespread collection and distribution may also have the effect of desensitising all those involved in the making, distribution and consumption of the material. This may lead to escalation in the gravity of the conduct depicted.
As to factors bearing on the objective seriousness of possession of child exploitation material, Porter J listed at [34]:
· The nature and content of the images, including the age of the children and the gravity of the activity portrayed – in particular, the degree of obvious physical harm or fear or distress in the victim.
· The number of images or items of material.
· Whether mere possession is for the purpose of further distribution, and whether there will be any profit or benefit from the activity of the offender. Actual profit or benefit will aggravate the offence, whilst absence of such profit or benefit is not mitigatory.
· The level of personal interest in the material, as perhaps evidenced by the way in which any collection is organised on a computer.
· Whether the possession or distribution involves a risk of accidental discovery by innocent computer users.
Matters put in mitigation
The following matters were raised before the learned magistrate in mitigation of the applicant's offending:
· He was aged 37 and was residing at Bethlehem House, having resided there since April 2021.
· He grew up in Tasmania and completed college to a grade 13 level. He had been diagnosed with ADHD. He had worked in various jobs since graduating college, most recently labouring.
· He had struggled with alcohol addiction for much of his adult life including the offending period. He has overcome that addiction and at the time of the plea in mitigation was sober and abstinent from alcohol.
· He had no similar prior matters.
· The images were in a deleted folder.
· He was in receipt of a modest Centrelink benefit of $600 a fortnight, 70% of which goes directly to Bethlehem House.
· He had engaged with a job provider with a view to obtaining employment.
Counsel for the applicant made the following submissions to me in her written submissions:
"9 In relation to the specific matters raised in Latham the Applicant submits that the following matters ought to have led to a determination that this offending was at the lower end of the scale:
aThere were only six images located, which is a very low number of images compared to most cases that are the subject of criminal proceedings.
bThis was a case of mere possession with no aggravating factors such as profit, benefit or distribution alleged.
cThe level of personal interest was low, noting that there were only 6 images that were not organised and had been deleted by the Applicant. The offending was on a single date namely March 25th 2020 and there was no evidence of a pervasive interest in the material.
dThere was no risk of accidental discovery by innocent parties, as the images had been deleted and were only ever on a password protected phone that nobody had access to other than the Applicant.
10 The Applicant made full admissions to the conduct when spoken to by the police, and he entered a plea of guilty at an early stage after an amendment was made to the complaint. This co-operation was indicative of a willingness to facilitate the course of justice and a demonstration of remorse."
She contends that, taking all of those factors into account, the sentence imposed of six months' imprisonment, wholly suspended, was manifestly excessive.
The respondent's submissions
Counsel for the respondent argued against that contention in her written submissions as follows:
"6 In light of the factors outlined in Latham, the offending in this case was serious because of the nature and content of the images. The CEM depicted real, pre-pubescent children, estimated to be between 8 and 12 years old. The charge included a category 4 image of penile-vaginal penetration by an adult male. While category 5 (which includes sadism, bestiality, humiliation, torture and child abuse) is regarded as the worst on the ANVIL scale, a category 4 image is still a matter of particular gravity and concern.
7 Possessing CEM is not a victimless crime. The physical and emotional harm inflicted on the victims in the both the category 3 and 4 images was obvious in the descriptions provided in the facts. His Honour appropriately attributed the seriousness of the offending to that fact that 'there is a child that is being exploited, and traumatised, and physically harmed' .
8 The applicant was convicted of possessing six images. The number is fewer than in other matters, and the learned Magistrate expressly took this into account. However, the number of images is a secondary issue to the nature and content of material (Latham supra at [35]). His Honour recognised this and gave this factor appropriate consideration.
9 Possessing CEM is also an indictable offence under s 130C of the Criminal Code. The Director of Public Prosecutions' Prosecution Policy and Guidelines provides that ordinarily summary charges should be pursued where there is no more than five still images in total of categories 3, 4 and 5. The applicant had three images across categories 3 and 4. This quantity makes it a serious example of CEM that would be dealt with in the Magistrates Court.
10 While it is not alleged that the applicant intended to distribute, profit or benefit from possessing CEM, the absence of these factors is not mitigatory (Latham supra at [34]). The learned Magistrate was entitled to, and did, take into account that possession would encourage others to engage in the production and distribution of CEM; Latham supra [33]).
11 The applicant submits that the offending was on a single date, and there was no evidence of a pervasive interest in CEM. It is accepted that the charge was laid on the basis that the offence occurred on the particular day it was seized. However, the applicant himself admitted that he had previously downloaded CEM to his phone and would later feel ashamed and delete it. Irrespective of the lower number of images or their deletion, the applicant actively sought out CEM and had done so previously. This is not a case of inadvertent or accidental possession. These admissions suggest a continuing interest in, and possession of, CEM that the learned Magistrate was entitled to take into account, especially as they indicate a need for specific deterrence in the sentence imposed.
12 It is accepted that there was no risk of accidental discovery by innocent parties due to the images being deleted on a password protected phone. Nevertheless, this demonstrates the insidious nature of this type of offending and raises concerns about its potential prevalence in the community. It follows that general deterrence and denunciation should be given particular significance in sentencing to give effect to society's condemnation of CEM and deter others who might otherwise think their offending cannot be detected. No submissions were made at sentence that the applicant was not a suitable vehicle for general deterrence and denunciation." [Appeal Book references omitted.]
As to the applicant's prior good character, counsel for the respondent submits, correctly in my view, that previous good character is common in offences involving child exploitation material and should be given less weight in sentencing (Mouscas v The Queen [2008] NSWCCA 181 at [37]). She points out that the learned magistrate expressly took into account the applicant's good record, but did not give it undue weight.
Disposition
I accept the submissions made by counsel for the respondent. As she notes, the sentence, while "at the upper end", fell within the learned magistrate's very wide sentencing discretion (Visser v Smart [1998] TASSC 151).
The maximum penalty for possession of child exploitation material under s 74A of the Classification (Publications, Films and Computer Games) Enforcement Act is a fine not exceeding 200 penalty units and/or two years' imprisonment. Imprisonment was a sentence open to the learned magistrate and while heavy, it should be noted that it is not an egregious departure from sentences passed by judges of this Court for crimes against s 130C of the Criminal Code which fall at the "lower end" of cases of that crime.
While I might have considered a different sentencing modality or a shorter term of imprisonment, I am unable to say that the sentence imposed was "unreasonable or plainly unjust", or that it fell outside the parameters of the learned magistrate's very wide sentencing discretion.
No error has been established and the motion to review is dismissed.
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