James v R

[2009] NSWCCA 62

New South Wales
Court of Criminal Appeal

CITATION:	James v Regina [2009] NSWCCA 62
HEARING DATE(S):	3 March, 2009
JUDGMENT DATE:	3 March 2009
JUDGMENT OF:	Beazley JA at 1; Blanch J at 2; Howie J at 19
EX TEMPORE JUDGMENT DATE:	3 March 2009
DECISION:	Leave to appeal refused. Appeal dismissed.
CATCHWORDS:	Criminal law - possession of child pornography - cumulative sentences
LEGISLATION CITED:	Criminal Code Act 1995 (Cth), s474.19(1)(a)(i) Crimes Act 1900 (NSW), s91H(3) Customs Act 1901, s233BAB(5)
CATEGORY:	Principal judgment
CASES CITED:	R v Gent (2005) 162 A Crim R 29 R v Jones (1999) 108 A Crim R 50
PARTIES:	Christopher Andrew James (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/16178
COUNSEL:	J O'Sullivan (Applicant) W Abraham QC (Respondent)
SOLICITORS:	Lee Hourigan and Brooks, Solicitors (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0777
LOWER COURT JUDICIAL OFFICER:	Walmsley SC DCJ
LOWER COURT DATE OF DECISION:	23 April, 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Christopher Andrew James

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/16178

BEAZLEY JA
BLANCH J
HOWIE J

3 March, 2009

Christopher Andrew JAMES v Regina

JUDGMENT

1 BEAZLEY JA: I will ask Blanch J to deliver the first judgment.

2 BLANCH J: The applicant seeks leave to appeal against a sentence imposed in the District Court on 23 April, 2008. The applicant was charged with two offences:

1. Using a carriage service, namely an internet service, between 1 March 2005 and 7 March 2007 to access child pornography material contrary to s474.19(1)(a)(i) of the Criminal Code (Cth), which carries a maximum penalty of 10 years imprisonment.

2. Possess child pornography material, being 17 compact discs, 2 computer hard drives and 25 colour printed A4 pages containing child pornographic images and videos, contrary to s91H(3) of the Crimes Act (NSW) for which the maximum penalty is 5 years imprisonment.

3 On the first count he was sentenced to 18 months imprisonment commencing on 23 July, 2008. There was a recognizance release order after one year upon him entering into a recognizance to be of good behaviour for three years.

4 On the second offence he was sentenced to six months imprisonment from 23 April, 2008.

5 The effect of the sentences was 21 months imprisonment but released after 15 months on a three year recognizance. He will be released on that recognizance on 22 July, 2009.

6 On 8 March, 2007 the Australian Federal Police executed a search warrant at the applicant’s premises and seized:

1. 8 compact discs from a lounge chair in the rumpus room of the residence.

2. A computer located in the rumpus room and in day to day use at the time of the search – this computer contained a Seagate hard drive.

3. 17 compact discs in the applicant’s bedroom.

3. A computer in the applicant’s bedroom (the applicant stated that it was an older computer no longer in use). This contained an IBM hard drive.

4. 26 colour images printed on A4 pages in a laundry basket in the applicant’s bedroom.

7 A preliminary examination of the material revealed in excess of 130,000 images, videos and movie files, some of which were examined. Of the items examined there were 3,235 child pornography images and 77 child pornography videos identified. The sentencing judge saw some of the material and said that they included images of “… very young children engaging in sexual acts with adults. Some apparently show very young girls, of seven years of age or younger, apparently engaging in fellatio with middle aged men. Others show vaginal to penile contact between girls of that age and men of middle age.”

8 The judge also referred to the fact that the applicant admitted to police that he had been collecting the material for about five years but noted that the Commonwealth offence came into force in early 2005. The sentencing judge categorised the offences as “… of at least mid range.”

9 The subjective case put on behalf of the applicant included the fact that he was born in July 1978, had no prior convictions and was always fully employed. On his behalf there was tendered a Probation and Parole Service report which described him as emotionally immature and without having had any adult relationships. He had been seeing a psychologist, Gerard Webster, whose report was also tendered. He reported the applicant had made considerable progress in gaining insight into his behaviour and he recommended on-going treatment. Mr Webster gave evidence before the sentencing judge and was examined and cross-examined at length. The applicant also gave evidence as did the applicant’s mother.

10 The first ground of appeal argued is that the sentences are manifestly excessive. This Court examined cases relating to the offence of importing child pornography in the case of R v Gent (2005) 162 A Crim R 29. The offence in that case was one of importing contrary to s233BAB(5) of the Customs Act, 1901. The maximum penalty, however, was also ten years. In the judgment of Johnson J at page 38 there is a quotation from Kennedy J in R v Jones (1999) 108 A Crim R 50 at 51 where it was said:

“In recent times the insidious impact of child pornography has come to be better understood. The problem is an international one, which has been significantly aggravated with the advent of the Internet.”

11 Johnson J went on to consider a number of statements from a number of cases in Australia and elsewhere all pointing out that child pornography was a significant crime because it exploited young people and it was not a victimless crime because the collection of such material simply encourages others to corrupt children in order to produce the material. The cases also stress that general deterrence must be an important factor when sentencing. A reading of the cases clearly indicates that a total sentence of 15 months of actual imprisonment could not be described as an excessive penalty. The maximum penalty available to the sentencing judge was up to 15 years imprisonment and looked at against that scale, the sentences actually imposed are, in my view, more properly classified as moderate. I note the judge in imposing the sentence discounted the sentence by 25% to give the applicant the maximum benefit for his plea of guilty at the earliest opportunity. I would reject this ground of appeal.

12 The second ground of appeal argued is that the “judge failed to adequately take into account the appellant’s strong subjective case.” The sentencing judge on the other hand examined the report and the evidence of Mr Webster in detail. He was well aware of the fact that it was recommended there should be on-going treatment and that the applicant had no prior convictions. The judge also noted that he was assessed as not having a robust character and would find difficulty in prison. The judge considered his contrition, his co-operation, his full admissions, his age and his mental condition and that he had reasonable prospects of rehabilitation. The judge, in my view, gave careful consideration to all the subjective features in this case and no error is apparent in the sentencing process. I would reject this ground.

13 The third ground argued was “the sentencing judge failed to impose an appropriate period of custody for the Commonwealth and State offences, having regard to the full term of the sentence for the Commonwealth offence.”

14 The contention is that the usual proportion between the head sentence and the non-parole period is 60 to 66% in Commonwealth sentences. In this case the 18 month sentence is cumulative on 3 months of the State sentence, the effective total sentence is 21 months and the non-parole period is 15 months.

15 On the other hand in this case the proportion of the sentence for the Commonwealth offence to be served was in fact 66%. Although that is disturbed by the 3 month accumulation, in my view the proportion of the sentences to be served in custody is not outside an acceptable range even if both the sentences were for Commonwealth offences. The ratio of 60 to 66% is a general guide and is not a statutory ratio. I would reject this ground.

16 The fourth ground argued is that the sentencing judge “erred in failing to make the sentences wholly concurrent.” That issue was a matter for the discretion of the sentencing judge and it should be seen in the context that the Commonwealth offence occurred between 2005 and 2007 and in respect of the State offence, the applicant admitted he had been collating the material for about five years. These offences are different offences and in view of the applicant’s admission, it was entirely appropriate for there to be some accumulation in respect of the State charge. I would also reject this ground.

17 In my view, there is no merit in the challenge made to the sentences and accordingly, I would refuse leave to appeal and dismiss the appeal.

18 BEAZLEY JA: I agree.

19 HOWIE J: I also agree.

20 BEAZLEY JA: The orders are those proposed by Blanch J.