Marks v The State of Western Australia
[2022] WASCA 106
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MARKS -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 106
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 21 JUNE 2022
DELIVERED : 19 AUGUST 2022
FILE NO/S: CACR 107 of 2021
BETWEEN: BENJAMIN JOHN MARKS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : IND 1242 of 2020
Catchwords:
Criminal Law - Sentencing - Using a carriage service to access child pornography material - Whether individual sentences are manifestly excessive - Whether total effective sentence infringes the first limb of the totality principle
Legislation:
Criminal Code (Cth), s 474.19
Result:
Leave to appeal on grounds 2 and 3 granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | S D Freitag SC |
| Respondent | : | S D Packham |
Solicitors:
| Appellant | : | Porter Scudds Barristers & Solicitors |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Cluett v The Queen [2019] WASCA 111; (2019) 279 A Crim R 57
Director of Public Prosecutions (Cth) v CCQ [2021] QCA 4
Dragon v The State of Western Australia [2019] WASCA 84
Kabambi v The State of Western Australia [2019] WASCA 44
Kenworthy v The Queen [No 2] [2016] WASCA 207
Musca v The Queen [2021] WASCA 37
R v Edwards [2019] QCA 15
R v Whitehead [2020] QCA 215
Wilson v The Queen [2020] NSWCCA 211
Young v The Queen [2021] SASCA 51
JUDGMENT OF THE COURT:
Summary
On 20 May 2021, the appellant was convicted, after trial by jury, of six counts of using a carriage service to access child pornography material, contrary to s 474.19 of the Criminal Code (Cth) (Code).
At the time of the appellant's offending, the Code distinguished between 'child pornography material' and 'child abuse material'. However, the Code has been subsequently amended to remove provisions relating to 'child pornography material' and to expand the meaning of 'child abuse material'. It has been recognised that attaching the word 'pornography' to such material is no longer the appropriate or accepted terminology as it is a barrier to conveying the seriousness and gravity of the offences, the inherently abusive nature of the material, and the harm caused to the children depicted in the material.[1] However, while we recognise it is generally undesirable to refer to 'child pornography', these reasons must employ the statutory language in force at the time of the appellant's offending.
[1] See Explanatory Memorandum, Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 (Cth); and Director of Public Prosecutions (Cth) v CCQ [2021] QCA 4 [7].
On 29 July 2021, the appellant was sentenced to a total effective sentence of 3 years 1 month's imprisonment with a non-parole period of 18 months. The following individual sentences were imposed:[2]
[2] Trial ts 521 - 522.
Count
Date of offence
Term of imprisonment
Cumulative / Concurrent
1
25 July 2018
12 months
Concurrent
2
26 July 2018
2 years 3 months
Concurrent
3
26 July 2018
10 months
Head sentence
4
27 July 2018
18 months
Concurrent
5
27 July 2018
9 months
Concurrent
6
28 July 2018
2 years 3 months
Cumulative on count 3
Total Effective Sentence
3 years 1 month
The appellant now appeals against his sentences on two grounds. Ground 2 contends that the individual sentences imposed for counts 2 and 6 were manifestly excessive. Ground 3 contends that the total effective sentence infringes the first limb of the totality principle. The applications for leave to appeal on those grounds were referred to the hearing of the appeal. Ground 1, which alleged a number of express errors, was abandoned at the hearing of the appeal.[3]
[3] Appeal ts 2, 22.
For the following reasons, neither of the remaining grounds of appeal are established and the appeal must be dismissed.
Circumstances of offending
The trial judge made the following findings as to the circumstances of the appellant's offending which, following the abandonment of appeal ground 1, are not challenged in this appeal.
On the six separate occasions charged in the indictment, the appellant intentionally accessed the internet on his mobile phone and then intentionally accessed child pornography material.[4] He typed in search terms knowing that they were terms associated with child pornography material and intentionally accessed child pornography material as a result of entering those search terms into his mobile phone.[5]
[4] Trial ts 498, 500.
[5] Trial ts 503.
The offending was detected when the appellant's mobile phone was the subject of a lawful telecommunications interception warrant that commenced on 24 July 2018. Pursuant to the warrant, audio calls, text messages and website access on the appellant's phone were intercepted.
The website access that was intercepted included the following access to child pornography material websites, which sites included images of child pornography material.[6]
Count 1
[6] Trial ts 499. The following findings were made at trial ts 499, 505 - 507 and the particulars (reproduced at White AB 261 - 266) incorporated into the trial judge's sentencing remarks at trial ts 504.
Between 8.39 pm and 9.08 pm on 25 July 2018, the appellant accessed 43 websites, including six sites which contained galleries of photographs of child pornography material. The appellant accessed the sites containing child pornography material numerous times over the 29‑minute session. He stayed on those sites for a total of about 10 minutes.
Images the subject of count 1 involved children ranging in age from approximately 10 ‑ 15 years old. The content of the images ranged from children posing alone in sexually suggestive postures, some in 'skimpy' clothing and some fully naked, to children performing fellatio and cunnilingus on adults and, on at least one occasion, being anally penetrated by a penis.
Count 2
Between 9.45 am and 4.44 pm on 26 July 2018, the appellant accessed 603 websites, including 28 sites containing galleries of images of child pornography material.[7] The appellant accessed the sites containing child pornography material for about 20 minutes 8 seconds of the 7‑hour session.
[7] The schedule which the judge incorporated in his findings also made reference to 'DSN', or data session number, where multiple different websites were accessed. The judge made no finding, and it was not clear from the evidence at trial ts 186, as to whether the websites accessed in these sessions were separate from the specific websites referred to in the schedule. The 'DSN' sessions have not been included in references to the number of websites accessed in these reasons.
Images the subject of count 2 involved children ranging in age from approximately 1 ‑ 10 years old. The content of the images ranged from children posing alone, or with other children, in sexually suggestive postures, some in 'skimpy' clothing and some fully naked, to children masturbating, performing fellatio on adults and engaging in penile/vaginal and penile/anal penetration with adults. A relatively small number of images showed children as young as 1 or 2 years old performing fellatio on adults or having an adult perform cunnilingus on the child. One photograph showed an adult penis placed beside the vaginal area of a naked baby.
Count 3
Between 7.15 pm and 7.18 pm on 26 July 2018, the appellant accessed 10 websites, including six sites containing images of child pornography material.[8]
[8] The duration of access to the sites containing child pornography material is unclear due to a mathematical error in the schedule adopted by the trial judge. The schedule indicates that sites containing child pornography material were accessed for 8 minutes 28 seconds of a session that was 3 minutes long.
Images the subject of count 3 involved children ranging in age from approximately 5 ‑ 15 years old. The content of the images ranged from children posing naked and/or in sexually suggestive poses, to children, including multiple children at the younger end of the noted age range, engaging in fellatio, digital and penile/vaginal penetration with adults, posing while restrained with tape or string, and at least one photograph of a child of approximately 10 years strapped to a bench having a dog perform cunnilingus on her.
Count 4
Between 7.48 am and 1.21 pm on 27 July 2018, the appellant accessed 81 websites, including five sites containing images of child pornography material. The appellant accessed the sites containing child pornography material for about 2 minutes 34 seconds of the 5.5-hour session.
Images the subject of count 4 involved children ranging in age from infancy to approximately 12 years old. The content of the images ranged from children including infants posing naked or suggestively clothed to children, including in the age range of 3 - 4 years, engaging in fellatio, penile/vaginal and penile/anal penetration with adults, having fellatio or cunnilingus performed on them by adults or masturbating adult penises. At least one photograph showed a child at the older end of the noted range having her vagina penetrated by a dog's penis. At least one photograph showed a child at the older end of the range hogtied and gagged with ropes. A number of photographs showed naked children with semen on their bodies and/or vaginal areas.
Count 5
Between 3.23 pm and 3.29 pm on 27 July 2018, the appellant accessed six websites, including two sites which contained images of child pornography material. The appellant accessed the sites containing child pornography material for about 1 minute 41 seconds of the 6‑minute session.
Images the subject of count 5 involved children ranging in age from approximately 5 ‑ 10 years old posing topless or in suggestive clothing.
Count 6
Between 10.56 am and 3.52 pm on 28 July 2018, the appellant accessed 521 websites, including six sites which contained images of child pornography material. The appellant accessed the sites containing child pornography material for about 7 minutes 46 seconds of the approximately 5-hour session.
Images the subject of count 6 involved children ranging in age from approximately 2 ‑ 5 years old. The content of the images ranged from children posing alone, either naked or in suggestive clothing, to children inserting bottles or sex toys in their vaginas, engaging in fellatio and cunnilingus with adults and engaging in digital/vaginal penetration and penile/vaginal penetration.
Websites not containing child pornography material
As noted above, the trial judge found that only a relatively small proportion of the websites accessed by the appellant contained child pornography material. It was uncontroversial that the other websites referred to were included for one or more of the following reasons:[9]
[9] See the schedule of material from telephone intercept data set at White AB 271 - 276.
1.The websites contained nude photographs of females whose age was unable to be established as under 18, but had links to words recognised to be linked with child pornography material.
2.Content was blocked (didn't load) but the web address and/or domain and/or description contained words linked to child pornography material.
3.The website itself was blocked by Interpol and displayed the following warning:
Your browser has tried to contact a domain that is distributing child sexual abuse material. Access to this domain has been blocked by your Access Service Provider in co-operation with INTERPOL.
4.The website contained galleries in which the words used to describe the title were words recognised to be linked with child pornography material.
5.The website contained hyperlinks in which the words used to describe the title were words recognised to be linked with child pornography material.
Findings as to the circumstances of the offending
The appellant conducted repeated searches for terms which were either obviously searches for child pornography material or used phrases associated with child pornography material.[10]
[10] Trial ts 500 ‑ 501.
The appellant did not download or save any of the material which he viewed.[11]
[11] Trial ts 501.
The appellant was a heavy cocaine user at the time of the offences and probably accessed the child pornography material while under the influence of cocaine.[12] However, the appellant's thinking was not so impaired by his illicit drug use that he acted impulsively or in a way over which he had little control or understanding of what he was doing. The appellant fully understood the unlawfulness of his actions and the depravity of the material he was accessing and had the ability to control his actions.[13] The appellant accessed the child pornography material because he had a sexual interest in it.[14]
[12] Trial ts 501 - 502.
[13] Trial ts 516.
[14] Trial ts 508, 514, 516.
The appellant accessed child pornography material on earlier occasions. His offending was not isolated or restricted to the conduct the subject of the charges over the 4-day period in July 2018.[15]
Interview with police
[15] Trial ts 503 - 504.
When interviewed by police on 16 August 2018, the appellant admitted to using his phone to access websites containing child pornography material, which he knew were wrong to view. He described clicking repeatedly on websites after consuming drugs. The appellant told police that he did not access the sites for self-gratification, but rather accessed the sites as a distraction to take his mind off things.[16]
[16] Trial ts 500.
Personal circumstances
The trial judge made the following findings as to the appellant's personal circumstances.
The appellant was 39 years old at the time of sentencing. He was born in the eastern states after his mother and father had a brief relationship. He was raised by his mother and stepfather in a Pentecostal religious cult. He suffered frequent physical abuse at the hands of his parents, who would frequently beat him and tell him that he had the devil in him. The appellant also witnessed his stepfather's physical abuse of his mother and an older brother.[17]
[17] Trial ts 509.
The appellant left school at the age of 14 years and was homeless, and at some stage moved to Western Australia. At the age of 18 years, the appellant began working for a German painter. The appellant later started his own painting business, which he was operating at the time of sentencing. At the time of sentencing, the appellant was living in Port Hedland and had been in a long-term relationship for about 4 years. The appellant has a daughter from a previous relationship, who was 6 years old at the time of sentencing.[18]
[18] Trial ts 510.
The appellant has no ongoing contact with his mother or stepfather. At the time of sentencing, he had recently contacted his biological father, who he did not know growing up. The appellant hoped to meet his biological father in due course.[19]
[19] Trial ts 509 - 510.
At the age of 6 - 7 years, the appellant was sexually abused by a music teacher. He continued to suffer trauma associated with that sexual abuse, including flashbacks and nightmares.[20]
[20] Trial ts 509 - 510.
The appellant turned to drug use and abuse of alcohol in the belief that it helped him to cope with the trauma associated with the sexual abuse to which he was subjected as a young child.[21] He started using cocaine in 2018 during a trip to South America. At this time, the appellant was suffering flashbacks of his childhood trauma and also feeling stressed because his former wife was threatening to take their daughter to Taiwan, and he was only permitted to see his daughter twice a week. The appellant quickly became addicted to cocaine and was soon using it daily. The appellant continued to use cocaine after he returned to Australia.[22]
[21] Trial ts 510.
[22] Trial ts 511.
The appellant suffered from post-traumatic stress disorder arising from childhood abuse, and the appellant's drug and alcohol abuse was a consequence of that disorder.[23] The appellant had taken steps towards rehabilitation in relation to his long-term illicit drug use and childhood issues. The rehabilitation was not to deal with the circumstances of the current offending, which the appellant continued to deny.[24]
[23] Trial ts 515 - 516.
[24] Trial ts 520.
The trial judge was not able to make any specific finding regarding the risk of the appellant reoffending. He did not accept a psychologist's opinion that the appellant was a low risk of reoffending or relapsing into illicit drug use.[25]
[25] Trial ts 514.
The appellant showed no remorse or acceptance of responsibility for his offending. He had no insight into why the offending was so serious.[26]
[26] Trial ts 510.
The appellant has a prior criminal record. In April 2018 he was fined for an offence of being armed or pretending to be armed in a way that may cause fear, and of a breach of protective bail conditions. In August 2017, he was fined for refusing to comply with an order under the Taxation Administration Act 1953 (Cth). He was fined for minor drug offences in 2010 and 2016. He had also been convicted of minor traffic offending.[27]
[27] Trial ts 510 ‑ 511.
In October 2020, the appellant was convicted on his plea of guilty of possessing cocaine with intent to sell or supply it to another. The date of that offence was in August 2018. He was sentenced on the basis that, although he would have used most of the cocaine himself, he would have supplied some of the cocaine to acquaintances in a recreational context. The appellant was sentenced to 18 months' imprisonment, suspended for 15 months after serving 3 months. This sentence took account of the fact that the appellant had spent 3 months in custody on remand, so that he spent 6 months in custody in total. He had not otherwise been sentenced to a term of imprisonment when the current sentences were imposed.[28]
[28] Trial ts 510 - 511.
References were produced from:[29]
1.the appellant's current partner, who described the appellant suffering a breakdown in July 2018;
2.persons who knew the appellant through his work and spoke of his good work ethic; and
3.the appellant's half-brother and a childhood friend, who confirmed the appellant's abusive upbringing.
[29] Trial ts 517 - 518.
Trial judge's approach
In assessing the appellant's level of culpability, the trial judge took into account the nature of the images, the large number of images and the extremely disturbing content of the material accessed by the appellant. The trial judge said that the images were serious examples of child pornography material which, on any view, were 'appalling and an exploitation of the children concerned'.[30]
[30] Trial ts 506.
The trial judge rejected the appellant's evidence at trial that he did not recall accessing, and did not intend to access, child pornography material.[31]
[31] Trial ts 507.
The trial judge observed:[32]
The problem with child pornography [material] in its various forms is an international one. And of course, with the advent of the Internet and various sophisticated transmission and downloading storage techniques, it has become a problem which is extremely difficult to detect.
As long as there are people like you who provide a ready market for this material, children in particular will continue to be exploited and abused.
What is important, it must be stressed in the sentencing process, is the issue of general deterrence. Child pornography [material] in particular involves exploitation and corruption of children who are vulnerable and incapable of protecting themselves. Whenever children are shown in pornographic poses, they are being abused.
The Supreme Court has said that the possession of child pornography [material], even for 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 for this kind of material. The court has also emphasised there is a clear public interest in preventing access to child pornography [material].
Although you have been convicted of accessing child pornography [material] rather than being in possession of child pornography [material], the same principles referred to by the Supreme Court are relevant here.
The need for general deterrence is high so that the demand for such images is reduced and the incentive to exploit children in order to meet that demand is also diminished. Demand for the material encourages criminals to continue to abuse children.
[32] Trial ts 507 - 508.
The trial judge identified the following mitigating factors:[33]
1.The appellant's dysfunctional background, including the abuse he experienced as a young child which had a traumatic impact on him.
2.The important steps which the appellant had taken towards rehabilitation while subject to the suspended imprisonment order for the drug offending.
3.The formal admissions which the appellant made at the commencement of his trial, which narrowed the issues and assisted the conduct of the trial.
[33] Trial ts 508 - 509.
In setting out the appellant's personal history, the trial judge noted that the appellant's prior offending did not aggravate the seriousness of his offending. Its main relevance was that it could not be said that, until the current offending, the appellant was otherwise a person of good character.[34]
[34] Trial ts 511.
The trial judge quoted the following passage of this court's decision in Kenworthy v The Queen [No 2]:[35]
[T]he imposition of a sentence other than immediate imprisonment for State offences of possessing child exploitation material and the federal offence of importing child pornography [material] is, as a matter of fact, exceptional. Deterrence is a paramount consideration. The courts have recognised that those who possess or import child pornography [material] help fuel the demand for it, and that deterrence is required to protect children from sexual abuse and exploitation. Similar statements are to be found in other jurisdictions in the context of considering sentences imposed under s 474.19 of the [Code]. (citations omitted)
[35] Kenworthy v The Queen [No 2] [2016] WASCA 207 [166], quoted at trial ts 518.
The trial judge also referred to the following observations made by this court in Kenworthy following a review of comparable sentencing cases:[36]
These decisions indicate that, as a matter of fact, a sentence for an offence against s 474.19 of the [Code] which does not require the service of a custodial sentence is exceptional. All of the cases cited above involved pleas of guilty by offenders of prior good character. A number of the cases involved offences committed at a time when the maximum penalty was 10 rather than 15 years' imprisonment. The individual sentences of immediate imprisonment for offences against s 474.19 imposed or upheld on appeal in reviewed cases range from 9 months to 4 years 6 months' imprisonment. Most of the individual sentences for offences against s 474.19 are substantially less than the 3‑year sentences imposed for counts 5 and 7 in the present case. Individual sentences approaching or exceeding 3 years' imprisonment have been imposed only for the more serious kinds of offences.
[36] Kenworthy [180], referred to at trial ts 518.
The trial judge concluded that personal deterrence was an important sentencing consideration in this case given the appellant's lack of remorse and insight into his offending as well as his lack of openness in explaining the circumstances of his offending. General deterrence was also an important sentencing consideration which meant that less weight could be given to mitigating circumstances personal to the appellant than might otherwise be the case.[37]
[37] Trial ts 518 - 519.
The trial judge concluded that an immediate term of imprisonment was the only appropriate sentencing option in this case.[38] The judge imposed the individual sentences noted at [3] above. Having regard to the totality principle, his Honour ordered that the sentences imposed on counts 1 - 5 be served concurrently with each other and commence on the date of sentencing. The sentence of 2 years 3 months' imprisonment imposed on count 6 was ordered to be served cumulatively on the sentence of 10 months' imprisonment imposed on count 3. This resulted in a total effective sentence of 3 years 1 month's imprisonment. The trial judge made the appellant eligible for parole after serving 18 months of the sentence.[39]
[38] Trial ts 519 - 521.
[39] Trial ts 521 - 522.
General principles
The grounds of appeal assert inferred, rather than express, error. The relevant principles are well established, and were summarised in Kabambi v The State of Western Australia:[40]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[40] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Ground 2: manifest excess
Operative provisions and maximum penalty
Section 474.19(1) of the Code, as it stood at the time of the appellant's offending, provided that:
(1)A person commits an offence if:
(a)the person:
(i)accesses material; or
(ii)causes material to be transmitted to himself or herself; or
(iii)transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv)solicits material; and
(aa)the person does so using a carriage service; and
(b)the material is child pornography material.
Intention (ie. that the person meant to engage in the conduct) is the fault element for the conduct referred to in par (a). Absolute liability applied to par (aa). Recklessness was the fault element for the circumstance referred to in par (b).[41] The fault element for the circumstance referred to in par (b) would be established if:[42]
(a)the person believed or was aware that the material was child pornography material; or
(b)the person was aware of a substantial risk that the material was child pornography material and, having regard to all the circumstances known to the person, it was unjustifiable to take that risk.
[41] See s 474.19 (2) and (2A) of the Code.
[42] See s 5.2(2), s 5.3, s 5.4(1) and s 5.4(4) of the Code.
The maximum penalty for an offence against s 474.19(1) of the Code was 15 years' imprisonment.
Section 473.1 of the Code contained the definition of 'child pornography material' which included:[43]
material that depicts a person … who is, or appears to be, under 18 years of age and who … is engaged in … a sexual pose or sexual activity … in a way that reasonable persons would regard as being, in all the circumstances, offensive[.]
[43] In par (a) of the definition.
'Child pornography material' could also include:[44]
(1)a representation of a person who appears to be under 18 years of age engaged in such activity; and
(2)a description of a person who is implied to be under 18 years of age engaged in such activity.
[44] In par (a) and (c) of the definition.
Section 474.20 of the Code, as it stood at the time of the appellant's offending, created an offence relating to the possession, control, production, supply or obtaining of child pornography material with the intention that the material be used in committing an offence against s 474.19 of the Code. The maximum penalty for that offence was also 15 years' imprisonment.
Section 474.22 and s 474.23 created similar offences to s 474.19 and s 474.20 respectively in relation to 'child abuse material'. 'Child abuse material' was generally defined in s 473.1 as involving torture, cruelty or physical abuse of a person who was, or appeared to be, under the age of 18 years. The maximum penalty for an offence against s 474.22 and s 474.23 was also 15 years' imprisonment.
Section 474.24A, as it stood at the time of the appellant's offending, created an aggravated offence where a person offended against s 474.19, s 474.20, s 474.22 and/or s 474.23 on three or more separate occasions and the commission of each offence involved two or more people. The maximum penalty for that offence was 25 years' imprisonment.
The above provisions have been amended since the appellant's offending. The definition of 'child pornography material' has been deleted from the Code, and s 474.19 and s 474.20 have been repealed. The definition of 'child abuse material' has been amended to include and expand what was previously defined as 'child pornography material'. The offences relating to the expanded definition of child abuse material in s 474.22 and s 474.23 remain, with maximum penalties of 15 years' imprisonment. There is also a new offence, in s 474.22A, of possessing or controlling child abuse material obtained or accessed using a carriage service (which has a maximum penalty of 15 years' imprisonment). The aggravated offence under s 474.24A remains, applying to individual offences against s 474.22, s 474.22A and s 474.23 of the Code.
Customary sentencing standards
In 2016, this court reviewed sentencing authorities dealing with s 474.19 of the Code in Kenworthy, noting the sentencing patterns described in the passages quoted at [45] and [46] above.[45]
[45] Subsequent decisions considering offending against s 474.19 of the Code include Cluett v The Queen [2019] WASCA 111; (2019) 279 A Crim R 57 and the cases cited at footnote 13 of that decision; R v Edwards [2019] QCA 15; Wilson v The Queen [2020] NSWCCA 211; R v Whitehead [2020] QCA 215; Musca v The Queen [2021] WASCA 37; Young v The Queen [2021] SASCA 51.
More recently, in CCQ, Morrison JA (Philippides JA and Crow J concurring) identified the following general principles:[46]
[46] CCQ [8].
(a)general deterrence is the primary sentencing consideration for offending involving child abuse material given the prevalence and ready availability of pornography involving children, particularly on the internet, and the need to protect children from sexual abuse;
(b)there is a paramount public interest in promoting the protection of children as possession of child pornography [material] is not a victimless crime, the possession of child abuse material creates a market for the continued corruption and exploitation of children, and children are sexually abused in order to supply the market;
(c)the fact that an offender has no relevant prior convictions carries less weight in sentencing for child pornography [material] offences;
(d)offending involving child abuse material occurs on an international level, and the advent of the internet as a means to access child abuse material means both that such offending is becoming increasingly prevalent, and that it is difficult to detect, given the anonymity the internet can provide;
(e)the fact that an offender did not pay to access a child abuse material website, or was not involved in the distribution or sale of child abuse material, does not mitigate the offending;
(f)the subjective circumstances of an offender must not overshadow the objective gravity of the offences; and
(g)in a case of dissemination, the number of persons to whom the material is distributed is relevant.
(citations omitted)
Morrison JA also identified the following non-exclusive list of relevant considerations when assessing the objective seriousness of offences involving child abuse material:[47]
[47] CCQ [9].
(a)the nature and content of the material, particularly the age of the children and the gravity of the sexual activity depicted, including the extent of any cruelty or physical harm to the children that may be discernible from the material;
(b)the number of items or images possessed, accessed or transmitted;
(c)whether the material is for the purpose of sale or further distribution;
(d)in a case of distribution or transmission, the number of persons to whom the material was transmitted;
(e)whether any payment or other material benefit (including the exchange of child pornography material) was made or received for the acquisition or transmission of the child pornography material;
(f)whether actual children were involved in the creation of the material, and the number of children depicted and thereby victimised;
(g)the length of time over which the offending occurred; and
(h)the degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.
CCQ was an exceptionally serious case in which a head sentence of 12 years' imprisonment for an aggravated offence (imposed to reflect the overall criminality of the offending) was found to be manifestly inadequate. A sentence of 16 years' imprisonment, with a non-parole period of 10 years, was substituted.
Seriousness of the appellant's offending
The offending the subject of counts 2 and 6 involved the appellant accessing images of very young children (from approximately 1 year old in the case of count 2 and approximately 2 years old in the case of count 6). The level of child sexual abuse depicted in some of the images was extreme. Images the subject of count 2 included children as young as 1 - 2 years performing fellatio on adults or having an adult perform cunnilingus on the child, as well as vaginal and anal penetration. Images the subject of count 6 included activity of the same kind, as well as depictions of digital and penile vaginal penetration. The serious damaging effect of the production of that material, and the re‑victimisation of the children involved in persons accessing that material, is obvious. There were a large number of images of real (as opposed to animated) children contained in galleries of photographs the appellant accessed.
Submissions of counsel for the appellant emphasise the relatively short duration over which the appellant accessed the child pornography material (20 minutes 8 seconds in the case of count 2; 7 minutes 46 seconds in the case of count 6 and about 1 hour overall for all charged offences). We accept that the short duration of access is a factor which tends to reduce the seriousness of the offending.
However, that feature of the appellant's offending must be understood in the context of the determined and persistent efforts which he made to gain access to the child pornography material. The appellant's offending involved using terms associated with the sexual exploitation of children to search for child pornography material on the internet. He knew what terms to use, including a number of search phrases which would not obviously be associated with child pornography material to a person without some special knowledge. He accessed a very large number of websites in his search (603 sites in the case of count 2 and 521 websites in the case of count 6). He persisted in his search in the face of the warnings provided by Interpol notifications. The appellant was not merely reckless as to a risk of accessing child pornography material. He deliberately embarked on an extensive search for that material which he intentionally accessed. The tenacity of the appellant's search for child pornography material is an aggravating feature of the offending.
It is also relevant to note that the appellant's offending was not isolated or out of character. The 4-day duration of the charged offending reflects the period during which the use of his mobile phone was being monitored by police pursuant to the telecommunications interception warrant. However, the offending behaviour was not confined to that period.
Counsel for the appellant also emphasised that the appellant did not store the child pornography material in a retrievable form on his phone or elsewhere. However, the gravamen of the offences created by the Code at the time of the offending was the use of a carriage service for the relevant purposes. Possession of child pornography material was only an offence against s 474.20 if the possession was for the purposes of committing an offence against s 474.19 of the Code. We accept that, in many cases, the fact that child pornography material is accessed to download and store it may be an aggravating feature of an offence against s 474.19 of the Code. The fact that material is stored may result in it being more readily accessible for further viewing and distribution to others. However, the mere fact that the offending involves access to but not storage of child pornography material does not prevent a court from concluding that the offending is a serious example of an offence against s 474.19 of the Code.
This last point is illustrated by the decisions in CCQ and Dragon v The State of Western Australia.[48] In CCQ the Queensland Court of Appeal did not disturb a sentence of 5 years' imprisonment imposed for an offence against s 474.19 of the Code which involved only accessing child pornography material. In Dragon this court refused leave to appeal against individual sentences of 2 years' imprisonment and 2 years 4 months' imprisonment, resulting in a total effective sentence of 4 years 4 months' imprisonment with a non-parole period of 3 years 4 months. The offending in Dragon involved only the access of child pornography material using a computer at an internet café, and the sentences were imposed after an early plea of guilty. Neither of these cases is comparable to the present case: the offending involved in CCQ was exceptionally serious and the antecedents of the offender in Dragon set his case apart from others. However, these cases do illustrate the seriousness with which an offence involving mere access is capable of being regarded and that such offending may still call for a substantial period of imprisonment.
[48] Dragon v The State of Western Australia [2019] WASCA 84.
We accept the submission of counsel for the appellant to the effect that there exist other common aggravating features of the offending of this kind which are absent in the present case. The appellant did not transmit or solicit any images. He did not make or receive any payment in respect of the images he accessed. The child pornography material he accessed were still images rather than video depictions (although the impact of the depicted abused on the children involved would have been no less). He did not organise himself with other offenders and, while his searches for child pornography material were persistent, they were not sophisticated and did not involve any degree of planning.
Personal circumstances
Apart from the appellant's damaging childhood experiences, there were few mitigating factors in this case. The appellant did not have the mitigating benefit of pleas of guilty. His prior record meant that he was not to be sentenced as a person of prior good character. He did not have the mitigating benefit of youth. The fact that he offended while under the influence of cocaine was not mitigating. The appellant was not remorseful and had not developed any significant insight as to the seriousness of his offending. He did have the benefit of some cooperation in the trial process through the making of admissions. While he had taken some steps towards rehabilitation in relation to his drug offending, this was not directed to the offending the subject of the current sentences.
Personal deterrence was a significant sentencing factor in this case. The trial judge's finding that the appellant accessed the child pornography material because he had a sexual interest in it is no longer challenged on appeal. As noted above, the charged offences were not isolated occurrences. The sentences imposed in the present case needed to bring home to the appellant the seriousness of this offending and hopefully deter him from engaging in it again.
The significance of general deterrence as a sentencing consideration also limited the weight to be given to mitigating factors personal to the appellant.
Conclusion as to manifest excess
Having regard to:
(a)the maximum penalty of 15 years' imprisonment for an offence against s 474.19 of the Code;
(b)the customary sentencing approach noted above;
(c)the seriousness of the individual offences charged in counts 2 and 6 described above;
(d)the limited mitigatory factors referred to above; and
(e)all relevant sentencing principles, including those set out in s 16A and s 17A of the Crimes Act 1914 (Cth),
in our view it was open to the trial judge to regard a sentence of 2 years 3 months' imprisonment to be of a severity appropriate in all the circumstances of each of the offences charged in counts 2 and 6. The individual sentences imposed on those counts are not unreasonable or plainly unjust, so as to enable error to be inferred from the outcome of the exercise of the trial judge's sentencing discretion. In our view ground of appeal 2 is not established.
Ground 3: totality
The appellant's argument on ground 3 largely depended on the court finding ground 2 to be established in relation to at least one of counts 2 and 6. In oral submissions, counsel for the appellant conceded that some accumulation of the individual sentences was appropriate.[49]
[49] Appeal ts 31.
In our view, counsel's concession was properly made. Aspects of the offending in counts other than counts 2 and 6 added significantly to the criminality involved in the overall offending. In particular, some images the subject of other counts were especially vile and involved an extremely high level of damaging sexual abuse of the children depicted in the images. For example, count 3 included an image of a dog performing cunnilingus on an approximately 10-year-old girl strapped to a bench; count 4 included an image of a child having her vagina penetrated by a dog's penis. In our view, some degree of accumulation on the individual sentences imposed for counts 2 and 6 was required to reflect the gravity of the offending considered as a whole.
We are satisfied that the total effective sentence of 3 years 1 month's imprisonment, with a non-parole period of 18 months, was not unreasonable or plainly unjust. To the contrary, in our view that total effective sentence did bear a proper relationship to the overall criminality involved in all of the circumstances viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the appellant personally. In reaching that conclusion, we also have regard to the sentence imposed on the appellant for the offending involving cocaine in August 2018. In our view, ground 3 is not established.
Orders
The parties' applications to adduce additional evidence in the appeal have been rendered redundant by the abandonment of ground 1. Therefore, the appellant's application in an appeal dated 11 October 2021 and the respondent's application in an appeal dated 2 December 2021 should each be dismissed.
For the above reasons, while we would grant leave to appeal on grounds 2 and 3, in our view the appeal should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
19 AUGUST 2022
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