Phinthong v The Queen

[2011] WASCA 192

PHINTHONG -v- THE QUEEN [2011] WASCA 192

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASCA 192
Court:	THE COURT OF APPEAL (WA)	Published:	16/09/2011
Case No:	CACR:216/2010	Heard:	1 AUGUST 2011
Coram:	McLURE P BUSS JA MAZZA J	Delivered:	1/08/11
No of pages:	7	Judgment Part:	1 of 1
Result:	Appeal allowed Appellant resentenced
Category:	B
PDF Version

Parties:	PALAKORN PHINTHONG THE QUEEN
Catchwords:	Criminal law Appeal against sentence Possession and importation of child pornography Whether sentencing judge failed to make a material finding that the child pornography in count 2 was part of the same material relating to count 1
Legislation:	Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4) Customs Act 1901 (Cth), s 233BAB(5)
Case References:	Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237 Furber v The Queen [2008] WASCA 233 Hill v The State of Western Australia [2009] WASCA 4 Law v The State of Western Australia [2009] WASCA 193 Ponniah v The Queen [2011] WASCA 105 Power v The Queen (1974) 131 CLR 623 R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 R v Liddington (1997) 18 WAR 394 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Smit v The State of Western Australia [2011] WASCA 124

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PHINTHONG -v- THE QUEEN [2011] WASCA 192 CORAM : McLURE P

BUSS JA
MAZZA J

HEARD : 1 AUGUST 2011 DELIVERED : 1 AUGUST 2011 PUBLISHED : 16 SEPTEMBER 2011 FILE NO/S : CACR 216 of 2010 BETWEEN : PALAKORN PHINTHONG

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STEVENSON DCJ

File No : IND 1324 of 2010

Catchwords:

Criminal law - Appeal against sentence - Possession and importation of child pornography - Whether sentencing judge failed to make a material finding that

(Page 2)

the child pornography in count 2 was part of the same material relating to count 1

Legislation:

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4)

Customs Act 1901 (Cth), s 233BAB(5)

Result:

Appeal allowed

Appellant resentenced

Category: B

Representation:

Counsel:

Appellant : Mr D Renton
Respondent : Mr A Elliott

Solicitors:

Appellant : Andrew Maughan & Associates
Respondent : Director of Public Prosecutions (Cth)

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

Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237
Furber v The Queen [2008] WASCA 233
Hill v The State of Western Australia [2009] WASCA 4
Law v The State of Western Australia [2009] WASCA 193
Ponniah v The Queen [2011] WASCA 105
Power v The Queen (1974) 131 CLR 623
R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50
R v Liddington (1997) 18 WAR 394
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Smit v The State of Western Australia [2011] WASCA 124

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1 McLURE P: I agree with Mazza J.

2 BUSS JA: I joined in the orders made by the court on 1 August 2011 for the reasons to be published by Mazza J.

3 MAZZA J: This is an appeal against sentence. At the hearing of the appeal, counsel for the appellant, Mr Renton, abandoned the ground of appeal previously relied upon and, with the consent of the respondent, was permitted to substitute a new ground of appeal as follows:

The learned sentencing judge erred in the exercise of his discretion by failing to make a material finding that the material [child pornography] in [count 2] was … [p]art of the same material as that relating to count 1: appeal ts 3.

4 Mr Elliott, counsel for the respondent, eventually conceded the new ground: appeal ts 9. Although the concession does not bind this court, it was, in the circumstances, appropriate.

5 As a result, the court made the following orders:

1. Appeal allowed.

2. Order for cumulation set aside.

3. Sentences to be served concurrently.

4. The appellant to be released on recognisance after having served 9 months' imprisonment, on the same terms and conditions as were previously imposed.

6 These are my reasons for joining with the other members of the court in making the orders.

Background

7 On 9 November 2010, the appellant pleaded guilty on the fast-track system to two offences on indictment as follows:

1. On 1 June 2010 at Busselton in the State of Western Australia, Palakorn Phinthong possessed child pornography contained on personal computers, contrary to subsection 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).

2. On 8 June 2010 at Perth International Airport in the State of Western Australia Palakorn Phinthong did, without the requisite

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approval being obtained, intentionally import goods, being tier 2 goods comprising child pornography contained on a laptop computer, being reckless to the fact that the goods were tier 2 goods, and being goods the importation of which is prohibited under the Customs Act 1901 (Cth), contrary to section 233BAB(5) of the Customs Act 1901 (Cth).

8 The maximum penalty for count 1 was, at the time the offence was committed, 5 years' imprisonment. The maximum penalty for count 2 is 10 years' imprisonment or a fine not exceeding $275,000, or both.

9 Later that day, Stevenson DCJ imposed the following sentences:

(a) On count 1 - 14 months' immediate imprisonment with eligibility for parole to commence on 8 November 2010.

(b) On count 2 - 18 months' immediate imprisonment with a recognisance release order with the effect that the appellant be released after serving 7 months on a recognisance of $5,000 to be of good behaviour for the balance of the sentence.

10 His Honour ordered that the sentence on count 2 commence 7 months after the commencement of the sentence on count 1 (the cumulation order).

11 The total effective sentence imposed by his Honour was 25 months' imprisonment. As a consequence of his Honour's orders, the appellant was required to serve a minimum of 14 months before he is eligible to be released.

The facts of the appellant's offending as alleged by the prosecution

12 The facts alleged by the prosecution at first instance are as follows. The appellant is a Thai national who entered Australia under an apprentice visa. Some time before 1 June 2010, he travelled to Thailand on holiday. In his absence, on 1 June 2010, his home was searched by police officers who seized, amongst other things, a number of computers. An analysis of the computers revealed the presence of child pornography in the form of at least 36 video files. That material was described by the prosecutor as follows:

The videos ranged in length from 0.2 minutes to 116 minutes and depicted the following. Children of various ages engaged in sexual penetration, including digital and penile penetration with adults.

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Children of various ages engaged in penetrative sexual acts with adults using sex toys. Children of various ages undressing. Children of various ages engaged in oral sex with adults. Children of various ages and adults engaged in masturbation. Children of various ages engaged in anal sex with adults.

Adult males ejaculating in the mouth of or in the face of children. Rape and group rape scenes between children and adults. Children dressed in school uniforms engaged in sexual acts with adults. And children with their hands and feet bound[,] engaged in oral and vaginal penetration with adults. And adults urinating on children whilst engaged in sexual acts: AB 29.

13 On 8 June 2010, the appellant re-entered Australia at Perth International Airport. A search by customs officers found that the appellant was in possession of a laptop computer. This computer was seized and an analysis of it revealed four video files of child pornography. Those files were described by the prosecutor as follows:

The first file was of a 10 to 12-year-old naked female child engaged in sexualised posing. This particular file had a duration of one minute and 29 seconds. The second file involved a 14 to 16-year-old female child engaged in penetrative sexual activity with two adult males. This particular movie went for eight minutes 11 seconds.

The third file involved a 10 to 12-year-old female child engaged in oral sexual activity with an adult male and an adult female. The duration of this file was 28 minute 38 seconds. The fourth file consisted of - depicted two 12 to 14-year-old female children in school uniforms and gagged, engaged in penetrative sexual activity with an adult male. This particular file ran for two minutes: AB 28.

Defence counsel's submissions in mitigation

14 Defence counsel admitted the facts as stated by the prosecutor.

15 With respect to count 2, defence counsel explained that the appellant used his laptop computer to, amongst other things, back up some of the files on his home computers. Defence counsel told his Honour that in this process the four child pornography video files, the subject of count 2, were transferred onto the laptop computer. Defence counsel put it this way:

And that ultimately explains why the four files, the subject of the importation offence, were found on his laptop. They were simply just one of the storage medium that he had utilised to backup some of the data that had been previously acquired on his home computer: AB 32.

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16 In effect, the factual position being put to his Honour by defence counsel was that the material found on the appellant's home computers and laptop computer overlapped. Further, the material on the laptop computer was on it by way of storage and for no other purpose.

17 His Honour understood this. During the Crown's submissions on sentence, the prosecutor made a submission that the two offences were distinct and separate: AB 43. At this point, his Honour interjected and the following exchange took place:

STEVENSON DCJ: Can I just stop you?

ALOI, MS: Yes.

STEVENSON DCJ: In relation to the importation charge, as I understood it, [defence counsel] said that clearly the material was brought into Australia on the laptop of the offender. But I understood, in mitigation, it was material which had been downloaded on the computer for the purpose of storage, rather than obtaining it overseas and bringing it into Australia.

ALOI, MS: Yes, that's correct, your Honour. That's how I understood the submission as well. The Crown doesn't have any forensic evidence it can put before the court to refute such an assertion.

STEVENSON DCJ: Thank you. … : AB 43 - 44.

18 It is clear from this exchange that the prosecution did not challenge defence counsel's submission. Neither at this point nor at any other time during the sentencing proceedings did his Honour indicate that he was not prepared to accept defence counsel's submission on this point.

19 The factual matters asserted in counsel's submissions were clearly relevant and mitigatory in relation to count 2. The material on the laptop was a subset of the material on the home computers. The material had not been acquired during the appellant's holiday. There was nothing to indicate that he had accessed any of the material while he was away from Australia.

20 In the absence of any challenge to defence counsel's submission by either the prosecution or his Honour, it should have been accepted and acted upon: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24] - [27]; and Law v The State of Western Australia [2009] WASCA 193 [25] - [34].

21 In his sentencing remarks, his Honour incorporated the facts of the offences as stated by the prosecution. He failed to find and take into

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account the unchallenged facts relating to the downloading for storage of the material the subject of count 2.

22 Error having being established, this court's jurisdiction to re-sentence the appellant has been enlivened.

The re-sentencing of the appellant

23 Given the amount and nature of the child pornography involved in both counts, the only appropriate disposition was a term of immediate imprisonment, despite the appellant's pleas of guilty, good antecedents and low risk of re-offending.

24 Whether an offender is sentenced under State or Federal Law, the sentencing principles, where an offender is found in possession of child pornography or importing child pornography, are the same. Ordinarily, a sentence of immediate imprisonment would be imposed. This is because such offences are not victimless crimes. Those who are prepared to possess or import it help fuel the demand for it, and in that way encourage the corruption and exploitation of children. In order to protect children, deterrence is the paramount sentencing consideration: R v Liddington (1997) 18 WAR 394; R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50; Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237; Furber v The Queen [2008] WASCA 233; Hill v The State of Western Australia [2009] WASCA 4; Ponniah v The Queen [2011] WASCA 105; and Smit v The State of Western Australia [2011] WASCA 124.

25 The length of the sentence imposed on each count is appropriate. Indeed, the appellant's counsel did not suggest otherwise. However, because of the very close factual connection between the offences, and having regard to considerations of totality, it is appropriate that the sentences be served concurrently. With respect to the sentence on count 2, it was necessary to make a new recognisance release order. I considered 9 months to be the minimum time that justice requires that the appellant must serve, having regard to all the circumstances of the offence: Power v The Queen (1974) 131 CLR 623, 629. The other terms of the recognisance release order are that the appellant enter into a recognisance in the sum of $5,000 to be of good behaviour for the balance of the sentence. The effect of the orders made on 1 August 2011 is that the total effective term of imprisonment is 18 months, and the appellant was eligible for release on 8 August 2011.