Police v Sidney Lee Burchett
[2011] NSWLC 15
•27 May 2011
Local Court
New South Wales
Medium Neutral Citation: Police v Sidney Lee Burchett [2011] NSWLC 15 Hearing dates: 20/04/2011 Decision date: 27 May 2011 Jurisdiction: Criminal Before: Magistrate Tsavdaridis Decision: 1. Sequence 1
Disseminating child pornography
The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 May 2011 and expiring on 26 May 2013 with a non-parole period of 14 months commencing on 27 May 2011 and expiring on 26 July 2012 and a balance of term from 27 July 2012 to 26 May 2013.
2. Sequence 2
Possessing child pornography
The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 August 2011 and expiring on 26 August 2013 with a non-parole period of 14 months commencing on 27 August 2011 and expiring on 26 October 2012 and a balance of term from 27 October 2012 to 26 August 2013.
3. Sequence 3
Possessing child pornography
The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 August 2011 and expiring on 26 August 2013 with a non-parole period of 14 months commencing on 27 August 2011 and expiring on 26 October 2012 and a balance of term from 27 October 2012 to 26 August 2013.
Catchwords: CRIMINAL LAW - Child pornography - Disseminate child pornography - Chat logs forming basis of dissemination charge - Possess child pornography - Sentencing principles Legislation Cited: Crimes Act 1900 (NSW), ss 91H, 91FA, 91FB
Criminal Procedure Act 1986 (NSW), ss 260, 267, 289A, 289B
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22, 44, 58Cases Cited: Cahyadi v R [2007] NSWCCA 1
Han v R [2009] NSWCCA 300
Hejazi v R [2009] NSWCCA 282
Mill v R (1988) 166 CLR 59
Minehan v R [2010] NSWCCA 140
R v Bloomfield (1998) 44 NSWLR 734
R v Boney [2008] NSWCCA 313
R v Booth [2009] NSWCCA 89
R v Borkowski [2009] NSWCCA 102
R v Crump (unreported, 30/5/94, NSWCCA)
R v Dib [2003] NSWCCA 117
R v Doan (2000) 50 NSWLR 115
R v Fidow [2004] NSWCCA 172
R v Gent [2005] NSWCCA 370
R v King [2004] NSWCCA 444
R v Oliver [2003] 1 Cr App R 28
R v Reyes [2005] NSWCCA 218
R v Saddler [2008] NSWDC 48
R v Thomson; R Houlton (2000) 49 NSWLR 383
R v Stambolis [2006] NSWCCA 56
R v Stroempl (1995) 105 CCC (3d) 187
R v Way (2004) 60 NSWLR 168
R v Zamagias [2002] NSWCCA 17
Sinkovich v R [2011] NSWCCA 90
Sullivan v R; Skillin v R [2008] NSWCCA 296
The Queen v De Simoni (1981) 147 CLR 383
Wright v R [2006] NSWCCA 122Category: Sentence Parties: NSW Police Force (Prosecuting Authority)
Sidney Lee Burchett (Offender)Representation: Mr P Lowe (for Offender)
Mr Drabe (for NSW Police Force)
File Number(s): 2010/230812
JUDGMENT
Reasons for Decision
Background
The offender comes before the Court charged with one count of disseminating child pornography and two counts of possessing child pornography, contrary to s 91H(2) of the Crimes Act 1900 (NSW).
The offences are said to have taken place between May 2009 and July 2010 and the charges were laid immediately thereafter. The matter came before Liverpool Local Court on seven occasions, the first of which was 13 August 2010 and then again on 10 September 2010, at which time orders were made for the service of the brief of evidence. On each occasion that the matter came before the Court for the first five appearances, it was anticipated that further charges would be laid and the file was sent by the NSW Police Prosecutorial Branch to the Office of the Director of Public Prosecutions on the basis that the Director would take carriage of the matter. However, the Director returned the file to NSW Police and carriage of the matter remained with them as the prosecuting authority. On 16 February 2011, the sixth occasion on which the matter came before the Court, and following charge negotiations, a plea of guilty was entered to sequences 1, 2 and 3, with sequences 4 to 9 being withdrawn.
There is now a long line of authority that the utilitarian value of a delayed plea is reduced and, consequently, any discount to be applied on sentence is to be reduced accordingly. This applies in circumstances where there has been a plea bargain: R v Dib [2003] NSWCCA 117 and R v Boney [2008] NSWCCA 313, or where an offender waits to see what charges are ultimately brought by the Crown: Sullivan v R; Skillin v R [2008] NSWCCA 296. Having regard to s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the principles enunciated in R v Thomson; R Houlton (2000) 49 NSWLR 383, R v Stambolis [2006] NSWCCA 56 and R v Borkowski [2009] NSWCCA 102 , I take into account the plea of guilty and I allow a 20% discount for the utilitarian value of the pleas.
Facts
The matter proceeded by tender of an agreed Facts Sheet. There was no objection to any of the material contained therein and sentence was based on those facts, in part, and on additional material tendered, to which I will make reference later in these reasons. I have, throughout this judgment, included details of the content of some of the written communications between the offender and others as well as the pictures and videos found in the offender's possession. I have done so not for sensationalist or malevolent reasons but, rather, so as to provide some background as to where these offences lie on the scale of objective seriousness.
In late 2009, a Joint Investigative Response Team tasked with child protection duties investigated and laid charges against a mother and father alleged to have committed sexual assaults on their nine-year-old son. Upon their arrest, a search warrant was executed over their home during which two computers, containing a large number of saved Yahoo chat logs, were seized. The Facts Sheet describes the Yahoo chat site as a peer-to-peer chat program in which one uses the internet as a gateway in order to communicate with other users in real time in the form of a social networking program. Six of the saved chat logs revealed online communications from 21 May 2009 to 12 October 2009 between the parents of the nine-year-old child, using their chat username 'sydney_bi_couple_m50f42' and the offender, using the username 'louise_69r'.
An investigation revealed that the member details of the username 'louise_69r', the two email addresses attached to the account, the internet account, and the IP (internet protocol) addresses associated with the account were all registered in the name of the offender.
As a result of the execution of a search warrant over the offender's premises on 6 July 2010, police seized two computers belonging to the offender. The contents of the hard drives were forensically examined and were found to contain 6379 chat logs consisting of conversations between the offender (via his username 'louise_69r') and 1806 other users. The chat logs ranged between 2005 and 2010 and their review identified a further 28 persons of interest, with the content of communications between such persons and the offender similar to the chat logs forming the basis of sequence 1, referred to below. Some of the chat logs retrieved from the hard drive of the offender's computer include lewd conversations to the following effect: -
Offender: "how's your son?"
Other party: "out playing with his friend at her place round the corner."
Offender: "is she a nudist also?"
Offender: "i have been chatting to a female with a 6yr old daughter, she lives on the north shore, she wants some photos taken, I have told her I would be willing to do so." [referring to nude photos of the woman and her daughter]
Offender: "she wants some photos of me & her daughter together, she want (sic) her to sit on my lap but to put my cock between her legs."
Offender: "your son almost sticking his dick in the girl would be a good photo."
After being made aware that the son of the other party is nine years old, the offender continued.
Offender: "yes he (sic) cock would be the right size for her pussy, I could be fucking mum while your son does the daughter & we could swap... giving the daughter a cum bath."
In other chat logs, the offender purported to be a woman and engaged in the following communication with a different chat user of the Yahoo internet chat site: -
Offender: "hubby wants to fuck a young girl...... What is the youngest girl you have fucked"
Other party: "9... my grand-daughter (sic)."
Offender: "k hubby wants to (sic) a younger girl."
The other party then detailed how he has his grandchildren aged six to eight perform fellatio on him. The offender continued.
Offender: "How did you get them to suck u (sic) at that age."
The other party then described that he has grandchildren aged two, four and five. The offender continued.
Offender: "Have they done it yet"
The other party responded in the negative but suggested next time. The offender continued.
Offender: "would love to see that ...... you should just take in the bedroom 7 (sic) do it to them"
In other chat logs, the offender communicated with a different chat user of the Yahoo internet chat site and made reference to his (the offender's) twelve-year-old son's penis and about him being in the room naked. The offender engaged in the following communication: -
Offender: "[he] is good lloking (sic) for a 12 1/2 year old ...... but I am bias (sic)"
Other party: "nice penis?"
Offender: "yes cut also ... ... long and thin ...... I can't believe I (sic) talking about my sons (sic) cock ...... about 2 to 3 inches so far."
The other party asked whether the offender's son was in the room naked yet to which the offender responded in the affirmative.
In other chat logs, the offender discussed the 15-year-old daughter of a different chat user of the Yahoo internet chat site and enquired as follows:
Offender: "is your daughter a smoothie ...... only way to be is a smoothie."
The other party asked the offender what he likes to see to which the offender replied: -
Offender: "young girls"
The other party sent the offender a photograph (presumably over the internet) and enquired as to whether the offender liked it. The offender replied: -
Offender: "yes ...... I like girls between 10 & 15yrs (sic) old"
In other chat logs, the offender discussed the 13-year-old daughter of a different chat user of the Yahoo internet chat site and, when asked what he (the offender) would like to do with her, the offender replied: -
Offender: "feel her pussy ...... is it smooth"
In other chat logs, the offender is asked by a different chat user of the Yahoo internet chat site how open he (the offender) is with his 13-year-old son. The offender replied: -
Offender: "I suck him off 7 (sic) let him fuck me."
It was conceded by the offender that he was the author of the chat logs; that his communications encouraged the sexual abuse of children; and that he had received numerous images of child exploitation and bestiality material that he downloaded and stored on his computer. There is no evidence to suggest that he had ever engaged in sexual acts with children and he maintained that he engaged in the communications as a means of "talking it up" and to see how far people would take them.
In relation to the possess child pornography charges preferred by sequences 2 and 3, the Facts Sheet discloses that an examination of the hard drives of the two computers seized from the offender's home revealed a number of images and videos depicting child exploitation of children. Located on the desktop computer were 154 images of child exploitation material and 16 video files depicting children engaged in sexual acts. Located on the laptop computer were 122 images of child exploitation material. There is no evidence to suggest that the offender disseminated these images or videos. I will elaborate further on the content of these computers later in these reasons, again, with a view to accurately categorising the level at which the possession offences lie along the spectrum of objective seriousness.
Along with the Facts Sheet, the prosecution tendered a Statement dated 1 November 2010 of Federal Agent Clare Frances Fitzpatrick attached to the Sex Crimes Squad. In her Statement, the officer separated the material found on the offender's two computer hard drives into five categories according to the typology enunciated in the English Court of Appeal guideline judgment of R v Oliver [2003] 1 Cr App R 28. I accept that whilst I have no evidence to confirm that the officer is an authorised analyst appointed under ss 289A and 289B of the Criminal Procedure Act 1986 (NSW) (in relation to the use of random sample evidence in child abuse material cases), her Statement, although containing opinions of the various ages of the children depicted in the images and videos, is instructive in assessing the nature and content of the material located on the offender's computers on the basis of the examples provided by her. It was submitted by the offender's counsel that I would have to accept that the officer's evidence as to the ages of the respective children depicted in the images and videos was opinion evidence. There was no objection by the offender's counsel to the tender of the Statement and the contents therein.
The Statement categorised the images and videos according to the increasing scale of severity (the Oliver scale) ranging from levels 1 to 5. A different scale for Combating Paedophile Information Networks in Europe (the COPINE scale) provides a descriptive analysis of 10 levels of severity based on increasing sexual victimisation for offences investigated in Europe. According to the Oliver scale, the following five levels of activity form the basis of the classification: -
Level 1 - Erotic posing with no sexual activity
Level 2 - Sexual activity between children or solo masturbation by a child
Level 3 - Non-penetrative sexual activity between adults and children
Level 4 - Penetrative sexual activity between adults and children
Level 5 - Sadism and bestiality
According to the officer's Statement, the material located on the offender's two computers was categorised as follows: -
Level 1 - Erotic posing with no sexual activity
97 images of children between four and 14 years of age depicting the children naked, posing erotically while focusing on their genitalia.
Example 1 - Image of a naked female who appears to be approximately eight years of age sitting on a bucket with her legs spread apart exposing her genitalia. The female is urinating into the bucket (File name: !!06pee1.jpg)
Example 2 - Image of a naked female who appears to be approximately nine years of age lying on a bed, with her legs spread apart, using her hands to expose her genitalia (File name: 2077.jpg).
Level 2 - Sexual activity between children or solo masturbation by a child
5 images and 9 videos of children between eight and 14 years of age performing sexual acts on themselves and on each other.
Example 1 - Image of two naked males, approximately 12 years of age, with one male inserting his penis into the other male's mouth (File name2785.jpg).
Example 2 - Video footage of a naked male and naked female, approximately 10 years of age, with the female masturbating the male's penis. The male then inserts his penis into the female's vagina and they proceed to have sexual intercourse. The video is 1 minute and 22 seconds in duration (File name: jenny compl.mpg).
Level 3 - Non-penetrative sexual activity between adults and children
28 images and 2 videos of children between eight and 14 years of age engaging in non-penetrative sexual activities with adults.
Example 1 - Image of a naked female approximately 12 years of age lying on a bed with her legs spread apart touching her genitalia with her fingers. An adult male is kneeling next to her with an erect penis positioned at her chest. There is white fluid that appears to be semen around the tip of the male's penis. The female has her mouth open and there is similar white fluid around her lips and her chin (File name: -!!!Ohdaddy1.jpg)
Example 2 - Video footage of a female who appears to be approximately 14 years of age kneeling while masturbating an adult male penis which is situated in front of her face. The adult male ejaculates and the semen is deposited over the female's face and chest. The video is 29 seconds in duration. (File name: kimm14 no.2.wmv)
Level 4 - Penetrative sexual activity between adults and children
42 images and 5 videos of children between four and 14 years of age engaged in penetrative sexual intercourse or sexual activities with adults.
Example 1 - Image of a naked female, approximately eight years of age, sitting on top of an adult male who has his erect penis inserted into her vagina. There is an adolescent male standing next to him holding his penis in his hand (File name: 000091.jpg).
Example 2 - Video footage showing a female approximately 10 years of age lying naked on a bed. An adult male penis is being repeatedly inserted and removed from her anus. The video is 34 seconds in duration (File name: sex10.wmv).
Level 5 - Sadism and bestiality
4 images of children approximately 12 years of age engaged in sadistic acts.
Example 1 - Image of a naked female approximately 12 years of age with her arms and legs bound with rope and a large white object stuffed into her mouth (File name: wanab1.jpg).
Legislation
Historically, offences such as these were categorised as child pornography, whether they involved dissemination, production or possession. Amendments to the Crimes Act 1900 introduced the words 'child abuse material' which came to be statutorily defined in a widely encompassing fashion to cover all forms of material including still images, videos, and words, in which a child is described as a victim of torture, cruelty, physical abuse, sexual posing or sexual activity. Throughout this decision, I have used the words child pornography and child abuse material interchangeably.
Section 91H of the Crimes Act 1900 provides: -
91H Production, dissemination or possession of child abuse material
(1) In this section:
disseminate child abuse material , includes:
(a) send, supply, exhibit, transmit or communicate it to another person, or
(b) make it available for access by another person, or
(c) enter into any agreement or arrangement to do so.
possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F(2)).
produce child abuse material includes:
(a) film, photograph, print or otherwise make child abuse material, or
(b) alter or manipulate any image for the purpose of making child abuse material, or
(c) enter into any agreement or arrangement to do so.
(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.
Maximum penalty: imprisonment for 10 years.
The definitions applicable in the interpretation of s 91H are set out in ss 91FA and 91FB of the Crimes Act 1900 as follows: -
91FA Definitions
For the purposes of this Division:
child means a person who is under the age of 16 years.
child abuse material - see section 91FB.
data includes:
(a) information in any form, or
(b) any program (or part of a program).
material includes any film, printed matter, data or any other thing of any kind (including any computer image or other depiction).
91FB Child abuse material - meaning
(1) In this Division:
child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:
(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
(d) the private parts of a person who is, appears to be or is implied to be, a child.
(2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:
(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and
(b) the literary, artistic or educational merit (if any) of the material, and
(c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and
(d) the general character of the material (including whether it is of a medical, legal or scientific character).
(3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).
(4) The private parts of a person are:
(a) a person's genital area or anal area, or
(b) the breasts of a female person.
Criminal history of the offender
Other than convictions for drink driving in 1989, for which he received a fine, and larceny as a servant in 1990, for which he performed 200 hours community service, the offender has no criminal record of any relevance to the present offences for which he is to be sentenced.
Pre-sentence report
The Court was provided with a Pre-sentence Report dated 20 April 2011 prepared by Probation and Parole Service, describing the offender as having had a stable upbringing within his family environment and benefiting from close relationships with two of his brothers and his wife of 16 years. He has five children ranging from twin daughters aged 18 months and three sons aged four, five and 15 years of age. Despite the strain on their relationship as a result of these offences, it would appear that his wife is supportive. Due to these offences, however, he was initially suspended, but later resigned, from his employment in the public transport industry in July 2010 and his income ceased in November 2010, following which he did not access government support, rather, utilising the family's savings. The Probation and Parole Officer noted, however, that although he did not dispute the police facts, the offender appeared to minimise and justify the offences claiming that it was his curiosity that drove him to access internet chat sites and, indeed, was surprised by how easy it was to access child pornography. Whilst he conceded that the images were of real people, the offender did not appear to recognise or express any concerns regarding the welfare of the child victims. The offender denied receiving any sexual gratification from the images.
Psychiatric Report
Counsel for the offender tendered a report of Dr O Nielssen, Psychiatrist, dated 2 April 2001. In his report, Dr Nielssen outlined the offender's history, generally in accordance with the submissions made by the offender's counsel. The offender stated that he had never met in person any of the people with whom he had communicated via the internet chat site and that exchanges were a way of pushing the boundaries to see how far the others were willing to go in the conversation. He said that he made up the story and said that he had no intention of doing anything of the kind, believing that all of the comments were fantasy. He had never touched his children or any other children, nor had he ever performed any of the acts described in the exchanges and denied having an attraction to underage children.
Dr Nielssen reported that the offender was not aware that he was breaking any laws by writing what he wrote, but after speaking with police and obtaining legal advice, he realised he had committed an offence. He said that the images found on his computers were both solicited and unsolicited and that while he did not review the images he had received, he regretted not deleting the images immediately. At this stage, I should interpose one salient point, namely, that the offence of possession of child pornography does not require that an offender view any or all of the material the subject of the charge. The offender had never sent any images of his own and had never circulated any images he received. Clinically, he had never been prescribed any kind of psychotropic medication, neither did he suffer any periods of severe depression beyond the understandable effect of criminal charges he now faces. There was no history of symptoms of psychotic illness. Indeed, from the point of view of his mental state, the offender did not present especially anxious or depressed, and seemed, according to Dr Nielssen, rather indifferent to the loss of his job and the risk of a term of imprisonment.
Dr Nielssen concluded by stating that there was no medical evidence to suggest that the offender had any disorder of abnormal sexual interest, such as paedophilia. He reported a stable marriage of some 16 years with no history of offences of a sexual nature and, in the doctor's opinion, the offender's participation in chat room communications with people he had no intention of meeting appeared to be an example of a cultural phenomenon that has been created by widespread access to the internet, in circumstances where the communications of complete fantasy bear little resemblance to the personality of the offender in real life. Dr Nielssen reports the offender presenting a fatalistic attitude to the many losses associated with his charges, and agrees that any term of imprisonment would place a considerable burden on his wife and young children as his wife did not have much in the way of support without him.
Relevant principles
There are a number of relevant considerations to which I must now turn before reaching a conclusion as to the appropriate sentence to be imposed. The first is the purposes of sentencing.
Section 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) enunciates the purposes for which a court may impose sentence as being, namely, punishment, protection of the community, promotion of rehabilitation and accountability, deterrence, both specific and general, denunciation and a recognition of the harm done to the victim of the crime and to the community at large. In my view, sentencing for offences of this kind must comprise a real denunciatory emphasis, with particular regard to general deterrence. One must be especially cognisant of the fact that offences involving child pornography and child sexual abuse material, of whatever kind, are not victimless crimes and in circumstances where technological mediums such as the internet facilitate the exchange of offending material, courts should be vigilant in protecting a vulnerable section of the community from the predatory practices of those who deal with such material. The paramountcy of general deterrence and denunciation as considerations based on the exploitative nature of these offences was made clear in the decision of Simpson J in R v Booth [2009] NSWCCA 89 wherein her Honour (with whom McClelland CJ at CL and Howie J agreed) held, at [40]: -
"40 ... It seems to me that possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.
41 In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. ... The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse....
43 And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.
44 It is for that reason that this is a crime in respect of which general deterrence is of particular significance. In my opinion the sentencing judge too readily dismissed from consideration the need to convey the very serious manner in which courts view possession of child pornography."
In R v Gent [2005] NSWCCA 370, reference was made to the decision of Morden ACJO in the Ontario Court of Appeal in R v Stroempl (1995) 105 CCC (3d) 187 at 191 in which it was held that: -
"The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense, possessors such as the appellant instigate the production and distribution of child pornography - and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place."
The next relevant consideration is the assessment of the objective seriousness of the offences. The Court of Criminal Appeal has provided guidance in relation to assessing offences of this kind. In R v Gent , Johnson J at [99] identified a number of factors to assist in the assessment of objective seriousness: -
"(a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed;
(b) the number of images or items of material possessed by the offender;
(c) whether the possession or importation is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence.
It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised."
More recently, RA Hulme J in Minehan v R [2010] NSWCCA 140 at [94] (with whom Macfarlan and Johnson JJ agreed) identified the following factors as having relevance to an assessment of the objective seriousness of child pornography offences: -
"1. Whether actual children were used in the creation of the material.
2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted.
5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.
6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
8. The proximity of the offender's activities to those responsible for bringing the material into existence.
9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.
10. Whether the offender acted alone or in a collaborative network of like-minded persons.
11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.
12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence."
So far as the possession charges are concerned, paragraphs (c) and (d) of the Gent factors would appear to have no application in that there is no evidence of possession or importation for the purpose of sale or distribution or for profit on the part of the offender. However, paragraphs (a) and (b) of the Gent factors have direct application as do paragraphs 1 and 2 of the Minehan factors. The offender was found in possession of 16 videos and 176 images, 192 items in total, stored across two computers, with children varying in ages between four and 14, with 24% of material falling within the upper range of the Oliver scale (level 4) and 2% at the top of the scale (level 5). The number of images present in Gent's case was 601. When turning to the Minehan factors, in particular paragraph 3, it would seem that the volume of material illustrative of penetrative sexual activity between adults and children at level 4 and sadism and bestiality at level 5 carries with it a real and genuine concern of the cruelty and physical harm occasioned to the children portrayed in those images and footage. Counsel for the offender conceded that there would not have been a significant overlap in the number of children depicted in the material and I understand from that submission that it is of some significance that there would have been numerous children victimised by the activities portrayed in the images and videos as referred to in paragraph 4 of the Minehan factors. It was submitted by counsel for the offender that for the purposes of assessing paragraph 10 of the Minehan factors, the offender acted alone in his pursuits and never met any people of the chat room sites and indeed that there was no evidence that he participated in any activity with the nine-year-old child whose parents were also apprehended by police. Whilst I accept that submission, paragraph 10 of the Minehan factors is quite specific in its application requiring a sentencing court to consider whether the offender acted alone or in a collaborative network of like-minded people. Unlike the Gent factors, which deal primarily with possession of child pornography, the Minehan factors deal with possession, dissemination and production of child pornography. I accept that not all of the 6379 chat logs consisting of conversations between the offender (via his username 'louise_69r') and 1806 other users consisted of offending material. In fact, the Facts Sheet makes it clear that the chat logs ranged between 2005 and 2010 and their review identified a further 28 persons of interest, and it is the content of the communications between those persons and the offender which are similar to the chat logs forming the basis of sequence 1, which I have set out earlier in these reasons. The dissemination offence, by virtue of the chat log conversations, cannot be considered in a vacuum. In my view, there is a clear and unambiguous network of participants, at varying levels along the spectrum of criminality which pervades the standards of morality, decency and propriety enjoyed by mainstream society.
Another relevant consideration is that of increased penalties. Most of the leading cases dealing with the possession of child pornography were decided prior to the amendments carried through principally by the Crimes Amendment (Sexual Offences) Act 2008 (NSW) and to a lesser extent the Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW). By virtue of the Crimes Amendment (Sexual Offences) Act 2008, which commenced on 1 January 2009, the maximum penalty for being in possession of child pornography was increased from five years imprisonment to 10 years imprisonment. This had the effect of imposing the same maximum penalty for possessing child pornography as had already existed for producing or disseminating child pornography, thus merging the various child pornography offences into a single offence. The significance of this point is that when maximum penalties are raised, this is an indication that higher penalties should be imposed. In R v Way (2004) 60 NSWLR 168 at [52], the Court held that: -
"Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum: R v Sha (1988) 38 A Crim R 334; R v Peel [1971] 1 NSWLR 247. The courts are expected to recognise and reflect that intention when sentencing offenders for offences after such amendments are made: R v Slattery (1996) 90 A Crim R 519 at 524 and R v Jurisic (1998) 45 NSWLR 209 at 227."
An increase may represent a change in the community feeling or expectation as to the sentence appropriate for such an offence, although it must be understood that such a change will not necessarily have a wholly determinative or conclusive effect: R v Crump (unreported, 30/5/94, NSWCCA).
Another consideration is that in structuring a sentence with multiple charges, I am required to have regard to the principles of totality. The effect of the totality principle is such that the Court is required to pass "a series of sentences, each properly calculated in relation to the offence for which it is imposed ... [and] to review the aggregate sentence" to determine whether it is 'just and appropriate': Mill v R (1988) 166 CLR 59 at [63].
In assessing the objective seriousness of an offence where the offender has committed multiple offences, the court should not indulge in a global assessment: R v R eyes [2005] N SWCCA 218. The laying of two separate charges for the 'possess' offences appears to have been so as to discern the material found on one computer from the other. In R v Saddler [2008] NSWDC 48, each charge was based on the location of material on separate electronic devices and cumulative sentences were imposed to reflect this. Other than the fact that the images and videos were found on two different computers in the offender's home, the desktop computer and the laptop computer respectively, there is nothing, in my view, which makes one 'possess' charge objectively more or less serious than the other or distinctive in any way and, noting that Saddler's case was decided by a single judge in the District Court of NSW, I distinguish Saddler's case , to the extent that it constitutes any form of persuasive authority. Accordingly, any sentence to be imposed for the two 'possess' charges preferred by sequences 2 and 3 should, in my view, be concurrent as between the themselves. The same cannot be said, however, for the 'disseminate' charge preferred by sequence 1 and the sentence to be imposed for that offence should, in my view, be made partially cumulative and partially concurrent to the offences for sequences 2 and 3 so that, to use the words of Howie J in Cahyadi v R [2007] NSWCCA 1 at [27], the sentence for one offence could "comprehend and reflect the criminality for the other offence" and that if it could not, the sentences should at least be:
"... partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality".
Another consideration which falls for assessment is that of sentencing statistics. Counsel for the offender tendered a number of sentencing statistics of cases decided in this jurisdiction. Whilst they are instructive and I have had regard to them, their use must be tempered with the cautions referred to by Campbell JA in Han v R [2009] NSWCCA 300 at [2] wherein it was held that: -
"Sentences imposed on other people for crimes that bear some similarity to the crime in question can legitimately be looked at as part of the process of a judge fixing a sentence. But in themselves they will not inform the judge of the range of sentences that would properly be open in a correct application of sentencing principles. It is the sentencing principles themselves that it is the duty of the judge to apply. They include taking account of the maximum penalty that Parliament has prescribed for the offence in question, and how the criminality of the particular mode of committing the offence that is being sentenced for compares to the criminality of the various possible ways in which a contravention of the particular prohibition that creates the offence could occur.
3 Statistics about the sentences that have been imposed for a particular offence can be of some assistance in informing the judge about the range of sentences that have actually been imposed for that offence. But the use of such statistics is limited. Part of the reason why that is so is because consideration of the range of sentences actually imposed is at best a check that the judge is correctly applying the sentencing principles. Part is because the statistics leach out many of the objective facts and all of the subjective circumstances that must be taken into account in a sentencing decision. Part is because the limited number of sentences that make up the sentences summarised by the statistics do not necessarily cover the full range of circumstances in which that particular crime can be committed. This list does not purport to be exhaustive."
A more comprehensive list was enunciated by Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 (with Sully and Ireland JJ in agreement). What must be borne in mind when considering a particular sentence are the specific findings as to objective seriousness of the offence and culpability of the offender, rather than a comparison with statistical figures and percentages. The critical question is whether the sentence imposed is appropriate for the particular case: Sinkovich v R [2011] NSWCCA 90 at [41].
The English Court of Appeal in R v Oliver gave some direction as to sentences for offences involving possession of images depicting child pornography at [17]: -
"We agree with the Panel that the custody threshold will usually be passed where any of the material... in cases of possession (consist of) a large amount of material at level 2 or a small amount at level 3 or above. A custodial sentence of up to six months will generally be appropriate in a case where (a) the offender was in possession of a large amount of material at Level 2 or a small amount at Level 3 ...... A sentence of between six and twelve months will generally be appropriate for (b) possessing a small number of images at Levels 4 or 5 ...... In relation to more serious offences a custodial sentence between 12 months and three years will generally be appropriate for possessing a large quantity of material at Levels 4 or 5, even if there is no showing or distribution of it to others."
It should be borne in mind that the maximum penalty applicable in Oliver for possession of child pornography was five years, not 10 years as in the present case.
Aggravating and subjective factors
The written submissions tendered by counsel for the offender do, for the most part, correctly identify the aggravating factors weighing against, and the mitigating factors weighing in favour of, the offender for the purposes of s 21A(2) and (3) of the Crimes (Sentencing Procedure) Act 1999, including the aggravating factor that the offence involved images and videos of multiple victims: s 21A(2)(m); and the mitigating factors that the offender is generally a person of good character, save for the convictions for unrelated offences to which I have referred earlier in these reasons: s 21A(2)(f); the poignant reminder that these proceedings would leave him with such that he is unlikely to re-offend: s 21A(2)(g); his good prospects of rehabilitation: s 21A(2)(h); and his plea of guilty: s 21A(2)(k). I do not believe that the offender is wholly incorrigible despite the pernicious nature of these offences. I am permitted by s 21A(1)(c) of the Act to take into account any other objective or subjective factor that affects the relative seriousness of the offences and, for the reasons given earlier in this decision, I confirm my view that the 'disseminate' offence is one which I view as being exacerbated by virtue of it having been committed in a collaborative network of like-minded persons. It should be remembered that good character, to the extent that it is applicable, is accorded lesser weight in sentencing for offences of child pornography. So much is made clear from R v Gent at [64] wherein it was held that: -
"There is a foundation for the approach that less weight should be attached to the evidence of prior good character on sentence for offences of importing child pornography. ......General deterrence has been referred to as the paramount consideration on sentence for this class of offence (Assheton). The fact that the offence is, in a sense, committed in secret is also relevant to this issue."
Assessment of the Criminality
It is the depiction and descriptions of child sexual abuse, through the chat logs of online communications between the offender and others which, by their sordid nature, offend, grossly in my view, the standards of morality, decency and propriety referred to in the legislation, that form the basis of the 'dissemination' charge preferred by sequence 1. It is the presence alone of the images and videos of children engaging in sexual poses and sexual activities and the portrayal of children as victims of sexual abuse, which reasonable persons would regard as offensive in all the circumstances, that by their inherent nature form the basis of the 'possession' charges preferred by sequences 2 and 3.
As no election was made by the prosecution to proceed with this matter on indictment before the District Court of NSW, the charges retain their classification as indictable offences punishable summarily by virtue of s 260(1) and Table 1 of Schedule 1 of the Criminal Procedure Act 1986. That being the case, the maximum term of imprisonment that the Local Court may impose for an offence is, pursuant to s 267 of the Criminal Procedure Act 1986, two years, or five years, in the case of consecutive sentences (or partly concurrent and partly consecutive sentences) for multiple offences, by virtue of s 58 of the Crimes (Sentencing Procedure) Act 1999.
The maximum penalty for the offences with which the offender is charged is, if dealt with on indictment, 10 years imprisonment. The matter presently under consideration is one to which the principles enunciated in the Court of Criminal Appeal decision of R v Doan (2000) 50 NSWLR 115 (per Grove J at [35]) apply such that sentence is imposed according to the gravity of the offences by reference to the statutory maximum, not the jurisdictional limit of the Local Court.
In relation to the 'disseminate' charge (sequence 1), I am of the opinion that because of the pervasive nature of the chat logs carried out over a broad technological medium such as the internet, across a network of like-minded participants, over a lengthy period of time, the offending conduct falls below the half way mark of the scale of objective seriousness. Initially, I assess the criminality of sequence 1 deserving of a total sentence in the order of three and a half years. This is the significance of the decision of R v Doan .
For the purpose of proceeding to sentence in relation to the remaining two 'possess child pornography' charges (sequences 2 and 3), the offending conduct falls between the low end and half way mark of the scale of objective seriousness. Initially, I assess the criminality of sequences 2 and 3, severally, deserving of a total sentence in the order of two and a half years each, again, on the basis of the reasoning in R v Doan . One should be circumspect, however, in interpreting the words 'low end' as constituting trivial. On the contrary, the categorisation of the offending conduct is such that I may now proceed to assess all factors, both objective and subjective, which have a bearing upon the sentencing exercise with a view to imposing a sentence which is condign in all the circumstances. So much is made clear from the decision of McColl JA in R v King [2004] NSWCCA 444 at [130], with whom Howie and Buddin JJ agreed, in which her Honour held that: -
"The sentencing judge must reach an 'instinctive synthesis' which takes account of and balances the 'conflicting and contradictory' factors which bear upon the sentencing exercise."
The discounts for the pleas of guilty referred to earlier in these reasons are applied to the initial assessments of criminality set out in the preceding two paragraphs rather than from the Court's jurisdictional limit of two years.
Sentence
When deciding to sentence an offender to a term of imprisonment, I am required to undertake a number of steps before finally determining the appropriate sentence. The individual steps require me to consider the objective gravity of the offence and balance that finding against the subjective circumstances of the offender. The decision of Howie J in R v Zamagias [2002] NSWCCA 17 at [23] is authority for the proposition that it is the first of these considerations that will determine, essentially, which of the available sentencing alternatives the Court should adopt. Bearing this in mind, I have considered and rejected all possible alternatives to a full-time custodial sentence. Taking all of the relevant considerations into account, I am of the opinion that no penalty other than imprisonment is appropriate: s 5 of the Crimes (Sentencing Procedure) Act 1999. I am of the opinion that the sentence to be imposed in this matter must be one that emphasises general deterrence and denunciation and for these reasons, I am also of the view that the sentence would be bereft of its deterrent effect if I were to suspend it. Accordingly, I decline to do so.
I make the following orders: -
Sequence 1 - Disseminating child pornography
The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 May 2011 and expiring on 26 May 2013. On the basis that this will be the offender's first time in custody ( R v Fidow [2004] NSWCCA 172 and Wright v R [2006] NSWCCA 122), coupled with my proposal to partially accumulate the sentence for this offence with the remaining two offences which I propose to make wholly concurrent as between themselves ( Hejazi v R [2009] NSWCCA 282) and the need for long-term supervision with a view to effective rehabilitation, I find special circumstances and, pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999, I vary the statutory ratio prescribed therein and I impose a non-parole period of 14 months commencing on 27 May 2011 and expiring on 26 July 2012 and a balance of term from 27 July 2012 to 26 May 2013.
Sequence 2 - Possessing child pornography
The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 August 2011 and expiring on 26 August 2013. For the same reasons as above, I vary the statutory ratio and I impose a non-parole period of 14 months commencing on 27 August 2011 and expiring on 26 October 2012 and a balance of term from 27 October 2012 to 26 August 2013
Sequence 3 - Possessing child pornography
The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 August 2011 and expiring on 26 August 2013. For the same reasons as above, I vary the statutory ratio and I impose a non-parole period of 14 months commencing on 27 August 2011 and expiring on 26 October 2012 and a balance of term from 27 October 2012 to 26 August 2013.
The overall effect of the sentences imposed is that of a 17-month non-parole period of custody, making the earliest date of release 26 October 2012.
Following his release, the offender is to be subject to supervision on parole.
Magistrate Theo Tsavdaridis
27 May 2011
Decision last updated: 06 June 2011
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