Ponniah v The Queen - [2011] WASCA 105

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PONNIAH -v- THE QUEEN [2011] WASCA 105

CORAM: PULLIN JA
BUSS JA
MAZZA J

HEARD: 21 MARCH 2011

DELIVERED : 30 MARCH 2011

PUBLISHED : 28 APRIL 2011

FILE NO/S: CACR 207 of 2010

BETWEEN: RAJIV PONNIAH
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BOWDEN DCJ
File No  :IND 1208 of 2010

Catchwords:

Criminal law - Appeal against sentence - Importation of child pornography - Whether sentence manifestly excessive - Failure to backdate the commencement of the sentence to take into account time spent in custody

Legislation:

Crimes Act 1914 (Cth), s 17A(1), s 20(1)(a), s 20(1)(b)
Criminal Appeals Act 2004 (WA), s 40(1)(e), s 41(1)(a)
Customs Act 1901 (Cth), s 233BAB(1), s 233BAB(3), s 233BAB(5)
Customs Regulations 1926 (Cth), sch 1AA pt 2
Migration Act 1958 (Cth), s 501
Sentencing Act 1995 (WA), s 87

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr S A Gabriel
Respondent: Mr J K Grinceri

Solicitors:

Appellant: Legal Aid (WA)
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
Chu Shao Hung v The Queen (1953) 87 CLR 575
Dauphin v The Queen [2002] WASCA 104
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Dodge v The Queen [2002] WASCA 286; (2002) 134 A Crim R 435
Furber v The Queen [2008] WASCA 233
Holland v The Queen [2005] WASCA 140; (2005) 30 WAR 231
Hutchins v The State of Western Australia [2006] WASCA 258
R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469
R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29
R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50
R v Liddington (1997) 18 WAR 394
Wilson v The State of Western Australia [2010] WASCA 82

PULLIN JA: I agree with Mazza J.
BUSS JA: I agree with Mazza J.
MAZZA J: This is an appeal against sentence. On 30 March 2011, the court made orders allowing the appeal, setting aside the sentence originally imposed and ordering that the appellant be sentenced to 6 months' imprisonment to be released immediately upon giving security by way of recognisance to be of good behaviour for six months. These are my reasons for making those orders.
The appellant was charged, by an indictment filed in the District Court at Perth, that:
[O]n 19 January 2010 at Perth International Airport in the State of Western Australia, [the appellant] did, without the requisite approval being obtained, intentionally import goods, being tier 2 goods comprising items depicting child pornography contained on one laptop computer and one external hard drive, and 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).
On 16 September 2010, the appellant pleaded guilty on the fast‑track system before his Honour Bowden DCJ. His Honour ordered that a psychological report be prepared and remanded the appellant on bail to 28 October 2010. On that date, his Honour heard further submissions from counsel. The following day, 29 October 2010, his Honour sentenced the appellant to 12 months' immediate imprisonment. He made a recognisance release order and ordered that the appellant be released, after serving six months, on a recognisance of $5,000 to be of good behaviour for a period of six months.
The maximum penalty available for the offence is 10 years' imprisonment or a fine not exceeding $275,000, or both.

Background

The appellant is an Indian national, studying a masters degree at Flinders University in South Australia.
On 19 January 2010, he arrived at Perth International Airport on a flight from Singapore. The appellant's luggage was inspected by Customs officers. The Customs officers located, in the appellant's baggage, a laptop computer and an external hard‑drive. An examination of the

hard‑drive revealed material that the Customs officers believed to be child pornography.

In due course, a full analysis of the laptop and external hard‑drive was undertaken. The analysis revealed that amongst the files stored on those items were child pornography consisting of 18 stories, 38 computer‑generated images, 106 cartoon images and six movies. Save for four of the movies, the material did not depict real children. In general terms, the material contains incest‑related themes.
The appellant was interviewed by Customs Investigation officers at the Perth International Airport on the date of his arrival. That interview was video‑recorded. The appellant admitted that he had an interest in pornography depicting incest and that he had, on his laptop computer and hard‑drive, movies, photographs and stories relating to incest. He denied any knowledge of child pornography on either device.

The plea in mitigation

The appellant was represented by Mr Hanbury before Bowden DCJ. Mr Hanbury told his Honour that, when the appellant was living in India, the appellant and his friends used his computer. Mr Hanbury told his Honour that the appellant accepted that he had downloaded adult pornography on occasions and that he has an interest in incest‑based themes. Mr Hanbury said that the appellant had instructed him that he had not downloaded the child pornography onto his laptop computer and was unaware of the existence of any such material on either device.
Counsel for the Crown submitted that these submissions were contrary to the appellant's plea of guilty. His Honour sought clarification from Mr Hanbury as to the basis upon which the plea was entered. Mr Hanbury informed his Honour that the plea was entered on the basis that the appellant was aware that there was a substantial risk that the devices contained child pornography and that, although the appellant did not have actual knowledge that the devices contained child pornography, he was reckless as to that fact: AB 63 ‑ 64.

The appellant's antecedents

At the time of offending and at the time of sentencing, the appellant was 23 years of age. He was born and raised in Chennai, where he lived with his family. His upbringing appears to have been happy and stable. The pre‑sentence report, which was prepared for his Honour, stated that the appellant completed a degree in zoology and biotechnology in India. He was accepted to Flinders University in South Australia in 2009, and completed one semester of a two‑year course. At the end of that semester, he returned to India for a holiday. He arrived at Perth International Airport from India via Singapore with the intention of returning to South Australia to resume his studies at Flinders University.
He has no prior record of convictions.

The psychological report

Claire Lynn, a forensic psychologist, prepared a report in relation to the appellant, dated 4 October 2010. Ms Lynn did not perform any psychometric testing upon the appellant, given his cultural background and that English is his second language. Ms Lynn did not offer any opinion as to the appellant's psychological state. She reported that the appellant told her that he had no actual sexual experience and that he had been downloading pornography with incest themes since adolescence. There is nothing in the report which indicates that the appellant has any paedophilic tendencies.

Time spent in custody

The appellant was in custody from 20 January 2010 to 5 February 2010. He remained at large until 29 October 2010. In total, the appellant spent 17 days in custody on remand for the offence.

His Honour's sentencing remarks

Bowden DCJ sentenced the appellant on the basis that he had not downloaded the material onto his computer or viewed it prior to his arrest: AB 81 ‑ 82. His Honour acknowledged that although the stories, cartoons and computer‑generated child pornography were prohibited imports, it displayed less criminality than the movies, which involved real children engaging in sexual activity: AB 83.
His Honour said that general deterrence was the paramount consideration in sentencing the appellant. He observed that the 'central aim' of the legislation was to both prevent the abuse of children and to prevent the importation into Australia of this material.
His Honour took into account the appellant's fast‑track plea of guilty, his age, his good character and the public shame and humiliation that the appellant has experienced. His Honour accepted that the appellant was unlikely to reoffend.
His Honour recognised that imprisonment was the sentence of last resort. He referred to Mr Hanbury's submission that the appellant could be dealt with other than by way of immediate imprisonment. However, his Honour concluded that the only appropriate disposition was a term of immediate imprisonment: AB 84.

New facts come to light

After the appellant filed his appeal, Mr Grinceri, who appeared as counsel for the Crown both in this court and before Bowden DCJ, requested Mr Kevin McGee, a Customs Investigations officer, to ascertain whether any of the electronic files which were the subject of the charge against the appellant had been deleted from the laptop or external hard‑drive. Mr McGee undertook an inquiry which revealed that the majority of the 106 cartoon images of child pornography had been deleted. The deleted files remained on the devices, but they could not be recovered without appropriate software. That software is readily available, but no applications of that type were found on the appellant's laptop computer. Affidavits providing this information were sworn by Mr McGee on 1 March 2011 and by Mr Grinceri on 2 March 2011. The Crown filed an application on 2 March 2011, in which it indicated that it had no objection to the affidavits of Mr McGee and Mr Grinceri being admitted as additional evidence in the hearing of the appeal, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA).
The appellant filed an application of his own seeking to admit additional evidence on 21 March 2011. The additional evidence which the appellant sought to adduce was contained in the affidavit of the appellant's counsel, Mr Gabriel, made on 19 March 2011. This affidavit, amongst other things, contained further evidence about the deleted files.
In the end, the parties agreed that 77 of the 106 cartoon images of child pornography had been deleted. The question of the deleted files is a matter of some relevance in the appeal and is not information which was known at the time of the appellant's sentencing. In light of the parties agreement that this evidence should be before this court, the affidavits, insofar as they deal with the subject of the deleted images, should be admitted into evidence, pursuant to s 40(1)(e) of the Criminal Appeals Act.
The material in Mr Gabriel's affidavit goes beyond the question of the deleted files. The material includes sentencing statistics with respect to offences committed against s 233BAB(5) of the Customs Act 1901 (Cth), obtained from the Judicial Commission of New South Wales, in relation to sentences imposed between 17 January 2003 and 30 September 2010 (annexure A); a 26 page document entitled 'Bookmarks' (annexure B); a copy of a postcard‑type pamphlet produced by the Australian Customs and Border Protection Service entitled 'Bringing Child Pornography into Australia is Illegal' (annexure C); and a fact sheet issued from September 2010 onwards entitled 'Bringing Objectionable Material into Australia' (annexure D).
At best, part of this material has limited use, but most of it is irrelevant. I would not admit it into evidence at the hearing of this appeal.

The grounds of appeal

There are five grounds of appeal. Ground 1 alleges that the sentence imposed upon the appellant was manifestly excessive. Grounds 2 ‑ 5 allege express errors on his Honour's part. Those alleged express errors are:
(a)his Honour erred by not considering, as a mitigating factor, the effect of the sentence on the appellant's visa (ground 2);
(b)his Honour erred by not considering, as a mitigating factor, that the appellant had not viewed the material (ground 3);
(c)his Honour erred in finding that the appellant would have viewed the material in the future (ground 4); and
(d)his Honour erred by failing to backdate the appellant's sentence by 17 days to take into account time on remand (ground 5).
Leave to appeal on ground 5 was granted prior to hearing. The question of leave to appeal on grounds 1 to 4 was referred to the hearing of the appeal.

Tier 2 goods

Section 233BAB(1) of the Customs Act provides that regulations may be made which specify that certain things constitute tier 2 goods.
Schedule 1AA pt 2 of the Customs Regulations 1926 (Cth) provides, in column two of item three, that the following are tier 2 goods:
Goods to which regulation 4A of the Customs (Prohibited Imports) Regulations 1956 applies, being:
(a)items of child pornography within the meaning given by subsection 233BAB (3) of the Act ...
The definition of child pornography in s 233BAB(3) of the Customs Act includes any document or other goods that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who is engaged in, or appears to be engaged in, a sexual pose or sexual activity, and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

Appellate sentencing principles

The appellate sentencing principles which apply to this case and are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2].

Ground 1

A complaint of manifest excess is a complaint of implied error on the part of the sentencer. A sentence may be excessive because the wrong type of sentence has been imposed: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6]. The appellant's counsel submitted that his Honour erred in failing to impose a term of imprisonment with an order that the appellant be immediately released upon giving security by way of recognisance to be of good behaviour. This disposition was referred to in the hearing of the appeal as a 'suspended sentence' and, for the sake of brevity, I will adopt that description.
Section 17A(1) of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment for a federal offence, unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in the circumstances.
Section 20(1)(b) of the Crimes Act allows a court to sentence a person to a term of imprisonment in respect of an offence, but order that the person be released upon giving security of the kind referred to in s 20(1)(a), either forthwith or after he or she has served a specified period of imprisonment. The security referred to in s 20(1)(a) is a recognisance requiring the offender to comply with one or more of the conditions set out in the subsection. One condition which is provided for is that the offender will be of good behaviour for a period not exceeding five years.
The discretion to impose a term of suspended imprisonment requires consideration of all of the circumstances of the case.
The offence of importing child pornography is a serious offence. The seriousness of it is reflected in the maximum penalty to which I referred earlier in these reasons.
It hardly needs to be said, having regard to authorities such as 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; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469; Holland v The Queen [2005] WASCA 140; (2005) 30 WAR 231; R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29; and Furber v The Queen [2008] WASCA 233, that in cases of possession or importation of child pornography which depicts real children, general deterrence is the paramount consideration. This is because such offences are not victimless crimes. Children are abused, violated and degraded in the production of the material. 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. Generally, but not always, a sentence of imprisonment to be immediately served will be imposed.
Of the 168 computer files found on the appellant's laptop and external hard‑drive which constitute child pornography, all but four did not depict real children. A substantial proportion of it had been deleted. There is nothing to suggest that the appellant intended to retrieve those deleted files by using software designed for that purpose.
The criminality involved in the material that does not depict real children is of a different nature to that involving real children: Dodge v The Queen [2002] WASCA 286; (2002) 134 A Crim R 435 [24]; and Hutchins v The State of Western Australia [2006] WASCA 258 [8]. This is not to say that material of this type is harmless; it has the tendency to 'normalise' exploitative sexual activity involving children and may stimulate a susceptible recipient to engage in sexual activity involving real children. Having said this, Mr Grinceri in his oral submissions before this court conceded, appropriately in my view, that were it not for four movies involving real children, a term of immediate imprisonment was not called for in this case.
In R v Gent, Johnson J (with whom McClellan CJ at CL & Adams J agreed) identified some of the factors relevant to the assessment of the seriousness of the offence of possession or importation of child pornography. The factors identified by his Honour include:
(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 [99].
The number of movie files involving real children, which the appellant imported, was small and their total length was relatively brief. I have viewed the material. As with all such material, its content is abhorrent. However,its overall depravity was not as great as that often seen in other cases. None of the movies showed overt or threatened violence, physical pain, obvious distress or sadism. The number of children who were exploited was small and they were not extremely young, in that none of the children appeared to be under the age of 13. In two of the movies, the children appeared to be about 16 years of age. In one of the movie files, which depicted a mature woman and a boy aged perhaps 13 or 14, the sexual activity was more suggestive than real. The worst movie, which involved a girl who was apparently 13 with a man in his forties, was the shortest, lasting approximately 2 minutes.
There was no finding by his Honour and no evidence to suggest that the importation was for the purpose of sale or further distribution of the material, and there is nothing to support a proposition that the appellant would profit from the offence.
As I observed earlier, offences of this kind are generally met with sentences of imprisonment to be immediately served, but that is not always so; each case must in the end be decided on its own circumstances.
The respondent provided this court with the sentencing remarks in 16 cases of importation of child pornography decided in the District Court of Western Australia between 17 October 2008 and 24 June 2010. While decisions at first instance are of limited utility on appeal, I observe that the sentence imposed upon the appellant was more consistent with cases involving considerably greater criminality.

The appellant's antecedents were favourable. Although matters personal to the appellant must be accorded less weight because of the importance attached to general deterrence, the appellant's antecedents are not to be ignored. It cannot be overlooked that the appellant was, at the time of his offending, a young man whose prospects are good and he is unlikely to reoffend.
His Honour made no express error of fact or law. However, while general deterrence required the imposition of a term of imprisonment, the imposition of an immediate term of imprisonment rather than a suspended term of imprisonment was, having regard to all of the circumstances of the case, unjust.
For these reasons, I would uphold ground 1.

Ground 2

The information provided to his Honour was to the effect that the appellant's stay in Australia was pursuant to a student visa which did not expire until August 2011: AB 67. The appellant submitted that his conviction placed him in jeopardy of having his visa cancelled. The appellant, in his written submissions, pointed to the provisions of s 501 of the Migration Act 1958 (Cth), which provides that a visa may be cancelled if a person is sentenced to a term of imprisonment of a year or more: s 501(7) of the Migration Act.
In my opinion, the prospect of deportation is not a mitigating factor. Whether or not a person is deported is an executive decision: Chu Shao Hung v The Queen (1953) 87 CLR 575, 583 ‑ 584. In other cases, the prospect of deportation has been held to be an irrelevant sentencing factor: Dauphin v The Queen [2002] WASCA 104 [22]. The appellant cited Furber v The Queen in support of this ground. There is nothing said in that case which in fact supports the ground. Ground 2 has no merit.

Grounds 3 and 4

These grounds can be dealt with together because underlying them is his Honour's finding that the appellant would have viewed the material that he imported into Australia in the future. Ground 4 challenges this finding, and ground 3 alleges that his Honour erred in law by failing to give mitigatory weight to the fact that the appellant had not viewed the material.
There is no merit to the submission that his Honour erred in finding that the appellant would have viewed the material in the future. It was submitted that the evidence did not support this finding. His Honour made this finding on the basis that the appellant had an interest in incest and that the appellant was aware that there was a substantial risk that the computer and hard‑drive contained child pornography of this nature. In my opinion, this evidence was sufficient to justify the finding that the appellant would have viewed the material in the future. Ground 4 has no merit. As ground 4 has no merit, neither does ground 3. There was no mitigation to be found in the fact that the appellant, although he had not viewed the material before importing it, would have viewed it later.

Ground 5

It is not disputed that the appellant spent 17 days in custody before he was released on bail.
Pursuant to s 16E(1) of the Crimes Act, the law of the State of Western Australia applies to the commencement of sentences with respect to a federal offender who is sentenced in the State. Section 87 of the Sentencing Act 1995 (WA) therefore applies to this case. This provision allows a court to take into account time spent in custody for the offence, either by reducing the term of imprisonment to be imposed or by backdating the commencement date of the sentence.
Neither counsel referred to the time that the appellant had served in custody prior to being released on bail in their sentencing submissions. However, the matter was referred to in the pre‑sentence report. His Honour did not mention, in his sentencing remarks, the time the appellant had spent in custody. It appears that the matter was not taken into account and was overlooked by both counsel and his Honour.
Normally, time spent in custody would be taken into account, either by reducing the sentence that would otherwise have been imposed or by backdating the commencement of the sentence.
His Honour erred by not taking into account the 17 days that the appellant had spent in custody prior to a grant of bail. This ground must be upheld.

Resentencing

As grounds 1 and 5 have been upheld, it is necessary to resentence the appellant. In my opinion, the appropriate sentence that should have been imposed on the appellant was a sentence of imprisonment to be released immediately, pursuant to s 20(1)(b) of the Crimes Act. However, as at 30 March 2011, the appellant had already spent five months in custody, in addition to the 17 days he had served before he was released on bail. In other words, the appellant has served nearly all the custodial portion of the original sentence imposed by his Honour.
In light of these circumstances, the appropriate sentence is that the appellant be sentenced to 6 months' imprisonment to be released forthwith upon giving a recognisance to be of good behaviour for a period of six months. Pursuant to s 41(1)(a) of the Criminal Appeals Act, that sentence is to be taken to have taken effect on 12 October 2010. This date is 17 days prior to the date on which the appellant was sentenced and reflects time spent on remand.

Orders

The orders made on 30 March 2011 were:
1.Leave to appeal is granted on ground 1.
2.Leave to appeal is refused on grounds 2, 3 and 4.
3.The appeal is allowed.
4.The sentence imposed by Bowden DCJ on 29 October 2010 is set aside.
5.The appellant is sentenced to 6 months' imprisonment to be released forthwith upon giving security by way of recognisance to be of good behaviour for a period of six months, such sentence is to be taken to have taken effect from 12 October 2010.