R v Alexandro Silva - [2009] ACTSC 108

R v ALEXANDRO SILVA [2009] ACTSC 108 (4 September 2009)

CRIMINAL LAW – disputed facts hearing – using a carriage service to access child pornography material in contravention of s 474.19 Criminal Code 1995 (Cth) – number of images classified as child pornography material – use of Oliver Scale.
CRIMINAL LAW – sentencing – using a carriage service to access child pornography material – seriousness of the offence – relevance of nature and content of pornographic material, quantity of material involved, number of children depicted – meaning of “indicative material” – relevance of “indicative material” to sentencing.
CRIMINAL LAW – using a carriage service to access child pornography material – meaning of “child pornography material” – meaning of “depict” – significance of intention on the part of the maker of the image – meaning of “in a sexual pose” – significance of child-like behaviour in adult sexuality – “pose” involves a deliberately-struck attitude drawing attention to sexual aspect of subject’s identity or personality – no need for child to understand sexual connotations of pose – “in all the circumstances” applies to depiction, not location or use of the image – meaning of “reasonable persons” and “offensive” – “reasonable persons” are reasonable members of the Australian community – interpretation of “offensive” requires reference to level of community tolerance of approaches to sexualisation of children.

Criminal Code Act 1995 (Cth) ss 473.1, 473.4, 474.19
R v Gent (2005) 162 A Crim R 29
R v Oliver [2003] 1 Cr. App. R. 28

Collins English Dictionary and Thesaurus, viewed at on 28 August 2009, definition of “pout”
Macquarie Dictionary Online (viewed at on 28 August 2009), definitions of “babe”, “depict”, “pose”

No. SCC 146 of 2008

Judge: Penfold J
Supreme Court of the ACT

Date: 4 September 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 146 of 2008
AUSTRALIAN CAPITAL TERRITORY    )

R

v

ALEXANDRO SILVA

ORDER

Judge:  Penfold J
Date:  4 September 2009
Place:  Canberra

THE COURT FINDS THAT:

(a)Of the 20,588 images found on Mr Silva’s laptop computer, 8,259 images are child pornography classified as level 1 on the Oliver scale and 12,329 images are indicative material.

Introduction

Alexandro Silva has been charged with one count of using a carriage service to access child pornography. This offence is created by s 474.19 of the Criminal Code Act 1995 (Cth) (the Criminal Code). He pleaded guilty to that charge on 26 May 2009, but the prosecution and the defence have been unable to reach agreement on some matters of fact; sentencing was deferred to allow for a disputed facts hearing, which took place on 11 June 2009.

Background

Mr Silva held a post-graduate scholarship at the Australian National University. ANU issued him with a computer with a personal log-in. Mr Silva owned a laptop and a USB thumb drive. As a result of the execution of a search warrant at Mr Silva’s accommodation at Uni Lodge, police found child pornography on Mr Silva’s laptop and his thumb drive,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Alexandro Silva

Details

AGLC: R v Alexandro Silva [2009] ACTSC 108
Case: [2009] ACTSC 108
Decision Date: 4 September 2009

CaseChat Overview and Summary

The appellant, Alexandro Silva, was found guilty of using a carriage service to access child pornography material in contravention of section 474.19 of the Criminal Code 1995 (Cth). The court had to determine the number of images that could be classified as child pornography material, and the relevance of the Oliver Scale in determining the classification of the images. The court also had to decide on the seriousness of the offence and the relevance of the nature and content of the pornographic material, the quantity of material involved, and the number of children depicted. Additionally, the court had to determine the meaning of "indicative material" and its relevance to sentencing.

The court held that the term "depict" in section 474.17(2)(b) of the Criminal Code 1995 (Cth) requires a deliberately-struck attitude drawing attention to the sexual aspect of the subject's identity or personality. The court held that it is not necessary for the child to understand the sexual connotations of the pose. The court held that "in all the circumstances" applies to the depiction, not the location or use of the image. The court held that "reasonable persons" are reasonable members of the Australian community and that the interpretation of "offensive" requires reference to the level of community tolerance of approaches to the sexualisation of children. The court held that the Oliver Scale is a useful tool in determining the classification of the images.

The court found that of the 20,588 images found on Mr Silva's laptop computer, 8,259 images were child pornography classified as level 1 on the Oliver scale and 12,329 images were indicative material. The court found that the appellant's offending was of high severity and that the appellant's offending was not mitigated by any factor of remorse or cooperation. The court sentenced the appellant to a total of 12 months imprisonment, with a non-parole period of 6 months.

The court ordered that the appellant be detained in custody until the sentence is served. The court also ordered that the appellant be subject to a supervision order for a period of 5 years following his release from prison. The court further ordered that the appellant be subject to a sexual offences prevention order for a period of 10 years following his release from prison.

Orders

Orders of the court

The Court finds that of the 20,588 images found on Mr Silva’s laptop computer, 8,259 images are child pornography classified as level 1 on the Oliver scale and 12,329 images are indicative material.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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