R v Booth - [2009] NSWCCA 89

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Rodric David BOOTH [2009] NSWCCA 89

FILE NUMBER(S):
2008/3058

HEARING DATE(S):
19 March 2009

JUDGMENT DATE:
6 April 2009

PARTIES:
REGINA (Crown)
Rodric David BOOTH (Respondent)

JUDGMENT OF:
McClellan CJatCL Simpson J Howie J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/0805

LOWER COURT JUDICIAL OFFICER:
Williams DCJ

LOWER COURT DATE OF DECISION:
12 December 2008

COUNSEL:
M Grogan (Crown)
R S McIlwaine SC & J Davidson (Respondent)

SOLICITORS:
S Kavanagh (Solicitor for Public Prosecutions) (Crown)
Herring & Associates - Lawyers (Respondent)

CATCHWORDS:
CRIMINAL LAW
sentence - child pornography
CRIMINAL LAW
Crown appeal against sentence
sentence manifestly inadequate
significance of general deterrence in sentencing process

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
Assheton v R [2002] WASCA 209; 132 A Crim R 237
Mouscas v R [2008] NSWCCA 181
R v Thomsen; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383

TEXTS CITED:

DECISION:
(1) The Crown appeal be upheld;
(2) the sentence imposed in the District Court on 12 December 2008 be quashed;
(3) in lieu thereof the respondent be sentenced to imprisonment made up of a non-parole period of 6 months to commence on 6 April 2009 and expire on 5 October 2009, and a balance of term of 18 months, to expire on 5 April 2011.
(4) direct that the respondent be released on parole at the expiration of the non-parole period on 5 October 2009.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/3058
McCLELLAN CJ at CL
SIMPSON J
HOWIE J
Monday 6 April 2009

R v Rodric BOOTH

Judgment

McCLELLAN CJ at CL: I agree with Simpson J.
SIMPSON J: This is a Crown appeal against the asserted manifest inadequacy of a sentence imposed upon the respondent in the District Court on 12 December 2008 following his plea of guilty to a charge of possession of child pornography. The charge was brought under s 91H(3) of the Crimes Act 1900 (now repealed), pursuant to which a maximum penalty of imprisonment for 5 years was applicable.
Williams DCJ convicted the respondent and, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), imposed a bond requiring the respondent to be of good behaviour for 4 years, commencing from the date on which it was imposed, 12 December 2008. A condition of the bond was that the respondent accept the supervision, guidance and direction of the Probation and Parole Service at such time during those 4 years as that Service determined. His Honour specifically included, among those directions that the respondent must accept, directions to continue counselling and to undertake such other sex offender, psychological, educational or vocational programmes as may be directed or thought appropriate.
The facts
On 29 August 2007 police executed a search warrant at the respondent’s home in Queanbeyan. They located:

two printed (hardcopy) images of young, naked, males, with their genitals exposed. They appeared to be under the age of 10 years;
a computer disk labelled “> 16 Big Boys Pics”, containing 76 images of young naked males, all but one shown performing sexual acts upon one another;
a computer hard drive, containing two folders labelled “Bigboyplay all + 18” and “art \ male nude forms shapes” containing images of young males, most with their genitals exposed, and many involved in sexual acts upon other young males. The males appeared to be under the age of 16 years. Some images depicted adult males having sexual intercourse with young males; others depicted up to 4 young males performing fellatio upon one another. The second folder contained images of younger males, apparently under the age of 10 years, posing, some with their genitals exposed, and some clothed;
a video saved on the hard drive titled “Boy_14yo_poses_ _JO_with_melon”, depicting a young male masturbating to music while looking at a pornographic magazine. This video is of 6 minutes and 9 seconds duration. The male there depicted appears to be under the age of 16 years.
The source of all the material was an internet site, or a number of internet sites.

The respondent returned home while the search was in progress and remained present during the execution of the warrant. During the course of the search the respondent admitted ownership of the images but declined to comment on the age of the males depicted, and “intimated” (the word used in the agreed statement of facts) that the images were retained for artistic purposes. He later attended the Queanbeyan Police Station in the company of his legal representative where he was arrested and cautioned. He declined to be interviewed.
The proceedings on sentence
The respondent gave evidence. I will return to the substance of his evidence when dealing with his subjective circumstances.
Also before the court was a Pre-Sentence Report dated 27 March 2008 prepared by Mr Paul Maggs, a Probation and Parole Officer, a Pre-Sentence Risk Assessment dated 26 September 2008, prepared by a senior psychologist employed by the NSW Department of Corrective Services (Mr David Evans), a report of Dr Bruce Westmore, forensic psychiatrist, dated 14 July 2008, and a report of Ms Ilona Nichterlein, a counsellor, dated 20 June 2008.
Evidence was also given by Mr Ian Palmer, the Archdeacon of the Church of England in Queanbeyan.
Subjective circumstances
From the above material the following emerges. The respondent was born in June 1946 and was 61 years of age at the time of the offending. He was born in New Zealand. His family life was not happy.
He came to Australia in 1972 at the age of 26. He married in 1974 but separated in 1981 and divorced in 1982. There are no children of the marriage.
Initially, he worked as an architectural draftsman, but, in Australia, he studied architecture and graduated in 1983. In 1984 he started his own practice. This failed in 1997 because of economic circumstances.
In the same year he was charged with and pleaded guilty to a series of sexual offences, the victim of which was the son, aged about 11 or 12, of friends. In all there were 14 offences of sexual misconduct. In fact, it appears that the sexual activity with this child had continued for some years. The respondent said that he lost interest in the child as he (the child) matured. As a consequence of his conviction for these offences, his architectural career came to an end. Significantly, included in the offences with which the respondent was then charged, was an offence of possession of child pornography.
The seriousness of the sexual offences may be gauged by the sentences imposed: a total of a minimum term of 5 years with an additional term of 3 years. In respect of the child pornography charge, a term of 6 months was imposed, which was wholly subsumed within the other sentences.
The respondent clearly had difficulty over the years in accepting his sexual orientation. However, while serving his previous term of imprisonment, and after his arrest on the present charge, he has taken significant steps towards coming to terms with that aspect of his identity. He has become involved in a social network for homosexuals.
The respondent served his term of imprisonment at Junee, where he voluntarily undertook a sex offenders’ re-training programme. He thought that he obtained benefit from that programme in maintaining a distance from young boys.
The respondent has come to accept the reality that his sexual orientation is homosexual. Dr Westmore diagnosed a psychosexual disorder, which he specified as “egodystonic homosexuality”. He described this as a condition in which patients who are essentially homosexual, for a range of complex social, psychological and environmental reasons, feel uncomfortable accepting their homosexuality and acting appropriately in relation thereto. Dr Westmore specifically related the current offences to the respondent’s egodystonic homosexuality. If I understand him correctly, Dr Westmore considered that the respondent is coming to accept his sexual orientation, but considered that this would not occur “in an unconditional way overnight”.
Mr Evans classified him as a “hebophile” but did not elaborate upon what he intended to convey by the use of that term. It is plain, however, on all the material including the respondent’s own evidence, that his primary attraction is to young males. Relying on the history given by the respondent, Dr Westmore did not consider that he suffers from the medical condition paedophilia (attraction to pre-pubescent children).
At the time of his consultation with Dr Westmore, the respondent had, for almost a year, been having therapy with Ms Ilona Nichterlein, a generalist counsellor/psychotherapist. Ms Nichterlein thought him unlikely to re-offend, for reasons she gave. Dr Westmore agreed with the approach to therapy taken by Ms Nichterlein and thought that the counselling ought to continue. On the assumption that therapy would continue for some years, he thought the prognosis was “reasonably good”. Mr Evans, in his report, noted that the respondent’s sexual preference is towards young males – no doubt what he meant by the classification “hebophile”.
There was extensive evidence as to the respondent’s need for continuing guidance and counselling, and the risk of recidivism if it were not available to him.
On his release from prison in 2003, the respondent was given accommodation in a unit owned by the Church of England. Some conditions were placed upon his behaviour, which included not approaching the youth group meetings in the church hall, or any of the young people at their gatherings. He had complied with these guidelines. This was the import of the evidence given by Mr Palmer.
The respondent’s evidence
The respondent acknowledged that he incorrectly labelled the item marked “18+”. Implicit in his evidence was that he did this in order to convey a misleading impression of the contents of the folder, specifically with respect to the ages of the boys there depicted. Similarly, the labelling of another as “art \ male …” disguised the reality that the content was child pornography.
The deception (largely self-deception) continued, even after the arrest of the respondent. He told Mr Maggs, Dr Westmore and Ms Nichterlein, when interviewed by them, that he had genuinely believed that the images were of males over 18. In evidence, he accepted that that was false. He accepted that he had given the false accounts as:
“ … some attempt to distance [himself] from responsibility”
in relation to his possession of the images.
The respondent said, in fact, that he had accessed the internet site from which he derived the images for as long as 2 years before his arrest. That time coincides, or overlaps, with the time at which he was at liberty on parole. He agreed that, on at least one occasion while on parole, he had accessed the site, and said that he had disclosed this to his supervising parole officer. No action was taken.
He said that, having lost his previous employment as a consequence of his earlier conviction, he had obtained part-time work in a nursery, but as time went on, he was required more frequently to work on weekends. This interfered with his developing social connections and gave rise to feelings of isolation. It was in this context that he began accessing the internet sites. He said that it became an addiction.
He agreed that his conduct had constituted a betrayal of the trust placed in him by the Church of England, in providing him with accommodation, and of the gay community, the bulk of whom, he said, found his sort of behaviour unacceptable.
He accepted also that his rehabilitation was not complete, and that he needed continued counselling to ensure that he did not revert to his previous practices.
He said that he had disconnected his internet access and did not intend to re-connect.
The Remarks on Sentence
Williams DCJ recounted the facts of the offence, and referred, in some detail, to the various reports which were before him. Williams DCJ expressed himself to be:
“ … impressed with [the respondent’s] candour and … satisfied that he is honestly remorseful and understands the nature of his wrongdoing.”
He noted the “immediate” plea of guilty, but, because of the course he ultimately took, did not specify any percentage by which the sentence was reduced. He did observe that:
“The range of sentences for this offence, having regard to the objective degree of offending, is not such as would warrant the consideration of a sentence of imprisonment in excess of 2 years.”
He reviewed extensively the evidence concerning the respondent’s need for continued therapy, and discussed the extent to which it would be available to the respondent if incarcerated as compared with its availability to the respondent if living in the community.
He considered that the matters raised by Mr Evans called for a penalty:
“ … that would allow the court an extensive period to further supervise his behaviour, rehabilitation and treatment.”
He expressed the view that specific deterrence was of more relevance than general deterrence. In fact, he appears to have discarded general deterrence, as an irrelevant, or scarcely relevant, consideration.
Referring to a previous decision of this Court (R v Gent [2005] NSWCCA 370; 162 A Crim R 29) he said:
“Aggravating features referred to in Gent, but not present here, are that there is no suggestion of sale or further distribution or that Mr Booth profited from his offending.”
Had such features been present, his Honour would have regarded them as significantly aggravating the offence and requiring a lengthy prison term. He said that, had it been appropriate to impose a sentence of imprisonment, he would have suspended that sentence. He held that it was not appropriate to do so because:
“ … apart from anything else, the sentence so imposed would not provide a sufficient period of time in which to supervise [the respondent].”
Rehabilitative programmes could not be completed within the timeframe allowed.
For those reasons his Honour imposed the bond to which I have referred.
The Crown appeal
The Crown appeals on the single ground that the sentence imposed was manifestly inadequate.
Specifically, it was submitted on behalf of the Crown that the approach taken by Williams DCJ to the question of general deterrence was unsupported by authority, inconsistent with previous decisions, and simply wrong.
A number of previous decisions of this and other appellate courts have found that, in respect of offences of child pornography, general deterrence is, at least, a significant element of the sentencing process: R v Gent; v Assheton v R [2002] WASCA 209; 132 A Crim R 237; Mouscas v R [2008] NSWCCA 181. In Assheton, indeed, general deterrence was said to be “the paramount consideration”. This view was endorsed in Gent.
I would add my further endorsement to that view. 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.
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. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. 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, and upon the poverty of the children the subject of the material.
What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.
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.
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.
Moreover, the manner in which his Honour referred to specific deterrence failed to reflect the fact that this was not the respondent’s first offence of its kind. Specific deterrence also warranted rather more consideration than was given to it.
A second matter upon which the Crown relied was the reference to the absence of what was said to be aggravating features of sale or further distribution of the material. As the Crown pointed out, production or dissemination of child pornography was made a separate offence by subs (2) of s 91H, for which the maximum penalty provided was imprisonment for 10 years. It was, in my opinion, irrelevant to take into account that the respondent did not further distribute the material in his possession.
Examination of the Remarks on Sentence satisfies me that undue focus was placed upon the respondent’s need for counselling at the expense of other legitimate and important sentencing considerations. While I do not dissent from the importance of achieving prevention of further offences by such means, it is not the only matter to be considered. As I have made clear, the need to deter others from involving themselves in child pornography by signalling that such behaviour will be met by significant penalties is an important consideration. So also is denunciation of those who engage in this callous and predatory crime.
I am persuaded that the sentence imposed was manifestly inadequate. No penalty other than a term of full time custody is sufficient to meet sentencing needs in this case.
Because he imposed a non-custodial penalty, Williams DCJ did not consider the application of s 44(2) of the Sentencing Procedure Act. However, it is inherent in his findings (with which I do not disagree) about the respondent’s need for assistance on his release, that it is appropriate to find that special circumstances exist justifying departure from the ratio there specified between the head sentence and the non-parole period.
The sentence I propose is tailored to meet the particular principles applicable to re-sentencing after a successful Crown appeal. That is, it is at the very bottom of the range that would otherwise have been appropriate. Indeed, it would not be surprising to find a sentence with a minimum term of twelve months for an offence of this magnitude. The sentence I propose incorporates, in accordance with the principles stated in R v Thomsen; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383, a discount of 20%.
The Court received additional affidavits relevant to re-sentencing. Both Ms Nichterlein and Archdeacon Palmer spoke of the respondent’s commitment to rehabilitation; Ms Nichterlein of his compliance with his treatment regime, and Archdeacon Palmer of his maintenance of his obligations to the Church and his conduct generally.

The respondent spoke of the stress that had been caused to him by the appeal, the benefit he receives from counselling, and his commitment to the treatment he receives from Ms Nichterlein.

He disclosed that he had applied for reconnection to internet access.

While the respondent’s commitment to his rehabilitation is commendable, it does not significantly advance the matters that were before the sentencing judge, merely confirming that the position has not changed.

In the re-sentence I propose I have taken into account these matters. They do not, however, affect the principles I have outlined, or the reasons for which the period of full-time custody is necessary.

I propose the following orders:
(1) the Crown appeal be upheld;
(2) the sentence imposed in the District Court on 12 December 2008 be quashed;
(3) in lieu thereof the respondent be sentenced to imprisonment made up of a non-parole period of 6 months to commence on 6 April 2009 and expire on 5 October 2009, and a balance of term of 18 months, to expire on 5 April 2011.
(4) direct that the respondent be released on parole at the expiration of the non-parole period on 5 October 2009.
HOWIE J: I agree with Simpson J.
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LAST UPDATED:
6 April 2009