R v Coultas - [2002] WASCA 131

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: R -v- COULTAS [2002] WASCA 131

CORAM: WALLWORK J
MURRAY J
McKECHNIE J

HEARD: 10 APRIL 2002

DELIVERED : 11 APRIL 2002

PUBLISHED : 16 MAY 2002

FILE NO/S: CCA 187 of 2001

BETWEEN: THE QUEEN
Appellant
AND
GARY WAYNE COULTAS
Respondent

Catchwords:

Sentence - Crown appeal - Censorship - Child pornography - Supply over the internet - Whether sentence manifestly inadequate

Legislation:

Censorship Act 1996 (WA), s 60

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr B Fiannaca
Respondent: Mr B G Illari

Solicitors:

Appellant: State Director of Public Prosecutions
Respondent: Bruno Illari

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

Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
R v Black [2002] WASCA 26
R v Jones (1999) 108 A Crim R 50
R v Liddington (1997) 18 WAR 394

Case(s) also cited:

Jarvis v The Queen (1993) 20 WAR 201
R v Ward (1999) 109 A Crim R 159

WALLWORK J: This Crown appeal against sentence was heard on 10 April 2002. On 11 April 2002 the Court unanimously dismissed the appeal and advised that it would publish written reasons in due course. I now set out my reasons for agreeing that the appeal should be dismissed.

Sentence Appealed Against

On 6 December 2001 in the District Court at Perth the learned Chief Judge sentenced the respondent for 95 offences against the Censorship Act 1996 (WA) ("the Act"). The respondent had pleaded guilty to 94 counts of supplying computer images of child pornography and to 1 count of possessing child pornography with intent to supply child pornography to another, namely a computer programme and associated data containing computer images on a computer hard disk drive. The offences were offences contrary to s 60 of the Act.
The maximum sentence which could have been imposed for each of the 94 counts of supplying child pornography was 7 years' imprisonment. A maximum penalty of 5 years' imprisonment could have been imposed for the offence of possessing child pornography.
When sentencing the respondent the Judge said that the respondent's residence had been searched by police officers. Later on the same day the respondent was interviewed by police officers. In the course of that interview he had frankly admitted that he had had a few thousand pictures on his computer and that he had a long standing interest in adult pornography. He admitted that he had an interest in child pornography and that he had corresponded electronically with a person called Misty9 in the United States whom he believed to be a teenage girl.
His Honour said that the indictment and the Crown brief indicated that the 94 counts of supplying child pornography related to offences between 7 July 1998 and 28 November 1998. His Honour said it was clear that the majority of the images were supplied to Misty9. However, a number of counts had involved a person using the nickname Cute2. A total of 10 counts had involved a recipient with the nickname of Tay or something similar.
His Honour said that police officers had been able to retrieve from the computer logs conversations in which the offender had participated with the recipients of the images. He said there was a cloudy area concerning the matter which obscured a totally clear assessment of the offender's role in the enterprise. However, on the sum total of the material before him his Honour drew the following conclusions:
"The accused has an interest in child pornography. I draw this from the facts of what he possessed and what he said overall in the record of interview. Secondly, he was obviously in contact with a number of other participants in child pornography and there is no doubt that he was active in what amounts to a trading in the pornographic child images, but on the evidence before me there are three people involved. Having said that, there is no evidence before me as to any commercial aspect of this matter. There is no evidence of money changing hands nor is there evidence of dissemination of the child pornographic material to persons other than what I suppose could be called members of an established circle of child pornography. Of the specific images detailed in the 94 counts, these all involve young females all of whom appear to be under the age of 16 years, but there are a number of whom in my opinion would probably be less than 7 years of age. There are many images of naked and semi‑naked girls, but there are also five images of children engaged in acts of masturbation with adults and 12 images show acts of fellatio in which the penis of an adult is in the mouth of a child. Counts 1, 2, 22 and 59 of the subject images are particularly repellent because they show very young children engaged in very active and degrading sexual acts. I put emphasis on the words 'very young'. I categorise those because my concern is as to the obvious very tender years of the children who are being exploited for the gratification of others. It is the extreme youth of some of the children that causes me the greatest concern and I do refer as I say to counts 1, 22 and 59 although there are others where I believe the child has to be less than 6 or 7 years."
His Honour said that he had viewed the video record of interview. His assessment was that the offender was a highly intelligent person who may not have been entirely frank with respect to his involvement in the offences. That was one of the reasons why he had set out the factual basis upon which he had to sentence him. He said the offender possessed 40,000 images of adult pornography but that was not a matter which attracted the criminal law.
His Honour referred to a psychological report which stated that the psychologist did not believe that the offender was a callous or unempathetic man but he thought that his over involvement in internet pornography had blurred moral and legal distinctions and personal boundaries.
The learned Judge said that the possession and distribution of child pornography is not a victimless crime because it is an inescapable fact that somewhere small children are being corrupted for the purposes of those who take the photographs and who arrange the poses. His Honour said that those who deal in child pornography create the market and as long as there are people who are prepared to distribute the relevant items, there will be people who are prepared to set them up and cause them to be brought into existence by the exploitation of children who must inevitably be harmed in the process.
His Honour quoted from the words of Ipp J in R v Liddington (1997) 18 WAR 394 as follows:
"In summary to paraphrase Lord Lane, the distribution whether for profit or not of this type of image is to be sharply discouraged particularly at times such as they are when the prevalence of indecent acts perpetrated upon children seems to be increasing. There is a clear public interest in preventing as far as possible any access to child pornography."
The learned Chief Judge said that without question the issue of general deterrence was the prime one in his mind affecting the sentencing exercise and not so much the personal characteristics of the offender. He came to the conclusion that a term of imprisonment was called for. He said that the necessity to establish general deterrence was so great that suspension of the term of imprisonment was not possible. He took into account the pleas of guilty and said that as a starting point he would have assessed that each of the offences ought to attract a term of 2 years' imprisonment. However, in recognition of the eventual plea of guilty and the circumstances in which it was notified and received, he would reduce the 2 year term to a term of 18 months' imprisonment. He then imposed that term on all the counts, to be served concurrently from 18 October 2001. His Honour made the respondent eligible for parole.

On Appeal

It was argued for the appellant that the learned Judge had erred in not making at least some of the sentences cumulative. Secondly, it was contended that he had erred in imposing an overall sentence which was manifestly inadequate having regard to the nature of the offences and the circumstances in which they were committed.
It was conceded that the learned Judge had correctly characterised the materials with which he was dealing and the seriousness of those materials; also that he had also correctly identified the legal principles in terms of the need for deterrence being paramount, the need to protect children, the fact that this kind of offending cannot be described as a victimless crime because the children who are the subject of those photographs are the victims. It was submitted that the learned Judge had identified all of those matters quite correctly. However it was said that his Honour had not accumulated any of the sentences in circumstances where the starting point ought to have been that there had been a number of occasions of supplying over a period spanning a number of months.
It was submitted that the 94 counts of supplying child pornography had been committed on 20 separate occasions and with respect to three different recipients; that the learned sentencing Judge had not expressly considered the totality principle or whether any of the counts warranted a cumulative sentence and that an accumulation of at least some of the sentences could have been made consistently with the proper application of the totality principle. It was submitted that by ordering all the sentences to be served concurrently the learned Judge had arrived at an overall sentence which was manifestly inadequate in all the circumstances. The sentence did not reflect the total criminality involved in the respondent's offending conduct having regard to the persistent course of criminal conduct over a lengthy period and the particularly abhorrent nature of the pornographic material the subject of the offences.
It was submitted that the respondent had been in contact with three people, one of whom he had believed to be a teenage girl. It was said that an appropriate starting point would be at least making cumulative those sentences with respect to each of those three persons. In any event the fact that there had been distinct acts of supply on different occasions had warranted a cumulative sentence unless one got to the point where it was inappropriate to accumulate because of the totality principle.
It was emphasised for the appellant that there should have been an accumulation of some of the sentences by the very nature of the distinctness of each of the acts of supply and that by not doing that the learned Judge had imposed a manifestly inadequate sentence in respect of the overall conduct. It was submitted that even if there had been an accumulation of only two of the sentences of 18 months' imprisonment a result might have been arrived at which was closer to the appropriate disposition in the case than that which had been in fact been achieved.
It was argued that in an earlier case (R v Jones (1999) 108 A Crim R 50) a man had been in possession of 80,000 images of child pornography with no suggestion that he was going to supply anybody. On a Crown appeal he had been sentenced to 18 months' imprisonment with the Court having indicated that a 2 year sentence might well have been appropriate but that after a Crown appeal, the correct sentence would be 18 months' imprisonment. It was said that if the correct sentence in that case would normally have been 2 years, it could not be said that a person who in addition had supplied the same sort of material so as to effectively promote the widening of the net, should be punished to the same extent. It was submitted that there was a disparity in the sense that this respondent's conduct was more serious than that in R v Jones (supra). It was contended that Parliament had made it clear that supply was more serious than possession, because Parliament had allowed for a maximum sentence of 7 years for supply compared with a 5 year maximum sentence for simple possession. It was submitted that the apparent disregard for the difference between supply and possession was indicative of error; that the correct view had to be that supply warranted a greater penalty than being in simple possession.
In this case it is relevant that the persons to whom the material was supplied were users of this kind of product. They were people who would go to a particular electronic chat room. The respondent said that the first contact he had had with the persons to whom he had supplied the material was in a chat room. It had become apparent what those persons' interests were. They had commenced to supply each other with material.
It was submitted for the appellant that the moment a person supplies any of this sort of imagery to someone else there is a potential for that to be passed on to others. However it was conceded that in this case, there had not been factors which pointed to a financial gain to the respondent or to the conclusion that the respondent had set out to corrupt receivers of the product who were previously innocent.
In R v Jones (supra) Kennedy J at [6] said:
"In the second decision, the Court of Appeal in Fellows [1997] 2 All ER 548, was concerned with a case in which the offender had been convicted on four counts of possessing indecent photographs of a child, and one count of having an obscene article for publication for gain. He was sentenced to 3 years' imprisonment and appealed against that sentence on the ground that it was appropriate to a commercial pornographer, but not appropriate to a computer enthusiast who had electronically swapped material with like minded people without financial motive. Evans LJ, delivering the judgment of the court, as to this contention said:
'We cannot agree. As the judge said, in other cases where financial gain was in prospect or the defendant set out to corrupt others who previously were innocent, an even longer sentence might be inevitable. There is enormous public disquiet at the potential which the internet offers for the international transmission of pornography, in particular for those whose perverted tastes include collecting and viewing indecent photographs of children. Add to this the public revulsion against paedophilia in all its forms and it becomes clear, in our judgment, that heavy deterrent sentences must be imposed when serious offences, which are not always easy to discover, come to light.'"
In the present case it was not alleged that the respondent was doing anything for gain or setting out to corrupt others who were previously innocent.
The appellant however contended that the Court must been seen to be deterring the supply of child pornography where it is seen to happen in a relatively significant way. There had not been just one image being supplied in this case. It was submitted that the Court must be seen to be deterring by imposing sentences that are significantly more than sentences which the Court has indicated are appropriate for simple possession. Cases of significant supply are more serious than cases of simple possession.
It was accepted for the appellant that there would be cases where supply would not be as serious as possession if the supply involved images which were not nearly as bad as those which were possessed, or where far fewer images were involved. It was also conceded that in all respects, apart from these offences, the respondent was a respectable citizen.
One matter to note when sentencing for offences under this Act is that although there is a difference in the maximum penalty between a case of simple possession of such material and a situation where that material is supplied to someone else, the greater penalty for supplying the material to someone else covers the situation where that is done for commercial gain. It would also cover the situation where there was a supplying of material to perhaps a large number of people, or vulnerable young people, again perhaps for gain.
The act of supplying increases the number of people viewing the material. It may be done for financial profit. It might corrupt people who would otherwise not be corrupted, for example young people. Those are good reasons why the maximum penalty should be greater for supplying than in the case of simple possession. However, it does not follow that an offence of supplying the material should necessarily attract a heavier sentence than an offence of possessing the material. What is to be punished by the criminal law is the criminality involved in the relevant offence.
So far as it is known in this case, the persons who were supplied with the material were already involved in the viewing of such material and were not further corrupted. It is not alleged that there was financial gain involved to the offender. The offences took place on 19 different days The learned sentencing Judge considered all the relevant facts and was acquainted with the earlier decided cases in which penalties for these types of offences had been discussed. His Honour made a judgment on the criminality involved. No error is apparent in the learned Judge's reasoning. It is however contended for the appellant that the sentence imposed was manifestly inadequate.
Kirby J in Dinsdale v The Queen (2000) 202 CLR 321 said at [57]:
"In Lowndes v The Queen this Court remarked that:
'A Court of Criminal Appeal may not substitute its own opinion for that of a sentencing Judge merely because the appellate Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion… The discretion which the law commits to sentencing Judges is of vital importance in the administration of our system of criminal justice.'"
Kirby J continued at [62]:
"For reasons of legal history and policy, the position of crown appeals against sentences has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, crown appeals were considered to cut across 'time honoured concepts' of the administration of criminal justice and the common law system. For this reason, it has sometimes been said that, as a 'matter of principle', such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought about by those who have been sentenced. The consequence is that where the crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains."
In Dinsdale v The Queen (supra) Gleeson CJ and Hayne J referred to the words of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 505 where their Honour's said:
"It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
In all the circumstances of this case, in my opinion the sentence imposed by the learned Judge was not "unreasonable or plainly unjust"; neither was it manifestly inadequate. There was no error made by the learned Judge.
It should not be thought that a sentence of 18 months' imprisonment for a first offender like this respondent, is not a severe and serious punishment. It is.

Applying the principles which have been laid down in House v The King (supra) and Dinsdale v The Queen (supra) it was my view that the appeal should be dismissed.
MURRAY J: I am in general agreement with the reasons of Wallwork and McKechnie JJ.
While, having regard to the nature and amount of the pornographic material supplied and the number of offences over a period of time, the sentences for these offences in particular seem to me to be lenient, I thought they were not so clearly inadequate as to warrant interference on a Crown appeal.
A further particular reason for restraint in this case, having regard to the double jeopardy involved in the appeal by the Crown, was that the commencement date of the term of imprisonment was 18 October 2001 and the respondent's earliest eligibility date for parole was 18 April 2002.
McKECHNIE J: This Crown appeal against sentence was heard on 10 April 2002. On 11 April 2002 the Court ordered that the appeal be dismissed, with reasons to be published later. These are my reasons for joining that order.
On 18 October 2001 the respondent pleaded guilty to 94 counts of supplying child pornography, and one further count of possessing child pornography with intent to supply it to another. The offences were contrary to the Censorship Act.
The Chief Judge of the District Court remanded the respondent in custody pending sentence on 6 December 2001.
The Judge summarised the facts and made observations on them. No complaint is made of his observations.
He specifically noted:
"The possession and distribution of child pornography is not a victimless crime because it is an inescapable fact that somewhere small children are being corrupted for the private purposes of those who take the photographs and who arrange the poses. Those who deal in child pornography create the market and as long as there are people who are prepared to distribute these items, there are people who are prepared to set

them up and cause them to be brought into existence by the exploitation of children who must, inevitably, be harmed in the process."

With these comments I expressly agree.
After allowing credit for an eventual plea of guilty, the Judge assessed that each of the offences ought to attract a term of 2 years' imprisonment but, in recognition of the plea, the sentence was reduced to 18 months' imprisonment on each count. No complaint is made as to the disposition in respect of each count or the order for eligibility for parole which was also made. The Judge ordered that each count be served concurrently.
The Crown appeals against the sentence on the following grounds:
"1.The learned sentencing Judge erred in ordering that each of the terms of imprisonment be served concurrently.
PARTICULARS
(a)The learned sentencing Judge did not expressly consider the totality principle, or whether any of the counts warranted a cumulative sentence.
(b)The indictment reflected acts of supplying child pornography on 19 separate occasions and to 3 different recipients. Subject to the totality principle, the sentences for the offences in respect of each recipient ought to have been cumulative upon the sentences for the offences in respect of each of the other recipients.
2.The learned sentencing Judge erred in imposing a sentence that was manifestly inadequate having regard to the nature of the offences and the circumstances in which they were committed.
PARTICULARS
The overall sentence failed adequately to reflect:
(a)the seriousness of the offences;
(b)the need for general deterrence;
(c)that the supply of child pornography, and the possession of child pornography with intent to supply it to others, are more serious offences than simple possession of child pornography."
Although ground 1 complained that some sentences ought to have been made cumulative, the essence of the Crown argument seems to be contained in ground 2. In my view, this is not a case where the failure to accumulate sentences of itself demonstrates appellable error. If there is any error in the failure to accumulate sentences in this case it is an error in failing to impose a proper sentence for the criminal conduct disclosed in the supply (and some cases re‑supply) of a series of images to three people. The Judge described the images, some of which he regarded as particularly repellent. In other words, the real complaint is that the sentence was inadequate
The principles that underlie Crown appeals against sentences said to be manifestly excessive have just been restated by this Court in R v Black [2002] WASCA 26 and do not require repetition.
The Judge is primarily entrusted with the exercise of sentencing discretion. No fault is demonstrated in his reasoning process. Having regard to the overall circumstances, the limited nature of the supply in this case, and the maximum sentence available for each offence, I am unable to conclude that the sentence is so manifestly inadequate as to justify intervention by this Court.