R v Elliott

[2008] NSWDC 238

CITATION:	R v David Bruce Elliott [2008] NSWDC 238
JUDGMENT DATE:	24 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Hulme SC DCJ
DECISION:	Total sentence of imprisonment for 5 1/2 years with a non-parole component of 4 years 1 month.
CATCHWORDS:	CRIMINAL LAW - Sentence - Possess child pornography - Disseminate child pornography - Plea of guilty - Offences whilst on bail
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Confiscation of Proceeds of Crime Act 1989
CASES CITED:	R v Oliver [2003] 1 Cr App R 28 R v Kennedy [2000] NSWCCA 527 R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 Mouscas v R [2008] NSWCCA 181 R v Saddler [2008] NSWDC 48 R v Stroempl (1995) 105 CCC(3d) 187 R v Jones (1999) 108 A Crim R 50
PARTIES:	R v David Bruce Elliott
FILE NUMBER(S):	07/61/0123
COUNSEL:	F. Lalic (Crown) A. Benetatos (Offender)
SOLICITORS:	Director of Public Prosecutions (Crown) Benetatos White (Offender)

JUDGMENT

1 HIS HONOUR: On 7 October 2008 the offender, David Bruce ELLIOTT, was arraigned before me and entered pleas of guilty to 5 charges of possessing child pornography and 4 charges of disseminating child pornography.

2 These are offences against s.91H(3) and 91H(2) Crimes Act 1900 respectively and the maximum penalties are imprisonment for 5 years and 10 years.

3 The offender had appeared before me at the Orange sittings of this Court on 11 September 2008, having pleaded guilty and been committed for sentence. However, on that occasion it became apparent that the way in which the charges had been preferred presented an almost impossible sentencing task. The matter has been rectified by a substantial reduction in the number of charges now placed on the ex officio indictment filed by the Crown. The offender will still get the benefit from having admitted his guilt at an early stage in the Local Court.

FACTS

4 The Crown tendered by consent a statement of Agreed Facts signed by the offender and the prosecutor as well as a volume of other material that provides further details of the offences.

5 The Agreed Facts make reference to the COPINE scale in referring to the nature of the images that were in the offender’s possession. That scale ranks child pornographic material from level 1 as the least serious to level 10 as the most serious. Use of that scale provides a convenient method of describing the nature of the material and its relative degree of seriousness. It is not the only method – see for example, R v Oliver [2003] 1 Cr App R 28 where the Court of Appeal in the United Kingdom adopted a 5 level ranking. I do not think there is anything significant in the selection of a methodology for ranking the seriousness of the material. As the use of the COPINE scale is referred to in facts that are agreed between the parties, I am prepared to accept the appropriateness of its use in this case.

6 On 13 July 2006 the Australian Federal Police based in Washington in the USA received information about an Australian resident accessing the “boylover.com” website using the online user name “Mavrik”. A number of child sexual exploitation images, and images of the offender and the truck he drove, were sent from an email address “tdriverboi@hotmail”. Inquiries in the United States identified the offender as the holder of that email account. The material was forwarded to the Australian Federal Police Online Child Sex Exploitation Unit in Australia and an investigation commenced. The offender was found to be living in a caravan at the Colour City Caravan Park in Orange.

7 On 27 March 2007, police arrested the offender at the front of his work place in Orange. He was in possession of a laptop computer and 4 USB thumb drives. There was also a wireless internet card. The offender admitted owning the laptop and said he was the only person who used it and its internet connection. He admitted there were child sexual exploitation images on the thumb drives.

8 The offender was taken to his home where a search warrant was executed. Two personal computers were seized as well as thumb drives, computer disks, CDs, DVDs, 8mm movie reels, a folder containing child sexual exploitation images, sex aids, address books and other related items. These items contained images of child exploitation.

9 The offender was released on bail with conditions that included he not utilise the internet for any purpose other than in the direct course of his employment and not to have an internet connection at any premises where he ordinarily lived.

10 Counts 1 to 4 are each offences of possessing child pornography at Orange on 27 March 2007.

11 Count 1 relates to the offender’s possession of 3 USB thumb drives found at his caravan. They contained a total of 17 child pornography movie files, all of which were rated 7 on the COPINE scale as explicit sexual activity. They depicted adolescent males between 10 and 15 years of age engaged in self masturbation, oral sex, penetrative anal intercourse and anal penetration with a vibrator.

12 Count 2 relates to a folder containing 180 images of young naked male children involved in nudist activity. They have not been rated on the COPINE scale. It also relates to a collection of CDs, DVDs and floppy discs all containing child exploitation material. There were 27 movie files and approximately 3,100 still images. The images range in classification on the COPINE scale from level 1, being images indicative of sexualised pictures, to the most serious category of level 10, which involves sadistic or bestiality sexual images involving pain or animals.

13 The most serious of the images are at levels 7, 8, 9 and 10 of the COPINE scale. These images contain children ranging between 2 and 5 years, 5 and 10 years, and 10 and 15 years, being subjected to pain, being chained and gagged, being subjected to humiliation, being penetrated anally or vaginally by an adult male, performing oral sex on an adult male, having objects inserted into the anus or penis of male children, a male ejaculating into the mouth and face of a young female child, a male inserting his penis into the vagina of a young female child with the child grimacing in pain, a male having penetrative sex with an infant child aged between 2 and 5 years, and other grossly obscene images of sexual assault of children.

14 The work logs of the investigators are included in the material tendered by the Crown. They provide descriptions of individual items. The following description of one of the movie files gives an indication of some of the worst types of material that the offender possessed:

“Two adolescent males and one young male all naked lying on a bed engaged in self masturbation, oral sex and sexual intercourse. Includes sadistic images where the children are tied and bound and sexually assaulted”.

That item is rated at level 10 on the COPINE scale.

15 Count 3 relates to the offender’s possession of 13 movie films and 3 video tapes. The movie films are commercially produced reel to reel movies of adolescent children aged between 10 and 15 engaged in masturbation and penetrative sexual activity. The video tapes are copies of three of the reel to reel films. The majority of the images and movie files have been assessed as being at level 7 on the COPINE scale and involve adolescent males involved in mutual and self masturbation, sexual intercourse and oral sex.

16 Count 4 relates to the offender’s possession of a computer seized from his home in respect of which he admitted it had stored upon it child exploitation images. Examination of the hard drive revealed that there were 29,000 child exploitation images consisting of male children engaged in sexual activity alone, with each other, and with adults. The sexual activity consisted of oral sexual acts and penetrative sexual acts between adults and children and between children and other children. The majority of the images have been assessed as being between levels 7 and 10 on the COPINE scale, indicating grossly obscene images of sexual assault of children involving oral, digital and penetrative sex involving an adult.

17 In February 2007, police received information relating to a paedophile network operating within New South Wales. Strike Force Pyrmont was established by the Child Protection and Sex Crimes Squad to investigate the matter. It was found that there was such a network and that it had connections interstate and overseas. New South Wales police and Australian Federal police commenced a large scale covert investigation. They confirmed the existence of a networked group involved in the production and sharing of illicit material and predatory behaviour aimed at identifying and gaining access to potential victims. The investigation identified the offender as part of the network and he was subsequently subjected to covert physical and technical surveillance.

18 Count 5 is an offence of disseminating child pornography at Orange on 3 October 2007. On that day the offender met a police operative at his caravan. Their conversation was recorded by way of a listening device. During their contact the offender obtained a CD hidden behind a bureau in his caravan and placed the CD in his computer and displayed to the operative a number of sexually explicit images of young male children aged approximately 11. The offender then clicked on the file “My Documents” on his computer and showed the operative numerous still photographs of young naked children aged approximately 10 to 15.

19 Count 6 is also an offence of disseminating child pornography at Orange on 3 October 2007. It relates to the offender producing and supplying the operative with a CD which was a copy of the one he produced from behind the bureau in his caravan. It contained a 9 minute movie file rated 7 on the COPINE scale. He also supplied the operative with a CD upon which he had copied the images stored in his “My Documents” file. These images included 1 sadistic image rated 10 on the COPINE scale. The other images were of nudist and posing activity.

20 Counts 7 and 8 are offences of disseminating child pornography at Orange on 27 November 2007 when the offender again met with the police operative. Their conversation on this occasion was also recorded by way of listening device.

21 Count 7 relates to the offender displaying on his computer a sexually explicit movie of several young naked males aged about 12 engaged in oral and anal sex. He told the operative that he got these images from the “Limewires” website. He also showed the operative some 8mm movie reels, saying that they were movies from back in the 1970’s, and that the age of the children was 12. He also made comments such as most of the children were “uncut”.

22 Count 8 relates to the offender providing to the operative a number of CDs. The operative saw the offender obtain these discs from a bookshelf in his lounge room.

23 One was marked “Xmas Carols PJY”. This disc contained a movie involving three adolescent males performing mutual and self masturbation, oral sex and intercourse with an object. The material was rated 7 on the COPINE scale. This movie was a copy of the one the offender had displayed to the operative on his computer.

24 A CD marked “Genisus” contained a movie with children and adolescent males in posing positions suggestive of sexual activity. This was rated 4 on the COPINE scale.

25 A CD marked “Johnny Cash Murder” contained predominantly images of activity assessed at levels 8 and 9, involving grossly obscene pictures of an adult penis penetrating a child’s anus, oral sex and a child self-masturbating and masturbating adults.

26 Two CDs contained movie files depicting male children performing oral sex on adult males, sexual intercourse between male children and adolescent males, insertion of objects into the anus of adolescent males, mutual and self masturbation, oral and penetrative sex between adolescents and between male children. This material was rated at levels 7 and 9.

27 Another 2 CDs contained movie files of a male child performing self masturbation, then performing oral sex on an adult male, then the adult male having penetrative sex with a child. These are described as grossly obscene sexual images and they were rated at levels 7 and 9.

28 Of the contents of all of these discs, 29 of the images are rated at level 7, 17 at level 8 and 17 at level 9 of the COPINE scale. They consist of multiple images of penetration by an adult of a child’s anus, oral sex involving an adult and a child, images of children self masturbating and masturbating adults, children involved in mutual masturbation, oral sex and penetrative sex with one another.

29 In relation to Count 9, the offender was arrested on 15 December 2007. Later that day a search warrant was executed at his home. 7 CDs were seized which, when later examined, were found to contain child exploitation images and movies. They include such things as a naked adolescent male tied to an object, a movie file of an adult penis penetrating a child’s anus, a movie of adolescent males performing mutual and self masturbation, oral sex and intercourse with an object, multiple images of adult males penetrating the anus of children aged between 5 and 10 and adolescent children aged between 10 and 15, children performing oral sex on adult males and children performing self masturbation and the masturbation of adult males. There were movies depicting explicit sexual activity and grossly obscene images of a child performing oral sex on an adult male and then the adult having penetrative sex with the child. These movies also contained images of children performing self and mutual masturbation, oral sex and penetrative sex with each other. Another group of movies showed a male child between 5 and 10 performing oral sex on an adult male. There were also male children and adolescents involved in oral sex, sexual intercourse and masturbation with adults. In one movie a male child performs oral sex and uses a object to penetrate an adolescent male anus. In a further group of movies there are shown 3 adult males, 1 child and 2 adolescents engaged in penetrative sex, oral sex, self masturbation and adult and child mutual masturbation. The balance of the movies in this group consisted of adolescent males performing mutual and self masturbation, oral sex and penetrative sex with each other. The final group of movie files depicted oral and penetrative sex between adults and children, adolescent males involved in oral and penetrative sex, and male children engaged in oral sex and self or mutual masturbation. The material that has been specifically mentioned is rated between 7 and 10 on the COPINE scale.

SUBJECTIVE FEATURES

30 The offender was born on 17 January 1956, so he was 51 at the time of the offences.

31 He has no previous convictions. There is a subsequent matter of possessing an unregistered firearm for which he was charged in January 2008. The Local Court imposed a conviction but no penalty. The fact that he has no previous convictions, and at least to that extent can be said to have been of prior good character is something that stands in his favour.

32 The offender did not give evidence at the sentence hearing.

33 The Pre Sentence Report informs me that he was born and raised in the Orange and Molong areas. His parents are deceased. He has regular contact with his two siblings. He is presently single, having separated from his former wife some 5 years ago.

34 He was educated to Year 11. He has worked the majority of his adult life as a interstate truck driver. He ceased that work when he suffered an injury to his hand in March 2007. I was told from the bar table that he needs to have an operation in relation to that injury but no further detail was forthcoming, let alone evidence.

35 When the proceedings were before me at Orange on 11 September, a Mr Derek Hanlon was called to give character evidence. He said that he met the offender in about 1988. He taught him how to drive trucks. He saw the offender regularly from 1988 until October 2006. He said they were very good friends. He spoke of the offender helping him when he experienced a heart attack in his truck at Hay in 1989. He said the offender saved his life. Sometime after that they shared driving a truck together. He said that in this way he got to know him very well. He said there was no indication of this type of behaviour – that is, involvement with child pornography. Mr Hanlon said that he, and his family, were in a state of shock at learning of the charges preferred against the offender.

36 The offender told the Probation and Parole Officer of being a heavy drinker. I was told from the bar table that this abuse of alcohol arose from depression but I am not prepared to accept that without appropriate evidence. He has no drug or mental health issues.

37 In relation to the offences, he told the Officer that the internet had become like an addiction for him. He was unable to explain why he chose to view pictures of children. He claimed that alcohol abuse was a contributing factor to his offending behaviour.

38 Mr Benetatos told me that his instructions were that the offender intends to seek counselling and treatment after he has been sentenced. I cannot make an assessment of whether the offender is genuine about this without having heard evidence from him.

39 Similarly I am unable to make any finding about the offender’s prospects of rehabilitation and his likelihood of re-offending, or not re-offending, in the absence of evidence from him or an expert psychological or psychiatric assessment. I should mention, however, that the fact that the offender proceeded to acquire more child pornographic material after the police seized what he had and charged him in March 2007 is a matter of grave concern.

40 I was also told from the bar table that the offender is presently confined to his cell for 23 hours a day in a classification I was told was “non-association”. It was said that access to television and radio was his only contact with the outside world. There was no evidence placed before me as to this, and no evidence as to what will be the situation once the offender is sentenced. It is well known that sex offenders are often placed in gaols with like offenders so that there is little, if any, restriction of their access to programs and facilities. Without knowing with some degree of certainty that the offender will experience conditions that are harsher than usual this is not something I can take into account. I understand this to have been conceded on the offender’s behalf.

41 The offender entered pleas of guilty in the Local Court and so, to reflect the utilitarian benefit accruing to the criminal justice system I propose to discount the sentences I would otherwise have imposed upon him by 25%. It was submitted that I should find contrition on the basis not only that he pleaded guilty but also that the offender did not apply for bail upon his second arrest. I do not accede to that submission. I do not know whether not applying for bail was a product of contrition or a recognition of the futility of making an application, or of the inevitability of conviction. I do not accept that the pleas of guilty are indicative of remorse either. The Crown case was virtually irrefutable and the pleas were more likely a recognition of that. There is no other basis upon which I could find that the offender is remorseful.

42 I have earlier referred to the offender’s otherwise prior good character. That is a relevant matter to take into account in mitigation but in a case such as this it is of reduced significance. The reason for that is that offences such as these are serious and they are often committed by persons of good character. Moreover, general deterrence warrants substantial weight - a matter I will amplify shortly. (See R v Kennedy [2000] NSWCCA 527 per Howie J at [21] – [22]).

OBJECTIVE SERIOUSNESS OF THE OFFENCES

43 It is necessary to indicate my assessment of the objective seriousness of the offences. In relation to making such an assessment in respect of offences of possessing (or importing) child pornography, Johnson J, with the agreement of McClellan CJ at CL and Adams J, in R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, referred to a number of authorities in Australian jurisdictions before saying:

“[99] … (A) range of factors bear upon the objective seriousness of an offence of possession or importation of child pornography. These factors 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.

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.”

44 In the present case, the first observation that can be made is that the offender had a very extensive range of child pornographic material on film, video, DVDs, CDs, and still photographs. A significant amount of the material depicted grossly obscene images of young boys and girls being sexually assaulted. The children ranged in age from extremely young children to teenagers, more of the latter, and those in late pre-teen years, than the former. There were a number of images that ranked at the highest levels of 9 and 10 on the COPINE scale. The description I gave when dealing with the facts of the offences need not be repeated but it indicates that some of the material the offender possessed was at an extremely grave level of seriousness. On the material presented to me it is not possible to determine with any precision the number of children involved who were indirect victims of the offender’s criminal behaviour. It is clear, however, that there were a great many, probably thousands.

45 The Crown has submitted that I should find that the offences in Count 2 and Count 4, in terms of the number of images, their nature, and the ages of the children involved, should rank as being in the worst case category. Of course, not all of the images in relation to those counts were at the extreme level in terms of age of child and nature of activity depicted, but the fact that they included material at that extreme level, coupled with the enormous number of images, and consequently the number of children involved, does, I believe, put those counts in the upper end of the range of seriousness, marginally short of worst case category.

46 The offender’s ability to readily acquire further child pornography after the police seized his stock in March 2007 is a matter of considerable concern. It supports the Crown’s contention that the offender had a well established source of contacts amongst people with an interest in child pornography. There is also material in the covertly recorded conversations between the offender and the police operative that indicates that the offender surreptitiously accessed the internet using other people’s broadband facilities in order to conceal his acquisition of child exploitation material. These types of matters point to the level of planning and organisation in his activities.

47 Mr Benetatos submitted that the offender was not aware that in relation to Count 4 there were 29,000 images on his computer hard drive although he concedes that he was aware that there was a very high number. He also submitted that the offender did not recall seeing images as extreme as are said to be included in the items that are the subject of Count 2, although he accepts they were in fact there. He does concede that there were the items ranked at levels 9 and 10 on the COPINE scale in relation to the other counts. Once again, I am unable to make findings in the offender’s favour in relation to such matters because of the absence of evidence from him.

48 I accept that in relation to the dissemination offences the offender did not obtain any financial reward. That tends to put those offences lower in the scale of seriousness. The offences of dissemination that involve simply showing the police operative material are less serious than those where he provided such material to him.

49 Taking all relevant matters into account I assess the objective seriousness of the individual offences as follows. Count 1 is just below the middle of the range. Count 2 is in the upper end of the range. Count 3 is just below the middle of the range. Count 4 is in the upper end of the range. Count 5 is at the lower end of the range. Count 6 is between the lower and middle range. Count 7 is at the lower end of the range. Count 8 is just below the middle of the range. Count 9 is at the upper end of the range, not quite at worst case category.

50 Aside from the objective seriousness of the offences, in relation to Counts 5 to 9, the fact that they were committed while the offender was on bail for the offences in Counts 1 to 4 is a serious aggravating feature that I must also take into account.

COMPARABLE CASES

51 The Crown representative, Ms Lalic, provided me with very helpful and comprehensive written submissions. She also referred me to three authorities on sentencing for offences of these types. It was not suggested by her that those cases provided any applicable range of sentencing that I should have regard to. I understand her reference to these authorities to be in order to assist me as to relevant sentencing principles in relation to cases of this type. Nevertheless, Mr Benetatos submitted that I should have more regard to the sentences imposed in the cases of Mouscas v R [2008] NSWCCA 181 and R v Gent [2005] NSWCCA 370 as opposed to the sentences imposed in R v Saddler [2008] NSWDC 48. I do not regard the sentences imposed in those cases as providing any indication as to the appropriate sentence to be imposed in the present case.

52 Gent was a case involving a single charge of importing child pornography under Commonwealth legislation with a maximum penalty of imprisonment for 10 years and/or a fine of $275,000. The offender was found in possession of 2 CDs when he came into the country that contained 16 video images ranging from 5 to 39 seconds in length and 601 still images. He had no previous convictions. He was sentenced to imprisonment for 18 months with recognisance release order after 12 months. The appeal against the asserted excessiveness of the sentence was dismissed.

53 Mouscas was a case involving a single charge of possessing child pornography under s.91H of the Crimes Act (NSW). He was sentenced to 2 years 9 months with a non-parole period of 18 months after a 20% discount for his plea of guilty. He had no previous convictions. The material in his case involved 41,923 graphic files and 251 video files. The sentencing judge made a finding that the offence fell within the upper end of the range of seriousness. This finding was challenged but without success.

54 Saddler involved an offender with no previous convictions charged with 3 offences but they each related to his possession of child pornography on a single occasion, the only difference in the charges being the medium of storage of the material. There was a total of 35,000 still images, 687 movies and 77 archived photos. Further material was the subject of offences listed on a Form 1 document. His Honour Judge Berman SC sentenced this offender to a total term of imprisonment of 6 years with a non-parole period of 4½ years. The nature of some of the images as described by the sentencing judge was quite extreme, being at the upper end of the COPINE scale. I understand this judgement is subject to appeal.

55 No range of sentencing can be derived from a mere 3 cases. In any event, the circumstances of the present case are distinctly different to the circumstances in each of those 3 cases. If I could conclude anything from reference to those cases I would have to say that the sentence to be imposed in the present case should be more towards that in Saddler than in the other two. The present case is significantly more serious than Gent and Mouscas in terms of the number of images, number of children involved, nature of activity depicted, and there are other features including that the present offender was charged with some offences and then repeated his offending conduct whilst on bail.

GENERAL SENTENCE CONSIDERATIONS

56 The task I have is to assess appropriate sentences that will reflect the purposes of sentencing set out in s.3A Crimes (Sentencing Procedure) Act 1999. In particular, the sentences should provide adequate punishment and denunciation of the offender’s conduct and make him accountable for his actions. They should act as a deterrent to him and others who might be minded to commit such offences. General deterrence is particularly important in relation to offences of this nature as they are relatively easy to commit and difficult to detect.

57 The following from the judgment of Morden ACJO in the Ontario Court of Appeal in R v Stroempl (1995) 105 CCC(3d) 187 at 191 is pertinent:

“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.”

58 Personal deterrence is also important given the offender continued his activities notwithstanding having been charged with the offences in Counts 1 and 4 in March 2007. The sentences should also be assessed with recognition of the harm the offender has caused by his offending conduct. What he has done has furthered the trade in child pornography which, in turn, creates a demand for people to subject children who are often from economically and socially deprived backgrounds to the most depraved and obscene abuse.

59 The reasoning of Kennedy J in R v Jones (1999) 108 A Crim R 50 is apt:

“The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims.”

60 No sentence other than full-time imprisonment is appropriate for offences at this level of seriousness. The contrary has not been contended.

61 There should be a level of accumulation of the sentences to reflect the different episodes and nature of offending. The extent of accumulation will be guided by consideration of the principle of totality. I propose to order that the offences in Counts 1 to 4 be served concurrently because they are all related to the offender’s possession of child pornography on the one occasion, the only difference being in the medium of storage of the material. Counts 5 and 6 relate to dissemination on one occasion and Counts 7 and 8, dissemination on another occasion. Count 9 relates to a separate offence of possession, partially related to the items the offender had available in order to disseminate for Counts 5 to 8. There would be good reason to order a degree of accumulation of the sentences for the last 3 groups of offences. However, because of the need to have regard to the principle of totality, and to adopt a simpler and more practical approach, I propose to order that they be served concurrently, but they will be substantially accumulated upon the sentences for Counts 1 to 4.

62 I have considered whether there are special circumstances for reducing the non-parole component of the sentences. There is because of the accumulation of sentences I am going to impose. Otherwise, the parole period that will potentially be available to the offender is, in my view, sufficient to cater for an assisted, supervised reintegration of the offender into the community following his release from custody. Any lesser non-parole period than that which I am imposing would not reflect the objective gravity of his offences.

63 I am going to impose fixed term sentences where there is no utility in setting a non-parole period.

64 The offender has been in custody since 15 December 2007 and so the sentences will be back-dated until then.

SENTENCE

65 On each: Convicted

Count 1 – Possession of child pornography: Sentenced to imprisonment for a fixed term of 18 months dating from 15 December 2007 and expiring 14 June 2009.

Count 2 – Possession of child pornography: Sentenced to imprisonment for a fixed term of 3 years dating from 15 December 2007 and expiring 14 December 2010.

Count 3 – Possession of child pornography: Sentenced to imprisonment for a fixed term of 18 months dating from 15 December 2007 and expiring 14 June 2009.

Count 4 – Possession of child pornography: Sentenced to imprisonment for a fixed term of 3 years dating from 15 December 2007 and expiring 14 December 2010.

Count 5 – Dissemination of child pornography: Sentenced to imprisonment for a fixed term of imprisonment of 18 months from 15 December 2009 and expiring 14 June 2011.

Count 6 – Dissemination of child pornography: Sentenced to imprisonment comprising a non-parole period of 18 months with a balance of the term of the sentence of 6 months. The sentence is to commence 15 December 2009. The non-parole period expires 14 June 2011.

Count 7 – Dissemination of child pornography: Sentenced to imprisonment for a fixed term of imprisonment of 18 months from 15 December 2009 and expiring 14 June 2011.

Count 8 – Dissemination of child pornography: Sentenced to imprisonment comprising a non-parole period of 1 year 10 months with a balance of the term of the sentence of 8 months. The sentence is to commence 15 December 2009. The non-parole period expires 14 October 2011.

Count 9 – Possession of child pornography: Sentenced to imprisonment comprising a non-parole period of 2 years 1 month and a balance of the term of the sentence of 1 year 5 months. The sentence is to commence 15 December 2009. The offender will be eligible for release on parole on the expiration of the non-parole period on 14 January 2012. The total sentence expires on 14 June 2013.

66 The total effective sentence is one of 5 ½ years with an effective non-parole component of 4 years 1 month.

67 I make the orders sought in the Notice of Motion filed by the Crown under the Confiscation of Proceeds of Crime Act 1989. I have signed the Short Minutes of Forfeiture Order.

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