R v Forbes
[2014] ACTSC 91
•27 February 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v FORBES |
Medium Neutral Citation: | [2014] ACTSC 91 |
Hearing Date: | 27 February 2014 |
Before: | Penfold J |
Category: | Sentence |
Catchwords: | SENTENCE – using carriage service to access child pornography – possessing child pornography – assessment of pornographic material – matters relevant in sentencing for child pornography offences – offender sentenced to terms of imprisonment but no immediate custody. CRIMINAL LAW – PARTICULAR OFFENCES – Miscellaneous offences and matters – child pornography offences – whether sentencing judge must view pornography concerned – whether representative sample to be viewed by sentencing judge must be agreed to be representative by both parties – whether counsel may view child pornography – practicality of either judge or counsel viewing all or even sample of pornographic material where quantity of material is high – by consent, offender sentenced on basis of judge’s viewing of small sample asserted to be “random” sample. |
Legislation cited: | Crimes Act 1914 (Cth), s 19AC Criminal Code Act1995 (Cth), ss 437.1, 474.19(1)(a)(i) Crimes Act 1900 (ACT), s 65(1) Crimes (Sentence Administration) Act 2005 (ACT) |
Cases cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 DPP v Brendon James Hegarty [2010] VCC, Howard J, 10 March 2010 Minehan v R [2010] NSWCCA 140 R v Clinton James Morosi [2013] ACTSC, Burns J, 28 August 2013 R v Gent [2005] NSWCCA 370 R v John Andrew Haynes [2010] ACTSC, Refshauge J, 14 May 2010 Smit v The State of Western Australia [2011] WASCA 124 |
Decision: | 1. The offender is sentenced as follows: (a) for using a carriage service to access child pornography – to imprisonment for 17 months; (b) for possessing child pornography – to imprisonment for 8 months; the second sentence accumulated so as to add one month to the first sentence and giving a total sentence of 18 months. 2. For the access offence, the offender is to be released today on a recognizance release order for two years with security of $1,000. 3. For the possession offence, the sentence is to be suspended with effect from today, and the offender is to be released subject to a good behaviour order for two years, subject to the conditions: (a) that for such period not exceeding 24 months as Corrective Services considers necessary, the offender accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate, and for that purpose that the offender report to Eclipse House within two working days from 27 February 2014 to arrange that supervision; (b) that the offender undertake such counselling, courses, programs or treatments as directed by his supervising officer; and (c) that within the next 12 months, the offender complete 100 hours of community service. |
Parties: | The Queen ( Crown) Joseph Forbes ( Offender) |
File Number: | SCC No. 141 of 2013 |
Introduction
Joseph Forbes has pleaded guilty to one count each of using a carriage service to access child pornography and intentionally possessing child pornography. Those pleas were entered at the first available opportunity, and credit must be given for them, although there is no doubt that the Crown case was strong and so the guilty pleas must to some extent be seen as a recognition of the inevitable.
These offences arise under s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) and s 65(1) of the Crimes Act 1900 (ACT) and carry maximum penalties of 15 and 7 years imprisonment respectively.
Mr Forbes’ offences came to light after AFP officers identified an Australian user who had downloaded child pornography videos and images in late 2012 and early 2013. The relevant IP addresses were identified as linked to the address where Mr Forbes lived with his partner. Search warrants were executed, and a quantity of child pornography material was detected on two computers. Mr Forbes made it clear to police that only he, and not his partner, used the software linked to the child pornography material, and he was arrested and charged with the current offences.
The carriage service offence took place over a period of about five months from August 2012 to January 2013.
The pornographic material
The material found on the computers and possessed by Mr Forbes totalled just over 1,500 items, 192 videos and the rest images. The material was classified according to the classifications of child pornography used by the AFP CET scale, which is a five-point scale in which Category 1 describes the least serious kinds of child pornography (involving “depictions of children with no sexual activity – nudity, surreptitious images focused on underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination”), and Category 5 the most serious, being “Sadism, bestiality or humiliation (urination, defecation, vomit, bondage etc) or child abuse material as per s 473.1 of the Criminal Code Act 1995”. Most of the videos were in Category 2, although there were 25 Category 4s and two Category 5s.
Most of the images were in Category 1, with another sizeable proportion in Category 2, 98 in Category 4 and 20 in Category 5. AFP officers estimated that at least 50 different children were depicted in the child pornography material, most of whom were boys aged between 12 and 15.
Requirement for sentencing judge to view pornographic material
In Smit v The State of Western Australia [2011] WASCA 124, McLure P, having referred to the Oliver scale which was developed by the English Court of Appeal and is similar although not identical to the CET scale, said at [17]:
It is not suggested by the English Court of Appeal that its classification list is intended to be a substitute for the sentencing judge viewing the pornographic material the subject of the conviction. Nor should it. The relative perversion and debauchery of the pornographic material is a relevant sentencing factor. Viewing a representative sample (as identified or agreed by the parties) of the material will ordinarily be necessary for the proper performance of the sentencing judge’s duties. Judges involved in the administration of the criminal law are frequently exposed to material that is deeply offensive in a myriad of different ways whilst being required to retain their objectivity and sense of proportion. Moreover, this court is assisted by findings as to the nature of the pornographic material such as those made by the sentencing judge in this case which went well beyond the limited description in the DPP’s list. The classification levels can only be of marginal assistance to courts involved in imposing or reviewing sentences for offences involving child pornography.
In reliance on these comments, counsel for the Commonwealth DPP submitted that I should view a sample of the material which, in due course, I did. However, I have considerable concerns about the process, none of which relate to my general disinclination to be exposed to such offensive and often disturbing material.
My general concern arises from McLure P’s comment that:
Viewing a representative sample (as identified or agreed by the parties) of the material will ordinarily be necessary for the proper performance of the sentencing judge’s duties.
This created a problem in the current case, and has the potential to create an even greater problem in other cases.
McClure P’s reference to “a representative sample identified or agreed by the parties” makes perfect sense in the context of a general principle that a judge should not sentence on the basis of information not available to one or indeed both of the parties. However, its feasibility must be questionable.
Her Honour made the comment in a case involving 43 images, a collection readily viewable as a whole by a sentencing judge.
In the current case there are, as noted, over 1,500 items (including videos some of which run for at least several minutes), and this case is in my experience still at the lower end of the spectrum in terms of the quantity of material; it is not unusual to deal with offenders who have tens of thousands of items. In order for the defence to agree that the material to be shown to the judge is a representative sample, then defence counsel needs to have viewed not just the proposed sample but, in theory, the entire collection (although it may be as a practical matter that viewing a further random “sample” of each category, ideally several times larger than the sample size, would be enough to enable counsel to accept that the selected sample is genuinely representative).
In this case, counsel had not viewed any of the material, and showed no inclination to do so. Indeed there may be questions about the circumstances in which counsel could legitimately view this material. In this case, it seemed that to have any chance of obtaining agreement on a representative sample, I would have had to order counsel to view either the whole of the material or at least a larger sample as already referred to. Apart from the question whether such an order was in any case within my powers, this would have created a substantial delay in the progress of the sentencing matter and imposed a substantial burden on whoever was paying for counsel’s services.
Random samples
The DPP, however, did not in fact claim that the sample was a representative sample but that it was a random sample. The tendering of a genuinely random sample, provided the total numbers and the sample size were adequate, might have been a fair way to satisfy the general requirement for the sentencing judge to view some of the material. Accordingly, the informant gave evidence of how the samples had been obtained.
As I understand it, the evidence was generally to the effect that the material had been recovered from the relevant hard drives in an order reflecting the way in which it was stored on the hard drives, and sorted into the five categories without changing the order in which the material within each category had been recovered. The sampling had involved taking a pre-determined number of items from the top of the list for each category (apparently five for each set of videos and ten for each set of images, or all of the items in the category if there were fewer than the relevant number). So, for instance, for Category 5, there were two videos and ten images in the sample.
It seemed to me that this approach, whether properly described as random or not, should at least have excluded any capacity for the AFP to influence which items from each category were included in the sample. However, in the sample I did view, and others I have had to view in the past, there were a number of sets or collections of images of the same child in the same general location but in a variety of poses or activities. For this reason, the AFP’s approach did raise the strong possibility that, at least for images, the “sample” would consist not of the sampled number of unrelated images but of the sampled number of images from a smaller number of sets of images, so that the samples would be less reliably representative than they might otherwise be. For instance, ten unrelated images taken randomly out of a total of 100 would be a random 10% of the images. Ten images from two or three sets of images may really only give two or three different examples of the nature of the images within that relevant category, which would still be 10% if the 100 images consisted of 20 or 30 sets of images, but if the 100 images actually came from ten sets totalling 40 images plus 60 individual images, then a sample of two or three sets of images may represent effectively two or three examples out of 70 images (3 or 4% of the total number of images which is even less representative). The problem is potentially more acute where the sample size is a fixed maximum number irrespective of the total number of images rather than a fixed percentage of that total.
That is, the sampling technique seemed to have the potential to render the samples considerably smaller and therefore less reliable than the raw numbers might suggest.
Defence counsel also raised other technical questions to do with how the material was organised on the original hard disk, although none of them as far as I could understand implied any scope for the AFP to order the material within categories so as to manipulate the sampling process. Despite this, however, counsel did not feel able to concede that I was being offered a random sample. However, he did for the purpose of the sentencing indicate that, in reliance on the good faith of the prosecutor and the informant, he accepted that the samples had not been chosen unfairly.
There were also some other troublesome aspects of the provision of the sample for me to view. The first video, identified to me as a Category 1 video, began innocently enough, but it rapidly became apparent that it belonged in a higher category. That problem was resolved and the agreed Statement of Facts amended accordingly. Then the sample of ten images in one category turned out to be six images and thumbnail versions of four of those images; not only did that reduce the sample size, but it also raised questions in my mind about the possibility that some or all of the numbers set out in the Statement of Facts were exaggerated by the inclusion of duplicate images. I was then assured, without objection from defence counsel, that the duplicates had not been included in any of the counts (except, obviously, in the counts of the samples).
Conclusions about nature of pornography
Noting these difficulties, all I am prepared to find by reference to my viewing of the images is:
(a)that the Category 1 material seemed to be at the high end of Category 1 (consisting mainly of young naked boys displaying their genitals in very suggestive poses, with a focus on erect penises); and
(b)that the other images, however, seemed to be generally mid- to low-level examples of the relevant category; a few of the images were very unclear, including one of the videos in Category 5, and few of them seemed clearly to involve adults engaged with the children.
Perhaps significantly, none of the subjects of the images or videos were showing obvious distress – on the other hand, the apparent and sustained enthusiasm with which some of the young subjects displayed their anuses to the camera perhaps gave an indication of the depths of the corruption to which they had been subjected.
Those findings have meant that I was able to proceed with the sentencing in reliance on defence counsel’s willingness to accept the assurances of the prosecutor. If, however, I had considered that the sample I saw increased the seriousness of the offence beyond what might have been assumed by reference to the AFP summary of the material, then I would have been very reluctant to proceed without finding a way for defence counsel to make submissions about my assessment of the material.
Finally, it is clear that the process has not followed the path identified by President McClure as “necessary for the proper performance of the sentencing judge’s duties”, because what I have seen has not been identified or agreed by anyone as a representative sample of the material. If the Western Australian approach is to be adopted in this jurisdiction, prosecuting and defending these kinds of offences, even for a sentencing process on a plea of guilty, will consume even more of the time of all participants in the process than it already does (and therefore would become even more expensive).
Seriousness of child pornography offences
Four factors were identified in R v Gent [2005] NSWCCA 370 as bearing on the objective seriousness of offences involving the possession of child pornography, being:
(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 items of child pornography possessed by the offender;
(c) whether the possession is for the purpose of sale or further distribution; and
(d) whether the offender hoped to profit from the offence.
There was no suggestion that Mr Forbes intended to distribute the images further, or to profit from them.
These are serious examples of the offences concerned, but by no means the most serious having regard to the overall volume of material, the spread of material across the categories, the preponderance of images in the lower categories and the other conclusions I have already expressed in relation to the nature of the material.
Subjective circumstances of offender
Mr Forbes has no criminal record and, more generally, is described in the Pre-Sentence Report as having otherwise lived a pro-social life.
The Pre-Sentence Report author reports that:
The elder of his mother’s two children, Mr Forbes described a stable, supportive familial background, free of any discord, abuse or trauma. He stated he maintains close relationships with his mother and sister, both of whom reside interstate.
Mr Forbes reported he relocated to the ACT from NSW in 2002 for work purposes and has remained in the region since. He informed he currently resides with his partner of over eight years and stated that the couple benefit from a comfortable lifestyle. Mr Forbes described his relationship as mutually supportive and positive, albeit somewhat challenging in recent months due to the stressors caused by his current legal matters.
Mr Forbes reported a solid education background and a consistent employment history, predominantly as a Federal Government employee. He advised he has been the co-owner/operator of a business within the hospitality industry since 2011. He stated that at the time he entered this business venture, he was employed in the public sector and left his position in 2012 to work alongside his business partner.
With the exception of his mortgage, Mr Forbes reported he has no significant debts and does not have any financial difficulties.
...
Mr Forbes informed he has no current or past issues with alcohol and/or drug misuse.
Mr Forbes reported he has no history of mental illness and is not currently suffering any medical issues.
The Pre-Sentence Report author reported Mr Forbes’ attitude to these offences, and summarised her opinion of Mr Forbes and his rehabilitation prospects:
Mr Forbes was initially highly reluctant to discuss his offences with this Service despite being offered several opportunities to do so. When he did discuss the offences he remained somewhat guarded in his responses.
Mr Forbes said that his reticence to discuss his offences is largely due to the shame he feels about his offending behaviour, which he described as being at odds with his personal character and beliefs. He stated he accepted responsibility for his actions and expressed regret for the situation he has placed himself in.
Mr Forbes went on to say that in retrospect, he is able to recognise that by being a consumer of child pornography, he contributed to a market that results in the exploitation of children.
Mr Forbes presented as an articulate man who, notwithstanding the current offences, appears to have led a pro-social lifestyle. Upon overcoming his initial reluctance to discuss certain aspects of his life and particularly his offences, he was able to demonstrate a level of understanding into the detrimental effects of his offences, not only to himself but also the victims of child exploitation.
Mr Forbes expressed his fears regarding the immediate and long-term ramifications of his actions. He stated he is prepared to undertake treatment and interventions that would assist in addressing the factors of his current offences and prevent further offending.
The defence provided a report about Mr Forbes from Professor Paul Mullen, a forensic psychiatrist from Victoria. He noted Mr Forbes’ “shame and embarrassment” about the offences and said that:
[Mr Forbes] described himself as “an intensely private person” who had never previously been able to talk freely about either his homosexuality or his attraction to adolescent boys.
Professor Mullen noted that Mr Forbes’ father left the family when Mr Forbes was young and:
He has not had any subsequent contact with him. He was brought up together with his sister by his mother who remained a solo parent. He has always had a close relationship with his mother and sister. He describes his childhood as secure and happy. He never experienced sexual or any other form of abuse. His mother is a practising Catholic and has always been a regular church attender. He was brought up Catholic and continued to attend church until he went to university. There is no family history of mental disorder or criminality.
Mr Forbes is 35. Professor Mullen described him as a shy person who has struggled to come to terms with his homosexuality and who has still not declared himself to his mother and sister. He is in a relationship with another man who has also struggled with his own sexuality. Mr Forbes hopes that this relationship will survive the commission of the current offences.
Professor Mullen reported Mr Forbes’ description of initially accessing gay pornography sites on the internet and then focusing his searching on images of young men. He admitted that some or even many of the images he collected were of males younger than 18. He claimed that he found them “too disturbing to be erotic”, and agreed that he should have deleted them. He also noted that the search engine he used did not allow complete discrimination in relation to the images downloaded.
Professor Mullen noted:
Despite living in a gay relationship for some seven years [Mr Forbes] is still unable to be open, even with his partner, about his sexual desires or feelings. Mr Forbes and his partner avoid gay clubs or any form of open acknowledgement of their sexuality. It is within this unfortunate and unnecessary secretiveness that Mr Forbes’ solitary pursuit of pornography involving adolescent boys flourished undisclosed and unconsidered. Since the police raid at least Mr Forbes and his partner have been able to begin to discuss and address his problem behaviour.
Mr Forbes currently suffers from a significant depressive disorder which would benefit from anti-depressive medication. He has a low risk of suicide at present but this could change. I urged him to consult his GP.
Professor Mullen also expressed opinions about Mr Forbes’ risk of re-offending, noting that by reference to certain studies (two of which he identified), he is at low risk of offending online again and at an even lower risk of offending against a child. Professor Mullen concluded:
The risks of reoffending would, in my opinion, be even further reduced if Mr Forbes received therapy directed at helping him come to terms with his homosexuality and reinforcing his resistance to accessing online child pornography. In my clinical experience a series of sessions examining their use of pornography and highlighting alternatives is of assistance. Reinforcing the message that accessing such pornography gives assent to the sexual abuse of children is, in my opinion, useful particularly in those like Mr Forbes who have the imagination and basic decency to empathise with the victims. Couples therapy to strengthen his relationship, and encourage openness both between each other and with their friends and family would also assist. If the court sees fit to impose a non-custodial sentence, in my opinion, any community order would benefit from a condition that Mr Forbes seeks and cooperates with therapy directed at both making him less secretive about his sexuality and clearer about the limits to responsible and legal sexual activities, both online and offline.
Other factors relevant to sentencing child pornography offenders
I have already mentioned the guidance given in the case of R v Gent to determining the objective seriousness of a child pornography offence. In Minehan v R [2010] NSWCCA 140 a further three relevant factors in sentencing for child pornography offences were mentioned, being:
(a) the importance of general deterrence;
(b) the offender’s good character (albeit a less significant matter than in relation to some other offences); and
(c) the need for denunciation.
For obvious reasons arising out of the exploitation of children that is fundamental to the production of child pornography material, and because the offence is usually committed in a considered way, general deterrence is recognised as particularly important in relation to child pornography offences. The use of file-sharing software to distribute this sort of material is seen as especially in need of general deterrence. On the other hand, I suspect that Mr Forbes needs little further individual deterrence; while the prosecutor notes that Mr Forbes was downloading child pornography material as late as two days before the warrant was executed, this does not provide any reason to believe he will do so again after his current experience with the law.
I note Mr Forbes’ prior and general good character, but also the need for denunciation of offences of this kind, and agree with the prosecutor’s submission that these offences require sentences of imprisonment.
Comparable sentences
The prosecutor provided a table setting out sentences in comparable cases from various other Australian jurisdictions, including R v Whyte [2013] QDC, Martin J, 11 November 2013; R v [Name suppressed] [2013] NSWDC, Woodburne J, 24 May 2013; and DPP v Brendon James Hegarty [2010] VCC, Howard J, 10 March 2010.
Defence counsel referred me to a number of ACT sentencing decisions in what might seem to be comparable cases, including those of R v John Desmond Thompson [2008] ACTSC, Penfold J, 5 December 2008; R v John Andrew Haynes [2010] ACTSC, Refshauge J, 14 May 2010; R v David John Haynes [2009] ACTSC, Refshauge J, 18 February 2010; R v Clinton James Morosi [2013] ACTSC, Burns J, 28 August 2013; R v Gary Mills [2012] ACTSC, Higgins CJ, 29 August 2013; and R v Mark William Buckley [2009] ACTSC, Gray J, 17 June 2010.
I have considered all these comparable sentences, including those identified by the prosecutor, but having regard to the recent High Court decision in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2, I shall put aside the prosecutor’s reference to “the range of sentences appropriate for similar offences”.
Assessment
I do not propose to go through the details of the various comparable sentences but, in summary, Mr Forbes’ case seems to me to sit at the lower end of the spectrum of cases mentioned, in terms of the quantity and nature of the material, in terms of the explanation he has provided for his use of that material, and having regard to his prior good character and his willingness to accept rehabilitation options. As well as Mr Forbes’ pleas of guilty, there was also some limited co-operation with authorities by volunteering some information about his computer and making some admissions.
Sentence
Mr Forbes, please stand. I record convictions on one count of using a carriage service to access child pornography and one count of possessing child pornography.
I now sentence you to imprisonment for 17 months for the access charge and 8 months for the possession charge. The sentences have been reduced from 24 months and 12 months for your pleas of guilty and co-operation with the authorities (in each case, the plea of guilty discount was 25% and the remaining discount was for the co-operation with authorities).
The possession sentence will be accumulated on the access sentence so as to add one month to that sentence, giving a total sentence of 18 months. The access sentence will start running today and will expire on 26 July 2015, and the possession charge will start on 27 December this year and expire on 26 August 2015.
Under s 19AC of the Crimes Act 1914 (Cth), I must make a recognizance release order in respect of the sentence for the access offence, so I now order that, in relation to the sentence for the access offence, you be released today upon giving security in the amount of $1,000 on your own recognizance that you will for the next two years be of good behaviour.
The possession sentence, that’s the ACT sentence, will be suspended with immediate effect, and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act2005 (ACT) for 24 months. I shall not impose a separate security in respect of that good behaviour order. The good behaviour order is subject to the conditions:
(a) that for such period not exceeding 24 months as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate, and for that purpose that you report to Eclipse House within two working days from today to arrange that supervision (Mr Doig will explain that to you afterwards);
(b) that you undertake such counselling, courses, programs or treatments as directed by your supervising officer; and
(c) finally, that within the next 12 months, you complete 100 hours of community service.
You will be given written copies of both the recognizance release order and the good behaviour order, and they will be explained to you by court officials. In short, the overall effect of those orders is that for the next 24 months, you need to keep out of trouble, keep in contact with Corrective Services for so long during that period as they require, and comply with their directions. Most importantly, if you commit another offence during that two-year period, you may find yourself possibly losing your $1,000 security but also, more importantly, you may find yourself back before this court in relation to these offences and, especially if your re-offending involved the same kinds of offences, that could easily see you serving some or all of these current sentences in full-time custody.
If you have any particular questions about the orders, please ask the court officials or Mr Doig.
Mr Forbes, whatever help Corrective Services requires you to accept by way of counselling or other programs, I would seriously recommend that you pursue some of the therapy recommended by Professor Mullen. Quite apart from reducing your risk of re-offending, there is a good chance that it will help you come to terms with your sexuality and enable you to live not just a life free of re-offending, but a life with a lot more scope for honest and satisfying relationships.
| I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Date: | |
Representation: | Counsel: Mr T Shepherd ( Crown) Mr A Doig ( Offender) |
| Solicitors: Commonwealth Director of Public Prosecutions ( Crown) S & T Lawyers ( Offender) |
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