R v Glenn Andrew Luscombe

[2008] NSWDC 393

CITATION:	R v Glenn Andrew LUSCOMBE [2008] NSWDC 393
JUDGMENT DATE:	18 December 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	For the first offence - fixed term of 6 months imprisonment. For the second offence - non-parole period of 5 months, balance of the term of 7 months.
CATCHWORDS:	CRIMINAL LAW - sentence - possess child pornography - plea of guilty at earliest opportunity - images and videos of child pornography on offender's computer - level 3 to level 7 on the COPINE scale - criteria in R v Gent - offences at lower end of the range of objective seriousness - limited insight - need for general deterrence - special circumstances warranting adjustment of usual ratio between non-parole and parole period
LEGISLATION CITED:	Crimes Act 1900 s 91H(3) Crimes (Sentencing Procedure) Act 1999 s 50
CASES CITED:	R v Gent [2005] NSWCCA 370 R v Saddler [2008] NSWDC 48 R v Stroempl (1995) 105 CCC (3rd ed.) 187
PARTIES:	Regina Glenn Andrew Luscombe
FILE NUMBER(S):	2008/13161
SOLICITORS:	Mr Jilek for the Director of Public Prosecutions Mr Leary for the offender

JUDGMENT

1. Glenn Andrew Luscombe has been described as an immature man who has a sexual preoccupation with underage girls. He has confessed to two offences of possessing child pornography. It is my job now to sentence him for those two offences.

2. Today he pleaded guilty to the two charges. The first is that between 1 January 2006 and 18 August 2006 he had child pornography in his possession. He had 4,800 images and six video clips. The second charge is that between 1 July 2006 and 5 December 2006 he had child pornography in his possession, namely, eight images and five video clips. They are both offences against s 91H(3) of the Crimes Act 1900. The maximum penalty is five years imprisonment.

3. Mr Luscombe pleaded guilty at what Mr Jilek, who appears for the prosecution, agrees was the earliest available opportunity.

4. I need to make some assessment of just how serious this offence was compared to other offences of the same type.

5. Somebody who knew Mr Luscombe came into possession - legally - of Mr Luscombe’s computer. That person discovered child pornography on the computer and handed it over to the police. This was at the end of 2006. Police examined the computer and found further images of child pornography. He was arrested on 10 October 2007 and denied any knowledge. However, a fortnight later he confessed that he had the images on his computer. He was interviewed and made full admissions. He admitted to being sexually attracted to young girls and became addicted to using the internet to download images.

6. The facts of the case which are part of exhibit A record that there were no fewer than 4,800 images and thirteen videos of child pornography. On the COPINE scale the majority of the material was between level 3 and level 7. Level 3 is erotica and level 7 explicit sexual activity. The scale goes to 10. Hence there was no material in the worst category. The material which is the subject of the second charge is more serious than the material in the first charge.

7. The material in the first charge involved items such as young girls between three years and fourteen years in various states of exposure, young teenage girls self masturbating and exposing their genitalia in erotically suggestive poses. The material included young girls in the range of ages between three or four and about fourteen.

8. The material which is the subject of the second charge included an item involving cunnilingus of a baby or very young child’s vagina by a male and images of two girls aged twelve or thirteen engaged in self masturbation - masturbation of each other - and being touched by an adult male. It also included two teenage girls engaging in sexual activity including digital penetration and cunnilingus. One image depicted a female child holding onto an erect penis and another showing a young naked female sitting on the stomach of an adult male looking at his erect penis.

9. This short description provides some idea of the disgusting material which Mr Luscombe chose to download in one way or another and to keep or possess in one way or another.

10. In assessing how serious these offences are compared to other offences Mr Leary, who appears for Mr Luscombe, draws my attention to the criteria listed by the Court of Criminal Appeal in its judgment in R v Gent [2005] NSWCCA 370. By reference to those criteria which appear at [99] Mr Leary points out first that the COPINE range is between 3 and 7 and so does not include sexual assaults or grossly offensive material. He acknowledges that some images on the subject of the second count do appear to include what would be regarded as sexual assault. The material on the subject of count 1, though, all falls within the level 3 to 7 range. He argues that neither count contains any items which fall into the worst category.

11. I note from a very helpful schedule of cases involving similar offences which Mr Leary has provided that other offences of this kind include features such as: nearly 42,000 files; material being at the upper end of seriousness; a victim being gagged and tortured; images of naked male children performing anal sex on other children; 100,000 deleted images; material included in the worst class; 35,000 images.

12. Those figures are also relevant to the second criterion referred to in Gent which is the number of images or items of material possessed. Clearly the material in this case - although ranging up to item 7 so far as count 1 is concerned and perhaps a little further so far as count 2 is concerned - is not present in the significant numbers, or in the depravity, of the images which accompany some of the other cases.

13. There is no evidence of any attempted sale or further distribution. It was clearly for personal use. There was no attempt to delete any of the material nor was there any evidence of any network that Mr Luscombe was a member of. There is no evidence of any profit. To my mind these features indicate that the offences lie at the lower end of the range of objective seriousness for crimes such as these.

14. Mr Luscombe has a criminal record. It is not directly relevant to these offences. It involves stealing and having goods in custody. He was first convicted when he was nineteen and then attracted two further convictions aged twenty-eight and thirty-one. He is now aged forty-five.

15. I have had the benefit of a detailed pre-sentence report including a psychological pre-sentence report. He is ineligible for a periodic detention order and suitable for a community service order, but there is no work placement available. The psychologists who assessed him within the Probation and Parole Service expressed the view that he appeared to fall in the moderate to low range for sexual re-offending. It thought that Mr Luscombe’s “limited insight, relationship deficits, sexual preoccupation and social isolation all appear to have impacted on his offending behaviour.” It thought that he would benefit from further therapeutic intervention and made some recommendations for meeting the needs which are represented in his criminal behaviour.

16. There is also a report from Dr Stephen Allnutt, a psychiatrist. Dr Allnutt concluded that Mr Luscombe was not manifesting any significant symptoms of any major mental disorder. He thought that he has at least an underlying paedophilic interest. Dr Allnutt thought that Mr Luscombe was in the process of developing insight and understanding and would benefit from pursuing formal psychological treatment. Dr Allnutt thought that he would be able to pursue and meaningfully engage in a sex offender rehabilitation program perhaps accompanied by a sex drive suppressant medication. Dr Allnutt made some recommendations as well.

17. As I said, Mr Luscombe has pleaded guilty and will receive the benefit in due course of that plea. There is no indication - so far as remorse is currently defined - of any remorse which I can find in his favour. He has had some difficulties to confront in his past. A particular factor which impacted upon him was the death of his mother and having to move out of home.

18. It has been drawn to my attention, perhaps because it is relevant to his rehabilitation, that later this week he will face charges in the Local Court involving child sexual assault. Mr Leary argued that bearing in mind the need for general and specific deterrence a suspended sentence might be the appropriate sentence in a case such as this; if not a suspended sentence then the custodial sentence should be structured so that the period on parole is longer than it would normally be because of special circumstances which I could find. They would be the fact that his client is spending his first time in custody and that his rehabilitation would be enhanced by supervision on release. It is also likely that he would serve any time in custody on protection.

19. Mr Jilek who appears for the prosecution points out the importance of general deterrence in cases such as this. He refers to the passage quoted by Judge Berman SC in R v Saddler [2008] NSWDC 48 at [49] where his Honour quotes a passage from a Canadian court in R v Stroempl (1995) 105 CCC (3rd ed.) 187 at 191. I propose to quote the same passage -

“ 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, stifled 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 .”

20. I also adopt in this case observations made by Judge Berman in Saddler in [73] and [74] which I quote -

“ It almost goes without saying that many of the victims were vulnerable because of their age, and that because of the number of separate items covered by each offence, each offence involved multiple victims and a series of criminal acts.

I am also satisfied that the offence was planned in the sense that the offender set about to obtain the child pornography over the internet and did so.”

21. I place significant weight in this case on the need for general deterrence which is emphasised in so many of the authorities in this area. Mr Jilek agreed that there was no suggestion that the material would be distributed and he accepted that there were special circumstances warranting a departure from the usual ratio between a non-parole period and the parole period. He suggested that the prospects of rehabilitation were qualified in this case. He submitted specifically that a suspended sentence would not be adequate because of the number of images and videos and material.

22. It is important to observe, as Mr Leary pointed out in reply, that the children depicted in the material were not physically abused as victims by Mr Luscombe. However, by purchasing or downloading or possessing the material the children depicted were victimised yet again by their images being exposed to another human being.

23. I have formed the opinion that no penalty other than imprisonment is appropriate in this case. I have considered all possible alternatives under s 5 of the Crimes (Sentencing Procedure) Act 1999. The reason that no other penalty is appropriate is the importance of general deterrence in cases such as this which is emphasised by the authorities.

24. For the first offence which is the less serious offence I would regard an appropriate penalty to be in the region of a fixed term of six months imprisonment. However, because Mr Luscombe has pleaded guilty I propose to set a fixed term of four months imprisonment.

25. For the second and more serious charge I would regard an appropriate penalty as being sixteen months imprisonment. However, because he has pleaded guilty I propose to allow a full discount of twenty-five per cent and reduce that penalty to twelve months imprisonment.

26. The non-parole period which would normally accompany a twelve month sentence of imprisonment would be nine months. I propose to reduce that nine month period to six months because of the special circumstances which were urged upon me by Mr Leary and which I accept.

HIS HONOUR: In a moment I am going to sentence you, Mr Luscombe, and just before I do I will ask Mr Leary and Mr Jilek: I am sentencing him obviously to effectively twelve months with a non-parole period of six months. That means that I make the parole order so I will be asking for your assistance for appropriate conditions of parole. Mr Luscombe, if you would stand up.

JILEK: Before your Honour does, if I might just, there was one issue that I neglected to draw to your attention and my friend mentioned it to me this afternoon. He has already served twenty-seven days in custody.

HIS HONOUR: You’re quite right and I thank you, I saw that on the papers.

JILEK: So there should be a further adjustment.

HIS HONOUR: Yes, there should. That’s about a month so I’m going to fix a term of five months and the--

JILEK: Maybe in respect of count 1 if your Honour wishes to do it on a global basis say instead of the four months that would make it three months.

HIS HONOUR: Just say that again?

JILEK: In the four months term for count 1 giving him an allowance so it would be three months.

HIS HONOUR: Yes, sorry, you’re quite right.

LEARY: Would it be easier for your Honour to do what your Honour was intending to do and then commence the sentence from twenty-seven days ago?

HIS HONOUR: No, I don’t want to do that, I want to commence it today but I’m just trying to work out what impact it has on the head sentence of twelve months, probably none, I’ll just fix a non-parole period of five months. Does that sound right?

LEARY: Yes.

JILEK: Yes.

HIS HONOUR: Okay.

27. Mr Luscombe, for the first offence of possessing child pornography between 1 January 2006 and 18 August 2006 I sentence you to three months imprisonment to commence today which is 15 December 2008 and to conclude on 14 March 2009. For the second offence of possessing child pornography between 1 July 2006 and 5 December 2006 I set a non-parole period of five months to commence today 15 December 2008 and to conclude on 14 May 2009. The balance of the term will be seven months to commence on 15 May 2009 and to conclude on 14 December 2009.

28. Under s 50 of the Crimes (Sentencing Procedure) Act 1999 I make an order directing your release on parole on 15 May 2009. The conditions of your parole will be as follows: one, that you are to be of good behaviour, two, that you are to notify the Parole Authority of any change in your residential address, three, that you appear in court if called upon to do so, and four, that you accept the supervision of the Probation and Parole Service and accept all their reasonable recommendations and directions.

Gentlemen?

LEARY: Yes, your Honour.

HIS HONOUR: Who supervises him, the Probation and Parole Service or the Parole Authority?

LEARY: Well, your Honour, he would be supervised by the Probation and Parole Service but if he breaches parole he would be called up before the Parole Authority.

HIS HONOUR: Yes. What should be the conditions?

JILEK: Your Honour, if I could suggest that he obey all reasonable directions of the Probation and Parole Service concerning attendance and participation in programs and counselling.

HIS HONOUR: Related to sex offending.

JILEK: Thank you.

HIS HONOUR: With particular reference to any programs and counselling related to sex offending, Mr Leary, do you have any suggestions?

LEARY: No, your Honour, I think that’s a fairly global condition that will lead the Service to what your Honour is expecting and also Mr Luscombe to what his obligations might be.

HIS HONOUR: Yes. Now, gentlemen, are the figures right? That’s the first thing and the second thing is whether I need to make any additional orders before I explain the sentences to Mr Luscombe.

JILEK: The figures appear to be correct to me.

LEARY: I believe so, your Honour.

HIS HONOUR: You both agree, all right. Are there any other orders I need to make?

JILEK: Your Honour, there is one further order and that is that the material being the images, the video clips, et cetera be destroyed but I am asking that your Honour make the order on the basis that it not be destroyed before 30 June 2009 should there be any appeal or anything like that and the material will be held by the police until that date.

29. I order that the material, the child pornography which is the subject of both charges be destroyed but not before 30 June 2009.

No other orders?

JILEK: No, your Honour.

30. Mr Luscombe, I have given you a gaol sentence. The law is very strong on child pornography for the reasons which I have just explained. It is very important that people don’t do this because it just promotes the trade in child pornography, anyone who engages in it. I have given you two sentences. The first sentence is a three month sentence from today until 14 March. The second sentence is a twelve month sentence but with a non-parole period that you’ve got to stay in gaol from today until 14 May. Your first date that you should be released by my order is 14 May 2009. Then you’re on parole for seven months. Whilst you’re on parole there are conditions. You’ve got to be of good behaviour, you’ve got to stay out of trouble, any sort of trouble, but particularly this sort of trouble. If you’re called to come to court you’ve got to come to court. You’ve got to notify the Parole Authority if you change your address, and the final one most importantly, which is to help you, is that you accept supervision from the Probation and Parole Service and if they make any reasonable recommendations or directions to assist you, particularly with counselling, then you are to accept their recommendations. Do you understand all of that?

OFFENDER: Yes, I do.

HIS HONOUR: Okay, is there anything else Mr Leary or Mr Jilek?

JILEK: No thank you, your Honour.

HIS HONOUR: All right. Thank you both for your assistance. I notice it’s 25 to 5 and the monitor and the Corrective Services officers and the court officer and my associate have all been here without complaints. They had little choice but they facilitated justice being able to be administered. I will now adjourn.

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