R v Howe

Case [2017] QCA 7

SUPREME COURT OF QUEENSLAND

CITATION:

R v Howe [2017] QCA 7

PARTIES:

R
v
HOWE, Jesse John
(applicant)

FILE NO/S:

CA No 94 of 2016
SC No 696 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:


Supreme Court at Brisbane – Sentence Date: 17 March 2016

DELIVERED ON:

7 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2016

JUDGES:

Fraser and Philippides JJA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where defendant convicted on his own plea of guilty to six offences – where defendant sentenced to four years imprisonment for child exploitation offences – whether sentence was unreasonable or plainly unjust – where offending occurred over a long period of time – where general deterrence is the primary sentencing consideration – whether sentencing judge gave sufficient weight to mitigating factors, including defendant’s youth, remorse, and psychological condition

Criminal Code (Cth), s 474.24(A)

Director of Public Prosecutions (Commonwealth) v Garside [2016] VSCA 74, cited
R v Davis[2012] QCA 324, cited
R v De Leeuw [2015] NSWCCA 183, cited
R v Edmondson, unreported, P Lyons J, Supreme Court of Queensland, SC No 219 of 2014, 17 December 2014, cited
R v Linardon [2014] NSWCCA 247, cited
R v Martin (2014) 246 A Crim R 477; [2014] NSWCCA 283, cited
R v Porte [2015] NSWCCA 174, cited
R v Templin, unreported, Boddice J, Supreme Court of Queensland, SC No 315 of 2013, 26 August 2013, cited

COUNSEL:

J P Benjamin for the applicant
K Breckweg for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

  1. FRASER JA:  I agree with the reasons for judgment of Douglas J and the order proposed by his Honour.

  2. PHILIPPIDES JA:  I agree with Douglas J that the application for leave to appeal against the sentences imposed be refused for the reasons given by his Honour.

  3. DOUGLAS J: The applicant was convicted of four counts of using a carriage service to access or make available child pornography material, of a fifth count of using a carriage service to make available child pornography material on three or more separate occasions and involving two or more people and one count of possessing child exploitation material. The first four counts were offences against s 474.19(1) of the Criminal Code (Cth) while count 5 was an offence contrary to s 474.24(A) of the Criminal Code (Cth). Count 6 was an offence pursuant to s 228D of the Criminal Code (Qld).

  4. The applicant pleaded guilty and was sentenced on 17 March 2016 to two years imprisonment in respect of each of counts 1 to 4 and count 6 and to four years imprisonment in respect of…

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Details
AGLC
R v Howe [2017] QCA 7
Case
[2017] QCA 7
Decision Date

CaseChat Overview and Summary

In the case of R v Howe, the appellant was convicted on his own plea of guilty to six offences involving child exploitation. The primary issue before the court was whether the four-year imprisonment sentence imposed on the appellant was unreasonable or plainly unjust. The appellant argued that the sentence was excessive and did not adequately consider mitigating factors such as his youth, remorse, and psychological condition, which posed a high risk of self-harm if imprisoned. The court had to determine whether the sentence was manifestly excessive or inadequate, taking into account the general deterrence purpose of sentencing and the appellant's participation in treatment and social interactions within child pornography forums.

The court examined the nature of the offending, which involved the downloading, sharing, and possession of child pornography over an extended period. The court noted that the classification of the child pornography materials was severe, with a significant proportion at category 4, involving depictions of penetrative sexual activity between adult men and male children. The court considered the appellant's cooperation with authorities, early guilty pleas, and voluntary engagement in psychological treatment, but ultimately found that the seriousness of the offences warranted a significant sentence. The court also referenced similar cases where substantial non-parole periods were imposed, finding consistency in the pattern of sentencing for such Commonwealth offences.

The court concluded that the sentence was not manifestly excessive or inadequate, as it aligned with other sentences imposed for similar offences. The court emphasised the importance of general deterrence in sentencing for such serious crimes and found that the mitigating factors, while acknowledged, did not outweigh the need for a substantial custodial sentence. The court refused the appellant's application for leave to appeal, affirming the original sentence as appropriate and consistent with precedent.

ORDER:
The application for leave to appeal is refused.

Orders

Orders of the court

The application for leave to appeal is refused.

Background

Background to the litigation

He has sought treatment since being charged and had undertaken 17 treatment sessions with a psychologist since September 2014. The opinion of that psychologist was also that he participated in the child pornography forums more for the social interactions they provided and less so for the need to seek out child pornography material actively himself. That psychologist also expressed the view that he presented with a serious and very high risk of self-harm which would be particularly heightened if he were to be imprisoned.The facts related to the offences Investigators seized computer equipment from his home where he lived with his mother. When the computers were forensically examined they revealed the presence of many file sharing programs with files and folders consistent with them having been used to download child pornography including files and folders configured for the sharing of child pornography with other users. Child pornography had been viewed on a second laptop as well. Count 1 involved seven separate instances of conduct between 11 May 2010 and 11 October 2010 where the applicant used a peer to peer program to access 19 items of child pornography with the majority of the material, 12 videos, at the category 4 level, featuring penetrative sexual activity between adult men and male children. Count 2 involved three distinct occasions between 17 January 2014 and 22 January 2014 where he made 380 child pornography files available to other users of which 36.5 per cent or 140 files were similarly at the category 4 level. Count 3 involved him making available 823 image files and 13 movie files on six separate occasions between 20 May 2014 and 3 September 2014. Of those, eight files were category 5 images, involving sadism, bestiality or humiliation, 225 were category 4 images and the remainder were less serious. Count 4 covered the applicant using a peer to peer program to access three video files, two at the category 4 level and one at category 3. Those offences occurred on 3, 7 and 10 September 2014. Count 5 was an aggravated offence of making available child pornography on three or more separate occasions and involving two or more people. On 1 and 10 September 2014, the applicant made eight child pornography images available to several other users of a peer to peer program and, on 7 and 10 September 2014, he made 50 child pornography images available to other users of that program. The majority of the images (22) were category 1, namely depictions of children with no sexual activity, with nine images at category 3 and 11 category 4 images. Count 6 covered the applicant’s possession of 4,325 items of child pornography on six data storage devices. Of that material, 40.8 per cent was rated category 1 with 21.7 per cent in category 4 and 31.6 per cent in categories 2 and 3. The charge also covered his possession of two copies of an electronic magazine entitled “BL” and an electronic book title “HPCL” that described how to sexually abuse a child and provided advice about that process.The classification of child pornography materials to which I have referred was described in a document provided to his Honour in these terms:

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Benjamin submitted that the applicant has demonstrated good prospects of rehabilitation having regard to his cooperation with the authorities in providing his passwords and account details, his early pleas of guilty and his voluntarily seeking counselling and that it would be appropriate to fix a non-parole period for counts 1 to 5 at 12 months and to suspend the State sentence on count 6 after he had served 12 months with an operational period of four years as was the case before the learned sentencing judge.Conclusion The decision in R v Linardon as well as, in particular, those in R v Martin and R v Porte, were ones where significant non-parole periods were imposed. The nature of the offending described in those decisions permits some reasonable comparison between those cases and this one. I recognise that no cases are precisely the same but there is a degree of consistency in the decisions in fixing significant non-parole periods where a non-parole period is set. When one compares the facts of those three cases with this one it cannot be said, in my view, that the sentence imposed was inappropriate. This was very serious offending affecting the most innocent members of society by assisting in their corruption and exploitation. Having regard to the pattern of sentencing for Commonwealth offences such as these, it cannot be said, in my view, that the non-parole period fixed by his Honour or the period of suspension after one year and nine months for the State offence could be said to be manifestly excessive. It was consistent with other similar other sentences.Order The order should be that the application for leave to appeal is refused.

Ratio Decidendi

Legal Principle Established

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