R v Leonard

[2008] NSWDC 211

CITATION:	R v William Geoffrey LEONARD (No 3) [2008] NSWDC 211
HEARING DATE(S):	1 September 2008 - 5 September 2008
JUDGMENT DATE:	5 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
CATCHWORDS:	CRIMINAL LAW - Sentence - Possessing child pornography - Using a carriage service to make available child abuse materials
LEGISLATION CITED:	Commonwealth Criminal Code Crimes Act 1900
PARTIES:	The Crown William Geoffrey Leonard
FILE NUMBER(S):	06/11/0746
COUNSEL:	L. McManus (The Crown)
SOLICITORS:	Commonwealth DPP Self-Represented

JUDGMENT

1 Geoffrey Leonard appears today for sentence on two separate matters. The first is an offence of possessing child pornography. Mr Leonard pleaded guilty to this offence when his matter was listed for trial on an earlier occasion. He is entitled to a discount for the utilitarian value of that plea.

2 He also appears for sentence for an offence of using a carriage service, namely the internet, to make available child abuse material. He did not plead guilty to this offence but was found guilty by a jury yesterday. Unusually, in fact perhaps uniquely, the jury returned that verdict in Mr Leonard’s absence. The circumstances in which the verdict was returned in his absence were set out in a judgment I delivered yesterday. It is not yet available in written form, but when it becomes available I will ensure that a copy is sent to Mr Leonard. He did not hear what I had to say yesterday because he had been taken from the court premises in an ambulance.

3 I attempted today to have replayed to Mr Leonard what occurred when the jury returned. Mr Leonard indicated some ambivalence as to whether he needed to hear it, but I wanted to ensure that what happened in Mr Leonard’s absence was made known to him. Unfortunately, for reasons I do not understand, but presumably they are technica, what was played over the court sound system was indecipherable. Whether it is possible to remedy that on a later date is something I do not know. If possible I will ensure that a copy of what occurred in Mr Leonard’s absence, that is a sound recording of what occurred in Mr Leonard’s absence, is also provided to him at a later date.

4 It is a matter of concern that whatever technology exists in the Downing Centre to record court proceedings does not allow for easy and decipherable replay of those court proceedings. At least they did not on this occasion.

5 I turn now to matters more relevant to the sentences to be imposed on the offender.

6 Mr Leonard was the operator of a website. He put his name to that website. It contained a large amount of material, much of which was directed to advancing a proposition regarding child sexual assault laws that all right thinking people would find abhorrent. It is Mr Leonard’s firmly, and I have to say apparently genuinely, held view, that there should be no age of consent, that it should not be an offence to have consensual sexual activity with a person of any age whatsoever. In his writings Mr Leonard advances the proposition that because families teach their children such things as how to cross the road, they should also be able to teach their children about sexual matters, to the extent of engaging in masturbation with them. As I say these views are abhorrent to all right thinking members of the community. Mr Leonard advanced those views in his website. He is not to be sentenced for any offence relating to those views because thinking those things and saying them is not a criminal offence, at least not one that Mr Leonard has been charged with.

7 In the course of his writings on the website Mr Leonard discussed his earlier convictions for child sexual assault. He had pleaded guilty on an earlier occasion to a number of counts of sexual intercourse with children between the ages of ten and sixteen. In the course of those earlier proceedings Mr Leonard was supplied with the police statements made by the two children, who I will call X and Y. One was thirteen, one was sixteen. Mr Leonard published those statements, twice, on his internet website. In accordance with a non-publication order made by an earlier Judge he deleted reference to the boys’ names and anything which might tend to identify them. However, the description of the events that Mr Leonard pleaded guilty to remained on the website.

8 The charge of making available child abuse material related to his reproduction of the statements made by X and Y. The Crown said that that material described physical abuse of X and Y in a manner, that reasonable people would regard as being in all the circumstances offensive. The Crown also said that the offender was reckless, as that term is defined under the Commonwealth Criminal Code as to that circumstance.

9 The jury, by its verdict, has agreed with the Crown’s submissions. It appears that the jury deeply considered issues such as freedom of speech, and the right to express views which may not be agreeable to others, in returning their verdict.

10 In his defence at trial, Mr Leonard relied on a circumstance that the material was not pornographic or erotic, and simply consisted of legal documents prepared for his earlier prosecution, although, as the verdict makes clear that did not prevent the matters being child abuse material, or offensive. The nature of the material is very relevant to the sentence I should impose upon the offender for that offence. I have to say that I suspect that the publication of material of this type is a far cry from what was perhaps envisaged when the fairly recent offence was introduced into the Criminal Code. Nevertheless, it is a serious criminal offence, but as the material is not erotic and I do not regard it as pornographic, I consider that this is far from the most serious example of an offence of its type.

11 The other matter for which Mr Leonard is to be sentenced is much more serious. When police were investigating Mr Leonard’s website they seized his computer and a hard drive. Forensic investigations of the computer and hard drive revealed that Mr Leonard had, at an earlier time, been in possession of a number of child pornographic images. The forensic investigations revealed that those images had been deleted but they nevertheless remained on the offender’s computer.

12 The Crown does not allege that the offender was in possession of that material as at the date police seized his computer. The Crown allegation to which the offender has pleaded guilty relates to an earlier time, that is a time when the material had not been deleted from his computer. Those unfamiliar with the workings of a computer might be confused by the use of the word “deleted”. A recent decision of the Court of Criminal Appeal - the name of which escapes me at the moment - sets out how material can be deleted from a computer, yet still remain on it. Mr Leonard is not being sentenced for possessing the child pornographic material at any time after he deleted it. His offence relates to a time when it was freely accessible to him on the computer. The images vary in their quality. Some are appropriately described as relatively mild examples of child pornography, if there can really be such a thing. But the sort of thing I am talking about there are images of boys, who are clothed. It is clear that the offender obtained these for a sexual purpose, but their production has caused much less harm to the boys involved than many other types of child pornography. Unfortunately for the offender and for the boys involved in those other types, the offender did have many other examples of much more graphic and much more serious child pornography.

13 Before turning to those, I should mention also that some of the examples of child pornography were pencil sketches or caricatures of naked male children. They were not photographs. Part of the reason that possessing child pornography is such a serious offence is that the demand for child pornography encourages those to produce it, and in producing child pornography the children involved are harmed. That may not be the case if these pencil sketches or caricatures were not produced by the drawing of a particular child but were mere products of a perverted imagination.

14 Let me turn to the more serious examples of child pornography for which the offender is to be sentenced. There are a number of images depicting naked male children masturbating. Some of these are children by themselves, and some show mutual masturbation. Other photographs are of sexual acts between young boys. There are six images, when I say images, I mean photographs, depicting oral sex between male children. Some of the other photographs are of children who are masturbating with ejaculate on their bodies. There are two images of a naked adult male - I emphasize adult - masturbating himself a the same time as he masturbates a naked pre-pubescent male child, the child apparently being between the ages of eight and eleven. There are nineteen images of naked male children performing anal sex on other naked male children. There are two hundred and seventy six images depicting naked male children apparently between seven and thirteen years, in erotic or sexual poses. Many of those images are focused on the genitals of the young boys involved. A number show a series of images where the boys are firstly clothed, and then as each image progresses, the boy is shown to have taken an item of clothing off until he is fully naked.

15 It is perhaps not necessary to go into any detail as to the evil which child pornography is. Many decisions, including a recent one of my own which obtained some publicity, set out why it is that the community response to those who possess child pornography is as it is. Let me, for the offender’s benefit however, briefly reiterate a number of fundamental propositions. As I mentioned before, those who possess child pornography encourage its production. The production of child pornography harms the children involved in its production. That is a fact which I am convinced the offender does not accept. He is simply unable to appreciate the proposition that children are harmed by underage sexual activity, particularly underage sexual activity with adults. Children are entitled to be protected from sexual predators, such as those who would produce child pornography for profit, or for dissemination without profit amongst people of a similar mind to the offender. There is no suggestion here that the offender disseminated the material, and that is a fact that the offender relies on in mitigation. It is not a matter of mitigation that the offender did not commit a more serious offence. When looking at the images one cannot help but be struck at how young some of these boys are. Boys of that age are not effectively exercising any consent as to whether they do what the producers of child pornography would have them do. They are preyed upon by those who would regard them as mere objects for sexual gratification.

16 As I mentioned before the offender has a prior history involving sexual assault matters. He is not a man of good character. He has demonstrated no remorse for his conduct. His prospects for rehabilitation are either zero, or close to it. There is one particular circumstance, however, on which the offender is entitled to rely, and that is this; as I mentioned before the offender had deleted the photographs by the time police came around. Nor does this appear to have been in response to a threat of police investigation. The offender told the Judge, before whom he pleaded guilty to the child pornography offence that as soon as he became aware that he was breaching 98 of the Crimes Act he did a spring cleaning, as a result of which he had deleted the material. The offender’s statements on that occasion do not take account of the images where very young boys are involved. It is not a case that the offender genuinely thinks that he may have inadvertently committed an offence by downloading images and thus once he realised the stringency of the law thought it better to delete them. The offender can have been under no misapprehension at all, especially as regards the photographs involving the very young boys, that by downloading and thus possessing the images, he was committing a serious, and grossly serious criminal offence. Nevertheless, as I say, the offender is entitled to take advantage of the circumstance that he voluntarily deleted those images. It is not a case the he kept possession of them, but voluntarily ceased this aspect of his illegal activities.

17 The offender is now seventy four years of age. He has suffered some health problems of recent times. Material made available to the court which the offender tendered before me today reveals that he has a small myocardial infarction in May this year. He was unable, according to medical evidence presented to the court on an earlier occasion, to attend court for two months.

18 He was taken away by ambulance from the court premises yesterday, as I mentioned earlier. He does not appear to be a fit and healthy seventy four year old, by any means. This will mean that his time in custody will be quite hard to him. There is a risk that he will serve that sentence on protection as well, given the nature of his offences. There is a risk also that that time in custody will involve conditions which are harsher than those in the general prison population. I will take the offender’s health into account as a matter which tends to mitigate the punishment upon him, for the reason that it will involve a greater burden on the offender than would otherwise be the case.

19 The offence of possessing child pornography is clearly the more serious offence and one which involves a need to punish the offender to a significant degree. It did result in a belated plea of guilty after the offender realised that he was not being prosecuted for possessing the images at the time the police arrested him, but for an earlier time.

20 There are no special circumstances in this case. The offender, as I said, has no prospects of rehabilitation. Of course when I say that I do not mean to suggest that he is inevitably going to commit further offences; this experience of being involved in the criminal law, and his age, might be significant impediments to him further committing further offences of this kind.

21 I intend to impose a sentence of imprisonment on the child pornography offence and a concurrent sentence of imprisonment for the Commonwealth offence of using a carriage service to make available child abuse material.

22 For the offence of possessing child pornography the offender is sentenced to imprisonment. I set a non-parole period of nine months. It will date from 3 September 2008 and expire on 2 June 2009 on which date the offender is to be released to parole. I set a head sentence for that offence of one year.

23 For the Commonwealth offence of using a carriage service, namely the internet, to make available child abuse material I impose a sentence of a fixed term of imprisonment of six months, to date from 3 September 2008. I order that Mr Leonard is to be released to parole on 2 June 2009.

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