R v MBM

[2011] QCA 100

SUPREME COURT OF QUEENSLAND

CITATION:

R v MBM [2011] QCA 100

PARTIES:

R
v
MBM
(applicant)

FILE NO/S:

CA No 46 of 2011
DC No 2306 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

5 May 2011

JUDGES:

Fraser, Chesterman and White JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant the application in respect of count one.1.         

Allow the appeal.2.         

Set aside the sentence imposed below and in lieu thereof sentence the appellant to a term of imprisonment of 12 months to be suspended after serving three months with an operational period of two years.3.         

Refuse the application with respect to count two.4.         

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of knowingly possessing child exploitation material and one count of making child exploitation material – whether the sentence given by the primary judge was manifestly excessive

Criminal Code 1899 (Qld), s 207A, s 228C(1), s 228D
Criminal Code (Child Pornography and Abuse) Amendment Act 2005 (Qld)
Penalties and Sentences Act 1992 (Qld), s 9(2)(a)

R v Campbell (2009) 195 A Crim R 374; [2009] QCA 128, cited
R v Carmichael & Armbruster [2009] QCA 41, considered
R v Carson (2008) 187 A Crim R 435; [2008] QCA 268, cited
R v GAE; ex parte A-G (Qld) [2008] QCA 128, considered
R v Garget-Bennett [2010] QCA 231, cited
R v Grehan (2010) 199 A Crim R 408; [2010] QCA 42, cited
R v Oliver [2003] 1 Cr App R 28; [2002] EWCA Crim 2766, considered
R v Plunkett[2006] QCA 182, cited
R v Quick;ex parte A-G (Qld) (2006) 166 A Crim R 588; [2006] QCA 477, considered
R v Richardson; ex parte A-G (Qld) (2007) 175 A Crim R 244; [2007] QCA 294, cited
R v Riley[2007] QCA 391, cited
R v Rogers[2009] QCA 10, considered
R v Salsone; ex parte A-G (Qld) [2008] QCA 220, considered
R v Smith[2010] QCA 220, cited
R v Sykes[2009] QCA 267, cited
R v Vantoosten[2009] QCA 54, cited
R v Wharley (2007) 175 A Crim R 253; [2007] QCA 295, considered

COUNSEL:

M P van der Walt for the applicant
M J Copley SC for the respondent

SOLICITORS:

Fowler Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

[1]      FRASER JA:  I agree with the reasons for judgment of White JA and the orders proposed by her Honour.

[2]      CHESTERMAN JA:  I agree with the orders proposed by White JA for the reasons given by her Honour.

[3]      WHITE JA:  On 10 December 2010 the applicant pleaded guilty to one count of knowingly possessing child exploitation material on 18 March 2010 and one count of making child exploitation material on various dates between 1 October 2009 and 31 January 2010.  His older brother was charged on the same indictment, although not jointly, with two counts of making child exploitation material.

[4]      On 13 December 2010 the applicant was sentenced to two years imprisonment to be suspended after eight months with an operational period of two and a half years on each of the charges.  He seeks leave to appeal on the ground that those sentences are manifestly excessive.

[5]      The applicant’s brother was sentenced to six months imprisonment wholly suspended with an operational period of two years on each charge of making child exploitation material.  No issue of parity arises or is said to arise because the brother suffers from quite severe cognitive deficits such that he is in receipt of a disability support pension.

[6]      At sentence the applicant was aged 37 years.  He had no previous convictions.  There was a full hand up committal and an early indication of pleas of guilty.  The applicant lived at home with his parents and brother, had the support of his family and had undertaken intensive counselling when these offences were discovered.

[7]      Sentence proceeded on an agreed schedule of facts.  On 18 March 2010 police executed a search warrant at the house the applicant occupied with his brother and parents.  The applicant was present.  Police located relevant material on the applicant’s computer tower in his bedroom, on a CD, a USB thumb drive located in his car, and a pen camera drive.  The pen camera and the USB drive contained movie files which depicted a young girl on separate occasions getting undressed and entering a shower which was in the bathroom in the dwelling.  The brother had filmed the girl and also filmed a boy.  The young people shown in the films were the applicant’s niece and nephew born 23 February 1995 (14 years at time filmed) and 20 March 1998 (11 years) respectively.  They had been visiting from interstate.  The film of the niece was included in the possession charge as well as the making charge.

[8]      “Child exploitation material” is defined in the Criminal Code as:

“… material that, in a way likely to cause offence to a reasonable adult, describes or depicts someone who is, or apparently is, a child under 16 years –

(a)in a sexual context, including for example, engaging in a sexual activity; or

(b)         in an offensive or demeaning context; or
(c)         being subjected to abuse, cruelty or torture.”[1]

[1]Section 207A.

Queensland Courts have tended to adopt[2] the categories of such material mentioned in the guideline judgment, R v Oliver[3] by the English Court of Appeal.  Those categories refer to a graduated scale of seriousness in the nature of the images depicted.  They are:

[2]For example R v Sykes [2009] QCA 267; R v Grehan [2010] QCA 42; R v Smith [2010] QCA 220; R v Garget-Bennett [2010] QCA 231.

[3][2003] 1 Cr App R 28; [2002] EWCA Crim 2766.

“(1)       images depicting erotic posing with no sexual activity;

(2)sexual activity between children, or solo masturbation by a child;

(3)         non-penetrative sexual activity between adults and children;

(4)         penetrative sexual activity between children and adults;

(5)         sadism or bestiality.”[4]

[4][2003] 1 Cr App R 28 at 467; [2002] EWCA Crim 2766 at [10].

A further category 6 is used by Queensland police which refers to non-human actors, that is, cartoon characters and virtual people.[5]

[9]      The primary judge described the images as follows:

“Three still images of category 1 level were found.  They showed images of naked girls with undeveloped breasts and vaginas.  One depicted a young naked girl with her vagina exposed but the head of an actress superimposed on it.  There were 17 individual category 4 images of children aged three to five engaged in highly sexualised activities involving performing oral sex on males and on one occasion on an animal and of a girl under 10 having penetrative sex with an adult.  The erect penis of an adult is clearly seen entering the child’s vagina.  There were 139 category 6 images involving childlike cartoon characters involved in incestuous sexual activities with other cartoon characters or with animated humans.  A number of movies involving child exploitation material other than those involving the niece and nephew were also found.  They included short moving images of girls from 10 to 13 masturbating, an 11 year old girl performing sexual activities including oral sex and intercourse with an adult male wearing a black hood, two 13 year old girls having intercourse with men and a 15 year old girl having intercourse, a 12 year old girl performing oral sex on an adult male and a young boy engaged in sexual activities including fellatio with a 16 year old girl an adult female … [a]lthough the number of the still images is not great the movies – one of over 16 minutes, the next longest of almost six – would, of course, have contained numerous images.”[6]

[5]AR 12-13.

[6]AR 49-50.

1. The film the subject of the making count comprised five unique home made movies of the niece showering and included her fondling her breasts and touching her vagina.  Some of the films had been edited to remove portions where the child was not shown as well as having other films spliced together.  At the start and finish of those videos the applicant can be seen to set up or turn off the camera and was identified by distinctive jewellery.  It seems that his brother independently made films of both children.

1. As soon as he was charged the applicant sought assistance from his general practitioner to whom he reportedly had demonstrated great remorse.  He was referred for counselling to a psychologist with whom he had 14 one hour sessions as at December 2010 when he was sentenced.  In December he was being treated by his general practitioner for depression which had become manifest after the end of a long heterosexual relationship in 2008.  The applicant told his treating psychologist that he had first made the films of his niece for “curiosity” but was quite unsure in subsequent counselling sessions why he had done so but knew what he did was wrong.  During his treatment the psychologist reported the applicant’s fluctuating levels of anxiety and suicidality to the point of having suicidal thoughts and making plans – characterised by him as a medium level risk of an attempt.  He noted the applicant’s regret and remorse.  The court had supportive references from a sister and from the applicant’s employer.  The applicant had been in gainful employment all his adult life.

1. The provisions relating to child exploitation material were introduced into the Criminal Code in 2005.[7]  The maximum penalty for possessing child exploitation material is five years and for making child exploitation material is 10 years.  It was conceded that the making offence was more serious than the possession offence.

   [7]Criminal Code (Child Pornography and Abuse) Amendment Act No 9 of 2005.

1. After taking the primary judge through the relevant authorities the prosecutor submitted for a head sentence of approximately one year and submitted that it would be within range to impose a short term of actual imprisonment.  Defence counsel, while conceding that a short term of actual imprisonment was within range, submitted that a non-custodial sentence ought to be imposed so that the applicant could continue with his treatment and retain his employment.  On appeal Mr van der Walt submitted that the primary judge ought to have wholly suspended any term of imprisonment or suspended it after three months with an operational period of two years.  Mr M Copley SC for the respondent did not seek, strenuously, to retain the sentence of two years for the possession charge but submitted that the making penalty should stand.

Discussion

1. The strong mitigating features contended for below and on this application were the applicant’s previously unblemished history; his excellent work history; his strong family support; his good prospects of rehabilitation; and his pleas of guilty.

1. There are few comparable cases relating to making child exploitation material.  The decision of R v Carmichael & Armbruster[8] was relied upon by the applicant as offering some assistance.  The complainant who was aged 14 had been living on the streets and was given accommodation by Armbruster in his caravan.  He then assumed the role of de facto father.  Carmichael was also living in the caravan and was described by the complainant as her boyfriend.  Armbruster was aged 42 and Carmichael about 22.  Both had criminal convictions.  Carmichael was charged with numerous sexual offences against the complainant child.  Both were charged with making child exploitation material.  That occurred in circumstances where Armbruster videoed the complainant in various states of undress being indecently dealt with by Carmichael.  The film showed him attempting to remove her clothing and her objecting to being filmed.  It showed them engaged in open mouthed tongue kissing whilst embracing on a bed and her straddling Carmichael making a lewd comment.  Carmichael filmed Armbruster looking at pornographic pictures in a magazine with the complainant.

   [8][2009] QCA 41.

1. Armbruster pleaded guilty to exposing a girl of 14 to indecent literature and to making child exploitation material.  He was sentenced to two years imprisonment suspended after eight months.  Carmichael was sentenced to 12 months imprisonment for the making offence and two years in respect of other sexual offending against the complainant.  Carmichael’s sentences were suspended after 14 months and were cumulative on an activated term of imprisonment.  Armbruster’s application for leave to appeal against sentence was based largely on parity with that imposed on Carmichael who had engaged in more depraved conduct.  Although Armbruster was in a position of trust, Muir JA, with whom Atkinson and P Lyons JJ agreed, concluded that parity required a reduction in Armbruster’s sentences to 12 months to be suspended after six months with an operational period of three years.  Apart from the issue of parity which makes comparison with the present case difficult, the relative seriousness of the offending was much less since the filming occurred on one occasion in respect of consensual conduct between the complainant child and Carmichael.

1. R v GAE; ex parte A-G (Qld)[9]  was a much more serious case.  A grandfather with no previous convictions pleaded guilty to numerous counts of indecency against his very young granddaughters including one count of rape.  The children were babies when he took photographs of them involving himself which were indecent and which were distributed on the internet using instant messenger service to a police officer.  He had been sentenced to two years imprisonment for the making and distribution of the child exploitation material counts and one year for the possession of child exploitation material.  The Attorney-General’s appeal was focused on the inadequacy of a sentence of six and a half years for the rape (which was non-violent on an oblivious baby) and the overall abuse of trust.  The appeal was unsuccessful.

   [9][2008] QCA 128.

1. R v Rogers[10] concerned an applicant who pleaded guilty to one count of making child exploitation material and two counts of possessing such material.  He was sentenced to 12 months for making child exploitation material and three years and 12 months respectively in respect of the possession charges to be suspended after 10 months.  The making consisted of filming, without her knowledge, his 15 year old step-daughter dressing and undressing in a room in which the applicant’s computer was located.  A web camera on top of his computer tower was activated by movement.  Even in the most explicit of the images the girl was wearing bicycle pants and a bra.  The possession charges involved over 48,000 images, of these, 41,000 involved sexualised posing and images involving torture, cruelty or bestiality to very young children which were the subject of the three year sentence.  The applicant had reoffended on bail.  On appeal his counsel, who had been his counsel at sentence, accepted that a global head sentence of three years imprisonment was within range with suspension after 10 to 12 months.  The issue was whether he should have been returned to serve the balance two and a half months in custody after he had served seven and a half months pre-sentence custody.  He had a physical disability which would make prison difficult and painful.  The application was refused.  The making conduct was much less serious than the present case while the possession offending was significantly more so and involved recidivism.

   [10][2009] QCA 10.

1. Mr van der Walt referred to R v Salsone; ex parte A-G (Qld).[11] The respondent pleaded guilty to one count of distributing child exploitation material and one count of possessing such material. He was sentenced without conviction to three years probation and ordered to perform 200 hours community service in respect of the distributing offence and two years probation without conviction on the possessing charge. The appeal was allowed. The court substituted a sentence of 15 months imprisonment suspended immediately with an operational period of two years for the distribution offence. The immediate suspension was to reflect the many mitigating factors. Although the court would have imposed up to three years probation for the possession, the respondent had completed 200 hours community service. He was therefore placed on two years probation with the additional condition that he received psychological and/or psychiatric treatment and counselling. The respondent was 21 at the time of the offence and had no previous criminal history. He was an information technology student but not studying at the time of the offending. The distribution was made available to other users of Limewire and was described as approaching the worse kind of child exploitation material. A psychological report noted a history of depressive disorders and anxiety. The respondent had commenced treatment by a psychologist. He had promising prospects of rehabilitation and had recommenced his tertiary studies. He was remorseful and felt great shame at his conduct. The court was particularly concerned that there had been insufficient recognition that the maximum penalty for distribution pursuant to s 228C(1) of the Code was 10 years imprisonment whereas the maximum penalty for possession of child exploitation material under s 228D was five years imprisonment. The need for deterrent sentencing for distribution offending was emphasised. The court was concerned that the combined sentences should ensure both strict supervision and treatment to support his rehabilitation and the protection of the community. In the present case the applicant does not have the feature of relative youth.

   [11][2008] QCA 220.

1. Counsel for the applicant also referred to R v Quick; ex parte A-G (Qld)[12] another Attorney-General’s appeal.  The facts of that case make a comparison not particularly useful.  The respondent was 29 and the former teacher of the 14 year old girl complainant.  He had sustained their friendship after he had left the school.  He drove her to an isolated location in the country where he caressed her and sucked her breasts for which he was charged with indecent treatment.  A second count of indecent treatment involved him video recording the event without her consent by a camera he had positioned on the dashboard of the car.  He had been sentenced to 18 months imprisonment wholly suspended for two years in respect of the first count of indecent treatment and on the second count to a 12 month intensive correction order.  This court allowed the appeal, with Holmes JA dissenting, and ordered that the respondent be imprisoned for 18 months in respect of each count suspended after three months with an operational period of two years.  The serious aspect of the case was the physical dealing with the child, the breach of trust and the serious ramifications which the offending had had on the complainant child rather than the photographing.

   [12][2006] QCA 477.

1. Mr van der Walt also referred to R v Wharley.[13] The applicant, after a trial, was sentenced to six months imprisonment suspended after two months for an operational period of two years for possessing child exploitation material. The material comprised 43 pornographic images of children aged between six and 15 years burnt on a disk. There were 28 images of children posing naked or in provocative poses, two images of children penetrating themselves digitally or with implements and six of children performing oral sex on an adult, four of a child being penetrated by an adult penis and three images not within those categories. The applicant was 43 with no previous conviction and a good work history. There was no evidence of remorse. The applicant contended that insufficient regard had been given to the sentencing principles in s 9(2)(a) of the Penalties and Sentences Act 1992 that a sentence of imprisonment is to be imposed only as a last resort and that a sentence which allows the offender to stay in the community is preferable. The court noted that the absence of remorse meant that emphasis should be placed on deterrence and denunciation and, in the circumstances, a sentence of imprisonment was not excessive. That decision is of little assistance because it sets no range and merely records that the sentence was not excessive.

   [13][2007] QCA 295.

1. The Child Exploitation Schedule provided by Mr Copley shows that for possession for a person without previous convictions and who has pleaded guilty, sentences range from imprisonment for six months to 18 months.[14]  The imposition of a sentence of two years imprisonment for the quantity and nature of the images for a man without convictions who indicated a plea of guilty promptly and who immediately sought maintained rehabilitation treatment was outside the range of sentences imposed for this kind of offending.  This is not to diminish the need for strong denunciation of such conduct.  As has been said repeatedly, real children are corrupted and suffer – sometimes terribly – by this industry which would not flourish but for a ready market.  Consumers cannot distance themselves from that reality by thinking that it is some kind of fantasy or virtual world.  This observation is not true, of course, with respect to the cartoon and virtual images.  When the categories in Oliver were identified cartoons were not included. It may be that the definition in s 207A of the Code of child exploitation material does not encompass cartoon characters or persons who are plainly not real, in the sense of portraying flesh and blood persons, since the reference is to “someone who is, or apparently is, a child under 16 years… .” From a policy perspective the possession of those images, it might be thought, would lead to toleration of actual child exploitation. This is not a matter which was addressed below or on this appeal - the discussion below, apparently, accepting that such images were caught by the legislation,[15] and it is, thus, inappropriate to discuss the matter further. In R v Campbell[16] the issue was whether a fictional (but “real”) character could fall within the definition.  It was held to do so.[17]

   [14]R v Plunkett [2006] QCA 182; R v Richardson; ex parte A-G [2007] QCA 294; R v Riley [2007] QCA 391; R v Carson [2008] QCA 268; and R v Vantoosten [2009] QCA 54.

   [15]AR 12-13.

   [16][2009] QCA 128.

   [17]At [46] per Daubney J with whom the President and Chesterman JA agreed.

1. The appropriate penalty for the possession charge was one of 12 months imprisonment.  To reflect the plea and other mitigating factors it should be suspended after three months with an operational period of two years.

1. There is, however, no demonstrated error or manifest excess generally with respect to the making charge.  Notwithstanding that there was no physical violence towards the child, nor, indeed, was she aware, so far as the material reveals, of the intrusion into her private world, such conduct is a step closer to the actual exploitation of children which gives rise to this industry and must be denounced.  The applicant is a mature man who engaged in that conduct on five occasions and, while not in a position of trust, betrayed the protection the child could expect in the home of her extended family.

1. The orders I would make are:

1.          Grant the application in respect of count one.

2.          Allow the appeal.

3.          Set aside the sentence imposed below and in lieu thereof sentence the appellant to a term of imprisonment of 12 months to be suspended after serving three months with an operational period of two years.

4.          Refuse the application with respect to count two.