R v Ross

[2009] NSWDC 104

CITATION:	R v ROSS [2009] NSWDC 104 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	26 February 2009
JUDGMENT DATE:	27 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	For the offence of possessing child pornography sentenced to a fixed term of imprisonment of two and a half years. For the Commonwealth offences of accessing child pornography using a carriage service sentenced to imprisonment for two and a half years and for the offence of transmitting child pornography using a carriage service sentenced to imprisonment for two years, impose a non parole period for Commonwealth offences of two years, thus the effective overall sentence is one of four years imprisonment with a non parole period of two and a half years.
CATCHWORDS:	Criminal law - Sentence - Possess child pornography - Use carriage service to access child pornography - Use carriage service to transmit child pornography - Commonwealth and State matters sentenced together.
PARTIES:	The Crown Steven Thomas Fox Ross
FILE NUMBER(S):	DC/08/11/1070
SOLICITORS:	Commonwealth DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: The offender, Steven Thomas Fox Ross, appears for sentence today request by way of video link (at his request) having pleaded guilty to three offences involving child pornography. They are; possessing child pornography, using a carriage service to access child pornography and using a carriage service to transmit child pornography.

2 On 15 May 2008 police went to the offender’s premises. They discovered a computer in the offender’s bedroom. It contained child pornography stored on its hard drive. A further search of the offender’s bedroom located four compact disks and thirty-eight floppy disks, also containing child pornography. The various items were seized and later examined by experts. The hard drive, compact disks, and floppy disks contained more than eight thousand images and videos of child pornography.

3 On the hard drive there were images and videos, ranging from children posing erotically with no sexual activity through to penetrative sexual activity between children and adults, sadism and bestiality. As well as tendering a statement of facts describing the contents of the hard drive in words, the Crown also tendered, and asked that I view, a compact disk containing a number of samples of the images and videos. Quite why the Crown did this is not easy to determine. It was not suggested that the descriptions were inaccurate nor was it suggested that I needed to view the images and videos in order to appreciate the gravity of the material. By publishing the material to me, the Crown perpetuates, arguably for no good reason, one of the harms involved in offences of this type, namely the publication of images of innocent children engaged in what I am sure they would prefer to have been kept private.

4 I viewed the images but was unable, for technical reasons, to view the videos. When I advised the Crown of this technical problem no effort was made to rectify the technical difficulties so I was left to wonder why the Crown thought it important enough to tender the CD in the first place.

5 Many of the videos (which I did not see), and photographs, (some of which I did see), are clearly of a most disturbing nature. I take the following summary of the material from the statement of facts. One of the videos lasts for a full fifty-three minutes and shows six girls aged approximately twelve or thirteen years of age masturbating themselves, masturbating each other, kissing each other, urinating, wiping themselves after going to the toilet, dancing, and drinking what appeared to be alcohol and stripping.

6 On the hard drive there was also a ten second video showing an adult male ejaculating on a one year old boy, and a much longer video, fifty-two minutes, showing an adult male giving oral sex to a girl of about three years of age. Oral sex between a girl of six or seven years of age and an adult male was depicted on a seven minute video. There was a seventeen second video showing a young girl, about six years of age, being vaginally penetrated from behind by an adult male, and a two minute video showing a girl about five years of age being vaginally penetrated by an adult male. The title of this video says something about the sort of person who would view it. The title was “PTHC-Rape-pased-out 5yo gets raped.”

7 Also on the hard disk was a three minute video of a young girl about nine years of age who was blindfolded, bound by rope at her hands and feet, and made to give oral sex to an adult male. There were still images of a young girl about seven years of age performing oral sex on some type of animal.

8 As I have mentioned, I have taken these descriptions from the statement of facts admitted without objection. I have largely referred to the videos but there were many still images showing activity of the kind depicted in the videos.

9 The material found on the offender’s hard drive was disgusting, perverted and most importantly of all grossly harmful to the children involved in its production. There is one qualification to what I have just said. One of the videos on the hard drive was a cartoon. It depicted a young girl masturbating an adult male. Material of that type, although criminal, is of course not as serious as material which displays actual children. There is no specific child harmed by production created not from reality but from a perverted imagination.

10 The material on the compact disks and floppy disks was broadly similar to that which I have described on the hard drive. Images showing children in sexual poses, masturbation by children on adults, vaginal, anal and digital penetration of children were all contained on the floppy and compact disks. Also depicted was an adult female performing oral sex on a male toddler about three years of age and children performing oral sex on each other. As with material on the hard drive, children as young as one year of age were shown. It is difficult to understand how anyone could desire to possess material showing the sexual abuse of children as young as one year of age. The fact that this offender did so is deeply disturbing.

11 As well as images, the offender also possessed stories in word form. The documents included titles such as “Perverts R Us” and “Stories Pre-Teen.” The material described sexual acts between adults and children but once again no specific child was harmed such as would have been the case if the material was in picture or video format.

12 The forensic examination of the hard drive enabled investigators to determine which websites the offender had visited. For obvious reasons I will not set out their names in these publicly available remarks on sentence. The Crown tendered the home pages of the websites and it is clear from that evidence that it was obviously made known to anyone who visited the websites that contained deeper within those websites was child pornography. The history file revealed when the offender had access to those websites via the internet.

13 The forensic examination also revealed evidence relating to the offence of transmitting child pornography using a carriage service. A peer to peer file sharing program was discovered on the offender’s computer and an examination of the cache of that program showed that the offender had transmitted 243 images of child pornography to other internet users.

14 The authorities are replete with statements of principle concerning the gravity of offences of this kind. The harm that these offences cause to individual children involved in the production of photographs and videos is enormous. So too is the harm to the community. General deterrence is of particular importance when sentencing for offences of this kind.

15 In this case, too, personal deterrence is of added significance. At the time of these offences the offender was on a bond. In 2006 the offender had been convicted of committing an act of indecency with a person under the age of sixteen and was put on a s 9 bond for two years. That circumstance is a significantly aggravating feature of the present matter.

16 The offender is thirty years of age. He was working as a car park attendant before his arrest. He lived with his mother in whose house he committed the present offences. The offender in evidence blames his father for his present predicament. He said he was abused by him physically, sexually and emotionally and that this has made him how he is today. The offender said that he began to view child pornography, downloading it from the internet in the following way. He said he was looking at internet pornography involving adults and saw an opportunity to visit websites concerned with child modelling. He said that out of curiosity he viewed that site and found himself going further and further into child pornography.

17 However, he knew what he was heading for and he knew full well what he was doing. He explained that the reason there was some material on storage media other than his hard drive - that is the compact and floppy disks -was because he had managed to fill his hard drive. His evidence was that he started committing these offences out of curiosity but that it developed into a compulsion and he could not stop himself from accessing child pornography.

18 It should not be thought, however, that the offender was powerless to do anything about his behaviour. It would have been a very simple matter for him to have taken steps to have prevented himself from committing such offences. He could, perhaps, have severed the internet connection to his computer, leaving the internet connection available to other computers in his mother’s house. That would probably have made it impossible for him to view and download child pornography given that he would no longer be able to do so in the privacy of his own bedroom. In fact, what has occurred in this case is that the offender fully realised and recognised the wrongfulness of his behaviour but chose - and I emphasise the word “chose” - not to discontinue it.

19 The offender is a diabetic. It is important that he eat regularly in order to keep his blood sugars balanced. If his blood sugars are not controlled he risks both short term harm and even death as well as likely long term damage. The offender gave evidence without challenge from the Crown of the difficulties he has had with meals. For him, not getting a dessert is not a matter for disappointment but of potential significant harm to his health. It is not part of the punishment the offender must receive for his significant crimes that his health be endangered. It is a specific recommendation of mine therefore that he be placed immediately in a prison where his food intake will be regular and reliable. I ask that that condition be attached to the warrant in this matter.

20 The offender pleaded guilty at an early stage and so he is entitled to a significant discount to reflect the utilitarian value of his plea to the State matter, and to reflect his willingness to assist in the criminal justice process in relation to the Commonwealth matters. For all offences I will reduce the sentence I would otherwise have imposed by twenty-five per cent.

21 It is remarkable, but accurate, to say that, seriously criminal as the offender’s conduct was, the offences committed were, as Mr Koznicki submitted, in the middle of the range for offences of this type. I make that finding having regard particularly to the nature and number of items the subject of the three charges.

22 It is unusual to see an offender prosecuted for the offence of transmitting child pornography. Downloading and viewing pornography of this type is bad enough but then to take active steps to republish some of that child pornography is in a very real way to become involved in the production of that material.

23 There is a significant overlap between the offences of possession and access, such that the extra punishment for the second of those offences does not need to be significant. However the extra punishment for transmitting some of that material will involve the offender in a significantly longer period of overall custody than otherwise would be the case.

24 There is something of a technical difficulty which arises when sentencing for Commonwealth and State offences together. The statutory ratio of non-parole period to head sentence for the State offences is seventy-five per cent but in the case of Commonwealth offences the usual ratio is between sixty and sixty-six per cent. In this case I find special circumstances in relation to the State offence, such that the overall non-parole period bears a relationship to the overall head sentence as if the three offences were all Commonwealth matters. I do this not only because of the fact of the Commonwealth offences, but also because of the need for the offender to be closely supervised upon his release from custody if there is to be any hope for the offender avoiding any future sexual misconduct involving children.

25 The sentences I impose are as follows: for the offence of possessing child pornography the offender is sentenced to imprisonment. I set a fixed term of two and a half years to date from 15 May 2008. That sentence is a fixed term because of the sentences I will now impose on the Commonwealth matters. For the offence of accessing child pornography using a carriage service the offender is sentenced to imprisonment for two and a half years to date from 15 November 2008. For the offence of transmitting child pornography using a carriage service the offender is sentenced to imprisonment for two years to date from 15 May 2010.

26 I set a non-parole period for the Commonwealth offences of two years, to date from 15 November 2008, which means that the offender’s non-parole period as well as the fixed term for the State offences expire on 14 November 2010 on which day the offender is eligible to be released to parole.

27 Now Mr Ross I will explain to you what I have just done. I have imposed sentences on you for those three offences. The first of those offences is the offence of possessing child pornography and I have sentenced you to two and a half years from 15 May 2008. For the other two sentences I have imposed those sentences mentioned earlier. What that means is that all of the non-parole periods expire on 14 November 2010 and that is the same day as your sentence for the State matter expires. That means, as far as you are concerned, that you will be in custody until 14 November 2010 and that you are eligible to be released to parole on that day, 14 November 2010. Whether you are released or not depends on the parole authorities.

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