R v Saddler

[2008] NSWDC 48

Reported Decision: 6 DCLR (NSW) 372

District Court

CITATION:	R v Nigel Keith SADDLER [2008] NSWDC 48
HEARING DATE(S):	28 March 2008
JUDGMENT DATE:	18 April 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	(1) On the second and third charges the offender is sentenced to imprisonment. I set a non parole period of two years and a head sentence of three years nine months to date from 22 Jul 2007. (2) On the first charge, taking into account the matters on the Form 1, the offender is sentenced to imprisonment. I set a non parole period of three years six months and a head sentence of five years to date from 22 July 2008. (3) Thus the overall sentence is one of imprisonment for six years with a non parole period of four years six months. The offender will be eligible for release to parole on 21 Jan 2012.
CATCHWORDS:	CRIMINAL LAW - sentence - Form 1 - child pornography - COPINE Scale - gross abuse - exploitation of children - maximum penalty appropriate
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900
CASES CITED:	R v Jones (1999) 108 A Crim R 50. R v Stroempl (1995) 105 CCC (3d) 187 Ibbs v The Queen (1987) 163 CLR 447 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Attorney General's Application Under S 37 Of The Crimes (Sentencing Procedure) Act 1999 No 1 Of 2002 (2002) 56 NSWLR 146 Police v Power [2007] NSWLC 1 Power v DPP, unreported DC (NSW) 19 July 2007 R v Fong (2002) 132 A Crim R 308 R v Oliver [2003] 1 Cr App R 28 Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 Radenkovic v The Queen [1990] HCA 54; (1990) 170 CLR 623 Spaliviero v The Queen S55/1994 (13 October 1994) Case v The Queen S93/1997 (1 May 1998) Russell v The Queen S60/1997 (13 February 1998) R v M (1990) 105 CCC (3d) 327 R v Thompson and Houlton (2000) 49 NSWLR 383 Mangos v DPP (SC Unreported 21 July 1995) R v Wilkins (1988) 28 A Crim R 445 R v Price [2004] NSWCCA 186 R v Knight [2004] NSWCCA 145
PARTIES:	Crown Nigel Keith Saddler
FILE NUMBER(S):	DC 08/11/0039
COUNSEL:	S Flood (Accused)
SOLICITORS:	Director of Public Prosecutions (Crown) Aboriginal Legal Services (Accused)

SENTENCE

Introduction

1 The offender stands to be sentenced for possessing an enormous quantity of child pornography of the most disturbing and depraved kind, showing the abuse of literally thousands of children.

2 He pleaded guilty to three counts of possessing child pornography. Those three counts cover 35,508 still images, 687 movie files and 77 archived photos. He asks also that I take into account other matters on a Form 1, in particular two further offences of possessing child pornography referring to even more items of child pornography. Some of the images depict the gross abuse, including the infliction of pain, on babies less than 12 months of age. The callousness and inhumanity of a person who could get pleasure out of viewing such images is beyond comprehension.

3 One of the series of images possessed by the offender showed a female baby less than a year old having a needle or similar device inserted from one side of her clitoris through to the other side. A caption below the picture read something like “baby getting tortured” (these images relate to one of the offences on the Form 1). Right thinking members of the community would be horrified at those who would gain pleasure of any sort from viewing a child’s genitals being harmed in that way, but it has to be recognised that the actions of people like this offender create a demand for material of this horrifying type.

4 Harsh sentences are required in cases such as this, not only so that judges do what they can to reduce the demand for such appalling acts of cruelty, but also to mark in a very real way the community’s horror at such treatment of entirely innocent and defenceless children.

The COPINE Scale

5 When reciting the facts of this case I will be referring to something called the COPINE Scale. The COPINE Scale is used to classify child pornography from level one, which is the most benign category, to level 10 where the sexual images involve pain or animals. Many of the items of child pornography possessed by this offender were in that most serious category.

Facts

6 On 22 July 2007, the offender was arrested outside St. Vincent’s Hospital at Darlinghurst.

7 A search of the offender’s motor vehicle was conducted. Police located a small quantity of cannabis leaf in the front right hand console of the vehicle. (The possession of this material forms the basis of the first matter on the Form 1). A wooden baton was located beside the driver’s seat of the motor vehicle. (The possession of this item forms the basis of the second matter on the Form 1).

8 Much more importantly, an external computer hard drive was located in the centre console of the vehicle. It was briefly examined by police and a large amount of explicit child pornographic material was located.

9 Police therefore obtained a search warrant for the offender’s home address which was executed in the early hours of the following day.

10 During that search a number of items, including computers, external hard drives, CDs and DVDs, were seized.

11 On 25 and 26 July 2007, police attended the State Electronic Evidence Branch in order to examine a number of items that were seized during the search of the motor vehicle and the search of the offender’s home. The three charges relate to three separate locations where the offender stored child pornography.

Charge One

12 Charge one relates to the external hard drive that was located in the centre console of the offender’s motor vehicle. It contained 18,718 image files, 259 movie files and 53 archive files of child pornography.

13 The images ranged in classification on the COPINE Scale of Child Pornography from level one to level 10 which, as I noted earlier, refers to sexual images involving pain or animals:

• There were images of naked children aged less than 12 months old through to early teens.

• There were images of pre pubescent children both male and female performing oral sex upon children and adults.

• There were photographs of young children tied up with bondage paraphernalia.

• There were images of a young pre pubescent girl with a vibrator inserted into her vagina.

• There were images of naked male babies, less than 12 months old, with penises inserted into their mouths and anuses.

• These children were also shown with ejaculate upon their faces.

• There was an image of a young baby under 12 months old with a penis inserted into her vagina.

• There was an image of a young female child with an adult penis inserted into her vagina.

• There was an image of an adult male urinating upon a young child.

• A young child was also seen with a wooden pole inserted into his or her anus.

• There were photos of bestiality where a young child was seen having sex with a horse and a cat was licking the genitals of a young child.

• There were also photographs of a child performing sex acts with a dog.

14 A random selection of video files was viewed by investigators. The video files contained movies of both male and female children of various ages performing sex acts with adults and other children.

15 The statement of facts summarises the contents of the hard drive by saying that the images and videos show thousands of children being sexually abused by their peers and adults. I wish to emphasise the word “thousands”. This is not a case where one of two children are shown being abused. It does not even involve scores or hundreds of children. This charge alone relates to pornography showing the abuse of thousands of children, some of whom were babies.

16 As this charge has the Form 1 matter attached to it, it is appropriate that I now record the facts surrounding the two child pornography matters to be taken into account when I impose sentence for the first charge.

Form 1 matter – number three

17 The 2 matters on the Form 1 which relate to child pornography concern images and videos stored on DVDs and CDs. Each matter covered a number of separate discs.

18 A DVD that was located in the bottom left hand drawer of the bookshelf in the offender’s bedroom was entitled ‘Golden Boys – Teen Special Part One’. The DVD ran for approximately one hour and contained eight different scenes.

19 The scenes ranged in classification on the COPINE Scale of Child Pornography, however they were primarily in level seven of the scale being “explicit sexual activity”. This level involves mutual and self masturbation as well as oral sex and intercourse by the children depicted.

20 Scenes viewed by investigators showed males aged between 10 to 15 years of age. Each scene contained at least one male performing sexual acts, and at some stage had two males performing sexual acts on each other. Scenes depicted boys performing mutual self masturbation as well as oral sex, and having intercourse with each other. An image also depicted a young male with a handful of cash after performing in front of the camera. The images were of an explicit and serious nature showing children being exploited for sexual purposes.

21 A further DVD located in the bottom left hand drawer of the bookshelf was entitled ‘Teen Special – Golden Boys Part Two’. It also ran for approximately one hour and contained seven different scenes.

22 The scenes ranged in classification on the COPINE Scale of Child Pornography however they were primarily in level seven of the scale being explicit sexual activity involving mutual and self masturbation as well as oral sex and intercourse by the children depicted.

23 As with the DVD I have just described, scenes viewed by investigators showed males aged between 10 to 15 years of age. The scenes had at least one male performing sexual acts alone and at some stages had at least three males performing sexual acts on each other. Scenes depicted boys performing mutual and self masturbation as well as oral sex and having intercourse with each other. The images were of an explicit and serious nature showing children being exploited for sexual purposes.

24 A further DVD in the same location entitled ‘Teen Special – Part 3’ ran for approximately one hour and contained six different scenes.

25 The scenes ranged in classification on the COPINE Scale of Child Pornography however, as with the other two DVDs they were primarily in level seven of the scale.

26 Scenes viewed by investigators showed males aged between 10 to 15 years of age. The scenes had at least one male performing sexual acts alone and at some stages had at least four males performing sexual acts on each other. The DVD depicted boys performing mutual and self masturbation as well as oral sex and having intercourse with each other. The images were of an explicit and serious nature showing children being exploited for sexual purposes.

27 A fourth DVD entitled ‘Teen Special – Part 4’ ran for approximately 45 minutes and contained six different scenes. Again the scenes ranged in classification on the COPINE Scale of Child Pornography however they were primarily in level seven

28 Scenes viewed by investigators showed males aged between 10 to 15 years of age. The scenes had at least one male performing sexual acts alone and at some stages had at least three males performing sexual acts on each other. The DVD depicted boys performing mutual and self masturbation as well as oral sex and having intercourse with each other. The images were of an explicit and serious nature showing children being exploited for sexual purposes.

Form 1 matter – number four

29 The final matter on the Form 1 concerned a further DVD and two CDs. The DVD was entitled ‘Boy Affairs – Smiling Boys’. It contained scenes of boys aged between 14-15 years old. Investigators were able to view one scene involving a male aged about 14 – 15 years old performing oral sex on another male, however due to the damage on the disc the only other scene was of boys this age socialising (fully clothed) with each other. It is believed this film most likely originated from somewhere in Russia or another Eastern European country.

30 A Compact Disc was located in a clear CD case in the bottom left hand drawer of the bookshelf. This CD had the word ‘Porno’ written on the disc in black pen. It contained 1198 files most of which were images but there were also video and audio files.

31 The images and video files on this disc ranged in classification on the COPINE Scale of Child Pornography from level five, being deliberately posed pictures of fully or partially naked children in sexualised or provocative poses, to the most serious level, level 10.

32 Investigators were able to view images of children aged below 12 months through to teenagers. The images were predominantly of young boys, however some also contained young girls.

• There were images of pre-pubescent boys and girls performing oral sex and being sexually assaulted by adults.

• There were images of a young male being bound by the hands and tied down whilst being sexually assaulted by an adult male who places his penis in the child’s anus. It could be seen by the face of the young boy that he was in obvious pain.

• Other extremely disturbing images were video stills of a baby under twelve months who was in a child seat. An adult male was forcing his penis into the baby’s mouth with the final image showing ejaculate on the baby’s face.

33 A further Compact Disc was located in a clear CD case. This CD had the word ‘Porn’ written on the disc in black pen. It had one folder called ‘Porn Album’. Inside this folder there were 9466 files most of which were images.

34 The numerous images contained on this disc ranged in classification on the COPINE Scale of Child Pornography from level five to level 10.

35 Investigators were able to view images of children aged below 12 months through to teenagers. The images were predominately of young boys however some also contained young girls.

• There were images of pre-pubescent boys and girls performing oral sex and being sexually assaulted by adults.

• As I mentioned at the start of these remarks, there were images of a young female child under 12 months old having a needle or similar device inserted from one side of her clitoris through to the other side. A caption below the picture read something like “Baby getting tortured”.

• Other extremely disturbing images included images of adult sexual assault on children that implied incestuous relations between a father and son.

• There were also images involving sexual activity between a female and a horse.

Charge Two

36 Charge two relates to an external hard drive that was located in the bottom right hand side dressing table drawer in the offender’s bedroom. Investigators located and viewed 15,400 image files, 416 movie files and 24 archive photographs all containing images of child pornography.

37 The images ranged in classification on the COPINE Scale of Child Pornography from level one to the most serious category being level 10.

• There were images of pre-pubescent children both male and female performing oral sex upon children and adults.

• There were photographs of young children tied up with bondage equipment.

• There were images of naked male babies, less than 12 months old, with penises inserted into their mouths and anuses.

• There were also photographs of a young baby being ejaculated upon.

• There were also images of a child performing sex acts with a dog.

• There were images of groups of children who were naked and performing sexual acts.

38 Investigators opened a random selection of video clips. The video files contain movies of both male and female children of various ages performing sex acts with adults and other children. In one video clip a very young child approximately three years of age was performing oral sex upon an adult male.

39 Charge two relates to images and videos showing thousands of children being sexually abused by their peers and adults.

Charge Three

40 The third charge relates to a lap-top computer containing a 40GB hard drive which was located in the built-in wardrobe in the offender’s bedroom. It contained 1690 image files and 12 video files. The video files had been deleted from the hard drive, however the name of the files showed they were of child pornography.

41 The images which remained ranged in classification on the COPINE Scale of Child Pornography from level one to level nine which concerns penetrative assault involving an adult.

• There were images of pre pubescent children both male and female performing oral sex upon children and adults.

• There were photographs of young children tied up with bondage paraphernalia.

• There were images of naked male babies who were less than 12 months old with penises inserted into their mouths and anuses.

• There were also photographs of a young baby being ejaculated upon.

42 These images were of an explicit and serious nature, showing children of all ages being sexually abused by their peers and adults.

The seriousness of offences of this kind

43 One way of examining the scale of the offender’s wrong doing would be to consider the following calculation. Even if the offender spent only 10 seconds viewing each still image it would have taken him about 100 hours of continuous viewing to get through everything he had. On top of that there are the videos too, including lengthy items on the DVDs and CD.

44 The possession of child pornography is a crime which requires that attention be paid to the means of production of the material.

45 The harm caused by offences of this nature takes many forms, but the most obvious harm is caused to those young children who are used by the manufacturers of child pornography as they satisfy the demands of people such as the offender. When considering the gravity of an offence of possession of child pornography the authorities require that I take into account those who are harmed by its creation.

46 For this reason I spent some time describing some of the pornography which the offender possessed. This exercise was both distressing and distasteful but it is unfortunately essential in understanding the way in which many children have been grossly abused, even tortured, in the creation of the pornography the offender possessed.

47 Having described the nature of the abuse to which many children were subject it is easy to see the validity of what Kennedy J said in R v Jones (1999) 108 A Crim R 50.

“The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims.”

48 What I have said about the evils of child pornography is to a large extent merely stating the obvious, but it is important to keep stating the obvious in order to emphasise to others in the community who may be tempted to see the possession of child pornography as some minor offence, just how serious the exploitation of young children in this way really is.

49 Let me conclude this part of my remarks on sentence by quoting a passage from a Canadian Court. In R v Stroempl (1995) 105 CCC (3d) 187 at 191, the Court said:

"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, stifle 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.”

50 Of course the consequences of possession of child pornography go beyond the harm caused to those children involved in its production. The use by an offender of child pornography has the effect of weakening the otherwise very strong idea that children need to be protected from sexual exploitation. Further the use by a person of child pornography for sexual gratification can lead to a situation where the person himself moves beyond being merely a viewer of child pornography to become an abuser of children. I am not suggesting that that has happened in this case, but I am suggesting that it is one of the many reasons which makes the possession of child pornography such a serious offence.

The Relevance of the Maximum Penalty.

51 The maximum penalty for each of the offences for which the offender is to be sentenced is imprisonment for five years. I wish to say something about the appropriateness of the maximum penalty for offence of child pornography. It may readily be accepted that it is morally less culpable for a person to look at an image of a sexual act involving a child than it is to be the perpetrator of the sexual act itself. A comparison of the maximum penalties suggests that the legislature has recognised this distinction. But what may well have been overlooked is that those who are in possession of a great many items of child pornography do not face a charge in relation to each item. Thus in this case the three charges cover an enormous number of separate items of child pornography. And it must be remembered that those who are sentenced for committing sexual acts upon children, some notorious cases aside, have usually been involved in the harm of a small number of children, in many cases only one. But people like this offender have been involved in the harm of enormous numbers, indeed “thousands” of children. So if one was to look only at the extent of harm caused by criminal activity it may well be that the maximum penalty of five years imprisonment where a charge relates to thousands of items of child pornography (and a commensurate number of victims) is inadequate.

52 However that is not a matter which can influence me in my determination of the appropriate sentences for these matters. It is not for me to overcome what I consider to be the inadequacy of the maximum penalty by failing to apply proper sentencing principles.

53 Of course it is well known that the maximum penalty is reserved for those cases falling within the worst category of case for which the penalty is prescribed, see Ibbs v The Queen (1987) 163 CLR 447 at 451-452. It is not possible to prescribe a list of cases falling within the worst category because human ingenuity can always conjure up a case of greater heinousness: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. I have considered this matter carefully and I am satisfied that, particularly in the light of the number of separate items of child pornography covered by each offence, the age of many of the children being such that they were likely injured during the sexual acts depicted, and the level of gross depravity displayed in many of those items, it is appropriate to describe each of the offences for which the offender is to be sentenced as being in the worst category.

54 Mr Flood suggested that the offences were not in the worst category because the offender was not disseminating child pornography, nor did he have it in his possession for such a purpose, and nor was he obtaining any financial benefit from his possession of the pornography. None of those matters take these offences out of the worst category. It is not a mitigating feature of one offence to say that another, more serious, offence was not committed (I say this in reference to the fact that s 91H(2) Crimes Act 1900 is an offence of disseminating child pornography).

55 As to the submission that the offender did not have the pornography for dissemination and did not make any money out of its possession, in my view to conclude that those matters meant that the offences were not in the worst category would be to engage in the reasoning specifically prohibited by the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, that is, it would be to allow the mere fact that human ingenuity can postulate a worse offence to lead to a conclusion that these offences were not in the worst category.

56 Of course this conclusion does not mean that the maximum penalty should necessarily be imposed. The selection of an appropriate sentence in any case depends not only on the nature of the offence but also the nature of the offender.

Subjective Features

57 The offender comes from a well-respected family. He had the benefit of a very good upbringing. He left school in year nine but has generally been in employment since then, most recently working for local councils, as did his parents. He identified himself as a homosexual as an adult. He has served time in custody for other offences, including sexual assault.

58 He was a drug user for some time but that has ceased since he was taken into custody upon his arrest for these matters. There is nothing in his history to explain why it was that the offender developed an interest in paedophilic images.

59 At the time of these offences he was in a stable relationship but because his partner was working as a chef he often found himself at home at night alone when, presumably, he would obtain, view, and store the child pornographic items.

60 A report from a psychologist was tendered on behalf of the offender. It recorded the history of events as given by the offender, but there was one aspect of what the offender told the psychologist which not even his own counsel was prepared to submit was accurate. The psychologist’s report contained a summary of what the offender told the psychologist about how it was that he came to possess the child pornography. He described a practice of accessing internet sites which featured teenagers and that when viewing those materials:

“various links were offered, which in turn led to other links, which he viewed on first appearance and then simply stored and did not re-access the materials. He spoke of other materials arriving unsolicited, which he again briefly viewed and then stored, being unable to explain why he had stored the materials he did not want, and which he claimed disturbs him”.

61 I reject that explanation as to how it came to be that the offender possessed more than 35,000 separate items of child pornography. It is so inherently unbelievable as to be fanciful. A person does not store material which he does not want and which disturbs him. In any case it fails to explain how the offender came to possess the many DVDs and CD to which I made reference to earlier.

62 The psychologist seems to have carefully considered the question of whether there was any link between the offender’s wrongdoing and his use of drugs. In the end the psychologist concluded that “it is simply not knowable” whether the offender accessed child pornography at times other than when he was abusing amphetamines. The psychologist says that it “may” be the case that the offender’s thinking and judgment were impaired as a result of heavy amphetamine use, but especially in circumstances where the offender has sought to mislead the psychologist as to how his offending came about, I am not prepared to find that the offender’s amphetamine use had anything to do with his offending, apart perhaps from keeping him awake as he accessed, viewed, and stored the awful material which forms the subject of the charges.

Remorse

63 The offender’s failure to be frank with the psychologist is relevant of course to whether the offender is remorseful for what he has done. Related to this issue is evidence given by the offender’s mother and a letter written to me by the offender himself. The Crown did not object to the tender of that letter and so I admitted it.

64 There seems to be a developing practice of offenders writing such letters which are then tendered, thereby enabling them to put forward a version of events upon which the Crown does not cross-examine. In such circumstances a judge is entitled to be sceptical about the contents of such letters. (See R vElfar [2003] NSWCCA 358).

65 Because the plea of guilty was entered after 1 January this year I am able to take into account remorse shown by the offender only if he has provided evidence that he has accepted responsibility for his actions and acknowledged any injury, loss or damage caused by his actions or made reparation for such injury, loss or damage. The letter is evidence that he has accepted responsibility for his actions but there was no evidence to suggest that the offender had acknowledged that by creating demand for material of this kind he had contributed to the enormous suffering of many many children.

66 I am unable to find that the offender is remorseful in the way in which that term is used in s 21A Crimes (Setencing Procedure) Act 1999.

Prospects of Rehabilitation

67 I am unable to find that the offender has good prospects of rehabilitation. Even the psychological report tendered on his behalf notes that the offender’s prognosis:

“in terms of the likelihood of any further offending of the type for which he is to be sentenced, must in the end be viewed as guarded…”

Protection

68 The offender has been remanded in custody since the date of his arrest. He is presently held on protection which means that he spends 22 hours of every day in a locked cell which he shares with one other prisoner. It is appropriate to describe such conditions of custody as harsh. However there was no evidence as to what the conditions of the offender’s custody would be after he was sentenced. It is likely that he will continue to serve his sentence on protection, given the nature of his offending, but whether that will involve conditions of custody more onerous than those applying to the general prison population cannot be determined. I will accept however that there is a risk that he will serve his sentence in conditions which are harsher than those which apply to prisoners not serving their sentences on protection.

Section 21A

69 With some trepidation I will now make further reference to s 21A Crimes (Sentencing Procedure) Act. I will attempt to identify those other factors (apart from those I have already mentioned) which are properly regarded as aggravating and mitigating factors by reference to that section. This process should be unnecessary because what makes a sentence longer or shorter is not whether a particular circumstance appears in s 21A or not, but whether a particular circumstance justifies a longer or shorter sentence. What should be relevant in assessing a particular sentence for a particular offence, and a particular offender, are the various circumstances of the offence and the offender, not whether they meet the precise description given to such circumstances in s 21A.

70 Let me illustrate what I mean. It is an aggravating circumstance under s 21A(2)(f) that “the offence involved gratuitous cruelty”. Some might argue that the word “involved” means that where a person merely looks at a depiction of gratuitous cruelty that is not something which is “involved” with the offence. Others might argue to the contrary. But whether the terms of s 21A(2)(f) are met here, there is no doubt in this case that many of the children depicted were subject to gratuitous cruelty, nor is there any doubt that this circumstance makes the offender’s conduct more culpable, which in turn requires a longer sentence than would otherwise be the case.

71 As it seems necessary for me to make findings by reference to s 21A, I am prepared to give a wide meaning to the word “involved” such that I am satisfied that this statutory aggravating factor is present in this case.

72 On the other hand I am not satisfied that the aggravating factor s 21A(2)(g) is satisfied. Although I have no doubt that most of the children would have suffered substantial injury or emotional harm it could not be said that this was “caused by” the offence. But again the fact that the particular aggravating factor in s 21A(2)(g) is not satisfied does not mean that I should have no regard to the injury and emotional harm which the children would have suffered. Indeed, consistent with the authorities I referred to earlier, I have placed great weight on this matter.

73 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.

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

75 As far as mitigating features under s 21A are concerned, there is the offender’s plea of guilty, which I will deal with later, and the fact that his offences did not “cause” substantial injury or harm in the sense that the children were already harmed by the time the offender gained possession of the material. But that is a circumstance common to all offences of this type and so it is not a matter which mitigates an offence of possessing child pornography. (I have assumed that section 21A(3)(a) is relevant in a case where no injury or harm is caused, but I am not entirely sure that this is the case. It may well be that, properly understood, section 21A(3)(a) only requires examination in a case where harm or injury is caused, the question for the sentencer being whether the harm or injury is substantial).

76 As I have already explained I can’t be satisfied that the offender has good prospects of rehabilitation nor that he is unlikely to re-offend. He was not of prior good character having previously served sentences of imprisonment for various offences including two counts of sexual intercourse without consent.

The Plea of Guilty and the Form 1

77 The offender pleaded guilty to these three offences in the Local Court and was committed for sentence to this Court. He is therefore, absent any other considerations, entitled to the maximum discount for the utilitarian benefit of his pleas of guilty. But there is one other factor which must be taken into account. That is that on one of the offences the offender asks that I take into account a number of matters on a Form 1, in particular two other offences of possessing child pornography. Consistent with the view I have taken regarding accumulation of the sentence in this case, and consistent with the guideline judgement of Attorney General's Application Under S37 Of The Crimes (Sentencing Procedure) Act 1999 No 1 Of 2002 (2002) 56 NSWLR 146, I consider that the Form 1 matters cannot simply be ignored. I consider the true position to be that the sentence to be imposed upon the offender for that offence to which the Form 1 is attached must be longer than it would otherwise have been in order to reflect those Form 1 offences. In fact having considered the nature of the offences on the Form 1, in particular the number and nature of the items of child pornography covered by two of the offences on the Form 1, I am of the opinion that a substantial increment should be allowed to reflect the Form 1 matters. The presence of the serious Form 1 matters, one of which involves a series of images accurately described as depicting the torture of a baby less than 12 months of age, places the first charge in that rare category of offence where the maximum penalty is appropriate even given the utilitarian benefits of the plea of guilty, and the subjective features relied on by the offender.

A Benchmark?

78 Both the Crown and counsel for the offender referred me to the case of the former Deputy Senior Crown Prosecutor, Dr Patrick Power. He was sentenced in the Local Court (Police v Power [2007] NSWLC 1) and had his non-parole period reduced on appeal to this Court (Power v DPP, unreported DC (NSW) 19 July 2007). The suggestion was that these decisions provided something of a benchmark against which to assess the appropriate sentence to impose in this case. In doing so the offender repeated the argument described in R v Fong (2002) 132 A Crim R 308 as “fatally flawed”. In that case the Court of Criminal Appeal unanimously rejected the suggestion that a single case could set a benchmark, but more importantly for the purposes of this case, a majority of the court specifically said that the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed was more important than consistency in sentencing.

79 Even were I to ignore the decision of R v Fong I would note in any case that, while still very serious, the criminality of the offender in Power was much less than the criminality in the present case. The learned Chief Magistrate described the relevant material as “distressing and disheartening” but specifically said that the “images … cannot be described as the gravest of examples”. Only a single item was at level 10 on the COPINE Scale. That is very different from the material the subject of the present case. Also relevant is the vast difference between the number of items in this case and the number possessed by Dr Power.

80 Counsel also referred to a guideline judgment issued by the English Court of Criminal Appeal R v Oliver [2003] 1 Cr App R 28 (although the decision itself was not given to me, counsel being content to rely on extracts from that case to be found in the two decisions of Power which were handed to me). For my part I have some difficulty in understanding the relevance of guideline sentences issued in a foreign jurisdiction. When counsel first referred to the English decision I pointed out that I didn’t even know what the maximum penalty in England was for the relevant offence. Neither did counsel. As it turns out the maximum penalty is the same as the maximum penalty for the present offence, namely five years imprisonment.

81 However, more fundamentally, sentencing is essentially a local matter, a sentiment expressed by the High Court on many occasions when special leave has been sought to appeal against a sentencing decision, see Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at 497 per Aickin J, Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at 309 per Gibbs CJ, 323 per Brennan J, Radenkovic v The Queen [1990] HCA 54; (1990) 170 CLR 623 at 640 per Dawson J, and also transcripts of argument in Spaliviero v The Queen S55/1994 (13 October 1994), Case v The Queen S93/1997 (1 May 1998), Russell v The Queen S60/1997 (13 February 1998). The Supreme Court of Canada has expressed a similar view, see R v M (1990) 105 CCC (3d) 327 at 375.

82 Different jurisdictions, even in Australia, have different rates of imprisonment for similar offences and average sentence lengths vary as well. This leads to the well known consequence that imprisonment rates amongst the various Australian jurisdictions vary widely. The approach of New South Wales Courts to sentencing generally may well be, and is indeed likely to be, quite different from the approach to sentencing displayed by Courts in England. Whilst fundamental common law principles are likely to be similar in both jurisdictions, the selection of the appropriate sentence in any particular case will vary from one jurisdiction to the other.

83 I can illustrate the difficulties in using the guideline sentences in Oliver quite simply. Unlike counsel, I obtained the judgment. It is clear that the guideline sentences were chosen after considering, amongst other matters, “the current state of overcrowding in [English] prisons” (see para [13]). I know nothing about the state of English prisons and, as far as I am aware, overcrowding in New South Wales prisons has never influenced any guideline judgment in this jurisdiction. It may well be that the overcrowding factor alone has led to the promulgation of guideline sentences in Oliver which are significantly below any guideline sentences which would be issued by the Court of Criminal Appeal in New South Wales.

84 In any case, where there is a conflict between the guideline sentences in Oliver and the principle to be applied in this jurisdiction that the maximum penalty may be appropriate in the worst category of case, the latter principle must prevail.

The appropriate sentences.

85 So serious do I regard the offences, in particular the number and nature of the images possessed, and so relatively insignificant do I regard the mitigating features of this case that, absent the pleas of guilty, I would have imposed the maximum penalty in each case. For charges two and three the sentence will be 25% less than it would otherwise have been to reflect the utilitarian benefits of the offender’s pleas of guilty.

86 However for the first charge, as I have explained earlier, this is one of those cases where the maximum penalty is appropriate despite the plea of guilty, something that was specifically contemplated both when statutory recognition was given to the discount for a plea of guilty (see second reading speech, Hansard NSW Parliament, Legislative Assembly 4 April 1990 at 1689) and also in the guideline judgment of R v Thompson and Houlton (2000) 49 NSWLR 383 at [158]. I should emphasise that the utilitarian benefit of the plea of guilty may still lead to the offender being better off than he would be if he had been found guilty after trial, because the plea of guilty is something which I have taken into account in considering the question of the extent of the accumulation of sentences and the principle of totality.

87 I recognise also that it is likely that the offender will serve his sentence on protection and this circumstance is relevant to whether the maximum penalty should be imposed. However the gravity of these offences is such that no reduction in sentence is appropriate.

88 I should also record that I have not lost sight of the fact that charge three involves no pornography of COPINE level 10, and there are fewer separate items of child pornography than in either charges one or two. Nevertheless I consider that, absent the plea of guilty, the maximum penalty would still have been appropriate for charge three and the circumstance I have just referred to only goes to emphasise the gravity of the other two counts.

Accumulation

89 The offender faces three charges relating to three separate locations on which child pornography items were found. It was submitted by Mr Flood that there should be no accumulation because the offender could have stored all of the items in the one location. The un-stated assumption behind that submission is that if that were the case it would have been inappropriate to charge the offender with more than one count of possessing child pornography.

90 Advances in storage capacity mean that an offender can now store on a single hard drive or burn to a single CD or DVD many more items of child pornography than was previously possible. A conclusion that an offender should be able to take advantage of these technological advances by facing only one charge, no matter how many images are stored in a particular location is not an attractive one. Consistent with the principles in Mangos v DPP (SC Unreported 21 July 1995) it could well be that where large numbers of items of child pornography are stored on a single hard disc, multiple charges could still be laid. I am not suggesting that it would be in any way appropriate to lay thousands of charges, one relating to each item of child pornography, but items could be grouped according to when they were downloaded, whether they were still images or moving pictures, the nature of the sexual activity depicted and so on.

91 Many years ago the Court of Criminal Appeal approved sentences for culpable driving causing death where two sentences were accumulated to reflect the fact that more than one person had died as a result of a single act of the offender. In fact the effective accumulation was such that the overall sentence exceeded the maximum for a single offence despite there being only one act of the offender which led to the deaths of three people, see R v Wilkins (1988) 28 A Crim R 445. That case remains good law (the High Court refused special leave to appeal on 10 August 1989) and has been applied on many occasions, even comparatively recently, see for example R v Price [2004] NSWCCA 186 and R v Knight [2004] NSWCCA 145. The case is authority for the proposition that cumulative sentences are appropriate where the imposition of concurrent sentences would not adequately reflect the criminality involved.

92 In this case I have first determined the appropriate sentences for each individual charge before turning to questions of totality. In this case, as in Wilkins, the totality of criminality in aggregate is greater than would be met by wholly concurrent sentences.

93 In my view the sheer numbers of child pornographic items and the separate locations in which they were stored require some level of accumulation. The level of accumulation is less than I would have regarded as appropriate in the absence of pleas of guilty.

Special Circumstances

94 Apart from the need to adjust the ratio between non parole period and head sentence because of accumulation, there are no special circumstances. Even if there were, the effective non-parole period I am about to announce is the lowest which properly refects the circumstances of this case.

Sentence

95 On the second and third charges the offender is sentenced to imprisonment. I set a non parole period of two years and a head sentence of three years nine months to date from 22 Jul 2007.

96 On the first charge, taking into account the matters on the Form 1, the offender is sentenced to imprisonment. I set a non parole period of three years six months and a head sentence of five years to date from 22 July 2008.

97 Thus the overall sentence is one of imprisonment for six years with a non parole period of four years six months. The offender will be eligible for release to parole on 21 Jan 2012.

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