Sabel v R; R v Sabel

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Sabel v R; R v Sabel [2014] NSWCCA 101
Hearing dates: 5 and 14 June 2013
Decision date: 05 June 2014
Before: Beazley P;
Hidden J;
Fullerton J
Decision:
1. Appeal against conviction dismissed;
2. Grant leave to the appellant to appeal against the sentences imposed in respect of counts 2, 3 and 4 on the indictment;
3. Dismiss the appellant's appeal against sentence in respect of counts 2, 3 and 4;
4. Uphold the Crown appeal against sentence in respect of count 1. Quash the order made under s 19B of the Crimes Act 1914 (Cth) and impose the following sentence:
The appellant is convicted of accessing child pornography using a carriage service on 21 November 2007, contrary to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth). In accordance with s 20(1)(a) of the Crimes Act 1914 (Cth) he is released without passing sentence upon his giving security in the amount of $500 to be of good behaviour for 2 years.

Catchwords:
CRIMINAL LAW - possession of child pornography - Crimes Act 1900, s 91H(3) - defence under Crimes Act 1900, s 91H(4)(c) - meaning of "genuine scientific purpose" - whether scientific method necessary - reasonableness of conduct

CRIMINAL LAW - accessing child pornography using a carriage service - Criminal Code 1995 (Cth), s 474.19(1)(a)(i)

CRIMINAL LAW - judge alone trial - Criminal Procedure Act 1986, s 133 - appeal against conviction - Criminal Appeal Act 1912, s 6(1)

CRIMINAL LAW - sentence - irrelevant considerations - Crimes (Sentencing Procedure) Act 1999, s 24A - registration under the Child Protection (Offenders Registration) Act 2000 - application to federal offenders - Judiciary Act 1903, ss 68(1), 79(1)

CRIMINAL LAW - sentence - adverse social consequences as extra-curial punishment - irrelevant consideration in child pornography offences

CRIMINAL LAW - sentence - interpretation of sentencing provisions - Crimes Act 1914 (Cth), s 19B - discharge of offenders without proceeding to conviction - nature of the enquiry
CRIMINAL LAW - sentence - purpose of sentence - deterrence - child pornography offences
Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004
Child Protection (Offenders Registration) Act 2000
Commission for Children and Young People Act 1998
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code 1995 (Cth)
Criminal Procedure Act 1986
Judiciary Act 1903 (Cth)
Cases Cited: Bugmy v The Queen [2013] HCA 37; 302 ALR 192
Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 122 A Crim R 568
DPP v Latham [2009] TASSC 101
FB v Regina [2011] NSWCCA 217
Fox v Percy [2003] HCA 22; 214 CLR 118
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
Hedges v Regina [2011] NSWCCA 263
House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498
Keir v R [2007] NSWCCA 149
M v The Queen [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v Ingrassia (1997) 41 NSWLR 447
R v KNL [2005] NSWCCA 260; 154 A Crim R 268
R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201
Saddler v The Queen [2009] NSWCCA 48
SKA v The Queen [2011] HCA 13; 243 CLR 400
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
Weininger v The Queen [2003] HCA 14; 212 CLR 629
Texts Cited: Australian Concise Oxford Dictionary
Oxford English Dictionary
Category: Principal judgment
Parties: Ralph Warren Sabel (Appellant/Respondent)
Regina (Respondent/Appellant)
Representation: Counsel:
M Johnston (Sabel)
C O'Donnell (Crown)
Solicitors:
William O'Brian & Ross Hudson Solicitors (Sabel)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2010/24862
Publication restriction: No
Decision under appeal

Jurisdiction:

9101

Citation:

R v Ralph Warren Sabel

Date of Decision:

2012-02-15 00:00:00

Before:

Puckeridge ADCJ

File Number(s):

2009/92207; 2009/108429; 2009/118010; 2010/24862

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was charged with four child pornography offences: two counts of accessing child pornography using a carriage service contrary to the Criminal Code 1995 (Cth), s 474.19(1)(a)(i) (counts 1 and 2), and two counts of possessing child pornography contrary to the Crimes Act 1900 (NSW), s 91H(3) (counts 3 and 4).

The appellant pleaded guilty to counts 1 and 2, and not guilty to counts 3 and 4. By way of defence to counts 3 and 4, the possession offences, the appellant argued that he had the material in his possession for a genuine scientific purpose and that his possession of the material was reasonable for that purpose: Crimes Act 1900, s 91H(4)(c) (now repealed). The appellant's case at trial was that he was a software developer, and that he had downloaded and possessed child pornography to research methods of monitoring or blocking transmission of child pornography over peer-to-peer file sharing networks.

Puckeridge ADCJ found the appellant guilty of each of the possession offences. In respect of counts 2, 3 and 4, his Honour entered a conviction against the appellant and ordered him to enter into a good behaviour bond for 2 years. In respect of count 1, his Honour discharged the appellant without proceeding to a conviction pursuant to the Crimes Act 1914 (Cth), s 19B.

The appellant appealed from his convictions in respect of each of the possession offences (counts 3 and 4), and sought leave to appeal against the sentences imposed in respect of counts 2, 3 and 4. The crown also appealed against the sentence imposed in respect of count 1 pursuant to the Criminal Appeal Act 1912, s 5D.

The Court dismissed the appeals against conviction in respect of counts 3 and 4 and the appellant's appeals against sentence in respects of counts 2, 3 and 4. The Court upheld the Crown appeal against sentence in respect of count 1.

By the Court:

In relation to the appeal from the convictions (counts 3 and 4):

(1) For the purposes of s 91H(4)(c), a person would not be engaged in research, so as to have possession of material for a genuine scientific purpose, unless what was being done involved proper scientific method. The trial judge did not err in holding that the absence of any scientific method in the appellant's research, including his failure to make notes, prevented the defence under s 91H(4)(c) from being available to him. [103]

(2) Possession of child pornography material may be for a genuine scientific purpose even where the research undertaken is for the purpose of developing a commercial product. [98]

(3) Although the appellant was not required to approach authorities in order for the defence under s 91H(4)(c) to be available to him, his failure to do so was relevant to the reasonableness of his conduct. [109]

(4) The finding of a judge who tries criminal proceedings without a jury pursuant to the Criminal Procedure Act 1986, s 133 has, for all purposes, the same effect as a verdict of a jury. Thus, an appeal against conviction shall be allowed if the court is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence: Criminal Appeal Act, s 6(1). [138]-[139]

(5) Sufficient doubt had been cast upon the Crown's case that the child pornography was possessed for an erotic purpose: [174]. However, the defence of "genuine scientific purpose" under s 91H(4)(c) was not made out. The convictions should not be set aside on the grounds that they were unreasonable or not supported by the evidence. [176]

Considered: M v The Queen [1994] HCA 63, 181 CLR 387; MFA v The Queen [2002] HCA 53, 213 CLR 606; SKA v The Queen [2011] HCA 13; 243 CLR 400; R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201; Keir v R [2007] NSWCCA 149; Hedges v Regina [2011] NSWCCA 263; FB v Regina [2011] NSWCCA 217.

In relation to the appellant's appeals against sentences (counts 2, 3 and 4):

(1) Notwithstanding that the trial judge accepted that the appellant had a genuine belief in the commercial prospects of his research, the appellant engaged in an activity known to him to be illegal. His conduct in accessing and possessing the material was criminal and serious. The trial judge did not err in entering a conviction in respect of counts 2, 3 and 4, rather than discharging the appellant without proceeding to a conviction under the Crimes Act 1914 (Cth), s 19B. [201]

(2) The trial judge was required not to take into account that the appellant may become a registrable person under the Child Protection (Offenders Registration) Act 2000 when sentencing the appellant in respect of count 2. The Crimes (Sentencing Procedure) Act 1999, s 24A applies to federal offenders by operation of the Judiciary Act 1903, ss 68(1) or 79(1). [209]

(3) The fact that an offender suffers adverse social consequences when a conviction is recorded is not a relevant consideration in the sentencing process for child pornography offences. Any social embarrassment or consequence the appellant suffers is a direct result of his offending conduct. [211]

Distinguished: Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 122 A Crim R 568; R v Ingrassia (1997) 41 NSWLR 447.

In relation to the Crown's appeal against sentence (count 1):

(1) The sentencing judge was entitled to take into account the appellant's admission of having downloaded additional child pornography that was not the subject of a charge. The material is relevant to the appellant's character and antecedents, and also goes to the enquiry under the Crimes Act 1914 (Cth), s 19B as to whether the offence was "trivial" or committed under extenuating circumstances. When limited to these purposes, there is no breach of the principle that no one should be punished for an offence of which he or she has not been convicted. [227]-[229]

Considered: Weininger v R [2003] HCA 14; 212 CLR 629; The Queen v De Simoni [1981] HCA 31; 147 CLR 383.

(2) The trial judge's sentencing discretion miscarried as his approach to the Crimes Act 1914 (Cth), s 19B was fundamentally flawed. There was no reference to the two-stage process of enquiry required by this section. [216], [230]

Considered: Commissioner of Taxation v Baffsky [2001] NSWCCA 332; R v Gent [2005] NSWCCA 370; 162 A Crim R 29; Minehan v R [2010] NSWCCA 140; 201 A Crim R 243.

(3) The trial judge did not give sufficient weight to the need for general deterrence. Accessing pornography creates a market for the material irrespective of the motives of the person accessing the material. [231]

(4) The sentence imposed was inadequate, and there was no warrant for the exercise of the residual discretion under the Criminal Appeal Act, s 5D, not to interfere even where the Crown has demonstrated error and a manifestly inadequate sentence has resulted. [232]

Considered: Bugmy v R [2013] HCA 37; 302 ALR 192; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462.

Judgment

THE COURT:

Introduction

The appellant, Ralph Warren Sabel, was charged with four child pornography offences, namely, two offences that he accessed child pornography using a carriage service, contrary to the Criminal Code 1995 (Cth) (the Code), s 474.19(1)(a)(i) (the access offences, being counts 1 and 2 on the indictment) and two offences that he possessed child pornography contrary to the Crimes Act 1900, s 91H(3) (the possession offences, being counts 3 and 4 on the indictment). The charges were laid after police executed a search warrant at the appellant's home on 10 December 2008.

An offence contrary to s 474.19(1)(a)(i) of the Code carries a maximum penalty of 10 years imprisonment. An offence contrary to s 91H(3) carries a maximum penalty of 5 years imprisonment. The appellant was also charged with possession of a small quantity of cannabis.

The appellant pleaded guilty to the two access counts and to the cannabis charge. He pleaded not guilty to the two possession counts but was found guilty of each by Puckeridge ADCJ in a judge alone trial pursuant to the Criminal Procedure Act 1986, s 133.

There was no dispute at trial that the appellant had the material in his possession and that the material fell within the definition of "child pornography" in s 91H. Rather, the appellant contended by way of defence that he had the material in his possession for a genuine scientific purpose and that his possession of the material was reasonable for that purpose: s 91H(4)(c) of the Crimes Act (now repealed). The Crown bore the onus of establishing beyond reasonable doubt that, having regard to the circumstances in which the material was produced, at the time that the appellant was in possession of the child pornography material, he was either not acting for a genuine scientific purpose or that his conduct was not reasonable for that purpose.

The appellant had also raised a defence under s 91H(4)(a) to the first possession count that he was not aware that he had the material in his possession. That was rejected by the trial judge and is not in issue on the appeal. A defence of scientific purpose pursuant to s 474.21(2)(d) of the Code was not available to the appellant in respect of the access charges as he did not have the written approval of the Minister to conduct research, as required by that section.

On 15 February 2012, Puckeridge ADCJ rejected the defence under s 91H(4)(c) that the appellant possessed the material with the intention of using the material for a scientific purpose and that such possession was reasonable. His Honour found the appellant guilty of both possession offences.

On 3 July 2012, Puckeridge DCJ sentenced the appellant as follows:

(1) Without proceeding to a conviction, his Honour discharged the appellant in respect of the first access count (count 1) pursuant to the Crimes Act 1914 (Cth), s 19B and ordered him to enter into a recognisance to be of good behaviour for a period of 2 years.

(2) The appellant was convicted of the second access offence and ordered to enter into a recognisance to be of good behaviour for a period of 2 years pursuant to the Crimes Act, s 20 secured by a surety in the sum of $500.

(3) The appellant was convicted of the first possession offence (count 3) but, pursuant to the Crimes (Sentencing Procedure) Act 1999, s 9, the appellant was ordered to be released on entering into a $500 good behaviour bond for a period of 2 years.

(4) The appellant was convicted of the second possession offence (count 4), but, pursuant to the Crimes (Sentencing Procedure) Act, s 9, the appellant was ordered to be released on a good behaviour bond for a period of 2 years.

(5) The cannabis charge was dismissed pursuant to the Crimes (Sentencing Procedure) Act, s 10.

In sentencing the appellant, Puckeridge ADCJ rejected the Crown's submission that the appellant had an erotic interest in child pornography material. It will be necessary to return to this issue when dealing with the appeal against sentence.

His Honour also ordered that the laptop and the Western Digital hard drive be forfeited.

The appeal

The appellant now appeals from his convictions in respect of each of the possession offences. He also seeks leave to appeal against the sentences imposed in respect of the convictions for the possession offences and against the sentence imposed for the second access offence.

The Crown appeals pursuant to the Criminal Appeal Act 1912, s 5D against the sentence imposed in respect of the first access offence.

The Court will maintain the references to the Crown and to Mr Sabel as the appellant throughout these reasons.

Issues on the conviction appeal

The appellant raised the following five grounds on the conviction appeal:

(1) The trial judge erred in his interpretation of the defence under s 91H(4)(c);

(2) The trial judge erred by taking into account the appellant's failure to notify the authorities of his conduct;

(3) The trial judge erred in finding that the appellant did not need to download child pornography;

(4) The trial judge erred in finding that the Asset.dbf file included image or video files;

(5) The verdicts were unreasonable and not supported by the evidence.

The issues raised on the sentence appeal are dealt with separately below.

The legislation

The offence of possessing child pornography is provided for by s 91H(3) of the Crimes Act as follows:

"A person who has child pornography in his or her possession is guilty of an offence."

Section 91H(4)(c), as at the date of the offences, provided the following defence to an offence under s 91H(3):

"[t]hat, having regard to the circumstances in which the material concerned was produced, used, or intended to be used, the defendant was acting for a genuine child protection, scientific, medical, legal, artistic or other public benefit purpose and the defendant's conduct was reasonable for that purpose."

The case advanced at trial

The first access offence (count 1) occurred on or about 21 November 2007 in the United States, when the appellant used an internet carriage service to access three digital video files comprising child pornography. The appellant had downloaded the files onto his Sony laptop computer and, at the time of his arrest in December 2008, they were found in a subfolder on the laptop entitled "HP Print Systems". This was the subject of the first possession charge (count 3). In the trial, the files were referred to as "WebCam", "Spycam" and "Tara".

A further 269 images, which had been automatically created by the operating system, were also located on the laptop in a thumb cache. A thumb cache is a repository record of parent files that have been deleted from a computer. It is created automatically by a computer's operating system and is not accessible once the parent file has been deleted unless a user has the required viewing software. The appellant was not charged in respect of those images. He claimed that he did not know that the thumb cache images had been created.

The second access offence (count 2) and the second possession offence (count 4) occurred between 23 November 2008 and 11 December 2008 in Sydney, when the appellant used a carriage service to access 365 child pornography image and video files. Copies of these files were located on a Western Digital external hard drive and were the subject of the second possession offence (count 4). Both hard drives were found in a study in the garage of the appellant's Sydney home during a search of his premises in Sydney on 10 December 2008.

The appellant's case at trial was that he had possession of the child pornography material the subject of counts 3 and 4 as part of his research directed to the development of a method to identify the transmission of child pornography over peer-to-peer file sharing networks and possibly to develop a means to monitor or block transmission of such material. However, at the time that he was arrested, his research was still at a preliminary stage. The appellant first raised this explanation in a recorded police interview made on 10 December 2012 (the ERISP).

The appellant identified his 'research' as comprising three stages. The first stage occurred in November 2007 when he downloaded material onto his Sony laptop. The second stage occurred in March 2008 when he used certain computer programs to gather further information. The third stage occurred in November/December 2008 when he downloaded images onto the Western Digital hard drive. The Western Digital hard drive had been named "Idea Data", which was the name of his company.

The Crown case at trial was that the appellant had possession of the child pornography material for an erotic purpose and that he had an erotic interest in child pornography depicting underage girls, reflected in the nature of the majority of the images on the files the subject of the possession charges. It was also part of the Crown case at trial that there were features of eMule that made it an ideal tool for the appellant to use to illegally download child pornography whilst minimising the risk of detection. The Crown resisted any suggestion that the appellant possessed the material for genuine scientific purposes as being implausible, contradictory and inconsistent with the objective computer forensic evidence adduced in the Crown case.

Location and nature of the child pornography material

The evidence established that on 18 November 2007 at 1:47:51 pm AEST, the appellant downloaded onto a Sony laptop computer a free peer-to-peer software program called eMule. By 2:13:08 pm, within half an hour of downloading the eMule program, the appellant entered the following search terms into the program: "PTHC special", "pthc", "fuck", "pthc cum" and "pthc jen". The evidence established that "pthc" was an abbreviation for "pre-teen hard core".

On 21 November 2007 at 7:20:45 pm, 7:20:45 pm and 7:20:43 pm respectively, three child pornography videos: (i) "Spycam - 9undress p100(1).mpg"; (ii) "Tara 7yo girl-eat-cum-pthc.avi"; and (iii) "Webcam - likskooolgrl-0.avi", were saved onto the Sony laptop computer. The three files were saved in an obscure file-path entitled '000MYFILES\Program Data\Hewlett-Packard\HP Print Settings'. These three files were the subject of the first access and the first possession charges. There was no evidence before the court to indicate that the appellant had viewed the three videos after they were initially downloaded. However, multiple copies of the three video files were found on the Western Digital hard drive. As previously noted, a large number of thumb cache images files were also located on the Sony laptop.

An Asset.dbf file was also found on the Sony Laptop. The Asset.dbf file was a database within a photo management software program called ACDSee, that allowed the user to catalogue photos on the computer. The Crown witness, Federal Agent Kris Wilson, a member of the AFP Computer Forensic Team, gave evidence that the file was created on 8 November 2007 and was last accessed on 9 April 2008. Mr Wilson was not able to open the file and it appeared that all the images had been deleted. However, he found 12,529 file names.

Many of the file names on the Asset.dbf file suggested that the images were child pornography material. An example given in oral evidence was "!!!New Webcam Tied to Bed Pthc 7 YO Xkb.zip". Some of the file names corresponded with the three child pornography video files found on the Sony laptop. Many of the files were JPEG image files and included such names as "tara 7yr.jpg" and "pthc_ptsc jenny_9yo daughter swallowing cum, new.jpg". This file name was consistent with the search term "pthc jen" located by Mr Wilson in the eMule search strings file.

Other child pornography was located on the external hard drive. The appellant had set up his computer so that eMule would download child pornography directly to a folder on the Western Digital hard drive that he had created for that purpose. He agreed that he had done this to ensure that whenever he downloaded child pornography it did not end up on his laptop.

In total, 381 child pornography files were found on the Western Digital hard drive. Of these files, the evidence disclosed that 18 of the 381 files had a different 'last accessed' date from the date of creation, although it was not established that the appellant had viewed these files after they were downloaded. The access date could have been an automated date created by the computer.

The file copies on the Western Digital hard drive were hidden in a complex structure of three file paths using what were described as "anodnye" numerical file names. Two of the locations were associated with the use of the eMule program. The file paths ran many layers deep, so that it was extremely difficult to read the contents of the hard drive and very difficult for a person unfamiliar with the structure of the file paths to find all copies of the three files.

Most of the copies of the three video files on the Western Digital hard drive had the same MD5 hash number (described in the evidence as a fingerprint of a computer file) as the copies on the Sony laptop. This meant that most, if not all, of the copies of the three files on the external hard drive were identical to the three files on the laptop. The Crown contended that this demonstrated the appellant's erotic interest in child pornography. The appellant's case was that, unbeknown to him, the three video files must have been copied across when he copied material from the laptop to the hard drive. The Crown further contended that the appellant's erotic interest in child pornography was demonstrated by the fact that many of the files found on the Western Digital hard drive had names reflecting underage girls engaging in sexual acts with adults or in erotic poses.

Appellant's statements in his ERISP

The appellant participated in a record of interview (ERISP) which commenced at the time of the execution of the search warrant on 10 December 2008. When the appellant was informed by Federal Agent Randall of the subject matter of the search warrant the appellant's reaction was that if his wife knew, "that would cause a divorce" and "that would completely destroy everything, everything". When it was suggested that his wife was "going to find out eventually anyway", he responded, "[b]ut this will destroy my business. It'll bankrupt me. This is, this is really traumatic for me and I ----".

When asked about these responses in his evidence in chief, the appellant explained his reaction was due to his experience a few years previously when he had been in a parlous financial position. He said that when the police arrived and located the child pornography "all I saw at that moment of time was a complete loss of ... financial credibility ... and a complete loss for my family and home". He said this was because he felt that there would be a "misconception" or "misreading" of his activities which would end up bankrupting his business.

However, earlier in his evidence, the appellant had said that he had discussed with his family on several occasions whether a product he had developed, NetFlow Auditor, could be used in finding paedophiles who were accessing child pornography online. He said that he had first discussed this with his father in early 2007 and with his wife prior to going to the United States with her.

The appellant also said in his ERISP that he had only looked through the material once and that had been over the previous few nights. The questions and his responses were as follows:

"Q52. But it is a pretty serious allegation that's been put to you.

A It is but I, I am prepared to, to you know, front up and face, face the, the reality and I'm also prepared to, you know, I mean, this is not something that ah, this, this was, you know, I, I decided to go once to have a look. I had a, I had a look through.

Q53. Yes.

A And I just didn't expect this.

Q54. Okay. When you said once, when was that? Do you know the exact date?

A Um, this was over the last couple of nights.

Q55. The last couple of nights you've had a look.

A Yeah.

Q56. Okay. What programs? Are they video files? Are they images?

A Yes. They are video files.

Q57. And what are they video files of?

A Ah, some are of child pornography.

Q58. Can you describe to me what a couple of the videos are?

A Um, I think they might be some of the names that were here and I discovered them when I was downloading some other movies.

Q59. Okay.

A And that's what I---

Q60. How did you find the - what were you downloading?

A What was I downloading?

Q61. Yes, what movies?

A I downloaded Times Masters, Star Gate, Atlantis. I downloaded, I downloaded Star Wars and I think I came across them during one of the movies and I double clicked through, through into user and in the user there were all of these files and I thought I would have a look and I downloaded them and I, I had a look and I downloaded more the following night and I had a look and then I failed to delete them from my computer.

Q62. Okay. When you say you downloaded more files, what were those files?

A Those files were files - some were numbered, some were just, you know, may, may have had some names. I haven't, I haven't barely got in and looked at all of the---

Q63. Were they child pornography files?

A Yes.

Q64. Okay and what happened? You've stored - you put them on to your hard drive?

A Yes.

...

Q66. Okay. What did you intend to do with those?

A I was planning to look at them once more and, and, and I was planning to delete them.

Q67. Okay.

A I, I had, I had no intention of, of, of - I, I, I saw it once and I thought well this, this is, this is what the, everybody is, has been talking about in terms of what is child pornography and um, I had a look. I had no desire to continue but I did look.

Q68. Okay.

A And I'm sorry for looking now.

...

Q74. How did you - yes.

A I used a program called EMule.

Q75. EMule, and what type of program is that?

A It's a peer to peer program.

Q76. Okay. How long have you used that for?

A I've used the peer to peer for a long time but I haven't downloaded anything else, I mean any - I, I've downloaded movies.

Q77. You've--

A But I haven't downloaded any child pornography until the last couple of days.

Q78. Okay. Did you look at pornography much on the internet?

A Not at all."

The appellant admitted in cross-examination that his answer to Q 54 was not completely correct and that the answer to Q 77 was incorrect. His explanation in relation to Q 77 was:

"Q. You lied to him, didn't you, about where you downloaded child pornography?

A. Yes I did.

Q. At question 77 you said, 'I haven't downloaded any child pornography until the last couple of days'?

A. It was untrue.

Q. Because you believed, did you not at that stage, that at the very most that's what the police might be aware of?

A. That's true."

The appellant also admitted in cross-examination that he was only prepared to admit to police what he thought they were already knew; that he had lied, when in Q 77 he said that he had not "downloaded any child pornography until the last couple of days"; and agreed that he "wanted to admit to [the police] as little as [he] thought he could get away with".

The appellant said in the record of interview that he had only accessed eMule to download child pornography "[o]ver the last three days", whereas the "Tara" video had been accessed on 21 November 2008 and the file "333333" on 30 November 2008. The appellant said later in his ERISP, at A 175:

"... [that was] very strange [unless] my dates had changed over that period but it hasn't been any period except for over the last, you know, five, five days or so ... since around [20-21 November 2008]."

The appellant explained to the police interviewer that his objective in "looking up child pornography" was for "work purposes". He said that the work was "not shared" with his co-workers because it was illegal. He repeated this in his evidence. He said that he was trying to understand "where the opportunity lay in forensic analysis of pornography, in particular, child pornography". He wanted to see if there was an opportunity to provide solutions "into the universities and the ISPs" (Internet Service Providers).

In his answer to Q 194, the appellant said that he had only engaged in downloading material on three or four occasions over the previous months, or since the middle of November 2008. He said that he had only had a "cursory and initial look" to see if there was "an opportunity or not". He said he did not retain the filenames and had deleted the recent material. He continued:

"[A194] ... once I'd gone and I was looking, I'd, I'd numbered the, the, the downloads to see how fast the downloads took. I took a, a group and I renamed them one.

I took a group, I renamed it two. A group, took a group, I renamed it three and then I was going to proceed in adding up the bytes to identify how much data could actually be downloaded over a particular session. So that's the, that's the gist of my actions. I, I placed no encryption on it because I, I, I was not, I was not going to be keeping and retaining any of the files ..."

The appellant was also asked about looking at the pornographic materials:

"Q195 ... When we first came in when we had a discussion in the car, you said that you were planning to look at them once more and then delete them.

A. Not look at them, look at the file sizes and ---

Q196: You said look at them.

A, --- and look at the names and I don't mean look at the content. I, I have no desire to, to sit there looking through the content. The names are important to me. The key words are important to me, understanding what can be sniffed and what can't be sniffed.

Q197: You also said you 'had no desire to continue but I did look'.

A. I looked at this and that's true because once, once they were - the, the email provides a list of files, some in download phase and some in completed phase. Those in the completed phase I doubled clicked on a, on a couple of files to, to see what the content was. When I saw the content, I don't, I, I, I didn't retain the, the, the, the, the media player open at all. I, I simply left it and progressed on with my other work and, you know, if you check on, on, on your dates and what other work that I was doing at the time, that would confirm that."

He was then asked to explain how one of the files had been downloaded in November 2007. His answer was as follows:

"Q203. What can you tell me about that?

A Because I do change the date on my computer, so I, I'm quite certain that anything in a, in a previous date would be most likely, because of the times, then change on my computer.

Q204. One year times stamp change.

A Well, it's one year to the, the period um, and I, I do, I do admit I did look initially in my initial analysis of different peer to peer applications um, you know, probably a year ago but I, I never, I never retained anything and I, I did attempt to do some downloads but I don't believe that - I, I believe it was a generic download. In this particular case ah, I, I came upon some key words during my, my searches of other software and I found as you go into the user you can say display what the user's files are and I displayed those, saw that they had some files that were, were, had particular keywords. Um, I looked at those keywords. I then progressed to search on those keywords on the, on the EMule."

He explained that he had transferred the material onto the hard drive because he was concerned that his family and his children might be exposed to it.

The appellant's evidence explaining his research

The appellant was the managing director of an information technology company known as Idea Data. In the course of carrying on that business, he had designed, developed and sold software capable of monitoring data moving across networks, including a program called NetFlow Auditor. He had received awards from the Government recognising the developments he had made in security and business software.

In 2003/2004, the appellant had lodged a patent application in respect of a software program he had invented. He said that this related:

"... generally to a method and apparatus for recording a transfer of data [that had] exclusive application to recording data transferred between electronic devices via a communication network".

Gradually, business opportunities with various major Australian companies presented themselves. The appellant also commenced to develop relationships with overseas technology companies that enabled the appellant to demonstrate his product in their trade shows. However, his business was adversely affected by what he described as the 'tech-wreck', when there was a downturn in IT businesses generally.

In 2007, the appellant travelled to the United States for a period of about six months, attending various trade shows and following up business leads. He said that issues were arising at that time with the sharing of files, particularly in the music industry, including through the Napster network. The appellant said that he started to research peer-to-peer technology such as eMule, which allows users worldwide to connect to computer servers hosted by the peer-to-peer programs and to share files they have stored on their own computers.

The appellant said that he was interested to know how fast a television program would come down on the peer-to-peer site, what the relevant technology was and whether it was causing "pain" to the television networks. He also said that the eMule program was of particular interest as:

"... it offered an opportunity to change the program and users to create ... a crawler, so something that I could use to ... extract information out of the program itself."

His "driver" at that time was to see whether his business could create a product that would identify the music downloaders and where that music was on the peer-to-peer networks. He shelved that concept due to a lack of any commercial opportunities.

In November 2007, the appellant downloaded eMule to see if he could pick up a science fiction television series called "Stargate Atlantis" he had been watching on cable television. He said that he accidentally came across file names that suggested to him that the files might contain child pornography. He said that there were hundreds of names that began with "PTHC", which he described as a naming convention, but said that he knew nothing about that naming convention at that stage. He said that he first Googled these letters in March 2008.

About half an hour later, using another computer, he entered the terms he had come across to ascertain what files with those names contained. His explanation for using another computer was that his computer had crashed and he had purchased a new computer to which he transferred his data.

The particular terms the appellant entered at that time were: "PTHC", "PTHC special", "PTHC fuck", "PTHC cum" and "PTHC Jen". He said that he had made a mental note of these terms and searched them to identify more about that genre, although his initial evidence had been that he "took down various key words out of the data". He said that he "thought about it greatly before ... downloading [the files]". He said that when he entered the search terms thousands of results came up. He denied in cross-examination that he had wanted to find examples of the genre because he was interested in looking at pornography involving children who were not yet teenagers.

Having collected the file names that possibly indicated child abuse material, the appellant decided to download files with those names. Over a period of about 12 days, he downloaded between 1,000 and 2,000 files which he believed could contain child pornography. These files were contained within about 5-10 archived files. Archive files are computer files that contain other computer files. The appellant discovered 5,000-10,000 computers that were prepared to share child pornography material.

The appellant said that he was aware that the Australian Government and other governments had been trying to filter child pornography on the internet, but that having seen the amount of material distributed on peer-to-peer networks such as eMule, he came to the view that the existing approaches were completely misdirected as they focused on child pornography on websites. The appellant, who described himself as being a person who had innovative ideas and who could "create unique things and ... make a particular difference", said his company had already developed software that was able to handle and store more internet traffic than other programs and collect a large amount of information at the core of peer-to-peer networks. In particular, the program developed by his company was able to store information in a granular manner, which he explained meant storing "the reference of every source, destination, internet address, and the related applications that they were being used for".

The appellant said that it occurred to him that, using his existing knowledge, he might be able to develop a program that would monitor or filter out child abuse material. He said that the notion he had at that time was to build a database of IP addresses containing child pornography and then:

"... bringing that back into a collector at the centre of an ISP to add and to automatically create a block list ... to filter that IP address serving its information to anybody else."

His idea, or as he described it, his "gut feel ... trying to understand what was coming down, trying to understand key words of that data and [his] attempts to build a keyword list", became the first stage of what was described in the appellant's case as research directed to determining whether it was possible to develop a product to filter child pornography.

The appellant saved the three video files the subject of the first access count into the print directory, a sub-folder on the laptop. It was accepted at trial that this was an obscure location in which to place the files. He gave a number of explanations as to why he had done so, including that that file path happened to open at the time. In essence, however, his explanation was that he had saved them in that location because he "didn't want [them] right in his face in the desktop".

The appellant next downloaded a program called ACDSee, which is used to build thumbnail images of files. The appellant explained that as the program goes into an archived file it builds a database of the file names within the archived file and it may also, in another database, generate thumb nail images of what is contained in the archived files. The appellant said that his purpose in using the ACDSee program was to build a list of filenames out of the archives.

The appellant said that he then deleted the archived files from his laptop using a program called Eraser, because he "didn't want the files" or "to even have access to that information". He said that he had not attempted to encrypt the data on his laptop because he thought he had deleted it. The appellant said that at that time, he believed he was only creating a database of names and that he did not know that he was storing any images, as he had deleted any other related files. However, the three video files saved in the print directory had not been erased and were still on the laptop when the police searched and seized his computers in December 2008.

The appellant's explanation for why those files had not been deleted was because he had probably forgotten that he had left them in an obscure directory. The appellant also said that his children had access to his laptop and that he would not have knowingly left the child pornography videos on his laptop where his children might come across them. Multiple copies of the three video files were located on the Western Digital hard drive, although the appellant said he was not aware that they had been copied across and that this had apparently occurred automatically. It should be noted that Mr Wilson gave evidence that the video files had only been accessed in 2007.

In response to the suggestion in cross-examination that he had downloaded the files to find out what was in them, he said that his purpose in doing so was to "speed up the collection of file names" so that he could build up a database of file names. He said he needed an easy method of extracting names into a database format to ascertain what the key words of the genre were. He also said his objective in downloading the files was to understand the nature of the particular community of users, how profuse the files were, the methodologies used to share the files, as well as the processes that he would need to go through in order to block or monitor the material.

When engaging in this first stage of 'research', the appellant did not adopt any particular method. Nor did he make notes or keep records of his 'research'. Rather, he claimed to have relied upon his own "gut feel" as to what he was dealing with and the making of mental notes. This was so, notwithstanding his acceptance in cross-examination that it was critical to locating child pornography to have accurate search terms and MD5 hash numbers. (A MD5 hash number is a random configuration of 32 letters and numbers that operates as an identifier of a particular file.) In this regard, he agreed that it had become known to him that the MD5 hash numbers were essential to build an effective program such as he had in contemplation. He also agreed that it was "beyond most human capacity" to recall an MD5 hash number, but that he had not kept a record of any of them.

The appellant had earlier said that his 'research' was at an early stage and that he "was still mulling around". He said that this was his "style of development" and that even when developing his NetFlow Auditor, he had not "made many notes". When tested in cross-examination on his failure to keep a note of search terms, he said that his research required "a lot of prior experience in terms of understanding architecture and [that] recalling some of the search terms was relevant". He did not accept that the search terms were the "heart and soul of this research", but said it "was the beginning of the research". He said that he had maintained and stored a database made by a program called ACDSee (which created the Asset.dbf file) which he retained underneath one of the application folders. The appellant also agreed that "to be effective" his research required him to know "for certain" the history of each file, although he qualified his answer, saying he only needed to know the history of each file at the end of the research.

This evidence was the essential aspect of the appellant's case in respect of the first stage of his research, namely, that he had had downloaded the files as part of his 'research', that he had deleted all other files he had downloaded at that time with a program called 'Eraser' and that he had overlooked that these files were on the computer, thus explaining why they remained in his possession. He contended he did not know and could not reasonably have been expected to know that he was in possession of the material during the period between 21 November and 11 December 2007, being the period of possession alleged in the indictment. As indicated, this aspect of his defence is not pursued on the appeal.

The appellant said that he did nothing further until March 2008, as he was "pretty shell shocked" and felt he had "to leave it alone for a while and just to mull it over in my head and think about what I'd learnt, and how it could be applied to technology". The trial judge accepted this evidence. The appellant also said he had other work tasks to attend to.

The appellant identified the second stage of his research as occurring in March 2008 when, in an attempt to advance his research, he conducted a series of tests relating to a repacked inspection method using programs called Wireshark and Colasoft Capsa, in conjunction with the eMule downloads. The appellant said that he returned to his research at that time because there was discussion in the media about filters and he again thought that it was misdirected as it ignored peer-to-peer technology.

The appellant explained that his purpose in using the Wireshark and Colasoft Capsa programs was to ascertain if child pornography could be identified as it traversed his network interface card. He described this approach variously as "using a sniffer approach" or as involving "deep packet inspection". He said Wireshark was not an easy tool and that Colasoft Capsa was easier to use, in the sense that if he:

"... plug[ged] in a string into a field and saying 'search PTHC. If you see PTHC in the content, then [that] alert[s] me to the packets that contained that content'"

The appellant said he had limited success with this method and that there were aspects of it that he did not understand. In particular, he did not understand the level of obfuscation or encryption that was occurring. The appellant said that he purged all the material that he had downloaded at this time and all related back files and applications from the 'experiment' because the data had the potential to form actual images or videos of child pornography on the computer. He said at this time he did not know whether the police had the capability to check MD5 hash numbers in the manner he was researching.

The appellant said that in about September/October 2008, there was again a peak in media coverage relating to filtering child pornography. He said that as he had already "put in the effort", he "needed to progress on some final thoughts and experiments relating to the MD5 signatures", as well as considering "how [he] would go about creating the active caller". He said that at this time he looked at a number of articles, to which he returned in about November 2008. He had read those articles some years previously which, he accepted, did not relate to child pornography. He said, however, that he drew on the knowledge within them when he was performing his research.

The articles were contained within a WIP folder on the desktop. The folder had been created on 24 November 2008 the day prior to the first eMule download during this period of 'research'. Mr Wilson, who had not located this folder at the time of his search, admitted that he had not entered the search term "peer-to-peer", but conceded that the folder contained files relevant to peer-to-peer detection research. It should be noted, however, that the appellant conceded in cross-examination that none of the articles analysed how the particular content of a file might affect the flow of information over peer-to-peer networks, as opposed to the size of the file. The appellant also agreed in cross-examination that one of the articles that he had pointed out as relating to file content was in fact about "packet inspection" which involved examination of digital information comprising part of the file but did not involve the opening of the file or looking at it to see what it depicted.

One of the articles contained within the WIP folder was entitled "Peer-to-Peer Behaviour Detection by TCP Flows Analysis", by C Soldani of the University of Liège, published in the academic year 2003-2004. He said that he understood from the Soldani paper the importance of keywords and trying to identify how to discover fingerprints of files as they crossed a network gateway.

Another article, "Paedophile key words observed in eDonkey", by Matthieu Lataby & Ors, had emphasised the importance of collecting key words from such data. He said that that paper gave him an understanding that certain key words could be used to build a filter and there were other keywords that although relevant, were not as useful for that purpose. The appellant accepted that the article related to the need to confirm the key words and that there was nothing in the article that suggested it was necessary to look at the material. The appellant said, however, that the information in the article caused him to think that the kind of filter that was needed was one into which keywords were put into an active caller which would identify the MD5 hash number or signatures of a file. He explained that he was interested in the MD5 signatures because they were "the absolute fingerprint of a known file".

This was the genesis of the third stage of the research. In essence, that stage involved four downloads of a total of 365 digital images using eMule (the second access and second possession counts). The appellant downloaded the images late at night or in the early hours of the morning. He said that he was awake at those times, but agreed that he did not need to communicate with anyone in the United States at that time.

The appellant said that the purpose in downloading the images was to observe the behaviour of the peer-to-peer connections on eMule as the number of downloaded files grew. During this stage of the 'research', the appellant used a program called PacketTrap. This program was not particularly successful for that purpose. Indeed, he said that it produced less information than Wireshark and Colosoft Capsa, and he had difficulty installing and running it. However, the appellant said that it allowed him to capture information about the physical IP addresses of the peers connecting to eMule in a much clearer way than the other tools and was closer in its functionality to the NetFlow Auditor program he had previously developed for other applications. The appellant said this was important to him because "if we were going to ... create an active caller to drive our software, then it would be a similar level of information". The appellant also installed an MD5 tool to assist in the process. The appellant's evidence was that in this third phase of his research, he was interested in the electronic signature of the files.

Some of the files located on the Western Digital hard drive were part files stored in a directory marked T1. In his evidence in chief, the appellant explained his purpose in having the part files, as follows:

"... the way that eMule works is that it has an incoming directory and it has a temporary directory. One of the suppositions I had was that one could revolve the part files around and around and around in a circle and so by doing that in an active caller, be able to continually or to find the files that were in the temporary directory more frequently as the time of day passed which is why I called it T1."

If the part files were clicked on, they produced an image. However, the appellant said he did not look at the part files, but waited for them to complete. The appellant said that he had used a program called WinRAR on the part files as a general extraction. There were numerous other files found on the hard drive, including JPEG files. The appellant said the JPEG files could have been produced as a result of using the WinRAR program. The part files were contained in an archive and the JPEG files were contained within an inner archive. The appellant said he looked at a "few" of the JPEG files. He said he took a sampling out of that group and thought that there was a "high propensity" that the rest were also child pornography.

The appellant, in response to the question whether it was necessary to open every file for the purpose of the work he was doing, stated that he had installed MD5 tools and had checked that the subset of information related to child pornography, but he "hadn't formed a method to start building the MD5 database".

The appellant also renamed the complete files he had downloaded using a numerical file name which, he said, he used as an electronic fingerprint because he had no desire to look at the names of the files at that stage. He said that his objective in giving the files various anodyne file names was to segregate each of the sessions in which the downloads occurred to correspond with his periods of research. The appellant said he did not rename the last download as the Federal police arrived at his premises the following morning, before he had time to do so. The appellant denied that his intention in renaming these file using numerical names was to camouflage his erotic interest in child pornography. He maintained that he was renaming them for experimental purposes related to his research. He also said that he had no desire to look at the actual file names, which caused him "a fair bit of discomfort".

The appellant gave evidence that after his arrest he continued to work on his method but did so unconnected with child pornography. In August 2009 he published an article titled "Using Low auditor to assist in identifying Distributed Denial-of-service (DDoS) attacks and other network behaviour anomalies". He said that this article was based on his findings on peer-to-peer networks from his three phases of work and that it presented a working method to assist in developing NetFlow Auditor to a stage capable of filtering out child pornography in the near future.

The trial judge's reasons on the defence of scientific research

It is convenient to note at the outset that His Honour generally accepted the appellant as a person of credit, notwithstanding that he had admitted to lying to the police in his ERISP (referred to below). His Honour considered that the lie went to the appellant's possession of the material and not to his defence. But in any event, he considered that the credibility of the appellant was not relevant to the determination of the question whether the Crown had established that there was no reasonable possibility that the appellant produced, used or intended to use the three video files for a genuine scientific or other public purpose.

It is also convenient to note that the Crown had sought to rely on the presence of the copies of the video files on the hard drive, the thumb cache images and the data indicating the content of the files in the Asset.dbf file as tendency and/or coincidence evidence to establish that the appellant possessed the three video files for an erotic purpose. His Honour rejected the Crown's applications. It appears that as part of the consideration of the Crown's tendency and coincidence evidence applications, the appellant sought a direction that the purpose of the Asset.dbf file was to create a database without images or video files. His Honour noted in that regard that the file located by Mr Wilson in fact did contain images or video files. This observation is the subject of ground 4 of the appeal.

A further matter that needs to be noted is his Honour's finding that the appellant's main concern in possessing the three child pornography video files "was to utilise the technology which he had developed for commercial use and for his own benefit". As his Honour observed:

"... the evidence of the [appellant] is quite specific in that regard. He stated that he was not making any notes about anything to do with research at the time other than mental notes."

His Honour accepted that the appellant did not access the three video files other than at the time that he first downloaded them. His Honour also accepted the appellant's evidence as being truthful, that having downloaded the three videos, he felt he had to "leave it for a while and mull over it in his head and think about what he had learnt and how he could apply it to technology". However, his Honour concluded that the appellant did not intend to use the three video files for research. Rather, the appellant's intention was to use the data from the three videos for the purposes of his research. That being so, his Honour concluded that it was not reasonable that the three video files remained on the computer. It followed, in his Honour's view, that the Crown had discharged its onus in relation to the first possession charge in showing that there no reasonable possibility that the accused produced, used or intended to use the three video files for genuine scientific research. In coming to that conclusion, his Honour took into account the appellant's good character when assessing the likelihood of having committed the offence.

His Honour then dealt with count 4, relating to the appellant's possession of two groups of files. One group was the 365 image files located on the Western Digital hard drive, being files and part files produced by eMule. The second group consisted of the multiple copies of the video files originally located on the laptop. The charge in count 4 involved possession of the material downloaded during what the appellant described as the third stage of his research.

His Honour's reasons for rejecting the appellant's defence under s 91H(4) in respect of the second possession charge (count 4) were similar to those given for rejecting the first possession charge. He accepted that the appellant was concerned with creating a business opportunity by adapting software that he had developed to filter out certain material on the peer-to-peer networks. His Honour accepted the appellant's evidence that he had referred to a number of articles during each phase of his 'research'. His Honour accepted that these articles were relevant to peer-to-peer behaviour and internet traffic analysis and were relevant to his attempts to adapt the software he was developing for the commercial purpose he had in mind. His Honour then posed the question whether the appellant's possession of the material the subject of count 4 was for a genuine scientific purpose, having regard to the circumstances in which the material was used or intended to be used, and whether his conduct was reasonable for that purpose. His Honour determined both aspects of this question in the negative.

In doing so, his Honour had regard to the dictionary definitions of "genuine" and "scientific". He found that "genuine" meant "properly so-called" and "scientific" meant "according to rules laid down in exact science for performing observations and testing the soundness of conclusions": see the Australian Concise Oxford Dictionary. His Honour found that the appellant's possession of the material was not for a genuine scientific purpose for the following reasons. First, there was no method involved in the 'research' undertaken by the appellant. The appellant was not acting in accordance with any rules laid down by science. For example, he made no notes, contending that "he was thinking and [made] notes in his own mind". Secondly, the appellant was aware that possessing the material was illegal. Thirdly, the appellant made no official approach to any law enforcement agency in respect of the prospective development of a filtering program. He had made a cursory inquiry only to ascertain if law enforcement officers were interested in any filtering method.

His Honour referred to the submission of the Crown that PacketTrap (a program the appellant said he used in conjunction with eMule in the third phase of his research) could not be used to analyse the content of child pornography material on the internet. The appellant had not challenged that evidence, but contended that his purpose in using that program was to obtain information about all of the point to point IP connections. In this regard, it was relevant that the appellant's case was that he had developed a method to monitor and filter out child pornography on the Internet as opposed to having developed a working product that would achieve that result. However, it was his intention to adapt software that he had already developed to do that.

His Honour concluded that there was no necessity for the appellant "to have regard to the child pornography for the purposes that he intended" and rejected that the appellant's conduct was reasonable for the purpose he had in mind. His Honour made the observation that a commercial purpose did not exclude the possibility of a scientific purpose but reiterated that at this time the appellant was only making mental notes whilst carrying out his analysis. In his Honour's view, the only rational inference was that the appellant did not possess the material for a genuine scientific or other public benefit purpose, notwithstanding that he accepted the appellant was a genuinely innovative person, anxious to develop his own software.

Important to his Honour's determination was the appellant's evidence that it was not necessary that he download child pornography material for the development of a software product that would filter out pornographic material. The appellant challenges this finding as not being supported by the evidence (see ground 3).

Ground 1: the trial judge erred in his interpretation of the defence under s 92H(4)(c)

Section 91H(4)(c) provides a defence in circumstances where the person was acting for a genuine scientific purpose. The appellant contended that the trial judge's interpretation of the adjective "scientific" in s 91H(4)(c) was unduly narrow and failed to reflect the broader context of scientific purpose in the section provided. In particular, the appellant contended that his Honour's interpretation of the provision imposed a requirement of "scientific method" which was not required by the legislation. The appellant also argued that a person could be acting for a genuine scientific purpose within s 91H(4)(c), even if the steps taken for that purpose were of a preliminary nature.

Accordingly, the appellant submitted that his Honour erred by placing emphasis upon the absence of any scientific method in the "research" the appellant claimed he was undertaking, that is, that he had not acted according to a set of rules laid down in exact science and had not made notes. The appellant submitted that a person could engage in genuine scientific research without engaging in any form of scientific method, as his Honour appeared to consider was necessary. He further submitted that a broad construction of "scientific purpose" was consistent with the objects of the section which was to prohibit the possession of child pornography except for limited purposes and, relevantly to this case, for a genuine scientific purpose.

The appellant also pointed out that reliance upon dictionary definitions can be of limited utility: see House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at 505 and that, in any event, his Honour erred in too narrowly confining the meaning of "scientific ... purpose" in s 91H(4)(c) by referring to a portion only of the dictionary definition of "scientific" and then from one dictionary only, namely, the Australian Concise Oxford Dictionary. The complete entry in that dictionary is as follows:

"Scientific -adj.

1a. (of an investigation etc) according to rules laid down in exact science for performing observations and testing the soundness of conclusions.

b. Systematic, accurate.

2. Used in, engaged in, or relating to (esp natural) science (scientific discoveries, scientific terminology).

3. Assisted by expert knowledge."

The appellant submitted that a person could be engaged in genuine scientific research without taking notes and without performing an experiment according to the rules laid down in exact science. In this regard, the appellant relied upon his evidence as to how he had developed applications in the past and had undertaken research without note taking, namely, by "learning about the technology, learning about the data, by getting a good gut feel of the data and progressing forward in the next step". The appellant explained that this was how he got his "flashes of genius".

The Crown emphasised the necessity for the purported scientific purpose to be genuine and that an analysis of what the appellant did demonstrated his assertion to be spurious. The Crown submitted that the appellant's case, that he was engaged in scientific research consistent with a scientific purpose, was simply implausible and that his evidence was false and inconsistent. We will return to the bases upon which the Crown supported its submission shortly. Before doing so, however, it is necessary to consider the terms of the statutory defence and the challenge that is now made by the appellant to his Honour's approach to it.

The defence under s 91H(4)(c) is made out where, relevantly:

"... having regard to the circumstances in which the material concerned was produced, used or intended to be used, the defendant was acting for a genuine ... scientific ... purpose and the defendant's conduct was reasonable for that purpose."

The appellant's case at trial was that, having stumbled across search terms that contained terms that indicated to him that child abuse material might be involved, it occurred to him that he could possibly develop a commercial product that would permit such material to be filtered and blocked. To that end, he said he engaged in research and that his possession of the material was part of, or for the purpose of, that research.

Although his Honour referred to the appellant 'producing' the three video files on his computer when they were stored in the obscure directory path, the appellant did not in any real sense 'produce' the child pornography in those files. For that reason, we do not consider that part of the defence under s 91H(4)(c) is available to him. Rather, the appellant accessed child pornography, downloaded it, saved it (and was thus in possession of it) and subjected it to a number of computer programs. In that way, he "used" the material as comprehended by the defence under the section. It was his case that he did so as part of the very early testing of an idea that he might be able to develop into a commercial product. To that extent, he claimed that he also intended to use the material for research. It was in that context that the nature of his 'research' was relevant to the determination of whether the Crown had excluded the defence.

It should be noted immediately that s 91H(4)(c) does not speak in terms of research, nor, as the appellant pointed out, was there any express requirement that a person apply or utilise a scientific method if using or intending to use the material for a genuine scientific purpose. We accept that it is possible that the research into and development of a commercial product could involve "producing, using or intending to use child pornography material for a genuine scientific purpose". His Honour accepted that possibility. On that premise, it was appropriate for his Honour to consider whether the activities undertaken by the appellant had the attributes of genuine research to ascertain whether a commercial product could be produced.

His Honour, by reference to a dictionary meaning of "scientific", found that it did not. As already stated, the appellant has complained that his Honour's reliance on a specific dictionary meaning of the term "scientific" was too narrow. However, even if the complete definition of "scientific" is considered, the appellant's activities could not be described as "systematic or accurate". There had been no systematic logging or recording of search terms and their MD5 hash numbers, both being tasks essential to what the appellant said he was trying to do as a first step in his research.

Subject to one matter to which we will turn, the same conclusion is reached when consideration is given to the meaning of 'research', which was the activity in which the appellant contended he was engaged. According to the Oxford English Dictionary, research means:

"1. The act of searching carefully for or pursuing a specified thing.;

2. systematic investigation or inquiry aimed at contributing to knowledge of a theory topic etc by careful consideration, observation or study of a subject; investigation undertaken in order to obtain material for a book, article or thesis etc; the product of systematic investigation."

There was nothing systematic about what the appellant did in the course of any phase of his 'research'. We are satisfied that what the appellant did could neither be described as scientific nor readily described as research in the dictionary definitions where emphasis is given to systematic investigation and careful observation or study. However, the appellant's evidence was that he was pursuing a particular end, namely, seeking to ascertain whether he could develop or adapt technology that would act as a filter for child pornography material.

The appellant's use of the Wireshark and Colasoft Capsa programs in March 2008 and PacketTrap in November/December 2008 provide some support for this claim as none of these programs actually gave him access to the child pornography material as distinct from other information or data in the download files. The appellant's possession of the material could thus be said to be for the purpose of an investigation or 'pursuing a specified thing'. In other words, it could be said that he had possession of the material by way of a preliminary investigation to ascertain whether it was worth proceeding with the attempted development of a commercial product.

The real question, therefore, is whether, at the preliminary stage of his investigation, could be said to be engaged in research, such that his possession of the material was for a "genuine scientific purpose"? Although the Court has not found this question easy to resolve, we have come to the conclusion that the trial judge was correct to conclude that for the purposes of s 91H(4)(c), a person would not be engaged in the research stage of a project, so as to have possession of material for a genuine scientific purpose, unless what was being done involved proper scientific method.

We are further of the view that the appellant's possession of the material on either the Sony laptop (the first possession charge) or on the Western Digital hard drive (the second possession charge) was not reasonable for any genuine scientific purpose. The possession charge in respect of the three video files found on the Sony laptop was in respect of the period 23 November 2007-10 December 2008. Even on the appellant's case, he did not have possession of those files on that computer during that period for a genuine scientific purpose. Rather, he was in possession of the material for that period because he did not realise the video files had not been erased and/or had forgotten that they were located in the obscure print directory.

Even if the appellant's initial possession had been for a scientific purpose, a proposition that the Court rejects, there was no evidence to support a case that the continued possession of the videos was reasonable for that purpose. On the appellant's own case, he had not intended to conduct any further research on or relating to those files so that his continued possession was not reasonable for a genuine scientific purpose. The fact he forgot that the files remained on his laptop may be relevant to sentence, but that is a distinct and different question. Further, for the reasons given at [*125], we consider that the possession of the files on the Western Digital hard drive was not reasonable for genuine scientific purposes.

Having come to that conclusion, it not necessary to deal with the specific arguments raised by the Crown in relation to this ground of appeal. Those arguments are better dealt with in relation to ground 5, namely, that the guilty verdicts were unreasonable and not supported by the evidence.

Ground 2: the trial judge erred by taking into account the appellant's failure to notify the authorities of his conduct

The appellant submitted that his Honour erred in taking into account the appellant's failure to notify authorities as a factor relevant to the reasonableness of his conduct in possessing the pornographic material. The appellant contended that his Honour took this fact into account as a determinative factor, notwithstanding that his Honour recognised that there was no obligation upon the appellant to do so.

The appellant's failure to make an official approach to authorities was one of three reasons that his Honour gave for rejecting the appellant's defence and so was an important factor in his Honour's reasoning. The question, therefore, is whether it was an error for his Honour to have regard to that matter.

In the opinion of the Court, his Honour did not err as alleged. His Honour understood there was no requirement upon the appellant to make any such enquiries. However, as the evidence emerged in this case, the fact that the appellant had not made formal enquiries of authorities in relation to his proposed commercial product, particularly in an area as serious and sensitive as the possession of child pornography, which, as the appellant knew, was illegal, was relevant to but not determinative of the question whether it was reasonable to have the material in his possession for his purported scientific purpose. A person who had possession of such material for a genuine scientific purpose might have been expected to have made enquiries of relevant authorities to ascertain whether the development of a commercial product would be of interest to them, or what their requirements might be in relation to any such product.

It might also be of interest to a person proposing to develop a product to ascertain from the authorities whether there was already research in the field and, if so, what the nature and extent of that research was, as it would be pointless to replicate existing research. Additionally, an enterprising IT product developer might decide to build on such research. In other words, it would seem unusual for a person embarking upon the development of a new product not to seek to ascertain whether any proposed product would interest the authorities to whom it was likely to be marketed.

We would reject this ground of appeal.

Ground 3: the trial judge erred in finding that the appellant did not need to download child pornography

A factor the trial judge considered relevant to whether the defence of genuine scientific purpose had been excluded by the Crown was what his Honour stated to be the appellant's "agreement" that it was unnecessary for that purpose to download the child pornography material. His Honour also stated that there was no necessity for the appellant to view child pornography for his alleged purpose of scientific research.

The appellant submitted that he had not agreed that it was unnecessary for him to download child pornography. He further submitted that his Honour's finding that there was no necessity to have regard to the child pornography was contrary to the evidence.

The appellant relied upon the following evidence given in his evidence in chief:

"Q. At that point in time you saw the child pornography. What did you think that you could do?

A. Well, initially, I didn't know how big a problem it was. I'd tried downloading Stargate and I'd tried downloading top ten hits and I'd - I'd had a feel for - for what that profile of traffic was so it was purely, at that stage, just an understanding of, you know, what is - what is child pornography and I - I progressed to - to download a couple of files at that stage to - to analyse if - if this was - if the names were - that were indicative of the - or the key words that I'd seen in my initial browse were, in fact, child pornography. (Trial Tr 308)

...

Q. If I can sort of take you back and ask this question. Do you recall the first time you downloaded a child pornography material, and what the purpose was of that download?

A. The purpose was simply a research purpose, and to qualify that it even was child pornography.

Q. Why did you need to know whether it was child pornography or not?

A. No point in stamping around in the dark if it - if you, you know, if it's not. Then its perhaps not - there's actually a couple of reasons. Firstly, files can be polluted and its difficult to know whether that data is in fact pornography or not pornography until you download.

Q. Is it possible to have done the type of research that you were attempting to do without actually downloading child pornography.

A. I don't believe so." (emphasis added)

The appellant explained that it was only "when you start clicking on, and commencing a download [that] you get any idea ... of the community that is serving up the files".

The appellant was cross-examined about the purpose of downloading the child pornography material as follows:

"Q. But you certainly don't dispute that firstly when you downloaded all of the files on pages 1 to 6 that you intended to download child pornography?

A. I intended to download child pornography for the purpose of my experiment, yes."

The appellant referred to other evidence he gave, including that the eMule program was rich in observable statistical data, including how many files were being shared, the size of files and how long it took for those files to come down. The appellant contended that the depth of his understanding of the processes he was observing was consistent with the fact that he was conducting scientific research. His contention was, as submitted on the appeal, that "he needed child pornography ... to understand what was happening".

In cross-examination, the appellant agreed that the position at the conclusion of the 'first stage' of his 'research', was that he had a number of files of child pornography downloaded on his computer, but disagreed that that was the net effect of his research. Rather, he said he was left with a great deal of knowledge of the nature of child pornography on peer-to-peer networks. He conceded that the knowledge he obtained was that there were a lot of people using peer-to-peer networks to obtain access to child pornography, but qualified that concession in terms that it was "one observation" he had made. He added that that observation was a driver for continuing to identify and build a method to block access to child pornography.

His Honour concluded that on the evidence, it was reasonably possible that the appellant had created the database to keep a record of the names and files he had downloaded. His Honour observed that whilst he had not been satisfied that the appellant possessed the child pornography material for genuine scientific research, he was satisfied that he was retaining records in the database for the purpose of analysing the operation of peer-to-peer network systems for a commercial purpose. In this regard, his Honour observed that the appellant was certainly acting alone and not in a collaborative network of like-minded persons.

His Honour referred to the fact that the appellant had admitted that he had looked at child pornography images but had only looked at a couple for a short period of a few seconds.

In dealing with count 4 (the second possession charge), although defended unsuccessfully at trial, his Honour relied upon the various matters to which he had referred in considering the previous counts. His Honour reiterated that the appellant was a person of good character and, in the opinion of Dr Nielssen, had good prospects of rehabilitation. Dr Nielssen's opinion was based upon the absence of any history of significant substance abuse, any pattern of other forms of antisocial conduct and the appellant's strong community ties. Dr Nielssen had also expressed the view that the appellant was at low risk of further offending. His Honour, who was sentencing the appellant approximately three and a half years after the last offence, considered that Dr Nielssen's opinion would appear to have been well based.

The appellant's submissions on sentence

The appellant submitted that the compelling findings made in his favour and, in particular, his Honour's acceptance that he had no erotic purpose in accessing or possessing the material the subject of counts 2, 3 and 4 and that his ultimate objective was to produce a product to prevent access to child pornography, should have attracted the operation of s 19B(1)(d) of the Crimes Act (Cth).

The appellant was particularly critical of the sentence imposed in respect of count 3, contending that his Honour lost sight of the fact that the charge related only to three video files which had not been accessed since the date of their download in November 2007. The Court does not accept this submission. His Honour expressly noted that the prosecution did not rely upon the contents of the thumb cache on the laptop as part of the material the subject of that offence. Rather, the Crown had relied upon the material as evidencing an erotic purpose in the appellant's possession of the material, a submission which his Honour rejected

The appellant also complained that there was a "curious reference" to the material being downloaded via email. The Court accepts that whilst this was an erroneous remark, there was reference in the evidence to an email in respect of the downloading of the material in November 2007: see [*41] above. Notwithstanding this error, we do not consider that it impacted in any way upon the sentencing process.

The appellant next contended that the effect of his Honour's finding that the defence under s 91H(4)(c) was not made out was because his Honour had concluded that there was no reasonable possibility that the appellant's conduct in possessing the three video files was for a genuine scientific purpose, objectively considered, and, further, it was not reasonable that they remained in an obscure directory on the computer. It was submitted that where his Honour was nevertheless satisfied that the appellant had a genuine belief in the commercial prospects of his analysis, the gravity of the offending was extremely low. The appellant also submitted that if his evidence that he had forgotten about the files were accepted, his continued possession of the files could only have been due to recklessness and not to a specific intent to view child pornography on an ongoing basis.

The appellant submitted, therefore, taking into account his good character and his subjective circumstances, the circumstances of this offence were such that, although finding the offences proved, his Honour should not have proceeded to record a conviction under s 19B.

We reject this submission. Both in accessing and possessing child pornography, the appellant engaged in activity known by him to be illegal. Whilst we have accepted on the appellant's evidence the reasonable possibility that he saw a need to download the material, we do not accept that there was any necessity for him to save the material for any legitimate commercial or other purpose. Even if the appellant's possession of the files thereafter was reckless, because there is a reasonable possibility he had forgotten they had been saved, his conduct in saving the files in the first place was criminal and serious. While that conduct is of course the specific conduct the subject of the first access offence the subject of the Crown appeal, the interaction between the accessing and possessing of the material in counts 1 and 3 is unmistakable. We consider that the appellant's subjective circumstances and his Honour's acceptance that the appellant had a commercial purpose in downloading the material and had not retained the files in his possession for an erotic purpose, was appropriately reflected in the good behaviour bond imposed by his Honour on count 3.

In relation to count 4 (the second possession offence of which he was found guilty after trial), the appellant contended that the trial judge's error in finding that it was not necessary to download child pornography in order for the appellant to undertake his research was relevant to an assessment of the objective seriousness of that offence. The Court has dealt with this issue in relation to ground 3 on the conviction appeal. As we have indicated, there is a likelihood the statement in his Honour's reasons was a typographical error. In any event, it is not evident that his Honour took that matter into account on sentence. The only point at which he possibly did so was in his reference that the circumstances giving rise to count 4 occurred as part of the third stage of the appellant's research. Nor is there anything to indicate that his Honour considered this to be an aggravating factor in the commission of the offence. Had he done so, it would be expected that there would have been reference to it in his Honour's remarks.

The remarks we have made in the preceding paragraph are also sufficient to dispose of ground 3 of the sentence appeal, save for one additional matter pursued by the appellant in support of that ground.

The appellant also submitted the fact that of the 398 files subject of count 4, only 18 had been accessed after they had been created in the folders also indicated that the appellant's offending in respect of count 4 was "still at the lowest end of the scale". In conjunction with all of the objective and subjective factors to be taken into account, the appellant submits that the offence should have been dealt with under s 19B.

For the reasons we have given in respect of counts 2 and 3, the Court rejects this submission.

Ground 2

The appellant complained that in sentencing him in respect of count 2, his Honour should have but failed to have regard to the fact that his conviction may have constituted extra-curial punishment because of the possibility that he may become a registrable person under the Child Protection (Offenders Registration) Act: see R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [21], or because he may become the subject of an order under the Child Protection (Offenders Prohibition Orders) Act 2004.

The appellant referred the Court to the Crimes (Sentencing Procedure) Act, s 24A, which provides:

"24A Mandatory requirements for supervision and other prohibitions to be disregarded in sentencing

(1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the fact that the offender:

(a) has or may become a registrable person under the Child Protection (Offenders Registration) Act 2000 as a consequence of the offence ..."

The appellant pointed out that as count 2 was a Commonwealth offence, s 24A did not apply. It followed that his Honour should have had regard to these possibilities.

The premise that s 24A did not apply was erroneous and so it is not necessary to consider the appellant's submissions advanced in support of his ground. Section 24A applies to Federal offenders pursuant to the operation of the Judiciary Act 1903: see s 68(1) or s 79(1). Accordingly, his Honour was required not to take these matters into account.

Ground 3

We have already referred above, at [*], to ground 3. The appellant made a further submission in support of ground 3, namely, that the fact an offender suffers adverse consequences when a conviction is recorded, including legal and social consequences, is a relevant consideration in the sentencing process: Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 122 A Crim R 568 at [38]; R v Ingrassia (1997) 41 NSWLR 447 at 449.

We have already rejected ground 2, in which it was contended that the appellant may suffer adverse legal consequences as a result of his conviction. To the extent that the appellant's further submission relates to adverse social consequences, we are of the opinion that even if the remarks made in the authorities to which we have referred continue to be good law in the context of fraud and tax evasion, they do not apply in relation to the offences under consideration here. Any social embarrassment or consequence that the appellant may suffer from being convicted of accessing and possessing child pornography is a direct result of his offending conduct, the underlying nature of which is exploitative of children. The Crown submission in this regard is particularly relevant, namely, that the appellant could have engaged in his primary research, particularly that involving packet inspection software, using files with legal content, including adult pornography.

It follows that the appeal against sentence should be dismissed.

Crown appeal on sentence: manifest inadequacy

His Honour published separate reasons for sentence on count 1, as the first access offence of the two access offences to which the appellant entered pleas of guilty. It was the only offence dealt with under the Crimes Act (Cth), s 19B(1)(d). The sentencing reasons on that count preceded his Honour's sentencing reasons for counts 2, 3 and 4 by ten days for reasons that are of no present importance.

Section 19B of the Crimes Act (Cth) provides:

"19B Discharge of offenders without proceeding to conviction

(1) Where:

(a) a person is charged before a court with a federal offence or federal offences; and

(b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

(i) the character, antecedents, age, health or mental condition of the person;

(ii) the extent (if any) to which the offence is of a trivial nature; or

(iii) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

the court may, by order:

(c) dismiss the charge or charges in respect of which the court is so satisfied; or

(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:

(i) that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;

(ii) that he or she will make such reparation or restitution, or pay such compensation, in respect of the offence or offences concerned (if any), or pay such costs in respect of his or her prosecution for the offence or offences concerned (if any), as the court specifies in the order (being reparation, restitution, compensation or costs that the court is empowered to require the person to make or pay):

(A) on or before a date specified in the order; or

(B) in the case of reparation or restitution by way of money payment or in the case of the payment of compensation or an amount of costs-by specified instalments as provided in the order; and

(iii) that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed."

One of the questions that arises on the Crown appeal is whether the precondition to the exercise of the power to discharge the appellant without proceeding to conviction under s 19B(1)(b)(i), (ii) or (iii) was satisfied such as to allow for the positive finding that it was "inexpedient" to impose a punishment on the appellant for accessing child pornography other than the nominal punishment of requiring him to enter into a good behaviour bond.

In the remarks on sentence there is no reference at all to the operation of the section. The two stage process of enquiry requires was discussed by this Court in Commissioner of Taxation v Baffsky. Those considerations are as follows:

"(a) Section 19B(1)(b) itself consists of two stages. The first is the identification of a factor or factors of the character specified in subparagraphs (i), (ii) and/or (iii) of the paragraph. The second stage is the determination that, having regard to the factor or factors so identified, it is 'inexpedient to inflict any punishment' or to reach the other conclusions provided for in the paragraph;

(b) Section 16A(2) of the Crimes Act identifies the matters that must be taken into account in exercising the second stage of the discretion in s 19B;

(c) The application of s 19B to revenue offences does not require 'exceptional circumstances' to be established. The statute formulates a test of whether punishment is 'inexpedient'. That is the test to apply;

(d) The significance of the conduct regulated by the statute which creates the offence is a consideration to which a sentencing judge must have regard in deciding whether it is 'inexpedient' to impose punishment in a particular care; and

(e) General deterrence remains a relevant principle for sentencing Commonwealth offenders and it is appropriate to take such matters into account in determining whether to exercise the discretion under s 19B." (citations omitted)

When we dealt with the appellant's challenge to the sentence imposed on count 3 (the first possession offence charged), we noted that the three video files the subject of count 1 were accessed on 21 November (the date of charge) after the appellant downloaded them whilst browsing eMule to better understand the technology involved in peer-to-peer networks. While his Honour was satisfied that the appellant chanced upon file names suggestive of child abuse material, he was also satisfied that the appellant deliberately downloaded the particular video files knowing it was illegal, a matter his Honour regarded as of significance when considering the objective seriousness of an offence attracting a maximum penalty of 10 years. His Honour did accept, however, the reasonable possibility that the files had not been accessed after they were downloaded, notwithstanding that they were retained in the appellant's possession thereafter. His Honour also found that the content of the three video files was "particularly" abhorrent which was relevant to his assessment of the objective seriousness of the offending.

The Crown submitted that this Court, in R v Gent [2005] NSWCCA 370; 162 A Crim R 29 stated there were four factors to be taken into account when assessing the seriousness of the offence of importing child pornography, as follows:

"(a) The nature and content of the material including the age of the children and the gravity of the sexual activity portrayed (the degree of its depravity);

(b) The volume of pornographic material imported or accessed or possessed;

(c) Whether the material was intended by the offender for personal use or for distribution to others; and

(d) Whether the offender will benefit from the offence." (Crown further subs (36))

The range of factors relevant to an assessment of the objective seriousness of the transmission and dissemination of child pornography under the Criminal Code (together with possession offences both under the Criminal Code and under the Crimes Act) have recently been the subject of both restatement, elaboration and refinement in Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. At [94], R A Hulme J enumerated a non-exhaustive list of factors of significance as follows:

"1. Whether actual children were used in the creation of the material.

2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted.

5. n a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.

6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

8. The proximity of the offender's activities to those responsible for bringing the material into existence.

9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

10. Whether the offender acted alone or in a collaborative network of like-minded persons.

11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.

12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence."

Counsel for the appellant referred his Honour to Minehan as he did in his written submissions in response to the Crown appeal. Although his Honour makes no reference to the decision, his sentencing reasons reflect that consideration was given to at least some of the enumerated factors in the judgment, including (10), (11) and (12). In addition, as the appellant emphasised, in respect of factors (4) and (5), there were only three video files accessed and his Honour was satisfied that the appellant's purpose in accessing them was not self-gratification of an erotic interest in underage girls but in the first stirring of an interest in developing software to frustrate the internet trade in child pornography.

The Crown submitted that in the sentence for the first access offence, his Honour had allowed the absence of an erotic purpose (or proof of it to the standard in this case) to overwhelm proper consideration of the need for general deterrence. The Crown further submitted that in affording the appellant the benefit of having no conviction recorded under s 19B(1)(d), his Honour has failed altogether to have regard to general deterrence by implicitly accepting that it is inexpedient to inflict any punishment. This failure, in addition to his failure to approach the section in a principled way, was said to have contributed to the inadequacy of the sentence.

The Crown acknowledged that an offender's purpose in accessing child pornography is one of the factors involved in an assessment of the seriousness of the offence. However, the Crown submitted that even on the appellant's case, accessing the video files had an inherent financial motive in so far as the sentencing judge accepted that the appellant's purpose in accessing (and possessing) the child pornography was to develop software which he could exploit for commercial gain.

The appellant countered with the submission that to advance that argument on a Crown appeal against the inadequacy of sentence is specious given that the Crown's approach to disproving the appellant's "scientific purposes" defence was to seek to prove his erotic interest in underage girls. While the Crown succeeded in disproving the defence, it failed to prove his interest was sexually deviant.

The appellant submitted that even were a financial motive attributed to him by his desire to develop software to frustrate the trade in child pornography, that is a motivation diametrically opposed to the great majority of offenders who access and possess child pornography for sale or dissemination to end users. We regard the appellant's commercial motives as neutral on the question of sentence. The Crown referred to recent authority of this Court in which it has been held that the absence of any benefit or profit being obtained by an offender does not mitigate the offending: see Saddler v The Queen [2009] NSWCCA 48 at [54]; DPP v Latham [2009] TASSC 101 at [33].

The appellant's subjective circumstances were also taken into account by his Honour in dealing with the appellant under s 19B. In particular, his Honour appeared to take into account what he understood Dr Nielssen noted in his report in the following way:

"The Court also takes into account what was stated by Dr Nielssen in the report which was tendered, where he refers to the offender taking cannabis for the antihistamine effect on his sinus condition. Dr Nielssen notes that the period of his elevated [mood] would have been associated with increased propensity to act on impulse while taking cannabis, and impaired recognition of the correct procedure to follow and the possible consequences of his actions in accessing material he knew to be illegal."

As we read Dr Nielssen's report, there is no suggestion of any causal connection between what the appellant reported to Dr Nielssen of his "elevated mood" whilst developing his software programs and the particular offending the subject of count 1. Neither do we see it suggested in the report that there is a causal connection between the appellant's cannabis use at that time impairing his capacity to appreciate the consequences of accessing child pornography he knew to be illegal.

The Crown also submitted that his Honour should have taken into account the fact that on the appellant's own admission at trial he downloaded between 1,000 and 2,000 child pornography files in November 2007 and that this undermined any suggestion in Dr Nielssen's report that the access the subject of count 1 was isolated or impulsive. The Crown further submitted that his Honour should have taken into account the additional files the appellant downloaded so as to place the circumstances of the first access offence into context. As we see it, his Honour was entitled to take into account the extent of the downloading in November 2007 in considering the appellant's character and antecedents generally and, in particular, for the disciplined and principled approach under s 19(1)(b)(i).

The Crown referred the Court to Weininger v The Queen [2003] HCA 14; 212 CLR 629 where the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) stated, at [32]:

"Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration."

Limited in this way, there would be no breach of the principle in The Queen v De Simoni [1981] HCA 31; 147 CLR 383 as contended for by the appellant, were his Honour to have taken the appellant's admission to having downloaded a massive number of files into account. Again, as we see it, the extent of downloading impacts directly on the "triviality" of the offending (s 19B(1)(b)(ii)) and, to a lesser extent, whether the offence was committed under extenuating circumstances (s 19B(1)(b)(iii)).

The Crown further submitted that it was apparent from the schedule of comparative cases provided to his Honour that the offence should not have been dealt with under s 19B of the Crimes Act (Cth). In our view, limited assistance can be gleaned from the cases to which the Crown referred given the unique features of this case. What the Crown has to establish is that the sentence was plainly unreasonable or unjust where the criminal conduct the subject of count 1 was effectively unpunished. In addressing that question it is not necessary to identify any error in sentencing principle: it is the sentence itself that is scrutinised. In this case, however, we are of the opinion that his Honour's approach to s 19B was fundamentally flawed and that his sentencing discretion miscarried for that reason.

Even if it might be said that the context in which the offending occurred reduced the need for general deterrence, what cannot be ignored is that accessing pornography (and the possession of the material accessed) creates a market for the material irrespective of the motives of the person accessing the material. The fact that s 91H(4)(c) has been repealed and replaced with a provision that requires a person to obtain permission from the relevant authorities before undertaking research reduces the need for general deterrence. That does not, however, in our view, adequately address the question whether there was error in his Honour's approach to sentence in the sense discussed, resulting in an inadequate sentence. We are satisfied that the sentence was inadequate.

The Court retains a residual discretion under s 5D of the Criminal Appeal Act not to interfere even where the Crown has demonstrated error and a manifestly inadequate sentence has resulted: see Bugmy v The Queen [2013] HCA 37; 302 ALR 192 at [24]. The primary purpose of a Crown appeal was recently stated by the High Court in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [1] "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". Despite the fact that the principles relating to child pornography offences have been recently restated by this Court, as the Crown's submissions recognise, and that the proper approach to whether the discretion in s 19B(1)(d) is enlivened is well settled, we are satisfied the inadequacy of the sentence actually imposed in this case cannot be ignored and that there is no warrant for the exercise of the residual discretion in the appellant's favour.

Re-sentence

The substituted sentence on count 1 will satisfy the need for general deterrence and punishment and will conform with the principle of totality. Not only was there nothing in the offence or the offending the subject of count 1 to attract the operation of s 19B (it being offending which should have resulted in a conviction being recorded), it was, in a real sense, conduct which precipitated the course of offending which followed and should be treated consistently with the sentences imposed on counts 2, 3 and 4 for that reason.

Orders

The Court's orders are:

1. Appeal against conviction dismissed;

2. Grant leave to the appellant to appeal against the sentences imposed in respect of counts 2, 3 and 4 on the indictment;

3. Dismiss the appellant's appeal against sentence in respect of counts 2, 3 and 4;

4. Uphold the Crown appeal against sentence in respect of count 1. Quash the order made under s 19B of the Crimes Act 1914 (Cth) and impose the following sentence:

The appellant is convicted of accessing child pornography using a carriage service on 21 November 2007, contrary to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth). In accordance with s 20(1)(a) of the Crimes Act 1914 (Cth) he is released without passing sentence upon his giving security in the amount of $500 to be of good behaviour for 2 years.

**********

Decision last updated: 05 June 2014

[2014] NSWCCA 101

05 June 2014

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Criminal Liability

Jurisdiction

Sentencing

Limitation Periods

Admissibility of Evidence

Expert Evidence

Compensatory Damages

Medium Neutral Citation:	Sabel v R; R v Sabel [2014] NSWCCA 101
Hearing dates:	5 and 14 June 2013
Decision date:	05 June 2014
Before:	Beazley P; Hidden J; Fullerton J
Decision:	1. Appeal against conviction dismissed; 2. Grant leave to the appellant to appeal against the sentences imposed in respect of counts 2, 3 and 4 on the indictment; 3. Dismiss the appellant's appeal against sentence in respect of counts 2, 3 and 4; 4. Uphold the Crown appeal against sentence in respect of count 1. Quash the order made under s 19B of the Crimes Act 1914 (Cth) and impose the following sentence: The appellant is convicted of accessing child pornography using a carriage service on 21 November 2007, contrary to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth). In accordance with s 20(1)(a) of the Crimes Act 1914 (Cth) he is released without passing sentence upon his giving security in the amount of $500 to be of good behaviour for 2 years.
Catchwords:	CRIMINAL LAW - possession of child pornography - Crimes Act 1900, s 91H(3) - defence under Crimes Act 1900, s 91H(4)(c) - meaning of "genuine scientific purpose" - whether scientific method necessary - reasonableness of conduct CRIMINAL LAW - accessing child pornography using a carriage service - Criminal Code 1995 (Cth), s 474.19(1)(a)(i) CRIMINAL LAW - judge alone trial - Criminal Procedure Act 1986, s 133 - appeal against conviction - Criminal Appeal Act 1912, s 6(1) CRIMINAL LAW - sentence - irrelevant considerations - Crimes (Sentencing Procedure) Act 1999, s 24A - registration under the Child Protection (Offenders Registration) Act 2000 - application to federal offenders - Judiciary Act 1903, ss 68(1), 79(1) CRIMINAL LAW - sentence - adverse social consequences as extra-curial punishment - irrelevant consideration in child pornography offences CRIMINAL LAW - sentence - interpretation of sentencing provisions - Crimes Act 1914 (Cth), s 19B - discharge of offenders without proceeding to conviction - nature of the enquiry CRIMINAL LAW - sentence - purpose of sentence - deterrence - child pornography offences
Legislation Cited:	Child Protection (Offenders Prohibition Orders) Act 2004 Child Protection (Offenders Registration) Act 2000 Commission for Children and Young People Act 1998 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Criminal Code 1995 (Cth) Criminal Procedure Act 1986 Judiciary Act 1903 (Cth)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 302 ALR 192 Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 122 A Crim R 568 DPP v Latham [2009] TASSC 101 FB v Regina [2011] NSWCCA 217 Fox v Percy [2003] HCA 22; 214 CLR 118 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hedges v Regina [2011] NSWCCA 263 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 Keir v R [2007] NSWCCA 149 M v The Queen [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Ingrassia (1997) 41 NSWLR 447 R v KNL [2005] NSWCCA 260; 154 A Crim R 268 R v Moffatt [2000] NSWCCA 174; 112 A Crim R 201 Saddler v The Queen [2009] NSWCCA 48 SKA v The Queen [2011] HCA 13; 243 CLR 400 The Queen v De Simoni [1981] HCA 31; 147 CLR 383 Weininger v The Queen [2003] HCA 14; 212 CLR 629
Texts Cited:	Australian Concise Oxford Dictionary Oxford English Dictionary
Category:	Principal judgment
Parties:	Ralph Warren Sabel (Appellant/Respondent) Regina (Respondent/Appellant)
Representation:	Counsel: M Johnston (Sabel) C O'Donnell (Crown) Solicitors: William O'Brian & Ross Hudson Solicitors (Sabel) Commonwealth Director of Public Prosecutions (Crown)
File Number(s):	2010/24862
Publication restriction:	No
Decision under appeal	Jurisdiction: 9101 Citation: R v Ralph Warren Sabel Date of Decision: 2012-02-15 00:00:00 Before: Puckeridge ADCJ File Number(s): 2009/92207; 2009/108429; 2009/118010; 2010/24862