Saddler v R
[2009] NSWCCA 83
•31 March 2009
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
Saddler v R [2009] NSWCCA 83
FILE NUMBER(S):
2008/1142
HEARING DATE(S):
25 February 2009
JUDGMENT DATE:
31 March 2009
PARTIES:
Nigel Keith Saddler (Applicant)
Regina (Respondent)
JUDGMENT OF:
Grove J Buddin J Price J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
08/11/0039
LOWER COURT JUDICIAL OFFICER:
Berman DCJ
LOWER COURT DATE OF DECISION:
18 July 2008
COUNSEL:
J Stratton SC (Applicant)
L Babb SC (Crown)
SOLICITORS:
Aboriginal Legal Services (Applicant)
S Kavanagh (Solicitor for Public Prosecutions (Crown)
CATCHWORDS:
Criminal law - sentencing - possession of child pornography (x3) - whether various matters wrongly taken into account as aggravating factors - whether imposition of maximum penalty warranted - whether sentences manifestly excessive
LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Customs Act 1901
CATEGORY:
Principal judgment
CASES CITED:
Bowden v R [2009] NSWCCA 45
Elyard v R [2006] NSWCCA 43
Fahs v R [2007] NSWCCA 26
Hamze v R [2006] NSWCCA 36
Mouscas v R [2008] NSWCCA 181
Power v DPP (NSWDC, unrep 19 July 2007
R v Elliott [2008] NSWDC 238
R v Gent (2005) 162 A Crim R 29
R v Hewitt (2007) 180 A Crim R 306
R v Hoerler (2004) 147 A Crim R 520
R v Jones (1999) 108 A Crim R 50
R v Jones [2009] NSWDC 8
R v King (2004) 150 A Crim R 409
R v Leonard [2008] NSWDC 211
R v Stroempl (1995) 105 CCC (3d) 187
R v Yildiz (2006) 160 A Crim R 218
Regina v Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28
TEXTS CITED:
DECISION:
Grant leave to appeal.
Allow the appeal.
Confirm the sentences imposed in respect of counts 2 and 3.
In respect of count 1, allow the appeal and quash the sentence imposed in the District Court.
In respect of count 1, and taking into account the matters on the Form 1, sentence the applicant to a non-parole of 2 years 9 months with an overall term of 4 years to commence on 22 July 2008. The total term will expire on 21 July 2012 and the non-parole will expire on 21 April 2011 on which date the applicant will be eligible for release on parole. The total effective sentence is thus one of 5 years imprisonment with a non-parole period of 3 years 9 months.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
2008/1142
GROVE J
BUDDIN J
PRICE JTUESDAY 31 MARCH 2009
NIGEL KEITH SADDLER v R
Judgment
GROVE J: I agree with Buddin J and wish only to make brief comments about two matters.
The learned sentencing judge detailed the considerable activity in which the applicant must have engaged when he formed his conclusion that the applicant’s offence was “part of planned or organized criminal activity” and thus constituted a factor of aggravation in accordance with s 21A (2) (n) of the Crimes (Sentencing Procedure) Act 1999. For the reasons given by Buddin J that conclusion was wrong, however the legislatively created dilemma which faced the judge might be mentioned.
It is a well established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.
As Buddin J has observed, the legislation in s 21A (3) (b) has prescribed that it is a mitigating factor to be taken into account that the offence was “not part of a planned or organized criminal activity”. It is difficult to detect a rationale for the counterpoise between s 21A (2) (n) and s 21A (3) (b), and the circumstances detailed by the sentencing judge in this case make it obvious why it might be considered that the applicant should not be the beneficiary of mitigation by reason of the latter prescription. Certainly a judge is not bound to increase or reduce sentence simply because specified aggravating or mitigating factors “are relevant and known to the court” (s 21A (5)) but the existence of the positive and the negative in the identified provisions are, in my respectful opinion, a recipe for unnecessary complication in the determination of their application as well as being a source of possible confusion.
Second, Buddin J has noted the increase in the available maximum penalty for offences such as the present. Neither the cases to which he has referred nor the outcome of this appeal can contribute to any useful perception of an established sentencing pattern, as future sentences for offences such as the present must be guided in their assessment by the legislative intention which is inherent in the increase.
BUDDIN J:
Introduction
The applicant seeks leave to appeal against sentences imposed upon him in the District Court. The applicant originally pleaded guilty in the Local Court and adhered to those pleas when he stood for sentence.
The offences to which the applicant pleaded guilty were three counts of possessing child pornography contrary to s 91H(3) of the Crimes Act 1900. The maximum penalty for that offence at the relevant time was 5 years’ imprisonment. Four other charges were taken into account on a Form 1. They entailed two further charges of possessing child pornography, one charge of possessing a prohibited drug and one charge of having custody of an offensive weapon, being a wooden baton.
In respect of each of the second and third counts, the applicant was sentenced to a non-parole period of 2 years with the total term being 3 years 9 months imprisonment. Both terms were ordered to commence on 22 July 2007 which was the day the applicant went into custody.
In respect of the first count, and taking into account the matters on the Form 1, the applicant was sentenced to a non-parole period of 3 years 6 months with the total term being 5 years imprisonment. That sentence was ordered to commence on 22 July 2008. The total effective sentence is thus an overall term of 6 years imprisonment with a non-parole period of 4 years 6 months.
The factual background
An Agreed Statement of Facts was before the sentencing judge. What follows is a summary of that material. The applicant was arrested on 22 July 2007 and a search was conducted of his motor vehicle.
In the vehicle police found an external hard drive which contained 19,030 images of explicit child pornography. There were 18,718 image files, 259 movie files and 53 archive files. The possession of these images gave rise to count 1. The images were of children ranging in age from less than 12 months to early teens. The images ranged in classification on the COPINE scale from 1 to 10 (level 10 is the most serious category, involving pain or sex with animals). The photographs included photographs of young children (including babies) performing sexual acts, of them being tied up, of them being penetrated by objects, and of them performing sexual acts with animals. The video files contained movies of male and female children of various ages performing sexual acts with adults and other children. During the search of the vehicle 0.2 grams of cannabis leaf and a wooden baton were also located. Those discoveries gave rise to the first two charges on the Form 1.
The following day police executed a search warrant upon the applicant’s premises. Amongst other things they located an external hard drive, a lap top computer, and a number of DVDs and CDs. The external hard drive contained 15,400 image files, 416 movie files and 24 archive photographs all containing images of child pornography. The possession of this material gave rise to count 2. The images again ranged from level one to level ten on the COPINE scale. There were images of children performing oral sex on children and adults, of children tied up with bondage equipment, of babies with penises inserted into their mouths and anuses, of children performing sexual acts with a dog, and of children performing sexual acts. The video files contained movies of children of various ages performing sexual acts with adults and other children.
The laptop contained 1690 images and 12 video files (although the video files had been deleted). These images gave rise to count 3. The images were rated from level 1 to level 9 on the COPINE scale. There were images of children performing oral sex on children and adults, of children tied up with bondage equipment, and of babies with penises inserted into their mouths and anuses.
As I have said, a number of DVDs and CDs were located in the applicant’s premises. The possession of four of the DVDs gave rise to the third charge on the Form One. These DVDs were entitled ‘Golden Boys – Teen Special Part One’, ‘Teen Special – Golden Boys Part Two’, ‘Teen Special – Part 3’, and ‘Teen Special – Part 4’. In each case the videos depicted males aged between 10 and 15 years performing sexual acts with themselves and each other, and, in particular, depicted mutual and self-masturbation, oral sex, and anal intercourse. In each case the scenes were primarily at level 7 on the COPINE scale being ‘explicit sexual activity’.
A further DVD and two CDs were also located. This material gave rise to the fourth charge on the Form One. The DVD was entitled ‘Boys Affairs – Smiling Boys’. It was damaged but included a scene of a boy aged between 14 and 15 performing oral sex on another male. One CD was entitled ‘Porno’ and contained 1198 files, mainly images. In terms of the COPINE scale the images ranged from level 5 (deliberately posed pictures of naked children or provocative poses) to the most serious level, level 10. The ages of the children ranged from children below 12 months to teenagers. The images included images of children performing oral sex and being sexually assaulted by adults, in one instance whilst the child was tied down. The other CD was entitled ‘Porn’. It contained images of children aged from below 12 months through to teenagers. There were images of pre-pubescent boys and girls performing oral sex and being sexually assaulted by adults, some images of bestiality, and one image of a female baby with a needle or similar device ‘inserted from one side of her clitoris to the other side’.
In all, thousands of children appeared in the more than 45,000 images and about 700 child pornography movies which the applicant had in his possession. His Honour observed that:
[h]arsh sentences are required in cases such as this, not only so that judges do what they can to reduce the demand for such appalling acts of cruelty, but also to mark in a very real way the community’s horror at such treatment of entirely innocent and defenceless children.
His Honour continued:
The possession of child pornography is a crime which requires that attention be paid to the means of production of the material.
The harm caused by offences of this nature takes many forms, but the most obvious harm is caused to those young children who are used by the manufacturers of child pornography as they satisfy the demands of people such as the offender. When considering the gravity of an offence of possession of child pornography the authorities require that I take into account those who are harmed by its creation.
Relevant sentencing considerations
It is convenient at the outset to further identify some of the principles which inform the sentencing process in cases of child pornography.
In R v Gent (2005) 162 A Crim R 29 this court considered a case which involved the importation of child pornography in contravention of the Customs Act 1901. Johnson J (with whom McClellan CJ at CL and Adams J agreed) examined a number of authorities which have considered this issue. Amongst them was R v Stroempl (1995) 105 CCC (3d) 187 in which Morden ACJO in the Ontario Court of Appeal said:
The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense, possessors such as the appellant instigate the production and distribution of child pornography – and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place. (at 191)
That statement was referred to with approval in R v Jones (1999) 108 A Crim R 50 by Kennedy J who went on to say that:
[t]he production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims. (at 52 )
Having completed his review of the relevant authorities, Johnson J said:
As cases such as Liddington, Jones, Assheton and R v C make clear, a range of factors bear upon the objective seriousness of an offence of possession or importation of child pornography. These factors include:
(a) the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;
(b) the number of images or items of material possessed by the offender;
(c) whether the possession or importation is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence.
It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised. (par 99)
The English Court of Appeal issued a guideline judgment in respect of child pornography in Regina v Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28. In that case Lord Rose, who delivered the judgment of the Court, said:
There are specific factors which are capable of aggravating the seriousness of a particular offence. We identify these as follows:
(i) If the images have been shown or distributed to a child.
(ii) If there are a large number of images. It is impossible to specify precision as to numbers. Sentencers must make their own assessment of whether the numbers are small or large. …
(iii) The way in which a collection of images is organised on a computer may indicate a more or less sophisticated approach on the part of the offender to trading, or a higher level of personal interest in the material. An offence will be less serious if images have been viewed but not stored.
(iv) Images posted on a public area of the internet, or distributed in a way making it more likely they will be found accidentally by computer users not looking for pornographic material, will aggravate the seriousness of the offence.
(v) the offence will be aggravated if the offender was responsible for the original production of the images, particularly if the child or children involved were members of the offender’s own family, or were drawn from particularly vulnerable groups, such as those who have left or have been taken from their home or normal environment, whether for the purposes of exploitation or otherwise, or if the offender has abused a position of trust, as in the case of a teacher, friend of the family, social worker, or youth group leader.
(vi) The age of the children involved may be an aggravating feature. In many cases it will be difficult to quantify the effect of age by reference to the impact on the child. But in some cases that impact may be apparent. For example, assaults on babies or very young children attract particular repugnance and may, by the conduct depicted in the image, indicate the likelihood of physical injury to the private parts of the victim. Some conduct may manifestly (that is to say, apparently from the image) have inducted fear or distress in the victim, and some conduct which might not cause fear or distress to an adolescent child, might cause fear or distress to a child of, say, 6 or 7. (at 20)
It is to be observed however that the guideline was not confined to the offence of possessing child pornography, whilst Gent as I have indicated, was concerned with the importation of child pornography. Useful as those authorities are, it is nonetheless important to bear in mind when referring to them, as counsel did in submissions, that they are not solely concerned with offences of the kind currently under consideration.
The applicant’s subjective features
The applicant was born on 8 September 1972 and was accordingly 34 at the time of the offences. His father is of Aboriginal descent. Although he left school in Year 9 the applicant has generally been in employment since then, mainly working for local councils. At the time of these offences he was working for Willoughby Council as an Assets Manager.
The applicant identifies himself as a homosexual and was in a committed relationship at the time of the offences. The evidence revealed that the applicant had abused amphetamines for some time but that he had ceased taking drugs following his incarceration.
The applicant has a criminal record which includes two previous sentences of imprisonment. In 1992 he received a minimum term of 3 years imprisonment with an additional term of 12 months for an offence of assault and rob in company. An offence of obtaining money by deception attracted a concurrent fixed term of 12 months imprisonment. In 2000 the applicant received a sentence of 3 years imprisonment with a non-parole period of 12 months for an offence of sexual intercourse without consent. An identical sentence, which was slightly accumulated upon that sentence, was imposed for an offence of aggravated break and enter and commit felony. On three occasions the applicant has been convicted for offences of assault occasioning actual bodily harm. However those offences, and various other matters have been dealt with by way of bonds or community service orders. In short, there is nothing in the applicant’s criminal record which is of a kind that bears any real similarity to the present offences.
The applicant wrote a letter to the sentencing judge. His Honour acknowledged that in it the applicant accepted responsibility for his actions. However his Honour concluded that “there was no evidence to suggest that [the applicant] had acknowledged that by creating demand for material of this kind he had contributed to the enormous suffering of many many children”. That being so, the sentencing judge concluded that the applicant had failed to provide evidence of the kind that is now required by s 21(A)(3)(i) before an offender is able to have taken into account on his behalf any discount for remorse.
In this context the sentencing judge also referred to the applicant’s account to a psychologist as to the circumstances in which he had acquired possession of the pornography. The sentencing judge rejected that explanation as being “inherently unbelievable”. His lack of candour with the psychologist was regarded by the sentencing judge as providing an additional reason as to why the applicant was not truly remorseful for his actions. Nor was the sentencing judge able to find that the applicant had good prospects of rehabilitation. As the sentencing judge observed even the psychologist, who prepared a report on the applicant’s behalf, was “guarded” on the question of the likelihood of his committing further offences.
The sentencing judge noted that, as at the time of sentence, the applicant was on protection which meant that he was spending 22 hours a day in a locked cell with one other inmate. Although there was no specific evidence as to what conditions he would be subjected to after sentence was passed, his Honour concluded that “there is a risk that he will serve his sentence in conditions which are harsher than those which apply to prisoners not serving their sentences on protection”.
Grounds of Appeal
The following grounds of appeal are relied upon by the applicant:
1 His Honour erred in finding that there was ‘planning’ in the commission of the offence, and that this amounted to an aggravating factor.
2 His Honour erred in finding that ‘the offence involved gratuitous cruelty’.
3 His Honour erred in not taking into account in his assessment of the objective gravity of the offences the fact that (a) the applicant did not have the pornography in his possession for the purposes of dissemination; and (b) did not intend to profit from the pornography.
4 His Honour was in error in imposing the maximum penalty on count one.
5 The sentences imposed were manifestly excessive.
Ground one
In sentencing the applicant, his Honour had regard to the various aggravating and mitigating factors which appear in s 21A of the Crimes (Sentencing Procedure) Act (the Act). A sentencing court is prohibited from taking into account as an aggravating factor an element of the offence: s 21A(2). The prohibition extends to taking into account a matter that amounts to an inherent characteristic of the offence: Elyard v R [2006] NSWCCA 43. Section 21A(2)(n) provides that it is an aggravating factor if the offence “was part of a planned or organised criminal activity”. Conversely s 21A(3)(b) provides that it is a mitigating factor if the offence was not planned or part of organised criminal activity then. Complaint is made about his Honour’s finding that he was satisfied “that the offence was planned in the sense that the offender set about to obtain child pornography over the internet and did so”. It is apparent from an overall reading of his Honour’s remarks that he proceeded upon the basis that this case fell within the scope of s 21A(2)(n).
As his Honour made plain, the applicant acquired the prohibited material by downloading it from the Internet. Since the applicant had amassed a very large quantity of child pornography it followed, the respondent submitted, that the applicant must have spent a considerable amount of time in doing so. Furthermore, it was pointed out that the applicant utilised not only the Internet but two external hard drives as well as a laptop and CDs in order to store the material. So much may be accepted. However, neither of those factors in my view could properly be regarded, on the facts of the present case, as constituting “planned or organised activity” as that expression would normally be understood. In the present case, for example, nothing is known of the circumstances in which the material was stored, for what purpose it was stored, or for how long it was stored. That is not to say of course that these factors were not important considerations to be taken into account in an assessment of the applicant’s objective criminality.
Consideration of some of the decided cases serves only to fortify my view. In Fahs v R [2007] NSWCCA 26 Howie J (with whom Simpson J and I agreed) said:
The aggravating factor under s 21A(2)(n) is that “the offence was part of a planned or organised criminal activity”. The wording of this provision seems to me to convey more than simply that the offence was planned. The fact that there was a “level of planning in the offences” as found by the Judge does not necessarily give rise to the aggravating factor in s 21A(2)(n). In R v Wickham [2004] NSWCCA 193 the Court stressed the importance of making findings under s 21A in accordance with the words of the provision.
Had the only relevant factor been the existence of planning in the commission of the offence, there might have been a valid argument that planning was an inherent characteristic of every offence involving on-going or commercial drug trafficking: see Elyard v R [2006] NSWCCA 43. But it is not an inherent characteristic of supplying drugs that it is “part of a planned or organized criminal activity” in the sense that those words convey. For example, I do not believe those words apply to the normal street dealer who purchases drugs from various sources simply to obtain the wherewithal to purchase drugs for his own use. Therefore, in an appropriate case this aggravating factor can be taken into account when sentencing for drug trafficking offences. In this case it would have been open to the Judge to find that such a factor existed in respect of each of the offences because it was clear that the applicant was committing the crimes as part of a drug trafficking organisation capable of supplying large amounts of different types of drugs to order. (pars 21-22)
In R v Yildiz (2006) 160 A Crim R 218, Simpson J observed:
As in Elyard, there was no evidence that would permit a finding beyond reasonable doubt that the degree of planning in this case exceeded what would ordinarily be expected of an offence of this kind – that is, the degree of planning that would be inherent in the possession of a large quantity of drugs for the purpose of supply. I therefore conclude that what was said was an error. However, in my view, it was something that, at most, marginally affected the selection of the ultimate sentence. (at par 39)
In Bowden v R [2009] NSWCCA 45, Hall J, with whom Beazley JA and Kirby J agreed, applied the same reasoning. See also R v Hewitt (2007) 180 A Crim R 306.
In my view, a similar line of reasoning should be applied in the present case. I accept there was no evidence of any planning on the part of the applicant in the sense in which that expression has been construed in the cases, and certainly none that went beyond that which is inherent in the offence. Accordingly, in finding that the offence was “planned” and treating it as an aggravating feature, the sentencing judge fell into error.
Ground two
Section 21(2)(f) lists as an aggravating feature the fact that “the offence involved gratuitous cruelty”. In relation to that issue the sentencing judge observed:
It is an aggravating circumstance under s 21A(2)(f) that “the offence involved gratuitous cruelty”. Some might argue that the word “involved” means that where a person merely looks at a depiction of gratuitous cruelty that is not something which is “involved” with the offence. Others might argue to the contrary. But whether the terms of s 21A(2)(f) are met here, there is no doubt in this case that many of the children depicted were subject to gratuitous cruelty, nor is there any doubt that this circumstance makes the offender’s conduct more culpable, which in turn requires a longer sentence than would otherwise be the case.
As it seems necessary for me to make findings by reference to s 21A, I am prepared to give a wide meaning to the word “involved” such that I am satisfied that this statutory aggravating factor is present in this case.
What this passage makes abundantly clear is that whatever misgivings the sentencing judge may have had about doing so, his Honour ultimately decided to also treat this factor as an aggravating feature for the purpose of sentencing the applicant. The applicant submitted that the sentencing judge again erred in doing so. The applicant took as his starting point the statutory definition of “child pornography” which is defined to mean:
material that depicts or describes (or appears to depict or describe) in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16:
(a) engaged in sexual activity, or
(b) in a sexual context, or
(c)as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).
Accordingly, it is submitted that because depiction of torture, cruelty or physical abuse is an element of the offence, it was impermissible to take it into account as an aggravating factor: s 21A(2) of the Act. The Crown submitted that because there are three kinds of material which may constitute “child pornography” it is not necessarily an element of the offence that the material depicts torture, cruelty or physical abuse.
The Crown relied, by way of analogy upon the decision in Hamze v R [2006] NSWCCA 36, in which it was held in respect of a charge of aggravated armed robbery, that it was permissible for the sentencing judge to take into account as an aggravating factor, pursuant to s 21A(2)(b) of the Act, that actual violence had been inflicted upon the victim. That was because although the offence may be established following the infliction of actual violence, it was not an essential element because the threat of violence would suffice. For that reason, it could not be said that actual violence was an essential ingredient of the offence for the purposes of the limitation in s 21A(2).
I am not persuaded that Hamze provides any real assistance in resolving the present argument because it is clear that the sentencing judge found that each of the three aspects of the definition of “child pornography” were present on the facts of this case including the fact that children had been the victims of torture, cruelty or physical abuse. Because the images depicted the victims in a fashion that warranted those descriptions, it is apparent that that fact had already been taken into account by the sentencing judge in determining the objective gravity of the offence. To that extent, it is apparent that there has been impermissible “double-counting”.
In the circumstances it is strictly unnecessary to consider the reasoning process undertaken by the sentencing judge in arriving at the conclusion that s 21A(2)(f) did apply. It is axiomatic that the images that the applicant possessed depicted acts of gratuitous cruelty. As I have said, that fact bore heavily upon an assessment of the applicant’s objective criminality. Furthermore, there can be no doubt that this factor would be a highly relevant aggravating feature in the sentencing of those responsible for producing these abhorrent images.
However, the question remains as to whether the offence with which the applicant was charged (namely possession of the images after they had been created) involved gratuitous cruelty. Although there is no direct authority upon this issue, I am inclined to the view that it did not given that there was no evidence that the offender engaged in any activity which contributed in any way to the creation of the images which were in his possession. Those cases which do exist however support the conclusion that some activity on the part of the offender is required. For example, in R v King (2004) 150 A Crim R 409 this Court found that an offence of malicious wounding with intent involved gratuitous cruelty in circumstances where the offender kicked a pregnant woman. In R v Hoerler (2004) 147 A Crim R 520 a similar conclusion was reached in a case of manslaughter in which the offender engaged in a prolonged attack on an infant.
I would uphold Ground two.
Grounds three, four and five
These grounds may conveniently be dealt with together. Although it was contended in Ground 5 that each of the sentences was manifestly excessive, the real complaint was directed to the sentence imposed in respect of count 1, which as I have said, attracted the maximum penalty of 5 years imprisonment. Ground 4 raised essentially the same complaint and in that sense the two grounds overlapped.
It will be observed that the sentencing judge concluded that prima facie each offence warranted the maximum penalty. Nevertheless, his Honour explained his reasons for imposing the sentences which he did in the following fashion:
The offender pleaded guilty to these three offences in the Local Court and was committed for sentence to this Court. He is therefore, absent any other considerations, entitled to the maximum discount for the utilitarian benefit of his pleas of guilty. But there is one other factor which must be taken into account. That is that on one of the offences the offender asks that I take into account a number of matters on a Form 1, in particular two other offences of possessing child pornography. Consistent with the view I have taken regarding accumulation of the sentence in this case, and consistent with the guideline judgement of Attorney General's Application Under S37 Of The Crimes (Sentencing Procedure) Act 1999 No 1 Of 2002 (2002) 56 NSWLR 146, I consider that the Form 1 matters cannot simply be ignored. I consider the true position to be that the sentence to be imposed upon the offender for that offence to which the Form 1 is attached must be longer than it would otherwise have been in order to reflect those Form 1 offences. In fact having considered the nature of the offences on the Form 1, in particular the number and nature of the items of child pornography covered by two of the offences on the Form 1, I am of the opinion that a substantial increment should be allowed to reflect the Form 1 matters. The presence of the serious Form 1 matters, one of which involves a series of images accurately described as depicting the torture of a baby less than 12 months of age, places the first charge in that rare category of offence where the maximum penalty is appropriate even given the utilitarian benefits of the plea of guilty, and the subjective features relied on by the offender.
…
So serious do I regard the offences, in particular the number and nature of the images possessed, and so relatively insignificant do I regard the mitigating features of this case that, absent the pleas of guilty, I would have imposed the maximum penalty in each case. For charges two and three the sentence will be 25% less than it would otherwise have been to reflect the utilitarian benefits of the offender’s pleas of guilty.
However for the first charge, as I have explained earlier, this is one of those cases where the maximum penalty is appropriate despite the plea of guilty, something that was specifically contemplated both when statutory recognition was given to the discount for a plea of guilty (see second reading speech, Hansard NSW Parliament, Legislative Assembly 4 April 1990 at 1689) and also in the guideline judgment of R v Thompson and Houlton (2000) 49 NSWLR 383 at [158]. I should emphasise that the utilitarian benefit of the plea of guilty may still lead to the offender being better off than he would be if he had been found guilty after trial, because the plea of guilty is something which I have taken into account in considering the question of the extent of the accumulation of sentences and the principle of totality.
…
I should also record that I have not lost sight of the fact that charge three involves no pornography of COPINE level 10, and there are fewer separate items of child pornography than in either charges one or two. Nevertheless I consider that, absent the plea of guilty, the maximum penalty would still have been appropriate for charge three and the circumstance I have just referred to only goes to emphasise the gravity of the other two counts.
…
In my view the sheer numbers of child pornographic items and the separate locations in which they were stored require some level of accumulation. The level of accumulation is less than I would have regarded as appropriate in the absence of pleas of guilty.
It is thus clear that notwithstanding the sentencing judge’s view that counts 2 and 3 were sufficiently heinous to attract the maximum penalty, his Honour nonetheless decided not to impose that penalty in respect of either count. Indeed his Honour allowed the applicant a discount of 25% from the total sentence for each of those offences. In respect of count 1, by way of contrast, the sentencing judge declined to allow any discount at all from the total sentence for the plea of guilty. His Honour’s reason for doing so lay in his conclusion that the two further offences of child pornography that were on the Form 1 document, were of such seriousness as to warrant the imposition of the maximum penalty.
It is to be observed that the images which gave rise to the two Form 1 offences were located on DVDs and CDs which were found in a drawer of the bookshelf of the applicant’s bedroom. The material, which was the subject of counts 2 and 3, was also located in the applicant’s bedroom albeit in different parts of it. That is apparently the basis upon which separate charges were laid, although all that material could just as easily have given rise to only the one charge. Be that as it may, and even allowing for the fact that the offences on the Form 1 mandated a longer sentence in respect of count 1, it seems surprising that that factor should have had the consequence that the offence was thus converted into one deserving of the maximum penalty, and that the applicant was thereby deprived of any discount at all (from the total term) for his plea of guilty. In the final analysis, the non-parole period which was imposed in respect of count 1, was 18 months longer than the non-parole periods fixed in respect of counts 2 and 3 which, as I have said, were ordered to be served concurrently with one another. Moreover, the non-parole period in respect of count 1 was then accumulated by 12 months upon the non-parole periods imposed in respect of counts 2 and 3. In my view, that outcome is of itself sufficiently anomalous to demonstrate without more, that the sentencing process miscarried and that the sentence imposed in respect of count 1, was manifestly excessive. That conclusion in my view warrants this court’s intervention.
Ground 3 raised the complaint that the sentencing judge erred in imposing the maximum penalty in respect of count one because, it was submitted it was not open to the sentencing judge to find that these offences fell into the worst class of case. Essentially the argument advanced in support of this ground was the same one that counsel had urged upon the sentencing judge. It was to the effect that because there was no evidence that certain factors which, had they been present, would have aggravated the offence, then it followed that the sentencing judge erred in concluding that the offences fell into the worst category. In rejecting that submission his Honour said:
Of course it is well known that the maximum penalty is reserved for those cases falling within the worst category of case for which the penalty is prescribed, see Ibbs v The Queen (1987) 163 CLR 447 at 451-452. It is not possible to prescribe a list of cases falling within the worst category because human ingenuity can always conjure up a case of greater heinousness: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. I have considered this matter carefully and I am satisfied that, particularly in the light of the number of separate items of child pornography covered by each offence, the age of many of the children being such that they were likely injured during the sexual acts depicted, and the level of gross depravity displayed in many of those items, it is appropriate to describe each of the offences for which the offender is to be sentenced as being in the worst category.
[Counsel] suggested that the offences were not in the worst category because the offender was not disseminating child pornography, nor did he have it in his possession for such a purpose, and nor was he obtaining any financial benefit from his possession of the pornography. None of those matters take these offences out of the worst category. It is not a mitigating feature of one offence to say that another, more serious, offence was not committed (I say this in reference to the fact that s 91H(2) Crimes Act 1900 is an offence of disseminating child pornography).
As to the submission that the offender did not have the pornography for dissemination and did not make any money out of its possession, in my view to conclude that those matters meant that the offences were not in the worst category would be to engage in the reasoning specifically prohibited by the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465, that is, it would be to allow the mere fact that human ingenuity can postulate a worse offence to lead to a conclusion that these offences were not in the worst category.
Because I have already formed the view that this court should intervene in respect of the sentence imposed for count 1, it is unnecessary to explore this issue at any great length. That said, I do not detect any error of principle in the manner in which the sentencing judge approached this aspect of the matter. It is to be observed that in Mouscas v R [2008] NSWCCA 181 this Court held that it was open to the sentencing judge to find that the offending in that case was “at the upper-end of the range of seriousness” although there was no evidence that that offender had the pornography in his possession “for the purpose of sale or further distribution or that he would profit from the offence” (at par 18).
It is apparent from what I said earlier that the applicant has succeeded in demonstrating error in relation to Grounds 1 and 2. I am also of the view that Ground 4 and Ground 5 have been made out, at least insofar as it has been established that the sentence for count 1 was manifestly excessive. In my view this court should proceed to resentence the offender. In doing so, it is necessary to have regard to the appropriate range for offences of this kind. Because there have been relatively few instances of this specific offence that have been dealt with by the courts it is difficult to accurately determine what the appropriate range of sentence might be. Indeed the court was informed that statistics maintained by the Judicial Commission revealed that there were only 4 such cases for the period between January 2005 and December 2007. In those circumstances, there is utility in examining some of the decided cases, the first three of which were specifically referred to in submissions by counsel for the applicant in support of the submission that the sentences were manifestly excessive.
In Gent (supra) the offender was charged with the importation of child pornography, an offence which attracted a maximum penalty of 10 years imprisonment. The charges related to his importation of two CDs. One of the CDs contained 16 video images, involving acts of oral and anal penetration and masturbation of young children. The second CD contained 601 images of young boys and girls engaged in sexual acts with adults or with each other. The majority of the boys were aged between 8 and 11. The girls appeared to range in age between 6 and 14. At least some of the images depicted sado-masochist images of a child being penetrated by an adult, the child being in “obvious and extreme pain”.
That offender was 39 years old at the time of the offence. He was a teacher who had had twice previously had to cease employment after having accessed child pornography on school computers. He had no prior convictions. That offender was sentenced to 18 months imprisonment with a non-parole period of 12 months. He appealed to this Court. Leave to appeal was granted, but the appeal was dismissed. Johnson J (with whom the other judges of this Court agreed) said that it had not been established that the sentence lay outside the permissible range of sentence for this offence.
In Power v DPP (NSWDC, unrep 19 July 2007, Boulton ADCJ) the offender had pleaded guilty to a single count of possession of child pornography. The material included 31 videos of adult males engaging in sexual acts with children 10 years and less and with adolescents including penetrative oral and anal sex, bondage and masturbation. One of the videos depicted a 5 year old child who was handcuffed and then anally raped. It also included over 28,000 images of homosexual pornography, of which 433 were images of child pornography. The offender had no prior convictions and was of unblemished prior character. He was also suffering from depression. In the Local Court he was sentenced to 15 months with a non-parole period of 8 months. On appeal, the non-parole period was reduced to 6 months.
In Mouscas (supra) the offender was found to be in possession of a computer hard drive and compact disks which contained 41,923 graphic files and 251 video files of child pornography. The photographs included photographs of adult men having oral, anal and vaginal sex with girls as young as 4 and 5. There were photographs of children being bound, gagged and blindfolded. There were photographs of children involved in sexual acts with animals. There were many hundreds, if not thousands of victims. That offender who had a good employment record and no prior convictions was sentenced to a head sentence of 2 years 9 months, with a non-parole period of 18 months. In his appeal to this Court, leave to appeal was granted, but the appeal was dismissed. As I remarked earlier the Court rejected an argument that the sentencing judge had erred in concluding that the offending was at the “upper-end” of the scale of objective seriousness. That offender was convicted of one charge of possessing child pornography with a further charge of using a carrier service to access child pornography being placed on a certificate.
In R v Leonard [2008] NSWDC 211 the offender was dealt with for possessing child pornography, an offence to which he pleaded guilty, together with an offence of using the internet to make available child abuse material. He was convicted by a jury of that latter offence. The offender was the operator of a website. Forensic investigations of the computer and hard drive revealed that the offender had, at an earlier time, been in possession of a number of child pornographic images which had not been deleted. A number of the images depicted naked male children masturbating. Other photographs were of sexual acts between young boys. Some images depicted young boys having oral sex. There were 19 images of naked male children performing anal sex on other naked male children. There were 276 images depicting naked male children apparently between 7 and 13 years, in erotic or sexual poses. Many of the images focussed on the genitals of the young boys. The offender was aged 74 and had health problems. He had a prior history of convictions for child sexual assault which consisted of sexual intercourse with children between the ages of 10 and 16. The offender received a non-parole period of 9 months with a total term of 12 months imprisonment for the offence of possessing child pornography.
In R v Elliott [2008] NSWDC 238 the offender pleaded guilty to 5 charges of possessing child pornography and 4 of disseminating child pornography. The latter charges attracted a maximum penalty in each case of 10 years imprisonment. The offender was arrested at his work place following inquiries which had commenced in the USA. Count 1 related to his possession of 3 USB thumb drives found at his home. They contained 17 child pornography movie files which depicted adolescent males between 10 and 15 years of age engaged in self masturbation, oral sex, penetrative anal intercourse and anal penetration with a vibrator. Count 2 related to a collection of CDs, DVDs and floppy discs all containing child exploitation material. There were 27 movie files and approximately 3,100 still images. A number of images were between level 7 and 10 on the Copine scale. The images contain children ranging in age between 2 and 15 being subjected to pain and humiliation as well as sadistic images of children being bound, gagged and sexually assaulted. It revealed children being penetrated anally or vaginally by an adult male with on one occasion a young female grimacing in pain. There is an instance of a male having penetrative sex with an infant aged between 2 and 5. Another instance involved a man ejaculating into the mouth and face of a young girl and others where objects were inserted into the anus or penis of male children. Count 3 related to the offender’s possession of 13 movie films and 3 videotapes. Most of the images and movie files were assessed as level 7 on the Copine scale. Count 4 related to the offender’s possession of a computer seized from his home. On the hard drive there were 29,000 images of male children engaged in sexual activity both with one another and with adults. The majority of images were assessed as being between 7 and 10 on the Copine scale.
Following his arrest upon those matters, the offender was released on bail with a condition that he not utilise the internet except for work purposes. A police investigation revealed that the offender was part of a paedophile network operating in New South Wales. The offender was placed under surveillance and contact with him was made by a police operative. Counts 5 to 8 were offences of disseminating child pornography to that operative whilst on bail for the earlier offences. In each instance the offender either supplied or showed the police operative a CD containing child pornographic images. Many of the images which related to these charges were assessed as being between 7 and 9 on the Copine scale. In due course the offender was again arrested and a search warrant was executed upon his premises. The material seized on this occasion gave rise to count 9. It was of a similar kind to that which was the subject of count 2. The sentencing judge regarded the material, the subject of counts 2, 4 and 9, as being the most serious and as falling at the “upper end of the range”.
The offender, who was 51 at the time of the offences, had no prior convictions and had entered pleas of guilty at an early opportunity. That offender was sentenced to an effective total term of 5 years 6 months imprisonment with an effective non-parole of 4 years 1 month.
In R v Jones [2009] NSWDC 8 the offender pleaded guilty to two offences of possessing child pornography. The first offence occurred when the offender took his computer to a computer repair shop. The repairer discovered images of girls aged between 6 and 12 who had their genitals exposed. In one image, a girl was lying naked with her legs parted and an artificial penis was placed on the bed between her legs. The offender’s computer hard drive contained 51 images and one video of child pornography which was of 20 minutes duration. It depicted a girl between the ages of 6 and 10 engaged in vaginal and anal intercourse with an adult male. The second offence occurred following the execution of a search warrant at the offender’s residence. Police located 25 compact disks which contained about 23,000 image files and 220 video files of child pornography. Many of the images were graded 9 or 10 on the Copine Scale and were deeply disturbing. The children included babies, 18 month old toddlers and girls up to the age of 12. The images included a variety of oral and vaginal intercourse, bondage, images of children in apparent pain and children being urinated or ejaculated upon. That offender was 64 at the time of the offences and had no prior criminal record. He had been introduced to child pornography in the course of his employment as a Customs officer. In 1971 the offender had been the victim of two armed robberies which had put him in considerable fear. He had a significant back problem and suffered from prostrate cancer, the prognosis for which was uncertain. For the second offence the offender received a non-parole period of 20 months with the total term being 27 months to be served by way of periodic detention. The first offence attracted a bond.
For completeness, I should refer to one other matter. As I have already said the maximum penalty at the time of these offences was 5 years imprisonment whereas a person who produced or disseminated child pornography was liable to a maximum penalty of 10 years imprisonment. The sentencing judge made plain his view that the maximum penalty for the offence of possession of child pornography was quite inadequate. However, since the applicant was sentenced, the maximum penalty for the offence of possessing this material has been increased to bring it into line with the offences of producing and disseminating it. Since January 2009 the maximum penalty for each of the three offences is now 10 years imprisonment. It follows from the increase in penalty that the decisions to which I have referred will not provide any useful guidance so far as future offences of this kind are concerned.
Determination
Even allowing for the fact that the applicant had the material in his possession solely for his own private use, the total number of images, the ages of the children involved and the sheer depravity of what was displayed in the images, compel the conclusion that these offences are properly to be regarded as falling into the upper echelons of this kind of offending. The analysis of other comparable cases serves to confirm that categorisation.
In resentencing the applicant I have also had regard to the contents of an affidavit sworn by the applicant. He remains in protective custody. He is employed in the kitchen and has completed the necessary training to become a kitchen manager. He has not received any disciplinary charges and he also expressed his regret for having been involved in these offences.
In my view the sentences imposed in respect of counts 2 and 3 should not be disturbed. I would however reduce the sentence imposed for count 1. Had I been sentencing at first instance I would have structured the sentences somewhat differently. Nevertheless in order to now do justice as best I can I would reduce the sentence on count 1 in such a fashion as would allow the applicant some substantial benefit for his plea of guilty whilst still ensuring that he receives an appropriate additional penalty for the Form 1 matters. It is to be recalled that that sentence is accumulated to a significant extent upon the sentences imposed in respect of counts 2 and 3.
I propose the following orders:
1 Grant leave to appeal.
2 Allow the appeal.
3 Confirm the sentences imposed in respect of counts 2 and 3.
4 In respect of count 1, allow the appeal and quash the sentence imposed in the District Court.
5 In respect of count 1, and taking into account the matters on the Form 1, sentence the applicant to a non-parole of 2 years 9 months with an overall term of 4 years to commence on 22 July 2008. The total term will expire on 21 July 2012 and the non-parole will expire on 21 April 2011 on which date the applicant will be eligible for release on parole. The total effective sentence is thus one of 5 years imprisonment with a non-parole period of 3 years 9 months.
PRICE J: I agree with Buddin J. I also agree with the additional remarks of Grove J.
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LAST UPDATED:
2 April 2009
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