The State of Western Australia v Hooper
[2022] WADC 70
•9 AUGUST 2022
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- HOOPER [2022] WADC 70
CORAM: RUSSELL DCJ
HEARD: 17 JUNE 2022
DELIVERED : 9 AUGUST 2022
FILE NO/S: IND BUN 15 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JASON OWEN HOOPER
Catchwords:
Sentencing - Trial of issues - Possession of child exploitation material - Whether certain images in offender's possession are child exploitation material - Meaning of 'child exploitation material' - Meaning of 'sexual context' as that term is used in the definition of 'child pornography' in s 217A of Criminal Code Act Compilation Act 1913 (WA)
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 217A, s 220
Result:
State succeeded in part in proving certain material in offender's possession is child exploitation material
Representation:
Counsel:
| The State of Western Australia | : | Ms K Webster |
| Accused | : | Mr M G Devlin |
Solicitors:
| The State of Western Australia | : | Director of Public Prosecutions |
| Accused | : | Young & Young |
Case(s) referred to in decision(s):
CCI v The Queen [2011] QDC 375
Guerin v HB [2017] NTSC 14
Law v The State of Western Australia [2009] WASCA 193
R v Olbrich (1999) 199 CLR 270
R v SDI [2019] QCA 135
R v Storey [1988] 1 VR 359
RUSSELL DCJ:
Introduction
On 4 March 2022, Jason Owen Hooper pleaded guilty to one count of possessing child exploitation material contrary to s 220 of the Criminal Code Act Compilation Act 1913 (WA) (Criminal Code (WA)), namely images on a Telstra mobile phone and a JVL tablet.
The State alleges that the Telstra mobile phone and JVL tablet contained 11 images classified as Category 1 images (Alleged Category 1 images) and 62 images classified as Category 6 images.
There was a dispute as to the facts for the purpose of sentencing as to whether the 11 Alleged Category 1 images are, in fact, child exploitation material. The matter was listed before me for a trial of issues to determine that disputed issue of fact, which I heard on 17 June 2022.
The State submitted, in effect, that in determining whether those 11 images are child exploitation material, the court can take into account the context in which the images were stored on the devices.
For the reasons that follow:
1.I do not accept the State's submission that the context in which images are stored is a matter the court can take into account in determining whether such images are child exploitation material.
2.However, I am satisfied beyond reasonable doubt and I find that 2 of the 11 Alleged Category 1 images, described more particularly in these reasons, are child exploitation material.
Mr Hooper will be sentenced on the basis that he possessed child exploitation material, of which there were 2 Category 1 images and 62 Category 6 images.
The facts relied upon by the State
The facts relied upon by the State are set out in the Amended Statement of Material Facts dated 21 February 2022 (Amended Statement of Material Facts). Mr Hooper accepts those facts, except for the issue of whether or not the Alleged Category 1 images are in fact child exploitation material.
The facts are:
1.On 5 October 2020, Mr Hooper was parked off the roadway near the driveway of the address stated in the Amended Statement of Material Facts in a gold Mitsubishi Magna. He was the sole occupant of the car.
2.As a result of a search of the vehicle, Mr Hooper was found to be in possession of a mobile phone.
Telstra mobile phone
3.Mr Hooper's mobile phone was inspected, and child exploitation material was located on it.
4.Sixty-two Category 6 images were located on the phone. Those images depicted female children between the ages of approximately 5 and 12 engaged in sexual activity with adult men, including penetrative sexual activity. Mr Hooper accepts he possessed these images, and that they are child exploitation material.
5.Eight Alleged Category 1 images were located within a folder on the phone titled 'live girls'.[1] Mr Hooper accepts he possessed these images, but disputes these images are child exploitation material.
[1] The images were named as follows: 'A.jpg', 'B.jpg', 'C.jpg', 'F.jpg', 'G.jpg', 'H.jpg', 'imgsrc.ru_27557819UjL.jpg', and 'S.jpg'.
6.Within the same folder titled 'live girls' was adult pornography, depicting adult women.[2]
[2] Some of those images were named as follows: 'I.jpg', 'J.jpg', 'K.jpg', 'L.jpg', 'M.jpg', 'N.jpg', 'O.jpg', 'P.jpg', 'Q.jpg', 'T.jpg', 'U.jpg', 'V.jpg', 'W.jpg', 'X.jpg', 'Y.jpg' and 'Z.jpg'.
7.Three Alleged Category 1 images were located on the memory card in the phone.[3] Mr Hooper accepts he possessed those images, but disputes those images are child exploitation material.
[3] The images were named as follows: 'imgsrc.ru_21527827yXq', 'imgsrc.ru_26050932uzu', and 'imgsrc.ru_32331999exN'.
8.Police attended and searched Mr Hooper's residence at the address stated in the Amended Statement of Material Facts. Mr Hooper declared a tablet to police that could contain duplicate data from his mobile phone.
JVL Tablet
9.Police located and seized a JVL tablet.
10.Sixty-two Category 6 images were located on the tablet. These were duplicates of the items located on the phone. Mr Hooper accepts he possessed these images, and that they are child exploitation material.
11.Nineteen Alleged Category 1 images were located on the tablet. Mr Hooper accepts he possessed these images, but disputes these images are child exploitation material. The images were located across folders with three different files paths as follows:
(a)'Media/SanDisk SD card/GIRLS/ABC's/';
(b)'Media/SanDisk SD card/GIRLS/Girlsxxx/'; and
(c)'Media/SanDisk SD card/GIRLS/Hotgirls/'.
12.The folder titled 'ABC's' contained nine Alleged Category 1 images.[4] The folder 'ABC's' also contained adult pornography.[5]
[4] Titled as follows: 'A.jpg', 'B.jpg', 'D.jpg', 'C.jpg', 'E.jpg', 'F.jpg', 'G.jpg', 'H.jpg', 'R.jpg'.
[5] Titled as follows: '1.jpg', 'I.jpg', 'j.JPG', 'k.JPG', 'l.JPG', 'm.JPG', 'n.JPG', 'O.jpg', 'P.jpg', 'Q.jpg', 'S.jpg', 'T.jpg', 'U.jpg', 'V.jpg', 'W.jpg', 'X.jpg', 'Y.jpg', 'Z.jpg'.
13.The folder 'Girlsxxx' contained nine Alleged Category 1 images.[6] The folder 'Girlsxxx' also contained adult pornography.[7]
[6] Titled as follows: 'A.jpeg.jpg', 'F (1).jpg', 'imgsrc.ru_42561536kkx', 'imgsrc.ru_32331996fod', 'imgsrc.ru_275578, 'imgsrc.ru_27557819UjL', 'imgsrc.ru_26050932uzu', 'imgsrc.ru_21541747EkU', 'imgsrc.ru_20374827ZRi', 'S (1)'.
[7] Titled as follows: '1577409704703.jpg', '1577410052649.jpg', '1577412362876.jpg', 'J.jpg', 'M.jpg', 'O (1).jpg', 'P (1).jpg', 'Q (1).jpg', 'U (1).jpg', 'V (1).jpg', 'W (1).jpg', 'X (1).jpg', 'Y (1).jpg', 'Z (1).jpg'.
14.The folder 'Hotgirls' contained one Alleged Category 1 image. The folder 'Hotgirls' did not contain adult pornography.
Category 1 images
15.Mr Hooper does not accept any of the Alleged Category 1 images referred to above are in fact child exploitation material.
16.Collectively, the Alleged Category 1 images depict female children around 10 years of age or younger (except one, which depicts a female child between 13 to 15 years). Multiple different female children are depicted. The children are naked or partially clothed. In some cases, the children are in or near baths, swimming pools, or outside bodies of water.
Adult pornography
17.The existence and possession of the adult pornography referred to above is not in dispute.
18.The relevance of the adult pornography is in dispute.
19.The State asserts the existence of the adult pornography is relevant to the issue of whether the alleged Category 1 images are in fact child exploitation material.
20.The defence asserts the existence of the adult pornography is not relevant to the issue of whether the Category 1 images are in fact child exploitation material.
Record of interview
On 6 October 2020, Mr Hooper participated in an audio-visual record of interview and gave the following explanations:
1.the mobile device had been in his possession for over nine years;
2.he was aware of the animated pornography on the device which he believed was of teenagers over the age of 18;
3.he did not know there were images of young children on his devices;
4.he transferred all his contact details from his phone to his tablet four weeks ago to have a backup so it might have pictures as well;
5.he uses the tablet to play games; and
6.he does not use the tablet to view any of the images.
The offence of possessing child exploitation material
Section 220 of the Criminal Code (WA) provides:
220Possession of child exploitation material
A person who has possession of child exploitation material is guilty of a crime and is liable to imprisonment for 7 years.
'Child exploitation material' is defined in s 217A of the Criminal Code (WA), which provides:
child exploitation material means -
(a)child pornography; or
(b)material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be, a child -
(i)in an offensive or demeaning context; or
(ii)being subjected to abuse, cruelty or torture (whether or not in a sexual context).
'Child pornography' is defined in s 217A of the Criminal Code (WA), as follows:
child pornography means material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be a child -
(a)engaging in sexual activity; or
(b)in a sexual context.
'Material' is defined in s 217A of the Criminal Code (WA) as follows:
material includes -
(a)any object, picture, film, written or printed matter, data or other thing; and
(b)any thing from which text, pictures, sound or data can be produced or reproduced, with or without the aid of anything else.
Issue to be determined in the trial of issues
The issue in dispute giving rise to the trial of issues in this matter is whether the Alleged Category 1 images are in fact child exploitation material.
Mr Hooper's plea of guilty necessarily involves admissions by him of the elements of the offence the subject of the charge. That is that he possessed child exploitation material, as defined in s 217A of the Criminal Code (WA).
It is not disputed that Mr Hooper had child exploitation material in his possession. However, it is Mr Hooper's position that the only material in his possession amounting to child exploitation material was the 62 images classified as Category 6 images. Category 6 in the classification scheme applicable in this case refers to animated or virtual images, including animated images, cartoons, comics or drawings depicting children engaged in sexual poses or activities.
The dispute relates to the Alleged Category 1 images. Category 1 refers to images of children depicting nudity or erotic posing with no sexual activity.
The State and defence agree that, though there are a total of twenty‑seven image files containing Alleged Category 1 images, the actual number of such images is 11. The others are duplicates.
The effect of that is that there are 11 different images contained on the Telstra mobile phone and the JVL tablet in Mr Hooper's possession, which the State contends are child exploitation material falling within Category 1. Mr Hooper disputes that those 11 images are child exploitation material.
The State submits that they are, and that possession of those images is an aggravating circumstance because the Alleged Category 1 images are images of real children, which makes the offending more serious.
Principles applicable to the trial of issues
The principles relating to the basis upon which a sentencing judge must impose sentence where the offender pleads guilty were set out by the Court of Appeal in Law v The State of Western Australia [2009] WASCA 193 [26] - [34].
Relevantly to this matter, and as accepted by the State, where the prosecution seeks to have a sentencing judge take a matter into account as an aggravating circumstance, it is for the prosecution to establish that matter beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270 [25]; R v Storey[1988] 1 VR 359, 369.
The disputed images
During the trial of issues, counsel for the State identified each of the copies of the 11 disputed Alleged Category 1 images, and referred to each of those images by reference to the description of them in the table provided to the court and to counsel for Mr Hooper. I do not repeat counsel's submissions relating to those images in full in these reasons. The table containing the image numbers and descriptions is reproduced below:
1
Two girls between 6 - 10 years in pool. Underwear no top. One girl is lifting her leg up.
2
Same as image 1 - cropped around and zoomed into the girl lifting her leg up.
3
Female between 3 and 5 years topless, in bath, close up side angle. Only upper shoulders visible, but in a duplicate the upper chest area can be seen.
4
Girl in bikini on beach posing for camera - between 6 and 10 years.
5
Girl on jetty in underwear, between 6 - 10 years.
6
Girl topless on bed in underwear, between 6 - 10 years - hair in long plait - kitten biting the plait.
7
Girl 6 - 10 years - long blonde hair, topless, close up.
8
Girl naked in bath, posing, between 12 - 15 years.
9
Girl between 2 - 5 years on edge of bed. Naked but only top half of torso visible.
10
Same as image 9 - but zoomed out so entire torso including pubic region is visible. Girl is naked.
11
Girl between 5 - 10 years, sitting on bed facing camera. Topless, hair on one side in plait, on other side in piggy‑tail. Girl has silk/satin fabric wrapped around each wrist. Wears a sheer white skirt.
The submissions
I have considered the submissions made on behalf of the State and on behalf of Mr Hooper. I do not repeat all of those submissions in these reasons.
State's submissions
In summary, the State's submissions are to the following effect:
1.When viewed in isolation, the Alleged Category 1 images may not all, by themselves, depict sexual activity or a sexual context. However, the context in which the images were labelled and stored is relevant to and can be taken into account in determining whether those images are child exploitation material.
2.The way in which the images were labelled and stored, gives them a pornographic or sexual context and demonstrates there was pornographic intent in relation to the images.
3.The images are also labelled and stored so as to form a series of images: A, B, C, D, E, F and so on, together with adult pornographic images similarly labelled.
For example, one copy of image number 1 in the table described as 'Two girls between 6 - 10 years in pool. Underwear no top. One girl is lifting her leg up' is labelled 'A.jpg'. The State submits that this is child exploitation material because it is contained in a folder with sexualised images of adult women (adult pornography), being the folder labelled 'Live girls'. This also applies to the other images similarly labelled and stored, though some are stored in different folders, being those referred to above labelled 'GIRLS/ABC's' and 'GIRLS/Girlsxxx', each of which also contained adult pornography. The folder titled 'GIRLS/Hot girls' contained only image number 8 in the table described as 'Girl naked in bath, posing, between 12 - 15 years'.
4.'Sexual context' as referred to in the definition of 'child pornography' in s 217A of the Criminal Code (WA) can be derived from reviewing a series of images as a whole and, in some circumstances, it is not possible to understand the context of an image in isolation.
The defence submissions
In summary, the defence submissions are to the following effect:
1.The context in which the Alleged Category 1 images were stored is not relevant and cannot be taken into account in determining whether the images are child exploitation material. Rather, whether the material is child exploitation material is to be determined by reference to the image itself and whether the image depicts a child engaging in sexual activity or in a sexual context.
2.The images speak for themselves, and it is for the court to draw its own conclusions as to whether or not the images are in a sexual context. That is, the relevant 'sexual context' as that term is referred to in the definition of 'child pornography' in s 217A of the Criminal Code (WA) is the context of the image itself and not the way in which the image is labelled or stored.
3.Where the images were found, how they were stored, the labels attached to the folders and file paths is not relevant to determining the 'sexual context' and does not make the image child exploitation material.
It was accepted on behalf of Mr Hooper that each of the Alleged Category 1 images depict children under the age of 16 years. In relation to image 8, it was conceded on behalf of Mr Hooper that, if I conclude that the person depicted in that image is or appears to be under the age of 16 years, that image would fit the criteria as an image of a child in a sexual context. It was submitted on behalf of Mr Hooper that the other images do not meet the criteria.
Are the Alleged Category 1 images child exploitation material?
The 'material' alleged to constitute 'child exploitation material' in this case, and which Mr Hooper has accepted by his plea of guilty, are the images contained on his Telstra mobile phone and on his JVL tablet.
As noted earlier in these reasons, there is no dispute that the 62 images classified as Category 6 images are child exploitation material.
Before turning to consider the 11 Alleged Category 1 images in Mr Hooper's possession and whether those images are child exploitation material, it is first necessary to consider what child exploitation material is.
What is child exploitation material?
As stated in [11] above, 'child exploitation material' as that term is used in s 220 is defined in s 217A of the Criminal Code (WA). That definition and the meaning of related terms 'child pornography' and 'material' are set out in [11] - [13] of these reasons.
It is not suggested that any of the 11 Alleged Category 1 images fall within s 217A(b)(ii), being 'material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be, a child being subjected to abuse, cruelty or torture (whether or not in a sexual context)'. Having viewed the images in question, it is clear that none of them do.
Nor do the Alleged Category 1 images depict or represent any person or part of a person engaging in sexual activity. As such, for the Alleged Category 1 images (or any of them) to amount to child exploitation material, the State must establish beyond reasonable doubt that the images, in a way likely to offend a reasonable person, (relevantly) depict or represent a person or part of a person, who is, or appears to be a child:
1.in a sexual context; or
2.in an offensive or demeaning context.
I do not accept the State's submission to the effect that the Alleged Category 1 images fall within the definition of 'child exploitation material' because of the context in which they have been labelled and stored - in a series of images stored together with adult pornographic material. There is nothing in the language of the legislation to support that construction.
To make sense, the words 'in a sexual context' and 'in an offensive or demeaning context'[8] must be read back to refer to what is depicted or represented in the material itself.[9]
[8] The same applies to the words 'engaging in sexual activity', though that does not arise in this case as none of the Alleged Category 1 images depict a person or part of a person engaging in such activity.
[9] Though dealing with the construction of s 125A(1) of the Criminal Code Act 1983 (NT) (Criminal Code (NT)), which defines 'Child Abuse Material' and is not binding on this court, there is support for this construction, in Guerin v HB [2017] NTSC 14 [23] - [25] (Blokland J).
Counsel for the State referred me to R v SDI [2019] QCA 135 and CCI v The Queen [2011] QDC 375, noting those decisions relate to provisions of the Criminal Code Act 1899 (Qld) (Criminal Code (Qld)) relating to child exploitation material, and are not binding on this court.
Those authorities do not, in my view, support the State's contention that the Alleged Category 1 images being labelled and stored together with adult pornographic images gives them a sexual context.
In R v SDI, Gotterson JA stated [55]:
… the determination of whether material satisfies the definition of child exploitation material in s 207A of the Code is not necessarily confined to an examination of the material itself to the exclusion of any contextual features. For example, the fact that a series of photographs taken by the one person of a child may disclose a focus upon certain physical attributes of the child may serve to give a sexual context to the depiction of the child in each photograph in the series. The approach taken by Reid DCJ in CCI was, I think, correct in having regard to a contextual feature of that kind.
The 'contextual features' referred to by Gotterson JA in R v SDI were features relevant in the circumstances of that case, involving a series of photographs in which the same particular children had been posed and photographed in a sexual context by the appellant. It is not, in my view, of general application, and does not apply in the facts of this case, in which the images in question depict different children, in different locations and different circumstances.
Further, R v SDI concerned an appeal against convictions for the offence of making child exploitation material contrary to s 228B of the Criminal Code (Qld), as opposed to possession of such material under s 220 of the Criminal Code (WA). Section 228B of the Criminal Code (Qld) provides:
228BMaking child exploitation material
(1)A person who makes child exploitation material commits a crime.
…
(4)In this section -
make child exploitation material includes -
(a)produce child exploitation material; and
(b)attempt to make child exploitation material.
SDI's defence at trial included an argument that the photographs in question depicted the children at play and were not child exploitation material. One of the children depicted in the photographs gave evidence at trial about the context and way in which they were taken, which included SDI asking them to pose, directing them where to lie and lifting up their skirts to reveal and photograph their crotches and buttocks. The sexual context was evident on examination of the photographs, which depicted the children in stylised, sexual poses.
The series of photographs referred to in R v SDI was a series of photographs involving the same child or children from which it was said a sexual context could be discerned. That is not the case here, where the images in question depict a number of different children, in different locations, circumstances and poses. The series of photographs in R v SDI was also relevant to the making of the child exploitation material.
CCI v The Queen concerned a charge of possession of child exploitation material contrary to the Criminal Code (Qld). The material in question was videos taken by the accused of his friend's children naked in the bathroom with a hidden camera. All of the videos were of the same children. The 'contextual features' referred to by his Honour Judge Reid as relevant to considering how the children are depicted in the videos included, amongst the other matters stated, that the images were depicted, shown or represented in a video file which also contained adult pornography suggesting their depiction is for sexual gratification of the viewer.
His Honour Judge Reid stated that, in his view, it was not appropriate to view the images divorced from the physical context in which they were found, that is on a file following adult pornography.
I do not agree that applies or is relevant to determining whether material is child exploitation material in this case, or for the purpose of s 220 of the Criminal Code (WA) which is in different to terms to the offence of possessing child exploitation material under s 228D of the Criminal Code (Qld).
Section 228D of the Criminal Code (Qld) is in the following terms and requires knowledge as an element of the offence:
228DPossessing child exploitation material
(1)A person who knowingly possesses child exploitation material commits a crime.
…
The language of the relevant provisions of the Criminal Code (WA), s 217A and s 220, does not include any reference to any context external to what is depicted or represented in the material. There is no reference to anything that may inform the motivation of the person possessing the image and whether it is possessed or has been taken for sexual gratification. Knowledge, motivation, intent or the purpose for which the material is possessed forms no part of the offence of possession of child exploitation material under s 220 of the Criminal Code (WA).
The relevant context, whether 'in a sexual context' or 'in an offensive or demeaning context', is that depicted or represented in the material (the image), not where the image is stored or located.
Though there may be other indicators of context apparent on or accompanying an image, the context is drawn from the image and what is depicted in it: see Guerin v HB [23] - [24], [28].
Findings in relation to the Alleged Category 1 images
I have viewed each of the 11 Alleged Category 1 images and make the following findings.
Each of the 11 images depicts a child or part of a child (a person under the age of 16 years).
Having regard to what is depicted or represented in the Alleged Category 1 images, as I describe below:
1.I am not satisfied beyond and reasonable doubt that the images numbered 1 to 7, 9 and 10 depict or represent a child engaging in sexual activity or in a sexual, offensive or demeaning context so as to fall within the definition of 'child exploitation material';
2.I am satisfied beyond reasonable doubt that each of the images numbered 8 and 11, in a way likely to offend a reasonable person, depict or represent a person or part of a person, who is, or appears to be a child in a sexual, offensive or demeaning context so as to fall within the definition of 'child exploitation material'.
Image 1
Image 1 depicts two young, pre-pubescent girls, who appear to be aged between 6 and 10 years, in an inflatable pool in what appears to be a home garden. Both girls appear to be playing in the pool wearing bikini bottoms and no tops. They are separated from each other and one girl is facing away from the other. The other girl is holding her foot and lifting her leg up.
Image 2
Image 2 is a cropped, zoomed in image of the girl depicted in image 1 holding her ankle and lifting her leg up.
Image 3
Image 3 is of a different young girl, who appears to be aged between 3 and 5 years, and is topless in the bath, pictured from the side, close up with wet hair. Only her face, head and upper shoulder are visible in one image. In duplicates of the image her upper back, shoulder and chest area are also visible.
Image 4
Image 4 is of a different pre-pubescent girl, who appears to be aged between 6 and 10 years, posing in a bikini with one hand on her hip. She is turned to one side so her bottom and chest area are visible.
Image 5
Image 5 is of a different pre-pubescent girl, who appears to be aged between 6 and 10 years, on a jetty wearing just underpants or bikini bottoms.
Image 6
Image 6 is a side view of a different young pre-pubescent girl, who appears to be aged between 6 and 10 years, with long blond hair in a plait. She is sitting on a bed side on to the camera wearing just underpants with her, legs and top half, including her breasts, showing. A kitten is holding and biting her plait.
Image 7
Image 7 is of a different pre-pubescent girl, who appears to be aged between 6 and 10 years, with long blonde hair, topless facing the camera. The image is a close up showing the child's face and her naked torso from her hips and her chest area.
Image 8
Image 8 is of a different girl, who appears to be aged between 12 and 15 years, posing naked in the bath in a sexual way.
Image 9
Image 9 is of a different girl, who appears to be aged between 2 and 5 years. She is pictured on the edge of a bed naked from just above her waist upwards, showing her chest and face.
Image 10
Image 10 is of the same young girl pictured in image 9, but zoomed out. She is completely naked with her arms behind her on the edge of the bed, facing forwards showing her naked body from the top of her legs to her face and head. Her torso, chest area and pubic region are visible.
Image 11
Image 11 is of a different young girl, who appears to be aged between 5 and 10 years, sitting on a bed facing the camera. She is topless, with her hair on one side in a pigtail and on the other side in a plait. She is dressed in a short white sheer fabric skirt and has fabric tied around both of her wrists.
Conclusion and findings of fact on the trial of issues
For the reasons stated above, I find for the purpose of sentence in relation to the disputed issue of fact that, of the 11 Alleged Category 1 images:
1.the images numbered 8 and 11 are child exploitation material;
2.the other images, being those numbered 1 to 7, 9 and 10, are not child exploitation material.
Mr Hooper will be sentenced on the basis that he possessed:
1.two Category 1 images, depicting real children, as described (being images numbered 8 and 11); and
2.sixty-two Category 6 images, based on the representative sample provided by the State for the purpose of sentence.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LDB
Lucinda De Bellis
Associate to Judge Russell
9 AUGUST 2022
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