Fitzgerald v R

HOEBEN CJ at CL:

The maximum penalties for the Commonwealth child pornography offences were 10 years imprisonment for the offence committed before 15 April 2010 and 15 years imprisonment for the offence committed after 15 April 2010. The maximum penalty for each of the State child abuse offences was 10 years imprisonment.

On 18 June 2014 the applicant was sentenced by Christie QC ADCJ as follows:

As can be seen, the non-parole components of the sentences were fully concurrent.

The Australian Federal Police (AFP) were investigating child pornography material being shared or downloaded over the internet using “peer to peer” file sharing technology which is an internet network that allows a group of computer users with the same networking program to connect with each other and directly access files from one another’s hard drive. Programs entitled “eMule”, “eDonkey” and “BearShare” are such peer to peer file sharing programs. As part of that investigation, the AFP identified an internet protocol address which was the applicant’s address and which was being used to download child pornography videos and images.

Upon executing a search warrant at the address on 13 March 2013, the AFP identified that the applicant and his mother were the only occupants of the premises. A number of computer hardware devices and numerous hard drive storage devices were located and seized. The seized items included a desktop computer which contained six internal hard drives, three external hard disc drives and four compact discs. A preliminary examination of these devices revealed the presence of child pornography material.

During a recorded interview with the AFP, the applicant made a number of admissions including the following:

When the AFP subsequently examined the seized devices, they found child pornography and child abuse material stored on five of the internal hard drives located in the desktop computer, on two of the external hard disc drives and on three compact discs. In total 1,145 items, which have been classified as child abuse material, were found on the devices in the applicant’s possession. Those items were classified according to the Child Exploitation Tracking System (CETS) scale of objective seriousness into the following categories:

Out of the total number of items possessed, 390 were videos. Of those videos:

In relation to the use of the carriage service to access child pornography, subsequent examination of the seized desktop computer and its internal hard drives revealed that between 1 October 2012 and 13 January 2013 the internet had been used via the “eMule” peer to peer file sharing program to access and download 68 child pornography videos.

Those 68 videos were classified into the following categories:

Further examination of an external hard disc drive revealed that between 1 March 2005 and 22 April 2007, the internet had been used via the “BearShare” peer to peer file sharing program to access and download 18 pornography videos.

Those 18 videos were classified into the following categories:

It was common ground that the total number of items in relation to the Commonwealth offences was 86 videos that ranged across the CETS spectrum.

The totality of the material involved 700 – 800 child victims, being predominantly girls, ranging in age between 11 and 14 years. The video materials ranged in duration between seconds to three hours.

His Honour did not see all of the material. He was provided with a representative sample, including videos, to get a general perception of the type of material which formed the basis of the offences. His Honour noted that the quantity of material was “very large”. When considering the objective seriousness of the offending, his Honour said:

His Honour went on to recite some further submissions by the Crown, but it is not clear whether his Honour adopted those submissions in whole or in part:

Later in the judgment, his Honour said:

By way of mitigation, his Honour noted that the pornographic and child abuse material was for the applicant’s own use, not for sale or dissemination and that there was no profit motive when engaging in this criminal activity.

In relation to the applicant’s subjective case, his Honour had regard to the following matters. At the time of sentence, the applicant was aged 36 and had no prior criminal record. He gave evidence in the sentence proceedings. Tendered on his behalf was a psychological report. In it the applicant described himself as a loner, who had never really connected with anyone, apart from his best mate. He had been using computers virtually as his main entertainment for many years. There was no substance abuse history. He had come across the offensive material by accident, but had continued to download it.

The psychologist concluded:

His Honour found that the applicant had shown contrition and in that regard, his Honour took into account that he had pleaded guilty to the charges at the first available opportunity and allowed a discount on sentence of 25%. His Honour found that he had good prospects of rehabilitation because he had never before been involved in any form of criminal activity and had fully co-operated with law enforcement agencies in the course of the investigation.

In formulating his sentence, his Honour had regard to general deterrence and the fact that the children depicted in the material were vulnerable and had clearly suffered emotional harm.

The applicant submitted that when reaching that conclusion, his Honour did not take into account all relevant matters in that the number of offending materials was but one factor which a court is required to take into account. The applicant relied upon R v Minehan [2010] NSWCCA 140; 201 A Crim R 243 at [82] – [92] where matters relevant to the assessment of the objective seriousness of child pornography offences were set out. In Minehan the court identified 13 matters to which regard should be had when assessing the objective seriousness of such an offence.

By reference to the check list in Minehan, the applicant submitted that the following considerations ameliorated the seriousness of the applicant’s offending:

The applicant submitted that only about 25% of the material fell within Categories 4 and 5, with the balance of the images coming under the less serious classifications under the CETS scale. In those circumstances, it was not accurate for his Honour to say that the number of pornographic images was very large and that therefore the offending should be regarded as being at the highest end of offending.

The applicant submitted that for those reasons, it was not open to his Honour to characterise the number of items or the conduct of the applicant as being at the highest end of offending, even allowing for the wide discretion which he had when assessing objective seriousness, and which was discussed by this Court in Mulato v Regina [2006] NSWCCA 282 at [37].

The finding of objective seriousness was not based solely or predominantly on the number of images involved. In reaching his conclusion as to objective seriousness, his Honour took into account the matters set out in R v Gent [2005] NSWCCA 370; 162 A Crim R 29 (Johnson J, with whom McClellan CJ at CL and Adams J agreed):

His Honour specifically took into account the nature and content of the images, the ages of the child victims, the gravity of the sexual activity portrayed, the number of images or items possessed and the number of child victims. He also specifically noted the absence of any evidence of sale, further distribution and profit.

The 13 considerations identified in Minehan were essentially the same as those referred to in R v Gent but were broken into sub-categories. Additionally, his Honour also had regard to the matters referred to in s 16A of the Crimes Act 1914 (Cth) and s 21A of the Crimes (Sentencing Procedure) Act 1999.

His Honour correctly took into account that the production by others of child pornography for dissemination involved the exploitation and corruption of children who were incapable of protecting themselves and that the collection of such material was likely to encourage those who were actively involved in corrupting children and who recruited and used those children for the purpose of recording and distributing the results of such abuse.

The true gravamen of this kind of offence was aptly described in R v Booth [2009] NSWCCA 89 at [40] – [41] where Simpson J (with whom McClellan CJ at CL and Howie J agreed) said:

As his Honour recognised, general deterrence is of paramount importance when sentencing for these kinds of offences. This kind of offending primarily requires the imposition of sentences that will both deter others in the community from committing similar offences and which will punish and denounce the conduct of the offender. The ease and relative anonymity of the internet, the use by like-minded people of peer to peer file sharing technology to form networks exchanging such material and the difficulties of detection demonstrate the importance of general deterrence.

In R v Lee [2013] WASCA 216 McLure P (with whom Mazza JA and Hall J agreed) noted that with offences of this kind a term of imprisonment was ordinarily the only appropriate sentencing option:

Comments to similar effect were made in R v Gent at [27]:

It was not necessary for his Honour to view all or even most of the images and videos, the subject of this offending. It was sufficient for his Honour to have regard to the fact that 294 images and videos (25% of the total of 1145) were classified within Category 4 involving penetrative sexual activity between adults and children and that a total of 9 images and videos were classified within Category 5 involving children subjected to sadism, humiliation or bestiality. The extent of the cruelty and harm to the hundreds of individual child victims involved, is self-evident from the categorisation of the images and videos. Penetrative sexual activity between adult males and girls aged between 11 and 15 years of age and sadism, humiliation and bestiality involving children cannot occur without manifest inherent cruelty, harm and injury. The nature of the harm is readily discernible from the CET classification. No further evidence of the depiction of actual cruelty or harm was necessary.

The period of time over which the material was accessed and possessed is an aggravating factor under s 21A(2)(m) and s 16A(2)(c) and is relevant to the nature and circumstances of the conduct under s 16A(2)(a) and to relative seriousness under s 21A(1)(c). The relevance to sentence of the period of time over which child pornography was accessed, was acknowledged in R v De Leeuw [2015] NSWCCA 183 at [116] per Johnson J (with whom Ward JA and Garling J agreed).

It follows that his Honour did not err in assessing the objective seriousness of this offending. This ground of appeal has not been made out.

The applicant submitted that his Honour’s starting point for the State offences of a head sentence of 5 years and the starting point for the Commonwealth offences of a head sentence of 3 years and 9 months was excessive. This was because there was a plea at the earliest opportunity, the applicant had no criminal record and the offences while serious, could reasonably be characterised as falling below the middle range of seriousness. He submitted that those starting points had to be looked at against the maximum sentence which, in the case of the Commonwealth offences, was 10 years for the early offending and 15 years for the later offending and in relation to the State offences, 10 years.

The applicant relied upon a number of cases where either similar offending had received a lower sentence or where a similar sentence was imposed, but in relation to many more images.

In R v SW [2008] NSWDC 148, (Knox SC DCJ) – 4,000 “still” images and 204 videos with transmission of images by the offender – head sentence of 3 years and 3 months with a non-parole period of 2 years.

In Mouscas v R [2008] NSWCCA 181 – Possession of 41,923 graphic images and 204 videos with very young children, animals and graphic violence – head sentence of 2 years and 9 months with a non-parole period of 18 months.

Martin v Regina [2014] NSWCCA 124 – 24 offences of possession, transmission and producing material involving 60,000 “still” images, 323 videos and 4578 “story” documents – history of sexual offences – aggregate sentence of 5 years with a non-parole period of 3 years and 4 months.

The applicant submitted that those cases were reasonably representative of the sort of sentences imposed for these kinds of offences and provided an indication of general sentencing trends and standards to which due regard needed to be had so as to ensure consistency in sentencing.

The applicant submitted that for the reasons set out in Ground 1, his Honour had erred in assessing the objective seriousness of the offending and that this, taken with the sentence imposed being well out of step with the range of cases referred to, constituted House v The King [1936] HCA 40; 55 CLR 499 error entitling this Court to re-exercise the sentencing discretion.

The applicant accepted that the offences were serious and called for a significant component of general deterrence and called for a custodial sentence.

As indicated in respect of Ground 1, each of the offences was objectively serious. When sentenced the applicant received a substantial benefit in that the non-parole component of the sentences was wholly concurrent. Had his Honour allowed some partial accumulation so as to increase the sentence, that would have been well within the sentencing discretion and no valid criticism could be directed at such an approach. This is particularly so when R v Porte [2015] NSWCCA 174 made it clear that the State offence and Commonwealth offence are quite distinct.

The following considerations point against a finding that the sentence was manifestly excessive:

The cases which were brought to the attention of this Court do not establish a sentencing range. They depend very much on their own facts. Moreover, the sentences imposed in those cases while lower were not significantly out of step with the sentences imposed here.

This Court has recently considered some Crown appeals against sentence in R v Linardon [2014] NSWCCA 247; R v Martin [2014] NSWCCA 283; R v Porte and R v De Leeuw. While there were differences in the numbers of images, the balance between videos and “still images”, the particular facts and subjective cases of the offenders, there was a consistency of approach and in sentence. In each case, the Crown appeal was allowed and the sentences were increased. The sentence imposed in this case is well within the range of sentences imposed in those cases. What that sentencing pattern reveals is a range of head sentences of imprisonment between 18 months and 5 years after a discount for a guilty plea.

The sentences imposed here appropriately reflected the criminality of the offending and the culpability of the applicant. It follows that there was nothing unreasonable or plainly unjust in them. This ground of appeal has not been made out.

The order which I propose is that leave to appeal be granted but the appeal be dismissed.

PRICE J: I agree with Hoeben CJ at CL.

BUTTON J: I agree with Hoeben CJ at CL.