Malogorski v Labrooy [2006] NTSC 13

PARTIES: MALOGORSKI, Mark Anthony

v

LABROOY, Stewart Lester Richard

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: JA 19/05 (20422109)

DELIVERED: 20 February 2006

HEARING DATES: 16 December 2005

JUDGMENT OF: MILDREN J

CATCHWORDS:

CRIMINAL LAW – Appeal – Crown Appeal – whether sentence so inadequate to warrant interference

SENTENCE – whether error shown – sentencing principles – possession of child pornography – relevant factors – whether guideline judgment from another jurisdiction can be considered – whether there is a sentencing tariff

Justices Act, s 163(1)
Criminal Code, s 125A, s 125B, s 125B(1), s 125B(1)(a)
Sentencing Act, s 78BB

Referred to
R v Osenkowski (1982) 30 SASR 212
R v Oliver [2003] 2 Cr App R (S) 15
R v Raggett and Ors (1990) 101 FLR 323
The Queen v Brock (unreported, Supreme Court of the Northern Territory, SCC 20402654, 2 December 2004)

Followed
McLeod v O’Brien (8 November 1985, unreported)
Wong v The Queen (2001) 207 CLR 584

REPRESENTATION:

Counsel:
Appellant: M. Heffernan
Respondent: I. Rowbottom

Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent: Withnalls

Judgment category classification: B
Judgment ID Number: MIL 06366
Number of pages: 11

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Malogorski v Labrooy [2006] NTSC 13
No. JA 19/05 (20422109)

BETWEEN:

MARK ANTHONY MALOGORKSI
Appellant

AND:

STEWART LESTER RICHARD LABROOY
Respondent

CORAM: MILDREN J

REASONS FOR JUDGMENT

(Delivered 20 February 2006)

[1] This is an appeal by the prosecution brought pursuant to s 163(1) of the Justices Act against inadequacy of sentence imposed by the Court of Summary Jurisdiction.

[2] The respondent was charged on complaint with possession of child pornography contrary to s 125B(1)(a) of the Criminal Code. At the time of the alleged offence on 27 September 2004, the maximum penalty for that offence was imprisonment for two years.

[3] The facts were that on Monday 27 September 2004 police executed a search warrant at the respondent’s residential address. As a result of the search police located and seized two personal computer hard drives, numerous recordable compact discs, floppy disks and other items in a bedroom at the premises. During the search the respondent admitted to police that his computer contained child pornography. The respondent was arrested and subsequently participated in a formal electronic record of interview during which he admitted to purchasing sites containing child pornography using a credit card on at least two or three occasions. He further admitted to accessing, downloading and possessing a large quantity of child pornography on his computer hard drive. When asked why he did this, he stated that he like the purity and innocence of the images and that he was a “collector of things”. When asked by police if he had an age preference for images of children he stated “young girls, 13 to 16 years, but I’ll collect anything, young girls like that are happy and free living”. The respondent admitted to masturbating to and being “titillated” by some of the images.

[4] Some of the images contained on the respondent’s hard drive depicted extreme hardcore child pornography, some images depicted infants being subjected to penile penetration by adult males and objects, some images depicted children as young as two years old performing oral sex on male adults and some images depicted children engaging in sexual intercourse with each other. The movies located on the hard drive depicted girls aged between five to 14 years dancing naked, some performing a strip tease. There was a total of 1,730 images and 20 movies. A further breakdown of the images is contained in the following table:

Level Description Typology Number

1 Images depicting naked/sexual posing, with no sexual activity

 Deliberate posing suggesting sexual content

 Deliberate sexual or provocative poses

 Explicit sexual posing with emphasis on genital area 1057

2 Sexual activity between children or masturbation of self by child Explicit sexual activity not involving an adult 126

3 Non-penetrative sexual activity between adult(s) and child(ren) Sexual assault by adult(s) of child(ren) 138

4 Penetrative sexual activity between child(ren) and adult(s) Sexual intercourse by adult on child 399

5 Torture, cruelty or abuse Sexual images involving torture etc. 31

Total 1751

[5] The respondent had no prior convictions. On the respondent’s behalf a number of personal references were provided to the Court, including letters of support from the respondent’s wife and two sons, respectively aged 15 ½ and 17 ½ years; from a solicitor; from co-workers or former co-workers, all of which spoke highly of the respondent’s good character as well as his community service and dedication to his employment. In addition, the respondent’s counsel tendered without objection a confidential psychological report which dealt with the respondent’s background and antecedents, his motivation for offending, assessed whether there was any risk of actual offending in terms of offending directly against children and made an assessment of any other background difficulties which may be put forward in relation to his personal circumstances.

[6] That report was extremely detailed and not easy to paraphrase. The respondent and his family originally migrated to Australia from Ceylon after independence was declared in the new state of Sri Lanka in 1963. At that stage the respondent was five years of age. The move to Australia was extremely traumatic for him and he had difficulty adjusting to life in Australia. The family moved to a number of places until 1968 when the respondent’s father obtained a substantial position in the Australian Public Service working at Garden Point on the Tiwi Islands. Whilst he was 11 years of age, he was sexually assaulted by a European tradesman working at the settlement. He was unable to tell his parents about the incident because of his father’s strict traditional views of morality. Later he was sent to boarding school where he became an obsessive collector and hoarder. As soon as he got a job, at the age of 18, he became a compulsive gambler and heavy drinker. He subsequently married and since learned to control his gambling and drinking.

[7] In mid 2003 he was employed in a Government department where his workload became “frenetic”. Part of his responsibilities required him to read victim impact statements and accounts. It was at this time that images of his own abuse which he had forgotten began to flash into his mind. Due to his significant workload he got into the habit of “surfing the web” late at night as his only form of relaxation. He began scanning adult web sites for recreation which had links to child sites and he received emails from other web sites. He began looking at an adult site and claimed that he was innocent in the way that the site attracted him, meaning that there was no real indication of what the sites comprised. He claimed that he was attracted by the “innocence” of the children at first and then began collecting for the sake of collecting. He claimed that the collecting rather than the content was the “high” for him. He would look for a picture or pictures that would complete a set and this would give him great satisfaction.

[8] The report goes into the method of the collecting in some detail, which I will not repeat. The psychologist concluded that his addictive and obsessive behaviour had been life long, initiated in late teens and early childhood and could be considered examples of self-medicating or coping with anxiety mechanisms. The ordering and organisation of images like other collectibles provided a sense of control and thus reduced anxiety.

[9] The psychologist concluded that the respondent’s behaviour met the criteria for Obsessive Compulsive Personality Disorder and also that he displayed many of the features of Post Traumatic Stress Disorder. The psychologist said:

“At the time of collecting these images, Mr LaBrooy did not consider he was offending. He appears to have entered into collection of images of children in the same way he was drawn into other addictive and compulsive behaviours outlined above. It is important to note that Mr LaBrooy considered there was no sexual motivation for ongoing collecting.

“In my opinion, Mr LaBrooy is suffering from Obsessive-Compulsive Personality Disorder, which, along with the post-trauma stress and aberrant brain functioning described above, has developed a mental environment in which the compulsion to collect and continue to do so even when it is cognitively clear that the material being collected is inappropriate, is too great to be ignored.”

[10] The psychologist reported that results of certain tests which had been administered indicated that the respondent would have had great difficulty in controlling his thoughts and inhibiting those actions which he might have avoided. He says:

“Fortunately, this brain pattern can be treated and Mr LaBrooy is currently undergoing neurofeedback therapy to adjust brain-wave activity and alleviate some of the propensity he has demonstrated to this time.”

[11] He concluded that his current treatment was progressing satisfactorily and that provided that the treatment was completed the respondent was unlikely to be at any risk of offending in the future. Furthermore he should be regarded as a threat neither to society nor to children in particular.

[12] The learned Magistrate after referring to all of the various matters that had been put to her relating to the respondent’s character, contribution to the community, voluntary work, personal difficulties, the matters referred to in the psychologist’s report which she accepted and the references from the respondent’s family members, friends and colleagues as well as the matters that were put to her on behalf of the prosecution, imposed a sentence of imprisonment for four months and ordered that the sentence be suspended after having served one month of that sentence.

[13] The only grounds for appeal are that the learned Magistrate’s sentence of four months’ imprisonment was manifestly inadequate and that the order suspending the term after having served one months’ imprisonment was also a manifestly inadequate sentence.

[14] This being a Crown appeal it is necessary for the Crown to demonstrate very clearly the error of which it complains.

[15] In R v Osenkowski (1982) 30 SASR 212 at 213, King CJ said:

“The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to the shock the public conscience.”

[16] That passage has been cited with approval on a number of occasions by the Court of Criminal Appeal of this Territory: see especially R v Raggett and Ors (1990) 101 FLR 323 at 331 per Kearney J with whom Martin J and Angel J agreed.

[17] There is certainly no matter of principle raised by the Crown in the present appeal. The learned Magistrate did not exhibit any idiosyncratic views which need correction. What is more, the maintenance and establishment of adequate sentences for this crime will not be enhanced by any judgment of this Court on this occasion as s 125B of the Criminal Code has since been repealed and replaced with a new provision for which a different maximum penalty has been imposed by the legislature. Further the new s 125B(1) covers a wider range of conduct than mere possession insofar as it includes within the new subsection the offences of distributing, producing, selling, offering or advertising for distribution or sale child abuse material. It is be noted also that child abuse material is differently defined from the definition of child pornography previously contained in s 125A of the Criminal Code.

[18] Measured against the maximum penalty of two years imprisonment it is difficult to see how in the light of the special circumstances of this case and in particular the matters put into mitigation of penalty that the sentence imposed by the learned Magistrate was in any way manifestly inadequate. It is true that the images contained moving images as well as images in categories 3, 4 and 5. In R v Oliver [2003] 2 Cr App R (S) 15 (p 64) the Court of Appeal delivered a guideline judgment dealing with the factors to be considered in relation to sentences involving child pornography. That case has been referred to with approval by Angel J in The Queen v Brock (unreported, Supreme Court of the Northern Territory, SCC 20402654, 2 December 2004). In Oliver’s case the Court of Appeal indicated levels of sentences of between 12 months and three years as appropriate for possession of large quantities of material at levels 4 and 5. Three things need to be borne in mind when considering Oliver’s case. First, the maximum penalty available for possession of child pornography in England was 10 years and not two years. Secondly, the High Court has rejected guideline sentencing which did not focus on sentencing principle as erroneous and beyond jurisdiction in Wong v The Queen (2001) 207 CLR 584. To incorporate by reference a guideline judgment from another jurisdiction as a guideline in this jurisdiction is equally erroneous if it focuses on tier or grid sentencing. Thirdly, the selection of the quantity and type of material possessed as the chief factor in fixing the sentencing range (tier or grid sentencing) is, in my opinion, erroneous as it would represent a departure from fundamental sentencing principles because it would not take into account the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender and does not address considerations of proportionality: c.f. Wong v The Queen, supra.

[19] Further, the observation in Oliver’s case, at para 21, that “some, but not much, weight should be attached to good character” and approved by Angel J in The Queen v Brock, supra, is in my opinion also erroneous. The weight to be given to good character is no different for this kind of offence than any other kind of offence. That is not to say that mere possession is not a serious offence. So much is self-evident by the fact that mere possession can give rise, in a proper case, to a maximum of two years imprisonment and must, by virtue of s 78BB of the Sentencing Act, result in a conviction and sentence of actual imprisonment which is not wholly suspended. However, whilst quantity and quality are both relevant factors to the degree of seriousness, there are other factors as well including the state of the offender’s knowledge of the material he possessed, his motives for possession, the possibility or likelihood that the offending material may be seen or become available to others, especially children, the prior criminal history of the offender, as well as other matters including, as in this case, whether the offender is, by reason of a mental illness, a proper case for a deterrent sentence. And as well, the sentencer is required to consider and take into account all of the matters which may properly be regraded in mitigation in order to arrive at a just and balanced sentence.

[20] The learned Magistrate in my opinion correctly took into account all of the relevant factors including the then maximum penalty for the offence and, in my opinion, it has not been shown that her Honour’s sentencing discretion has miscarried in any way.

[21] Mr Heffernan, for the appellant, sought to produce statistics in order to persuade the Court that the sentence imposed was outside of the tariff previously established in the Court of Summary Jurisdiction for this offence.

[22] In my opinion, the material provided both to the learned Magistrate and to this Court was inadequate to establish a tariff. What is required in order to establish a tariff range was discussed by Kearney J in McLeod v O’Brien (8 November 1985, unreported) where his Honour said this:

“But on any contention that punishment manifestly exceeds the “tariff”, it is necessary that sufficient factual information be submitted to the appellate court to enable it to determine what the “tariff” is. This is not a case like Breed v Pryce (1985) 36 NTR 23, in which it can be said that, whatever the “tariff” may be, the punishment manifestly exceeds it. Information from the Bar Table, as here, is insufficient; nor have I been referred to any other cases where the current “tariff” for this offence in this jurisdiction has been ascertained. As to the sort of information that should be provided see for example Madge v Hardings (1972) 59 LSJS 384, where Sangster J enquired as to “what range of penalties are imposed in a great number of cases of a period of time”; and see Tothill v Marklew (1969) SASR 460 at p 465. See also the information supplied in Clair v Brough [(1985) 37 NTR 11], an appeal dealt with today; and the comments of Bray CJ in Dyson v Normandale (1970) 55 LSJS 68 at 69. What is really required is information regularly published by the courts disclosing adequate details of offences and penalties imposed. In the absence of the necessary information this contention must be rejected.”

[23] In Wong v The Queen, supra, at 606 Gaudron, Gummow and Hayne JJ said:

“Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.”

[24] The first difficulty with the material that was handed up from the Bar Table is that it provides information about only 13 cases in the period between 2002 and 2004. Secondly, the amount of information provided relating to the circumstances of the offences is absolutely minimal. It is simply not possible to ascertain whether there is a tariff, and if so, what the tariff is from that information.

[25] In any event, even if the information had provided enough for me to conclude that there was a tariff and the sentence imposed was outside of the tariff range that does not necessarily mean that the Crown appeal must be allowed. It is still open to a court to impose a sentence outside of the tariff range in appropriate circumstances.

[26] In the present case, the circumstances were compelling and afforded a proper basis for the sentence imposed by the learned Magistrate.

[27] In those circumstances, this appeal must be dismissed.