Bretherton v Moore [2006] NTSC 44

PARTIES: BRETHERTON, Louis James

v

MOORE, David

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO: JA20 of 2005 (20322456)

DELIVERED: 7 JUNE 2006

HEARING DATES: 15 MAY 2006

JUDGMENT OF: MARTIN (BR) CJ

APPEAL FROM: Court of Summary Jurisdiction, 20322456, 10 March 2005

CATCHWORDS:

CRIMINAL LAW
Appeal – Justices Appeal – possessing child pornography – s 125B Criminal Code – ‘possession’ – conviction quashed – resentenced.

Criminal Code (NT), s 125B

R v Jones (1999) 108 A Crim R 50, referred to.
R v Brock (unreported, Supreme Court of the Northern Territory, SCC 20402654, 2 December 2004), followed.

REPRESENTATION:

Counsel:
Appellant: I Rowbottom
Respondent: M Heffernan

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

Judgment category classification: B
Judgment ID Number: Mar0607
Number of pages: 13

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

Bretherton v Moore [2006] NTSC 44
No. JA 20 of 2005 (20322456)

BETWEEN:

LOUIS JAMES BRETHERTON
Appellant

AND:

DAVID MOORE
Respondent

CORAM: MARTIN (BR) CJ

REASONS FOR JUDGMENT

(Delivered 7 June 2006)

[1] The appellant pleaded guilty to four offences of possessing child pornography contrary to s 125B(1)(a) of the Criminal Code. The maximum penalty for each offence was two years imprisonment. The following sentences were imposed:

Count1 10 months imprisonment

Count 2 12 months imprisonment

Count 3 4 months imprisonment

Count 4 4 months imprisonment

[2] The learned Magistrate ordered that the sentences be served concurrently and that they be suspended after the appellant had served four months upon condition that he be under the supervision of the Director of Correctional Services and obey the directions of the Director as to residence, reporting, employment, counselling and psychiatric treatment. The operational period of the suspension was two years.

[3] The appellant filed a notice of appeal complaining that the sentence was manifestly excessive and that the Magistrate had failed to properly take into account “the mental condition of the offender in the circumstances of the commission of the offending”. The notice also complained that the Magistrate failed to properly consider the necessity for supervision during the operational period of two years.

[4] Shortly before the hearing of the appeal, the appellant filed an amended notice of appeal adding a complaint that the Magistrate “erred in finding that the offence set out in count 1 was made out”.

[5] The appellant was represented before the Magistrate by the same counsel who appeared on the appeal. Following the pleas of guilty the prosecutor presented facts to the Magistrate both orally and in a document tended as an exhibit headed “Agreed Facts”. The plea was conducted on the basis that the facts were agreed. The exhibit setting out the facts was as follows:
“At sometime prior to 17 October 2003, the offender obtained numerous electronic image files depicting child pornography by downloading the images from the internet to a Directory on his personal computer.
On that day, Police spoke to the offender about the alleged possession of child pornography at which time he denied that he possessed any such material but agreed to provide his personal computer to Police for analysis in addition to some compact discs. On 22 October 2003, Police conducted an analysis of the offender’s personal computer and the discs and located a substantial number of image and movie files on the offender’s computer and three of the CDs which depicted child pornography.
The offender was arrested and conveyed to Darwin Police Station on 23 October 2003 at which time he participated in an electronically recorded interview. In the course of the interview, the offender made admissions to possessing a number of the images which had been located and which were shown to him in the course of the interview. A full analysis of the offender’s computer and the CDs had not been completed at the time of the interview and additional images containing child pornography were subsequently identified including:

Media Name Media Total Files Location Description
093_H1 Hard Drive 579 3/55 Boulter Road, Berrimah 544 Images

35 Movies
093_03CD018394 Compact Disc 5905 Top Drawer of cupboard in Lounge Room at Berrimah residence 5863 Images

42 Movies
093_03CD018396 Compact Disc 123 Top Drawer of cupboard in Lounge Room at Berrimah residence 123 Images
093_03CD018399 Compact Disc 421 Top Drawer of cupboard in Lounge Room at Berrimah residence 421 Images

The nature of the images located were varied, ranging from ‘subtle’ pornography involving children to images of naked children involved in sexual acts with both adults and other children.
The material which is the subject of the charges was sent to the Commonwealth Office of Film and Literature Classification which classified them as “refused classification” and issued evidentiary certificates to that effect pursuant to Section 87 of the Classification (Publications, Film and Computer Games) Act.”

[6] During submissions counsel for the appellant tendered a report from a psychiatrist which provided extensive detail about the appellant’s personal history and his past and current mental state. In the course of that report, the psychiatrist reported as follows:
“Sometime in about year 2000, he started getting pictures over the Internet. He found some bulletin boards and eventually made contact with a man in Darwin who gave him a CD of explicit child pornography. He then found more sites and downloaded further material which he knew to be illegal. He said the sites were free but he was quite emphatic that he did not view the material for sexual purposes. When asked his motivation, he was unable to give an explanation: ‘Something in me said to do it but I don’t know why. I’d look at them and didn’t do anything. It wasn’t for sex. I can’t work out why’.

In about July or August, 2003, he deleted the material from his computer and did not access the sites again but said he did not know about the back up files for downloaded files. When the Police asked him if he had any prohibited material on his computer, he said he did not and apparently willingly handed them his computer for inspection.”

[7] In his submissions, counsel for the appellant advised the Magistrate that the images on the hard drive “were found in a folder which was called ‘lost files’”. Counsel then said:

“What had in fact happened is my client had deleted them some months before. He had no idea that they would be retained and I’m not sure exactly how that came about but he had no idea they would be retained on the computer but it appears that Windows somehow, if you don’t delete things properly, retains it and retains it under the windows folder in lost files.”

[8] Counsel continued by advising the Magistrate that the appellant became upset about the files and deleted them. He repeated that the appellant did not realise the files were still within the hard drive. Counsel added: “But having said that, the reality is they were and in any event [he] possessed them”.

[9] It is common ground that under s 52 of the Justices Act, the time limit for the making of the complaint was six months from the date on which the appellant was in possession of the pornographic images contrary to s 125B(1)(a) of the Criminal Code. Police attended at the home of the appellant on 17 October 2003 and the complaint was made six months later. The plea before the Magistrate proceeded on the basis that sometime prior to 17 October 2003 the appellant had “destroyed” the images on the hard drive and, as at 17 October 2003, he was unaware that the images remained on the hard drive and could be retrieved.

[10] The Crown did not dispute that the matter proceeded before the Magistrate on the basis that as at 17 October 2003 the appellant was unaware that the images continued to be stored on the hard drive. In the absence of knowledge of the existence of the images on the hard drive, the Crown agreed that the appellant was not in “possession” of those images for the purposes of s 125B(1)(a).

[11] In these circumstances, the Crown properly conceded that the conviction on count 1 should be set aside. As the complaint with respect to count 1 was laid out of time, count 1 is quashed.

[12] The existence of the offending in count 1 was relevant to the gravity of the total criminal conduct in respect of which the Magistrate was required to impose sentence. It was a relevant factor in the exercise of the sentencing discretion. As count 1 has been quashed, it is appropriate to set aside the sentences on the remaining counts and to exercise my independent discretion in imposing sentence.

[13] Strictly speaking, it is unnecessary to deal with the complaints about the approach of the Magistrate. However, bearing in mind the nature of the complaints, I will indicate my views.

[14] I am unable to discern any error in the approach of the Magistrate. Her Honour recognised that general deterrence was of importance, but she also made specific reference to the respondent’s history and mental state. Her Honour specifically recognised that the “full application” of general deterrence should be modified in the presence of strong subjective features, particularly psychiatric matters relevant to the offending.

[15] The individual sentences imposed by the Magistrate, in particular the larger sentence of 12 months imprisonment, were well within the range of the sentencing discretion. Indeed, counsel for the appellant on the appeal conceded that the offending represented by the second count justified the imposition of a sentence of 12 months. The essence of the appellant’s complaint on appeal was that her Honour erred in requiring the appellant to serve four months of that sentence. I do not agree. In the circumstances presented to the Magistrate, it was well within the range of the sentencing discretion to require that the appellant serve four months.

[16] The complaint that the Magistrate “failed to properly consider the necessity for supervision” is also without substance. The psychiatric report tendered by the appellant provided more than an ample basis for requiring that the appellant be under supervision upon his release for the period of two years. In addition, it should not be overlooked that counsel for the appellant specifically encouraged the Magistrate to impose a sentence which involved supervision by the Director of Correctional Services.

[17] Turning to the question of sentence, as I have said counsel for the appellant on the appeal conceded that the offending in count 2 merited a sentence of 12 months imprisonment. That concession was properly made. The appellant’s offending was far from minor. The nature and content of the images is conveniently summarised in a table provided by counsel for the appellant in the following terms:

Movies Images

Cat. Description Typology Count 2

CD
018394Count 2

CD
018394 Count 3

CD
018396 Count 4

CD
018399

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 0 2849 36 313

2 Sexual activity between children or masturbation of self by child Explicit sexual activity not involving an adult 11 2182 42 99

3 Non-penetrative sexual activity between adults(s) and child(ren) Sexual assault by adult(s) of child(ren) 1 200 17 3

4 Penetrative sexual activity between child(ren) and adult(s) Sexual intercourse by adult on child 2 293 28 4

5 Torture, cruelty or abuse Sexual images involving torture etc. 0 18 0 1

Total: 14 5542 123 420

[18] The categories 1 – 5 identified in the table are based upon the five levels of offending, in ascending seriousness, identified in a guideline judgment of the Court of Appeal in R v Oliver [2003] 2 Cr App R (S) 15. This guideline was approved by Angel J in R v Brock (unreported, Supreme Court of the Northern Territory, SCC 20402654, 2 December 2004). The five categories are a convenient guide as to where particular images sit in the scale of seriousness and, as a guide, they are of assistance in the exercise of the sentencing discretion. However, the categories are a guide only.

[19] The nature and quantity of the images possessed by the appellant amply demonstrate the gravity of his criminal conduct. In particular, the CD containing the images which are the subject of count 2 include a significant number of images in the more serious categories.

[20] General deterrence is a significant factor in the exercise of the discretion. It is appropriate to bear in mind the words of Kennedy J in R v Jones (1999) 108 A Crim R 50 at 52:
“The production of child pornography for dissemination involves the exploration 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.”

[21] As to the appellant’s personal circumstances, a psychiatrist reported that the appellant’s “early life was disturbed to the point of being quite grotesque”. It is unnecessary to canvass the details.

[22] In 1993 the appellant made his way to the Northern Territory and eventually became employed in the Public Service. Over the years he has experienced unhappy relationships and in 1999 separated from a violent and abusive relationship with an older, alcoholic man. Following the end of that relationship, the appellant continued his usual pattern of marginalised contact with the gay community. The appellant has had no heterosexual experience and almost no experience with any younger person. He is an extremely isolated person.

[23] The psychiatrist concluded that the appellant has “quite a severe psychiatric disturbance”. The appellant shows a moderately severe depressive condition in the context of a severe, life long anxiety state accompanied by panic attacks. In the opinion of the psychiatrist the appellant displays some paranoid ideas and obsessionality and possesses a quite severely disturbed personality in a passive-withdrawn sense. The appellant experiences high levels of anxiety, guilty, shame and self-consciousness.

[24] The appellant told the psychiatrist that he started obtaining pornographic images over the internet in about 2000. Through bulletin boards he made contact with a person in Darwin who gave him a CD of explicit child pornography. He found more sites and downloaded further material which he knew to be illegal. The appellant was quite emphatic that he is not sexually attracted to children or adolescents and has never had contact with them. He was emphatic that he did not view the material for sexual purposes. The psychiatrist reported:

“When asked his motivation, he was unable to give an explanation: ‘Something in me said to do it but I don‘t know why. I’d look at them and didn’t do anything. It wasn’t for sex. I can’t work out why.’”

[25] The psychiatrist likened the appellant’s conduct to traumatised people returning to the scenes of accidents and engaging in activities which give them a sense of control over incidents which previously troubled them. As an example, the psychiatrist referred to soldiers visiting scenes of battles notwithstanding that the journeys are intensely distressing.

[26] In terms of any causal link between the appellant’s psychiatric state and the offending, the psychiatrist reported as follows:
“This man has been psychiatrically ill for many years and is typical of the chronically disturbed people who are too frightened to contact psychiatric services for assistance. I am satisfied that his mental illness has contributed substantially to his offending by preventing him making the sorts of relationships that would lead him away from his isolated lifestyle. I have no evidence to suspect that his offending was associated with anything more ominous than an intensely private voyeurism, that it probably was non-sexual and that, from his recent experiences alone, the risk of re-offending is absolutely minimal. With standard treatment, he should be able to integrate himself satisfactorily in the larger homosexual community and lead a much more satisfying life. With proper psychiatric treatment (and I most definitely do not mean non-specific ‘psychological counselling’), the risks of further offending could be minimised, if not eradicated entirely. At this stage, there is no reason to believe he is likely to progress to physical contact with juveniles.” (my emphasis)

[27] In the context of the appellant’s rehabilitation and the likelihood of re-offending, it is appropriate to take into account that prior to becoming involved with downloading images in about the year 2000, the appellant had not been in trouble with the law. At the time of sentence in March 2005 he was aged 47 years. Significantly, prior to police attending at his premises in October 2003, the appellant had recognised the need to change his ways and had deleted the images from his hard drive. However, he did not take the next step by destroying the CDs. They were placed underneath other items and had not been viewed for a lengthy period.

[28] Notwithstanding the compelling personal circumstances to which I have referred, I have reached the view that general deterrence remains a significant factor in the exercise of the sentencing discretion. The community is rightly alarmed about this type of offending and courts must impose penalties that properly reflect both the gravity of the offending and the need to deter others who are minded to offend in a like manner. In all the circumstances, having made allowance for the plea of guilty, on count 2 I impose a sentence of 12 months imprisonment.

[29] On each of counts 3 and 4, having made allowance for the pleas of guilty, I impose a sentence of four months imprisonment to be served concurrently with the sentence of 12 months imposed with respect to count 2.

[30] I turn to the difficult question as to how much of the total period of 12 months the appellant should be required to serve. Prior to being granted bail pending the appeal, the appellant served 35 days of the sentence.

[31] In all the circumstances, and particularly having regard to the appellant’s psychiatric condition, if the appellant had not already served part of the sentence I would have required that he serve three months. As the appellant has already served 35 days, I direct that the sentence be suspended after the appellant has served a further period of one month and two weeks.

[32] The suspension of the sentence will be on condition that the appellant be under the supervision of the Director of Correctional Services and obey the directions of the Director or a probation officer as to his residence, reporting, employment, counselling and psychiatric treatment. The operational period of the suspension for the purposes of the Sentencing Act will be 18 months from the date of the appellant’s release having served one month and two weeks of the sentence.
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