The Queen v Hancock [2011] NTCCA 14

 

PARTIES:                                         THE QUEEN

 

                                                         v

 

                                                         VERNON HANCOCK

 

TITLE OF COURT:                           COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                               CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING APPELLATE JURISDICTION

 

FILE NO:                                          NTCCA 8 of 2001

 

DELIVERED:                                   18 November 2011

 

HEARING DATES:                           2 November 2011

 

JUDGMENT OF:                              RILEY CJ, MILDREN AND SOUTHWOOD JJ

 

APPEAL FROM:                               BARR J

 

CATCHWORDS:

 

CRIMINAL LAW – Sentencing guidelines – sexual offences – possession of child abuse material – using carriage service to transmit child abuse material and child pornography – crown appeal against sentence – whether sentences manifestly inadequate – relevance of general deterrence in sentencing process – relevance of previous good character – appeal allowed in part

 

Crimes Act 1914 (Cth) s 20(1)(b)

 

Criminal Code Act 1995 (Cth) ss 474.19(1)(a)(ii), 474.19(1)(a)(iii), 474.22(1)(a)(ii)

 

Criminal Code (NT) s 125B(1)

Sentencing Act (NT) ss 5 (2)(e), 6, 40 (1), 40 (6)

 

Bretherton v Moore [2006] NTSC 44; Mouscas v R [2008] NSWCCA 181; R v Booth [2009] NSWCCA 89; R v Jones (1999) 108 A Crim R 50; Ryan v The Queen (2001) 206 CLR 267; Walker v The Queen (2008) NTCCA 7; followed.

 

Buddle v The Queen [2011] TASCCA 11; R v Oliver & Ors [2003] 2 Cr. App. R (S) 15; R v Stroempl (1995) 105 CCC (3d) 187; Romeyko v Samuels (1972) 2 SASR 546; State of Tasmania v Cooper (sentencing remarks) Tennant J 17/5/2011; referred to.

 

 

REPRESENTATION:

 

Counsel:

    Appellant:                                     M. McColm

    Respondent:                                  S. Cox QC

 

Solicitors:

    Appellant:                                     Director of Public Prosecutions

    Respondent:                                  Northern Territory Legal Aid Commission

 

Judgment category classification:    B

Number of pages:                             23


IN THE COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

NTCCA 8 of 2011

 

The Queen v Hancock [2011] NTCCA 14

No. NTCCA 8 of 2001

 

 

                                                     BETWEEN:

 

                                                     THE QUEEN

                                                         Appellant

 

                                                     AND:

 

                                                     VERNON HANCOCK

                                                         Respondent

 

CORAM:     RILEY CJ, MILDREN AND SOUTHWOOD JJ

 

REASONS FOR JUDGMENT

 

(Delivered 18 November 2011)

 

RILEY CJ:

[1]       I agree with the judgment of Mildren J and the orders he proposes.

MILDREN J:

[2]       This is an appeal brought by the Crown against inadequacy of sentence, that being the sole ground of appeal.

[3]       The respondent pleaded guilty to one count of possession of child abuse material, contrary to Section 125B (1) of the Criminal Code (NT) (count one); two counts of using a carriage service to cause child pornography material to be transmitted to himself, contrary to Section 474.19 (1) (a) (ii) of the Criminal Code (Cth) (counts two and four); one count of using a carriage service to cause child abuse material to be transmitted to himself contrary to Section 474.22 (1) (a) (ii) Criminal Code (Cth) (count three); two counts of producing child abuse material contrary to Section 125B (1) of the Criminal Code (NT) (counts five and six) and one count of using a carriage service to make available child pornography material contrary to Section 474.19 (1) (a) (iii) of the Criminal Code (Cth) (count seven).

[4]       The sentences imposed by the learned sentencing Judge were as follows:

(1)     Count one – imprisonment for two years commencing 20 May 2011;

(2)     Count five – four months imprisonment cumulative upon count one;

(3)     Count six – four months imprisonment cumulative upon count one but concurrent with count five;

(4)     Counts two and four – six months imprisonment commencing 20 May 2011;

(5)     Count three – six months imprisonment commencing 20 May 2011; and

(6)     Count seven – nine months imprisonment commencing 20 May 2011.

[5]       In respect of the Territory offences there was an effective head sentence of two years and four months.  The sentence was backdated and deemed to have commenced on 20 May 2011.  Pursuant to Section 40 (1) of the Sentencing Act (NT), his Honour directed that those sentences be suspended after six months of the total head sentence of two years and four months had been served, upon conditions.  In addition, an operational period for the purposes of Section 40 (6) of the Sentencing Act (NT) of two years was fixed.

[6]       In respect of Commonwealth offences the four sentences were made concurrent with each other.  Pursuant to Section 20 (1) (b) of the Crimes Act 1914 (Cth) his Honour directed that the respondent be released after he served six months imprisonment in respect of those offences upon giving security without sureties by his own recognizance in the sum of $1,000.00 that he would be of good behaviour for a period of two years.

[7]       So far as the conditions of the suspended sentence imposed under the Sentencing Act (NT) are concerned, the conditions included supervision by a probation officer, the requirement to participate in assessment, counselling and/or treatment as directed, the requirement to register with his probation or parole officer all computers, laptops, mobile phones or other devices with internet capability owned or used by him during the period of the order, and if requested, to immediately deliver those items for forensic examination by his probation or parole officer.  Further, unless given specific permission by his probation or parole officer, he is not to own or use any computer, laptop, mobile phone or other device with internet capability unless it has been registered with his probation officer.  There was also a condition that police or a probation or parole officer may enter any premises at which he resided at any time to search and seize any computer, laptop, mobile phone or other devices with internet capability for the purposes of forensic examination.

[8]       The offences followed the execution by police of a search warrant of the respondent’s home in Alice Springs on 8 January 2010, where a computer and external data storage devices were seized, which upon subsequent examination were found to contain a large amount of child abuse material. 

[9]       Count one on the indictment was the offence of possession of child abuse material.  The images and videos were found on the external hard drive.  In terms of the Oliver Scale, this material was broken down as follows:  

Level

Description

Typology

Images

Movies

Stories

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.

121,403

416

7

2

Sexual activity between children or masturbation of self by child

Explicit sexual activity not involving an adult

17,753

2,058

83

3

Non-penetrative sexual activity between adults and children

Sexual assault by adult(s) or child(ren)

6,344

274

15

4

Penetrative sexual activity between child(ren) and adult(s)

Sexual intercourse by adult on child

4,540

802

8

5

Torture, cruelty or abuse

Sexual images involving torture, etc

788

249

72

 

 

Total

150,828

3,799

185

 

[10]     The categories one to five identified in the table are based upon the five levels of offending in ascending seriousness identified in the judgment of the Court of Appeal in R v Oliver & Ors[1].  There is a difference in the category five which is referred to as torture, cruelty or abuse in the description given in the table.  It is described in the Oliver Scale as sadism or bestiality.  Undoubtedly torture, cruelty or abuse is properly categorised as category five.  It is not necessary to further describe the nature of the images in the various categories.

[11]     So far as possession is concerned the Court of Appeal said[2]:

“The court agreed that the custody threshold would usually be passed where any of the material has been shown or distributed to others, or in a case of possession, where there was a large amount of material at level 2, or a small amount at level three or above.  A custodial sentence of up to six months would generally be appropriate in a case where (a) the offender was in possession of a large amount of material at level 2 or a small amount at level 3; or (b) the offender had shown, distributed or exchanged indecent material at level 1 or 2 on a limited scale, without financial gain.  A custodial sentence of between six and 12 months would generally be appropriate for (a) showing or distributing a large number of images at level 2 or 3; or (b) possessing a small number of images at level 4 or 5.

A custodial sentence between 12 months and three years would generally be appropriate for (a) possessing a large quantity of material at levels 4 or 5, even if there was no showing or distribution of it to others; (b) showing or distributing a large number of images at level 3; or (c) producing or trading in material at levels 1, 2 or 3.  Sentences longer than three years should be reserved for cases where (a) images at level 4 or 5 had been shown or distributed; or (b) the offender was actively involved in the production of the images at levels 4 and 5, especially where that involvement included a breach of trust, and whether or not there was an element of commercial gain; or (c) the offender had commissioned or encouraged the production of such images.  An offender whose conduct merited more than three years would merit a higher sentence if his conduct was within more than one of the categories (a), (b) and (c) than one where the conduct was within the only one such category.  Sentences approaching the 10 year maximum would be appropriate in a very serious cases where the defendant had a previous conviction either for dealing in child pornography of for abusing children sexually or with violence.  Previous such convictions in less serious cases might result in the custody threshold being passed and would be likely to give rise to a higher sentence where the custody threshold had been passed. 

[12]     The levels of sentences indicated by the Court of Appeal were considered appropriate for adult offenders after a contested trial and to the extent that the Court had indicated, without previous convictions.

[13]     The Court then discussed some factors which were capable of aggravating the seriousness of the particular offence.  Relevant to a possession charge was whether or not there were a large number of images.  Obviously the larger the number the more serious the offending particularly if there are a large number of images in the higher categories.  On the facts of this case there were a large number of images in all categories but especially in categories three, four and five. 

[14]     Another aggravating feature identified in R v Oliver & Ors[3] is

...“the way in which a collection of images was organised on a computer might indicate a more or less sophisticated approach on a part of the offender to trading, or a higher level of personal interest in the material.  An offence will be less serious if the images had been viewed but not stored”.

[15]     On the facts of this case, count one is limited to possession.  Section 125B (1) of the Criminal Code provides as follows:

“A person who possesses, distributes, produces, sells or offers or advertises for distribution or sale child abuse material is guilty of a crime”.

[16]     In my opinion Section 125B (1) describes a number of different offences. The question of whether or not a statutory provision creates one or several offences was considered by the Full Court of the Supreme Court of South Australia in Romeyko v Samuels[4].  Bray CJ with whom the other members of the Court agreed, said[5]:

“The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics.  In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics”.

[17]     The consequences of this are, that the maximum penalty of ten years applies to the offence of possession as it also does to each of the other offences as set out in Section 125B (1).  On a charge of possession, whether or not the offender also distributed, produced, sold, offered or advertised for distribution or sale, the same material can only be considered if there is a specific charge alleging other specific offences.  Nevertheless, the purpose of collection is an important factor.  If the purpose of the collection is purely for the offender’s own use, that is less serious than in the case of possession with a purpose of sale or dissemination to others, or an additional such purpose.

[18]     On the facts of this case, the learned sentencing judge accepted the evidence of one of the investigating police officers that the images and videos stored on the hard drive were meticulously classified into specific categories using the offender’s own individual method of file organisation.

[19]     There was evidence that the purpose of the collection was also to distribute to others, although the evidence suggests that distribution played a relatively minor role.  That is a separate charge dealing with distribution (count seven) to which I will come.

[20]     Other features of collection were that the vast majority of the images related to male children and only a small number of images particularly in categories four and five who were female children.  I do not think that the sex of the children is of any significance but the age of the children is important.  In this particular case there were children of varying ages between twelve months and sixteen years of age.  There was no information provided as to how many of the images depicted related to children of any particular age group save to say there were at least some images of extremely young children.

[21]     In a possession case, the number of images, whilst significant, lies more in the number of different children depicted: Minehan v R[6].  In this case there was evidence that some of the images were duplicates.  There was no evidence as to the number of different children who had been detected.  The material therefore does not enable one to make an estimate of how many different children were depicted, except to say that it was not suggested that they were mainly of one child or even a small number of children.  Indeed the effort of gathering the material for collection would suggest strongly that there were a large number of different children depicted.

[22]     On the other hand there are some other features of the possession count accepted by the learned sentencing judge which diminish the objective gravity of the offence.  These include the fact that there was no payment or other material benefit made, provided or received for the acquisition of the material.  The learned sentencing judge found that the respondent’s demand for the material was not such as to create a financial incentive for others to exploit child victims.  This was because the material which had been collected was freely available on the internet and the method adopted by the respondent in arranging for the collection to be downloaded from the internet.  The learned sentencing judge also accepted that the collection was a private one maintained by the respondent in secret and that the respondent had no intention to use the collection in any way that the respondent thought would put the children at risk.  The evidence was that the material had been stored in a number of data storage devices which included an external hard drive.  The external hard drive was said to have revealed 150,828 images, 3,799 video files and 185 stories, which corresponds with all of the material relating to count one in the indictment.  The respondent’s computer and data storage devices were found in a small office off a garage in the home in which the respondent and his family were living.  He used the office for a cleaning business of which he was the proprietor at the time.  He had a wife and two children who were at the time of sentencing seventeen and eighteen years of age.  None of his family members were aware of the collection.  The risk of the material being seen or acquired by a vulnerable person, particularly children, was therefore very low, and to the extent that some of the material was made available to others which is the subject of count seven to which I will come, there was less risk of any of the material coming into the hands of anybody else.

[23]     So far as count two is concerned, the respondent established three online internet email accounts using a pseudonym.  He used a Google messenger program and established contact with a number of users of the program to exchange child pornographic material, and child abuse material and had written conversations with other users which constituted child pornographic material and child abuse material.  It was alleged that during the course of the carriage service he had twenty six written conversations with other users of the Google messenger program.  Identified were one category three written conversations and twenty five category four written conversation constituting child pornographic material.  This involved the respondent discussing images as to what he and others involved in the chat would like to do in “the most graphic and depraved way”.  His Honour commented that “most people in the community if they read those conversations would find them depraved in the extreme”.

[24]     Count three was a similar count to count two but on this occasion the respondent used a carriage service to have written conversations with other users of the Google messenger program.  Identified were seven category five written conversations constituting child abuse material.  The actual number of persons involved in these chats seems to be in the order of about twenty persons.  Some chats involved more than one person at a time.  The evidence was that with the exception of one person all of the others were physically located overseas. 

[25]     The essence of count two was that he used a carriage service to cause child pornography material to be transmitted to himself.  As to count three the essence of that charge was that he used a carriage service to cause child abuse material to be transmitted to himself.  There is a significant difference between the definition in child pornography material and child abuse material.  The definition of child pornography material is rather long and I do not intend to set it out.  It is contained in Section 473.1 of the Criminal Code 1995 (Cth).  Essentially it involves depicting a person or a representation of a person who is under the age of eighteen and who is engaged, or appears to be engaged, in some kind of sexual activity, or which is descriptive of the sexual organs or anal region of that person; whereas child abuse material requires proof that the material depicts a person or representation of a person who is under, or appears to be under the age of eighteen, and is or appears to be a victim of torture, cruelty or physical abuse.  Both offences carry the same maximum penalty.  In this case, both of these offences relate not only to written material received by the respondent via the chat rooms, but also there was a limited exchange of photographs as well.  The facts do not identify the category or number of photographs exchanged.

[26]     Count four relates to the use of a carriage service for downloading child pornographic material between 17 June 2009 and 6 January 2010.  During that period the respondent downloaded a total of 1,868 images of child pornographic material during 54 separate occasions whilst using the Google messenger program.  Presumably these are some of the same images which form part of the possession charge.  No evidence was given as to the categories in which that material was classified.

[27]     Count five relates to the production of child abuse material in the form of a twenty three chapter document entitled ‘My Boys’ which the respondent wrote using a pseudonym.  The document depicts an explicit sexual relationship between a child and an adult character.  It depicts sexual acts between the adult and the child including penetration of the child’s anus and fellatio by the child of the adult.  Every page of the document is illustrated with images of child pornographic and abuse material, depicting all categories of this material.  The document was categorised as category five child abuse material due to a chapter which explicitly detailed the violent rape, torture and attempted murder of a teenage boy and another chapter which depicted the kidnapping, prostitution and murder of boys between the ages of six and sixteen years.

[28]     This particular offence relates merely to the production of the document as does the next count, count six, which relates to a three chapter document entitled ‘Silent Rescue’ which the respondent wrote under the same pseudonym.  This document depicts explicit sexual activity between adult males and male children.  It depicts sexual acts such as fellatio performed on an adult male by a male child and the act of anal sexual intercourse on a virgin male child.  Each page of the document is illustrated with images of child pornographic and child abuse material.  This document was also rated as category five child abuse material because of the second chapter in which there is detail of anal sexual intercourse perpetrated by an adult male on a virgin male child including the causation of pain to that child by the act.

[29]     Count seven is the charge of using a carriage service to make available child abuse material and relates to the conduct of the respondent using a carriage service to provide a link for other users to download his book ‘My Boys’ whilst using the Google messenger program.

[30]     During this period he used the carriage service on 16 separate occasions to 14 different individuals.

[31]     So far as this offence is concerned, the relevant factors are the limited number of persons to whom the material was sent, the possibility that any of those persons might on-forward the material to others and the fact that the material was in the category five list.  It is also of significance that the recipients were obviously like minded persons to the respondent.

Mitigating factors

[32]     The learned sentencing judge noted that the respondent had pleaded guilty at the first opportunity and that he should be given full credit for his pleas of guilty not only to the extent that this indicated remorse, which he found,  but also for their utilitarian value in facilitating the course of justice.  His Honour indicated a discount of twenty five per cent on count one and in counts five and six he indicated a discount of one third.  His Honour noted there was no evidence of grooming and no evidence of commercial dealing from which he benefited or were to benefit financially but that nevertheless the respondent did swap or trade or distribute images from his collection with like minded persons over the internet in chat room sessions and in such sessions he uploaded child abuse material from his collection which then became the subject of online conversations, typed or texted conversations, on specific subjects concerning the children depicted in the images. 

[33]     As to the respondent’s personal circumstances his Honour referred to the respondent’s good work history and service in the Royal Australian Navy as a submariner for twenty one years.  Upon his discharge in October 1996 the respondent held the rank of Chief Petty Officer in the Underwater Weapons Submariner Arm of the Royal Australian Navy and his Honour referred to a very positive service record which noted that he was “a credit not only to himself but that of his profession and the Royal Australian Navy”.  His Honour noted that the respondent had the continued support of his wife and children.

[34]     His Honour noted that after his separation from the navy the respondent purchased a cleaning and pest control business which enabled him to be self employed.  That business “suffered badly” when details of the respondent’s offending became known in Alice Springs and that the period spent in custody effectively put a stop to the business.

[35]     As to the text “Silent Rescue”, His Honour noted that “this writing rationalises paedophilia as a normal sexual preference and in that way it could well create or reinforce cognitive distortions in the minds of those who read it, possibly enabling those persons to justify and rationalise their own abusive behaviour”.  Nevertheless his Honour said that “I appreciate that what you have written may well be no more than sexual fantasy writing and not based on personal experience”. 

[36]     His Honour noted that the respondent had been accessing the services of a psychologist Mr Frost, for twelve months prior to sentencing and he accepted the opinion of Mr Frost that the respondent was rehabilitated and posed a low risk of reoffending.

[37]     Another relevant matter was the fact that the respondent had no relevant criminal history.  His Honour referred to a number of character references written on the respondent’s behalf.  His Honour said:

“ I note that there are a number of risk factors in terms of the likelihood of your reoffending, but there are a number of protective factors as well, including minimal criminal history, a history of pro social behaviour in most aspects in your life and the support of family and friends.  Some of those friends have provided character references on your behalf with full knowledge of the charges you have pleaded guilty to and, as mentioned, your family has stood by your side and attended court with you”.

There are a number of authorities to the effect that less weight is given to previous good character for this type of offending, because the offenders are often, if not usually, older men with no relevant prior convictions[7].  As a generality, that may be so, but it is only a generality.  In Walker v The Queen[8] this Court said that a person of otherwise good character is entitled to have it taken into account, citing Ryan v The Queen[9], and Sentencing Act (NT) s 5 (2)(e) and s 6.  The weight to be given to prior good character will vary according to the circumstances of the case including the objective seriousness of the offending.  It may also be an important factor in considering the extent to which special deterrence is a relevant factor, and the prospects of rehabilitation of the offender, which in turn may become relevant to the fixing of a non-parole period or a suspended or partially suspended sentence; or in minor cases, some lesser disposition.  Obviously, consistently with what was said in R v Oliver about the relevance of previous convictions for the same kind of offending, a person of bad character or who has prior convictions of that kind will expect to receive a higher sentence, not to punish him again for his past offending, but because it is relevant to show his moral culpability for his present offending, the

 

extent to which he remains a danger to the public, and it has obvious relevance to his prospects of rehabilitation.

[38]     So far as the respondent’s future prospects are concerned his Honour noted that he regarded the respondent’s prospects for rehabilitation as good and that there was “a need to restore you to your family environment and to the community”.  Accordingly his Honour directed that the sentences be suspended after he had served six months on conditions as noted above. 

[39]     The way counsel for the appellant argued the appeal was that the individual sentences were manifestly inadequate.  It was not suggested that his Honour erred in making any of his findings of fact.  No argument was presented that his Honour was wrong in the way in which he accumulated the sentences or made most of the sentences concurrent.

[40]     Counsel for the respondent, Ms Cox QC, submitted that there is no tariff for this kind of offending, and that the sentences were well within range when proper weight is given to all the matters in mitigations.  A schedule of sentences imposed by judges of this Court was produced.  Having considered that schedule I did not find it particularly helpful or illuminating, as the facts and circumstances of each case differed widely.  Ms Cox QC referred also to two Tasmanian decisions, Buddle v The Queen[10] and State of Tasmania v Cooper[11]So far as Buddle v The Queen is concerned, the level

of offending in that case concerned much fewer images, only a very small number of images in category three, none in the higher categories, and I found it to be unhelpful.  State of Tasmania v Cooper involved two million child exploitation images and ten thousand five hundred multi-media files all containing child exploitation material.  He was charged with one count of accessing and one count of possession of child exploitation material.  He paid “thousands of dollars” for some of the images which he collected over a period of four and a half years.  The images were “across the range” of the categories referred to in R v Oliver.  Tennent J said that “while the number of images which you down loaded was abnormally high, and the number of images is a factor to be considered in sentencing, I will not impose a sentence which suggests that factor is the paramount one leading to a very lengthy sentence”.  The defendant had no relevant prior matters and pleaded guilty at an early time.  An aggregate sentence of two years was imposed with a non-parole period of eighteen months.  The sentencing remarks are quite brief.  The only point of this case seems to be that Tennent J was of the opinion that huge collections do not necessarily produce the result that the size of the collection is a paramount factor leading to a very lengthy sentence.  This may have been because the Crown in that case provided no information as to the size of the collection in each category, and the details of what was provided was a sample only of “some of the material found”.

[41]     I do not consider any of the sentences imposed for the federal offences or for counts five and six, although lower than what I would have imposed, to be manifestly inadequate, such as to warrant interference by this Court.

[42]     I do, however, think that the sentence imposed in relation to count one is manifestly inadequate.  As the learned sentencing judge noted, one of the most important aspects of sentencing in relation to possession is general deterrence.  The reasons why this is so in possession cases, is:

(1)     Because those who collect photographic child pornography and child abuse material encourage others to produce and create a market for it, with consequent victimisation of the children, the subject of the photographs: R v Jones[12]; R v Booth[13]; Bretherton v Moore[14], Mouscas v R[15].  That is particularly so where the photographs have been paid for, or some other consideration given, such as swapping with another collector which “fuels demand for such material”[16].

(2)     Even if there has been no payment or consideration given, as was said in R v Oliver[17]:

“In that statutory context, before turning to the Panel’s proposals, it is worth pointing out that it is likely that the number of child pornography offences detected and prosecuted is only a small proportion of the real total.  Furthermore, increased access to the Internet has greatly exacerbated the problem in this area by making pornographic images more easily accessible and increasing the likelihood of such material being found accidentally by others who may subsequently become corrupted by it.  This additional risk adds to the culpability of offenders who distribute material of this kind, especially if they post it on publicly accessible areas of the Internet”.

(3)     In cases where a purpose of the collection is to share or swap with others, child pornography can put children at risk because it can be used to rationalise paedophilia as a normal sexual preference; to fuel sexual fantasies; and to groom children by showing it to them in order to promote discussion of sexual matters with a view to encouraging them that such activity is normal[18].  It is for reasons of this kind that written pornographic or child abuse material is also an offence.

(4)     The offending is callous because those who view such images feed upon the abuse and exploitation of children, and when this is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation, abuse and the degradation it causes[19].

(5)     Finally, it has been said that the Courts must do what they can to deter those who produce this kind of material hopefully by reducing demand and ‘go some distance to smother the market for child pornography altogether’[20].  In Walker v The Queen[21], this Court said:

“It may be doubted that the imposition of deterrent sentences in individual cases in the Northern Territory will have any effect on the international market, but the law denunciates this behaviour as it would otherwise encourage people living in this country from exploiting children in the same way and contribute to the growth of the local market”.

That is not to say that this Court should not play whatever role it can as part of the international community to condemn child exploitation wherever it occurs.

[43]     The objective factors in relation to count one, before taking into account mitigating matters would indicate a significant sentence was required.  Taking into account all of the relevant factors except the value of the plea, the starting point of two years and eight months was in my opinion far too low.  I think a more appropriate starting point is in the order of four years.  Allowing for a twenty five per cent discount this would reduce the head sentence to three years.

[44]     So far as the period of suspension is concerned, it was submitted by counsel for the Crown that his Honour should have imposed a non parole period.  I do not think there was any error by the learned sentencing judge in partially suspending the sentence, but again I think that the level of suspension given was far too much and did not adequately address the needs for general deterrence and punishment.  In relation to counts one, five and six I consider an appropriate minimum term required is at least a sentence of twelve months suspended on the same terms and conditions as imposed by the learned sentencing judge. 

 

[45]     I would therefore allow the appeal to the extent of increasing the sentence imposed in respect of count one to three years and ordering that the sentences in relation to counts one, four and five be suspended after the respondent has served twelve months and the sentence in relation to count one to be backdated to commence on 20 May 2011.  I would not interfere with the order making the sentence on count five of four months imprisonment cumulative on count one.

[46]     So far as the re-sentence is concerned, some submissions and material was put before the Court concerning the effect imprisonment has had on the respondent and his family.  It is well established that hardship of a prison sentence to family members are the usual consequences of the imprisonment of a spouse, and that unless the circumstances are truly exceptional, these matters cannot be taken into account[22].  In my opinion, the circumstances of the respondent’s incarceration are not exceptional.

[47]     This will also require any adjustment to the operational period for the purposes of Section 40 (6) of the Sentencing Act (NT), which I would increase from two years to two years and four months.

[48]     I would otherwise dismiss the appeal.

 

 

Orders

I would propose the following orders:

[49]     (1)   The appeal is allowed to the following extent:

(a)     The sentence imposed in relation to count one is set aside.

(b)     In lieu therefore, the respondent is convicted and sentenced to imprisonment for three years.  As the sentence of four months on count five is cumulative upon the sentence on count one this results in an effective total head sentence of three years and four months, backdated to commence on 20 May 2011.

(c)     The order suspending the sentences imposed on counts one, five and six is set aside, and in lieu thereof the sentences on those counts is suspended after having served twelve months of those sentences, on the same terms and conditions as were imposed by the sentencing judge, and an operative period to two years and four months is fixed for the purposes of s 40 (6) of the Sentencing Act (NT).

(2)   The appeal is otherwise dismissed.

SOUTHWOOD J:

[50]     I also agree with the judgment of Mildren J and the orders he proposes.



[1] [2003] 2 Cr. App. R(S) 15

[2] at pp p66-67 (taken from the headnote)

[3] [2003] 2 Cr. App. R (S.) 15 at 67

[4] (1972) 2 SASR 546 at 552

[5] at p552

[6] (2010) 201 A Crim R 243 at 260 para [94]

[7] See for example, R v Oliver [2003] 2 App. R. (S.) 15 at 74, Minehan v R (2010) 201 A Crim R 243 at 261, [96] – [99]

[8] [2008] NTCCA 7 at [32]

[9] (2001) 206 CLR 267

[10] [2011] TASCCA 11

[11] Sentencing remarks of Tennent J, 17/5/2011

[12] (1999) 108 A Crim R 50 at 52 per Kennedy J; at 56 per Wallwork J

[13] [2009] NSWCCA 89 at [43]

[14] [2006] NTSC 44 at [20] per Martin CJ

[15] [2008] NSWCCA 181 at [19]

[16] R v Oliver [2003] 2 Cr. App. R. (S.) 15 at 71 para [11]

[17] [2003] 2 Cr. App. R. (S.) 15 at 70, para [8]

[18] See R v Stroempl (1995) 105 CCC (3d) 187 at 191

[19] R v Booth [2009] NSWCCA 89 at [41] – [42]

[20] R v Stroempl (1995) 105 CCC (3d) 187 at 191

[21] [2008] NTCCA 7 at [34]

[22] R v Nagas (1995) 5 NTLA 45 at 53-54; Mawson v Nayda (1995) 5 NTLR 56