Criminal division – sentencing

11.17.2 Use of the internet to procure sex

In DPP(Cth) v Hizhnikov [2008] VSCA 269 at [23]-[25] & [27] the Court of Appeal (Maxwell P, Nettle & Weinberg JJA) said of the offence of use of the internet to procure sex:

“There is as yet not very much appellate authority regarding sentencing for this Commonwealth offence. There are, however, State analogues. In R v Burdon; ex parte Attorney-General (Qld) (2005) 153 A Crim R 104 at 108-109, the Queensland Court of Appeal said of the equivalent Queensland provision:

‘…people who are considering using the internet … to attempt to make contact with young people with a view to corrupting or sexually exploiting them must now be on notice that such behaviour will be likely to result in a salutary penalty generally involving terms of actual imprisonment, even where indecent physical conduct does not and could not eventuate.’

This passage was cited with approval by de Jersey CJ in R v Hays (2006) 160 A Crim R 45.

Recently, in Western Australia v Collier (2007) 178 A Crim R 310, a Crown appeal against sentence, the Western Australian Court of Appeal had something similar to say regarding the Western Australian equivalent to s 474.26. There Steytler P, who delivered the judgment of the Court, made it clear that offences of this kind were regarded by the legislature as serious. His Honour said that paedophiles were increasingly making use of the internet to access children and groom them for subsequent sexual offending. He regarded an offender’s conduct as being no less morally reprehensible if that person was communicating with someone believed to be a child, although not actually so, than if communicating with a person who was in fact a child. An offence of this kind would ordinarily, though not invariably, result in a term of immediate imprisonment. The fact that an offender was of previous good character did not mean that a term of immediate imprisonment should not be imposed.

Steytler P then summed up reasons why the Crown appeal should be allowed, and the respondent required to serve an actual term of imprisonment. His Honour said at [43]:

‘It seems to me that, even taking into account the matters favourable to the respondent, the sentence imposed was so manifestly inadequate as to demand the intervention of this court, notwithstanding the constraints inherent in a State appeal. This was a very serious example of this kind of offending, for the reasons that I have mentioned. In those circumstances there was, in my respectful opinion, no basis for the imposition of a sentence of suspended imprisonment, whether conditional or otherwise. Anything less than an immediate term of imprisonment does not take sufficient account of the seriousness of the respondent's offending behaviour or of the need to deter him, and others, from committing offences of this kind in the future. It is important to say, as clearly as one can, that adult persons who make use of the internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment. As with offences concerning possession of child pornography … there is a paramount public interest in protecting children from sexual abuse.’

…

As we said in R v Gajjar [2008] VSCA 268, Collier states correctly the principles that govern sentencing of offenders for offences of this nature. There is nothing untoward about the notion that a person who uses the internet in an attempt to procure a child to have sexual contact with him will ordinarily expect to receive a term of immediate imprisonment. This is simply a reflection of the seriousness with which the courts must view such conduct. Deterrence, both general and specific, will be the paramount consideration when sentencing an offender for an offence of this type.”

See also R v Bryan Cooper [2012] VSCA 32 per Neave, Mandie & Harper JJA and the cases cited in the Schedule to that judgment; DPP v Chatterton [2014] VSCA 1.

11.17.3 Possession/production/transmission of child pornography

In R v Fulop [2009] VSCA 296 the Court of Appeal allowed an appeal against a total effective sentence of 4 years imprisonment with a minimum sentence of 3 years on charges of using a carriage service to access child pornography contrary to the Criminal Code (Cth) and possession of child pornography contrary to the Crimes Act 1958 (Vic) and imposed in lieu a total effective sentence of 3 years with a minimum sentence of 2 years. At [20] Buchanan JA (with whom Nettle JA agreed) said:

“The evil at which the provisions contravened by the appellant is aimed is the production of the images by subjecting children and young persons to degrading exploitation. That exploitation exists to serve the demand created by those who gain access to and collect the images. The legislation aims to deter persons such as the appellant and thereby remove the demand which child pornographers supply. The appellant was to be punished not simply for his predilection to the material but rather for his pursuit of it. In this connection, I regard the length of time and the frequency with which the appellant obtained access to the images and the quantity of images which he collected, sorted and stored as the most significant aspects of his offending.”
In R v SLJ (No.2) [2010] VSCA 32 the Court of Appeal fixed a sentence of 10 months imprisonment of which 5 months was suspended for a period of 12 months in relation to an offence of possession of child pornography committed by a 60 year old man with no prior convictions. At [4] the Court of Appeal gratefully adopted the references by the sentencing judge to dicta of-

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  the English Court of Appeal in its guideline judgment in R v Oliver and Ors [2003] 1 Cr App R 28, [11];
  
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  Malcolm CJ in the Western Australian appeal of Assheton v R [2002] WASCA 209 that “The capacity of child pornography to deprave and corrupt individuals is an accepted result of such [possession]”;
  
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  Vincent JA (with whom the other judges of the Court of Appeal agreed) in R v Curtain [2001] VSCA 156, [25] that “the offence is designed to address one aspect of the sexual exploitation of children, namely the distribution in the community of descriptions, pictures, or images of violation”; and
  
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  Callaway JA, speaking for the Court of Appeal in R v Coffey [2003] VSCA 155, [30] (cited with approval by Batt JA in R v Jongsma [2004] VSCA 218, [31]), who emphasised that child pornography involves the corruption and violation of children and creates a market which encourages the further exploitation of children. His Honour added that the maximum penalty for the offence is intended, among other things, “to deter prospective purchasers and collectors of child pornography in the hope that adverse economic consequences will ensue for those who produce it”.
  

In R v Rivo [2012] VSCA 117 the 47 year old applicant had pleaded guilty to a rolled-up charges of causing child pornography material to be transmitted to himself and of engaging in conduct to procure children under the age of 16 to engage in sexual activity outside Australia. The charges related to the procuring by internet of child pornography constituted by live sex shows in the Philippines involving girls as young as 8 years of age. He was sentenced to IMP 7y/5y. The Court of Appeal held that it was not reasonably arguable that the sentence was manifestly excessive and dismissed his application. At [31] Neave & Osborne JJA and King AJA said:

“The young age of the children involved, the fact that both adults and children were involved, the likely psychological consequences to the children and the lack of insight on the applicant's part into the impact on the welfare of the children all bore on aspects of the offending which required a penalty reflecting adequate denunciation and general deterrence of like offending. Again, the ongoing back of insight involved bore on the need for specific deterrence.”
In DPP (Cth) v D’Alessandro [2010] VSCA 60 the 25 year old respondent, who had no prior convictions, had pleaded guilty to six counts of accessing, possessing and transmitting images of child pornography and child abuse. He had been sentenced to a total effective sentence of 2 years imprisonment but was granted immediate release upon him entering into a recognizance release order to be of good behaviour for a period of 3 years. The Court of Appeal, by majority, allowed a Director’s appeal and re-sentenced the respondent to a total effective sentence of 3 years imprisonment and required him to serve 2 years imprisonment before being eligible for release. At [22]-[23] Harper JA, with whom Williams AJA agreed, said:

[22] “When construing and applying Commonwealth legislation, this Court follows principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation. It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one: R v Jones (1999) 108 A Crim R 50, 51 (Kennedy J). Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration: Assheton v The Queen (2002) 132 A Crim R 237, [35]–[36] (Malcolm CJ, Murray and Steytler JJ agreeing). Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it: R v C [2004] QCA 469, [21] (McMurdo P). Fourthly, that those who make up that market cannot escape responsibility for such exploitation: R v Gent [2005] NSWCCA 370, [43] (Johnson J, McClennan CJ at CL and Adams J concurring). Fifthly, that limited weight must be given to an offender’s prior good character: Ibid. [65]. Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty: Ibid. [99]. They include:

(a) the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;

(b) the number of images or items of material possessed by the offender;

(c) whether the possession or importation is for the purpose of sale or further distribution;

(d) whether the offender will profit from the offence.

[23] For reasons which to the ordinary lay mind are very hard to comprehend, there are those who have such lack of empathy that they cannot assimilate a simple truth: that what they see is not merely a titillating picture, but the degradation of human beings too young to avoid the exploitation to which they are being subjected. One must conclude that the respondent himself demonstrated this lack of empathy, given that the sentencing judge described the offending images as ‘certainly ... the worst that I have seen ... because of the level of exploitation of the defenceless that is involved’. And there is indeed something deeply inhuman in treating another human as the mere object by which one’s crudest and most selfish cravings are satisfied. The sentencing judge appreciated this when he added:

‘No matter where it occurs and no matter to whom it occurs, child sexual abuse cannot be tolerated. Australian courts must do their part to eliminate this horrendous activity ...

It was this attitude that resulted in the creation of these offences and has motivated the courts to enforce the attitude to the extent that they can. For this reason, a very significant sentencing factor in this instance is what is known as general deterrence; that is, the desire to point out to the community that accessing or processing or using child pornography in any way is simply beyond the pale. It will not be tolerated.’”
In DPP v Smith [2010] VSCA 215 the Court of Appeal dismissed a Director’s appeal against a wholly suspended 18 months sentence of imprisonment and a community-based order with 150 hours of community work and psychiatric treatment following a plea of guilty to one count of using a carriage service to access child pornography and one count of possession of a high volume of child pornography, the gravity of some of which was at the upper end of the spectrum. The respondent was a 28 year old single man with no prior convictions who had been raised in a ‘strict Christian household with limited information about sexual matters’, living with his parents in a ‘sheltered existence focussing on home life and his computer’. He had an excellent work ethic, he supported his family and had previously led a blameless life putting in and assisting others within the community. Nettle JA (with whom Harper & Hansen JJA agreed) said:

At [23]: “The precepts which apply to the sentencing of offenders for offences of possessing child pornography are tolerably clear.

1) First, the nature and gravity of the offending ordinarily falls to be determined by reference to the four criteria adumbrated by Johnson J in R v Gent [2005] NSWCCA 370 [99] (Johnson, McLelland CJ at CL and Adams J agreeing):

(a) The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted.

(b) The number of images or items possessed.

(c) Whether the material is for the purpose of sale or further distribution.

(d) Whether the offender will profit from the offence.

In the case of child pornography for personal use, the number of children depicted and thereby victims is also regarded as a relevant consideration.

2) Secondly, general deterrence is regarded as the paramount sentencing consideration - because of the public interest in stifling the provision and use of child pornography; and less or limited weight is given to an offender's prior good character because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character. See DPP v D’Allesandro [2010] VSCA 60 [21] (Harper JA), where the cases are considered.

3) Thirdly, a sentence of immediate imprisonment would ordinarily be warranted {see R v Jongsma (2004) 150 A Crim R 386, 395; Hill v The State of Western Australia Unreported, WACA, 1 December 2008, [28] and the cases there cited; R v Booth [2009] NSWCCA 89, [48] (Simpson J); R v Sykes [2009] QCA 267; DPP v Groube [2010] VSCA 150, [24]} but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded: R v Gordon ex parte DPP (C’th) [2009] QCA 209, [43]; R v Sykes [2009] QCA 267, [24].”

At [28]: “I do not overlook that specific deterrence is also an important consideration. In many cases of this kind, it would be enough in itself to demand some time in prison. But I am not convinced that the judge was wrong not to think it so on this occasion. As his Honour observed, the respondent was genuinely remorseful and had genuine prospects of rehabilitation. They included the chance that, with time and appropriate care, he could be restored to a proper sexual orientation. Contrastingly, according to the uncontradicted expert evidence, his low chance of recidivism was likely to be exacerbated by any time in gaol. It seems to me, therefore, that the judge strove to fashion a sentence calculated to maximise the possibility of rehabilitation, and so, in the end, to minimise the risks of re-offending and thus maximise community protection.”

Although concurring, Harper JA did so only after “anxious thought”. At [32] he said:

“Taken by themselves the nature and content of the material found in the respondent's possession, in particular the age and number of the children and the gravity of the sexual activity depicted, indicate a term of immediate imprisonment of more than half the maximum sentence. It must never be forgotten that the children who are the pawns of those who create these images have for no better cause than selfishness and greed been treated as mere chattels. For these wholly unworthy ends lives have been ruined. The criminality involved in creating these images reflects the lowest depths of human depravity. The Courts must be every mindful of that fact, even when dealing with offenders who as is the present respondent merely consumers of the image makers' work.”
See also Legal Services Board v McGrath [2010] VSC 332 per Warren CJ, in particular her Honour’s reference to the observations of Simpson J, McClellard CJ at CL and Howie J concurring, in R v Booth [2009] NSWCCA 89; R v EDM [2010] VSCA 308; DPP v SJ [2012] VSCA 237; R v Gibbs [2012] VSCA 241; Warren v The Queen [2013] VSCA 372; DPP v Guest [2014] VSCA 29; DPP (Cth) v Zarb [2014] VSCA 347.