R v Plunkett[2006] QCA 182

THE CHIEF JUSTICE:  The applicant was on the 19th of May 2006 sentenced to 18 months' imprisonment suspended after three months for an operational period of 18 months. 

The offence to which he had pleaded guilty on an ex officio indictment was that on the 6th of December 2005 he knowingly possessed child exploitation material.  Section 228D of the Criminal Code which commenced on the 4th of April 2005 provides for that offence and a maximum penalty of five years' imprisonment.

The previously relevant offence was established by section 26(3) of the Classification of Computer Games and Images Act 1995.  Its maximum of two years' imprisonment had been criticised in a number of cases as being inadequate.

The Court of Appeal referred to the new provision in Finch [2006] QCA 60, noting the prospect of more substantial penalties.  In Reid, (2000) QCA 218 the Court had identified the evil addressed by such provisions as being a feeding of the market for the sexual exploitation, corruption and moral degradation of children.

Mr Wilson, who appeared for the applicant, referred us to Cook [2004] QCA 469, an Attorney's appeal in respect of penalties imposed for broadly similar offending but under Commonwealth and different State legislation.  It is relevant to note in relation to that case also that the ultimate penalty was imposed on an Attorney's appeal, the disposition of which is characterised by moderation.

This applicant downloaded from the Internet as many as 16,865 images of female children under 16 years of age, some as young as 10, in various states of undress down to provocative naked poses.  He did so over a substantial period of time.  None of the images, it may be said, included adults or other sexual acts.  With some deliberation the applicant had organised the images into labelled directories and folders in respect of particular children.  It seems a large number of children were depicted and the applicant thereby placed the images into what is termed lasting form.

He did not have to pay to download the material and he did not forward it on to others.  When asked by the investigating police officers he assigned curiosity as his reason for accessing and retaining the material.  He could not access a lot of it because it was contained on a broken hard drive.

The applicant cooperated fully with the investigating police.  He is a single man aged 38 years at the time of the offence and with no prior criminal history.

Family members and others are aware of the matter and have provided supportive testimonials describing him as an otherwise good person.  He has undertaken psychological counselling which is continuing.

The sentencing judge, who gave comprehensive reasons, having reserved her decision for a few days, identified general deterrence as an important feature which, notwithstanding the aspects favouring moderation to which I have just referred, warranted her ordering actual imprisonment.  The Crown prosecutor had sought actual imprisonment.  During submissions the judge had raised the possibility of subjecting the applicant to an intensive correction order. 

In ultimately ordering actual imprisonment the judge was obviously strongly influenced by the signal sent by the Legislature in providing for the maximum of five years' imprisonment introduced prior to the commission of this offence by section 228D of the Criminal Code.  Her Honour was also substantially influenced by the sheer volume of the material involved.

Mr Wilson referred to her Honour's following statement when sentencing the applicant:

"You have sought out, as it were, to address your offending behaviour by partaking in counselling and sometimes the factors as contained in section 9(6) of the Penalties and Sentences Act must be balanced together, that is the need for deterrence as well as denunciation must be balanced against the need to address and look at the rehabilitative steps that you have taken.  That is a fine balancing act which unfortunately does not come down on your side today.  The reason I consider that actual custody must be served by you is because of the fact that the Legislature has seen fit to have this offence deemed as a crime with a penalty that has been increased nearly two-fold in nature under the previous legislation which dealt with this similar type of possession of material."

Her Honour's reference to section 9(6) was wrong in view of the decision of the Court of Appeal in Finch, where Williams JA said at paragraph 20:

"I would conclude that in the absence of specific statutory provision section 9(5) of the Penalties and Sentences Act 1992 does not apply to an offence under section 26(3) of the Act."

By parity of reasoning the same position obtains under the new provision introduced into the Criminal Code, with the consequence that subsection (2)(a) applies, that is, in sentencing an offender a Court must have regard to principles that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable.

Her Honour's reference to section 9(6) was incorrect because it relates to the position where subsection (5) applies and subsection (5) says that the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for any offence of a sexual nature committed in relation to a child under 16 years.

Her Honour's reference to subsection (5) is elliptical, for example, her use of the term "sometimes", and the reference to the provision is followed by her reference to the three primary objectives of sentencing, that is securing deterrence, registering denunciation and recognising the interests of rehabilitation.  There is absolutely nothing wrong with that, of course.  It is the reference to section 9(6) itself which was inaccurate.

It does, however, seem to me that her Honour's reference to that subsection was because it provided a convenient tabulation of considerations which will, in any event, be relevant.

I am not satisfied that the particular reference to section 9(6) has impacted upon the sentencing process in any significant way.

Mr Wilson essentially submitted that a sentence requiring actual incarceration was, in all of the circumstances of this case, manifestly excessive such that a sentence of that character lay outside her Honour's sentencing discretion.  I do not accept that submission.  I consider the judge was entitled, having regard to the legislative amendment, the sheer volume of material involved, and bearing in mind that the applicant was not a youthful offender, to order actual imprisonment notwithstanding the features which I have mentioned tending the other way.

I would refuse the application.

WILLIAMS JA:  In R v Cook Ex Parte Attorney-General Queensland, R v Cook Ex Parte Commonwealth DPP [2004] QCA 469, I said:

"The production and distribution of pornographic material depends upon there being a market for it, that is persons wishing to possess the product for their own gratification."

I then went on to quote from the reasoning of Kennedy J in R v Jones [1999] 108 Australian Criminal Reports 50, but again I think it is worth referring to what his Honour there said:

"The production of child pornography for dissemination involves the exploitation 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.  In my opinion a sentence of immediate imprisonment was called for."

To my mind, those observations are extremely relevant here where the applicant pleaded guilty to possessing 16,865 individual images of female children under the age of 16, many of whom were as young as 10 years of age.

It also appears that there were a significant number of young girls who were repeatedly photographed and whose images then were obtained from the Internet.

The sentencing judge was referred to the recent decision of this Court in R v Finch; Ex Parte Attorney-General [2006] QCA 60, wherein it was pointed out that subsection (5) of section 9 of the Penalties and Sentences Act does not apply to this  offence. 

In consequence, a sentencing judge must have regard to the principle that a sentence of imprisonment should only be imposed as a last resort.

Having regard to the passage from her Honour's sentencing remarks quoted by the Chief Justice, I am by no means convinced that the sentencing judge disregarded the principle of sentencing found in section 2(a).  She clearly agonised over whether or not a sentence of actual custody was called for in this case.  She did specifically allude to the matters referred to in subsection (6) of section 9, but they are matters which ordinarily would be considered in any event by a judge sentencing for an offence of this type.

In Finch it was also noted that the legislation had been changed and a significantly higher maximum penalty was imposed for the new offence which was inserted into the Criminal Code and which is the offence to which this applicant has pleaded guilty.

In all the circumstances a sentence requiring the serving of some actual time in custody was clearly within range. 

I am not persuaded that there was an error in principle by the learned sentencing judge such as would call for this Court to exercise the sentencing discretion afresh.  But in any event, if I was required to exercise the discretion afresh, in my view, a sentence requiring the serving of some actual time in custody would be called for.

I agree with the order proposed by the Chief Justice.

HOLMES JA:  The minute analysis of sentencing reasons is not a desirable or edifying process, but unfortunately sometimes it must be undertaken.  In this case I reach a different conclusion from the Chief Justice and Williams JA as to the commission of error by the sentencing judge.

Her Honour's reference to section 9(6) does, I think, create the strong likelihood that she proceeded on the basis of a misapprehension as to the application of section 9(5).  As the Chief Justice has explained, an application of section 9(5) in this case would be erroneous, given what was said in Finch, but it also, I think, implies that her Honour did not appreciate the need to have regard to the principles set out in section 9(2)(a) of the Act.

That was important in this case because it was, as her Honour observed, a fine balancing exercise.  It was a circumstance in which the applicant had no previous convictions and any sentence to be imposed was going to be short.  If her Honour had not referred to 9(6) I would not have considered it significant that there was no express reference to 9(2)(a); but the fact that 9(6) does emerge in her reasons suggests to me that she did not apply the principles in 9(2)(a).

Apart from that, I should say that her Honour's reasoning in arriving at the sentence seems entirely appropriate.  The difficulty is, as I see it, that she started from a wrong premise.  That error means that a fresh exercise of discretion is required.  Were I to exercise my discretion afresh in this case I would impose a sentence of 18 months fully suspended, having regard to the principles expressed in 9(2)(a) that a sentence of imprisonment should be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable.

In this case there was cooperation; the sentence proceeded on an ex officio indictment; the applicant had no previous convictions; there was no commercial aspect to this - he had not bought or sold, nor reproduced or passed on for that matter, the images in question; and they did not depict actual sexual activity, which seems to me of at least some significance.

For those reasons, as I say, I would have imposed a sentence of 18 months fully suspended.

THE CHIEF JUSTICE:  The application is refused.