R v Cruz; ex parte Director of Public Prosecutions (Cth)
[2010] QCA 90
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- R v Cruz; ex parte Director of Public Prosecutions (Cth)[2010] QCA 90
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R v Cruz; ex parte Director of Public Prosecutions (Cth)[2010] QCA 90
R v Cruz; ex parte Director of Public Prosecutions (Cth)[2010] QCA 90
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 3335 of 2009 |
Court of Appeal | |
PROCEEDING: | Sentence Appeal by Cwth DPP |
ORIGINATING COURT: | |
DELIVERED ON: | 23 April 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 April 2010 |
JUDGES: | Holmes, Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | Appeal dismissed |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where respondent pleaded guilty to one count of importing child pornography material – where respondent entered Australia on a three day transit visa en route to employment on commercial shipping – where substantial material located on electronic storage devices – where 25 per cent of the material was produced by the respondent himself – where trial judge took into consideration the respondent’s language difficulties and commensurate inability to fully participate in recreational activities during incarceration – where the respondent had no family support in Australia –where the respondent’s overseas based family was dependent on his income – whether the trial judge attached too much weight to the respondent’s mitigating circumstances – whether sentence proper Customs Act 1901 (Cth), s 16(2)(p), s 233BAB(5) Crimes Act 1914 (Cth), s 16A James v R [2009] NSWCCA 62, considered Mouscas v R [2008] NSWCCA 181, considered R v Cook; ex parte A-G (Qld) [2004] QCA 469, considered R v Ferrer-Esis (1991) 55 A Crim R 231, considered R v Fulop [2009] VSCA 296, considered R v Oliver [2003] 1 Cr App R 28; [2002] EWCA Crim 2766, considered R v Rogers [2009] QCA 10 , considered |
COUNSEL: | G R Rice for the applicant P E Smith for the respondent |
SOLICITORS: | Director of Public Prosecutions (Commonwealth) for the applicant Fisher Dore Lawyers for the respondent |
[1] HOLMES JA: The respondent was convicted on his own plea of guilty, on an ex officio indictment, of one count of importing child pornography material contrary to s 233BAB(5) of the Customs Act 1901 (Cth). He was sentenced to three years imprisonment, to be released after serving 12 months upon giving security by recognizance in the sum of $1,000 to be of good behaviour for three years. (He was taken into custody on 29 April 2009, and has served almost the entire custodial component of the sentence.) The Commonwealth Director of Public Prosecutions appeals that sentence on the ground that it is manifestly inadequate.
The offence
[2] The respondent, a Filipino citizen, worked as a chief engineer on commercial shipping. In April 2009, he arrived at the Brisbane international airport on a three day transit visa, intending to sign on to a merchant vessel at Gladstone. Customs officers searching his baggage found child pornography material on a number of different forms of electronic storage device, including camera memory cards, a laptop and two computer hard drives. Those devices contained thousands of video and still images of boys between the ages of three and 15 years, most between seven and 12 years of age, engaged in different activities ranging from erotic posing to penetrative sexual activity between adults and children and bestiality. There was also a small quantity of images showing girls under the age of 10 engaged in sexual activity with adult males. In total, there were 6,321 still images, of which 111 were in the category of displaying penetrative sexual activity and 94 images involving sadism or bestiality, in what is generally regarded as the worst category of such material. There were 580 videos, of which 116 depicted fellatio and penetrative sex between adult males and boys and 15 showed bondage and sadism.
[3] Some 1500 of the still images and 150 of the videos were made using the respondent’s digital camera; in approximately 41 still images and 77 videos he could be seen touching the genitals of, or masturbating, boys, while in a small number of videos and still images he was shown having fellatio performed on him by boys of around 12 years of age. One of the hard drives contained videos and images, mostly of boys masturbating, which had been made using the respondent’s digital camera. The other hard drive had a small quantity of images and videos made using the camera, but most of its contents seemed to have been obtained from the internet.
Material relied on by the respondent at sentence
[4] The respondent was aged 54 when sentenced, and had no previous convictions. At sentence, his counsel tendered a report from a clinical psychologist able to speak with the respondent in Tagalog. The respondent told her he was present when a friend made some of the video footage. The friend told him the children were not hurt, because this was their usual means of living; they had been “pimped” by their parents. The respondent said also that boys depicted in his videos approached him, and were well-versed in what was required of them. He had convinced himself that he was assisting them by giving them money.
[5] The respondent did not, the psychologist said, appear to have any insight into why his activities constituted exploitation of the children. However, she recorded that after she explained the impact of sexual exploitation, he accepted responsibility, expressed his appreciation that what he had done was wrong and acknowledged that his conduct was deviant. The psychologist noted that the respondent had himself twice been sexually molested, once as a nine year old and again as an 18 year old; although neither she nor the respondent attributed his offending to those events. The psychologist diagnosed the respondent as suffering from a chronic adjustment disorder at the time of the offence, due to the nature of his work which kept him away from his home and family. That condition, she said, led to a “propensity to cognitive distortions”; his behaviour was a form of coping with stress.
[6] Defence counsel also tendered a letter from the respondent addressed to the sentencing judge, expressing remorse and concern for the children involved, and two references from prison chaplains which attested to his Christian belief and practices. One of those references spoke in particular of his remorse and contrition.
The sentencing remarks
[7] The learned sentencing judge observed generally that the production of child pornography involved exploitation and corruption of children. She noted that a concerning aspect of the respondent’s offence was that a number of images were taken by his own camera and he was depicted in them. Her Honour referred to defence counsel’s submission that imprisonment in Australia was more difficult for the respondent, who did not speak much English and had no family support. That meant, she said, that opportunities for recreational activities and visits were not available to him. The learned judge referred to the decision of R v Ferrer-Esis[1] and the suggestion in that case that the burden of serving a sentence in a foreign country was not a matter to which much mitigatory weight attached. Nonetheless, her Honour said, she regarded that factor as relevant to the setting of the time in custody actually to be served by the respondent. In addition, the learned judge took into account the early plea of guilty; the content of the psychological report, which mentioned that the respondent had himself been subject to sexual abuse; the references, which indicated that he was achieving some perception about what he did wrong; his expressed remorse; and the effect of his imprisonment on his wife and three children, who were dependent on his income.
The appellant’s submissions here
[8] The appellant argued that the sentence had failed properly to reflect the seriousness of the offence, manifested in the large amount of material imported, its organisation into labelled folders on the hard drives and the fact that the respondent was the maker of about 25 per cent of it, featuring in a number of the images and videos. Both the head sentence and the custodial component of it were set too low, having regard to comparable authorities. Secondly, the appellant said, the learned judge erred in concluding that the respondent was unable to participate in recreational activities available to prisoners, and gave undue weight to the respondent’s language difficulty and the fact that he was a foreign citizen.
The finding as to, and the relevance of, the respondent’s circumstances
[9] There was no evidence, the appellant said, to support a finding that opportunities for recreational activities were not available to the respondent, and no specific submission had been made to that effect at sentence. And although counsel for the respondent at sentence had submitted that he spoke “limited English”, it should be concluded that, although not fluent, he had in fact a functional command of the English language: he worked as a chief engineer on merchant shipping, he wrote a letter to the sentencing judge expressing remorse, and the prison chaplain’s reference spoke of his reading the Bible.
[10] But the chaplain also noted in his reference that the respondent had asked for a Tagalog Bible; there was no indication of whether the respondent had any assistance in writing the letter given to the judge; and it was not known whether English was the language used in the shipping on which he worked. More importantly, the proposition that the respondent’s English was limited was not contested at sentence, and in those circumstances I would not be prepared to accept the Crown’s invitation to draw a different inference now. It was not unreasonable for the learned judge to infer that having a limited command of English would affect the respondent’s ability to engage in leisure activities; reading and watching television are obvious examples.
[11] The appellant argued that the weight given to the respondent’s separation from his family was excessive. Reliance was placed on Hunt J’s statement in Ferrer-Esis that:
“…any person who comes to this country specifically and quite deliberately to commit a serious crime here…has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact.” [2]
Hunt J (with whom the other members of the New South Wales Court of Criminal Appeal agreed) expressed his view that not “very much weight” should be given to that circumstance.[3]
[12] Ferrer-Esis is readily distinguished: that case involved the importation of cocaine into Australia for reward, whereas the respondent here clearly did not enter the country “specifically and quite deliberately” to import pornography. And in any event, Hunt J’s statement was far from absolute in its terms. The learned judge in this instance was entitled to give weight to the respondent’s isolation and separation from his family and to reflect those circumstances by reduction of the custodial component of the sentence. In addition, s 16A of the Crimes Act 1914 (Cth)[4] obliged her Honour to take into account the effect of the sentence on the respondent’s family.
The comparable authorities relied on by the appellant
[13] The appellant emphasised the respondent’s role in the making of some of the images and videos, and his abuse of children as depicted in them. He pointed to the English Court of Appeal’s statement in R v Oliver,[5] that
“the seriousness of an individual offence increases with the offender’s proximity to, and responsibility for, the original abuse”.
[14] A schedule of comparable sentences for importation of child pornography – in the main, first instance decisions – was put before the learned sentencing judge. The appellant relied on nine of the cases summarised in it, which it was said, were less serious because they did not involve the making of images or the direct abuse of children. But although the head sentences were lower than that imposed here, the periods to be spent in custody involved terms of between seven and 15 months. Generally, the pre-release periods were 50 per cent or more of the head sentence. The appellant submitted that those cases supported his submission that the custodial component of the sentence here was set too low.
[15] Appellate decisions concerning not importation, but charges of accessing the internet and possession of child pornography in quantities comparable to that involved here, were also said to afford guidance, particularly since the former charge attracts the same maximum penalty as importing. Of those, greatest weight was placed on R v Fulop,[6] a decision of the Victorian Court of Appeal, which involved a defendant charged with one count of using a carriage service to access child pornography and one count of possessing child pornography. The 52 year old defendant, who had no previous convictions, was in possession of 41,594 images, including some in the worst categories. He was said to have obtained access to the images once a day or once every couple of days; that frequency and the quantity of images he collected and stored, were regarded as significant aspects of the offending. The sentence imposed at first instance, of four years imprisonment with a non-parole period of three years, was reduced on appeal to a total effective sentence of two and a half years imprisonment, with a minimum term of two years. Counsel for the appellant’s reliance on the case seems, to some extent, to have been the result of a mistaken understanding that the sentence substituted on appeal was in fact three years, overlooking the fact that the Court of Appeal in that case, having originally imposed that sentence, subsequently amended its orders.
[16] Mouscas v R[7] and James v R[8] similarly involved the possession of large collections of images. The defendant in Mouscas, a single man of 39 years without previous convictions, was in possession of approximately 42,000 child pornography images and 251 video files. He was charged with one count of possessing child pornography, while a further offence of using a carriage service to access child pornography was taken into account on sentence. The New South Wales Court of Criminal Appeal dismissed his appeal against a sentence of two years and nine months imprisonment with a non-parole period of 18 months. In James, the defendant was charged with one count of using a carriage service to access child pornography and one of possession of child pornography. He was found to have a computer and compact discs containing, in total, 3,235 images and 77 videos. That defendant had a good employment history and no previous convictions. A sentence of 21 months to serve 15 months was not disturbed on appeal.
[17] The appellant submitted that those cases involved less serious conduct, because there was in them no creation of pornography or direct abuse of children. In particular, counsel said that Fulop, which involved the use of the internet to acquire and possess large collections of images should be used as a guide; and a premium ought to be added in the present case to allow for the appellant’s greater proximity to some of the imported material that he had created, justifying a sentence in the three and a half to four year range. But the result of three and a half to four years was based on Fulop’s having received a three year sentence, not the two and a half years ultimately substituted on appeal. The submission was that a premium of six to twelve months should have been added to reflect this respondent’s greater culpability. That is precisely what did occur, in the result; so that, on this argument at least, the head sentence was as the appellant said it should have been.
[18] R v Rogers[9] was another decision relied on by the appellant to show that the sentence was too lenient. In that case, police searched the offender’s property and found that he had a collection of 48,000 images, including some showing torture and bestiality in connection with young children. A further police search, five months after the first, found another 1000 images and 20 videos, created while the defendant was on bail. He pleaded guilty to one count of making child exploitation material and two counts of knowingly possessing child exploitation material. The first count involved his having filmed his 15 year old step-daughter dressing and undressing, unknown to her. A sentence of three years imprisonment suspended after 10 months was not disturbed on appeal. The appellant argued that the present case was much more serious because the respondent’s activities in creating the pornographic material and collecting film of himself sexually abusing boys were “much greater in scope”.
[19] The appellant also suggested that observations made in R v Cook; ex parte A-G (Qld)[10] supported the argument that cases involving actual abuse of children and creation of images were in a higher category of culpability. The comments in the passages relied on were in fact chiefly directed at making the point that those seeking to possess such material created the market for it.[11] However, in making that point, the members of the Court acknowledged that the judge at first instance there was correct in saying that the criminality of those who abused children and created child pornography or imported it for commercial distribution was greater than that of those who possessed it.
[20] Some care has, I think, to be taken in adverting in the present context to those statements, or others to similar effect, because this respondent was not charged with an offence of producing pornography or of importing it for commercial distribution. It may be, indeed, that he faces further charges in the Philippines in light of the contents of the videos, but he did not stand to be sentenced in this country in respect of offences committed by or in their making. The significance of the respondent’s involvement, as it seems to me, is that he is not able to lay claim to any lack of appreciation of what the material actually entailed for the children portrayed. He does not have the advantage of distance from the wrong, the exploitation and corruption of children, which the learned sentencing judge identified as at the heart of the criminality of child pornography. As counsel for the appellant pointed out, as an adult from the Philippines, he ought to understand the causes of child prostitution in that country; he had taken advantage of the children’s poverty and desperation in acting as he did.
[21] But while the respondent’s involvement in the making of the material means that he cannot claim any misapprehension to its exploitative nature, to attach any greater significance to his role in creating it is to risk punishing him for offences with which he was not charged. The appellant’s submission that this case is worse than Rogers (in which the appellant was actually charged with making the pornographic material), because the respondent’s activities in producing the images and videos were more extensive, is suggestive of that error.
[22] The learned judge’s approach in this regard was unimpeachable. While acknowledging that the respondent was not being convicted for an offence of production, she identified his involvement in the production of some of the material as the concerning aspect of his behaviour. But while that aspect was, as the learned judge recognised, relevant, I am unconvinced it was such as to dictate a greater sentence than that imposed. Nor do the head sentences in Fulop, Mouscas and James suggest that the sentence of three years imposed here was inadequate.
[23] As to the cases relied on from the schedule put to the learned sentencing judge, while this case involved the importation of a greater quantity of material than those cases, there was a distinguishing factor in the respondent’s favour: the importation of the material occurred as an incident of his transit through Australia. It was not done with any intent to disseminate it, or even to retain it, in this country. While those cases and Mouscas, Fulop and James indicate that a longer period of actual detention might in some circumstances have been open, the learned sentencing judge properly, in determining the amount of time to be served in actual custody, had regard to the mitigating circumstances she identified. Those circumstances – the applicant’s co-operation as manifested by an ex officio plea, his apparent remorse, the difficulties he faced in separation from his family in an unfamiliar environment, his good work record and lack of previous convictions – warranted a reduction of the time to be served to one third of the head sentence. The sentence taken as a whole was a proper one.
Order
[24] I would not disturb the sentence imposed at first instance, and would dismiss the appeal.
[25] MUIR JA: I agree that the appeal should be dismissed for the reasons given by Holmes JA.
[26] CHESTERMAN JA: I agree that the appeal should be dismissed for the reasons given by Holmes JA.
Footnotes
[1] (1991) 55 A Crim R 231.
[2] (1991) 55 A Crim R 231 at 239.
[3] At 239.
[4] s 16A(2)(p) requires the Court to take into account “the probable effect that any sentence or order under consideration would have on any of the person's family or dependants”.
[5] [2003] 1 Cr App R 28.
[6] [2009] VSCA 296.
[7] [2008] NSWCCA 181.
[8] [2009] NSWCCA 62.
[9] [2009] QCA 10.
[10] [2004] QCA 469.
[11] At [16], [21] and [26].