R v Davis[2012] QCA 324

SUPREME COURT OF QUEENSLAND

[1] FRASER JA:  I agree with the reasons for judgment of Fryberg J and the order proposed by his Honour.

[2] FRYBERG J:  On 25 October 2011 in the District Court, the applicant was convicted on his plea of guilty of one count of using a carriage service to access child pornography material between 9 August 2005 and 1 June 2009 (a Commonwealth offence[1]) and another of possessing child exploitation material (a State offence[2]).  On the first count Clare DCJ sentenced him to four years imprisonment with a non-parole period of 16 months and on the second to two and a half years imprisonment suspended after 16 months for an operational period of four years.  He now seeks leave to appeal against those sentences.  He submits that the first sentence should be reduced to imprisonment for three years with a non-parole period of nine months, and the second should be correspondingly adjusted by suspension after nine months.

[3] The grounds of appeal relating to the first count were:

1. That the sentence was excessive and outside the appropriate range of sentences in all the circumstances;

2. That the learned sentencing judge erred in that she failed to recognise or properly recognise the mitigating factors of delay in prosecution and the defendant's cooperation with authorities; and

3. That the learned sentencing judge erred in sentencing the applicant on the basis that he had been involved in the distribution of child pornography to others.

[4] In form the same grounds applied to the second count, but none was argued in that context.  On the second count the applicant's submission was:

“Should the applicant succeed in his principal submission and complaint then, in my submission, it would be necessary for your Honours to adjust the sentence for Count 2 to reflect proportionate seriousness.  At the moment it's two and a half years suspended after 16 months.  My submission is that your Honours would vary Count 2 to make it a term of imprisonment of two years suspended after the nine months that the applicant contends for but with an operational period of three rather than four years.”

Consequently, the outcome of the application depends upon the decision in relation to the first count.

Circumstances of the offending

[5] The relevant facts were mainly contained in a statement of agreed facts which was placed before the sentencing judge.  It disclosed that on 8 December 2008 the Australian Federal Police received a referral from the German authorities in respect of child pornography being shared using an Internet application known as eDonkey 2000.  An IP address registered to the applicant's address in Bracken Ridge was identified as that of one of the users making the file available for others to download.  Six months later a search warrant was executed at the applicant’s residence.  A preliminary examination of his computer disclosed child pornography images.  Two computers, nine external hard drives, and 135 DVDs and CDs were seized for further analysis.

[6] During the search the applicant made the following admissions:

• He was the only person who used his computer, other than his children on occasions;
• He used eMule [software] to download child pornography;
• He would use search terms such as Lolita and PTHC (pre-teen hard core) and this would "get them all";
• The majority of the children in the material were between 8 - 9 years;
• He would get aroused by the images;
• He would download the images into an incoming eMule folder, and once this was full he would transfer the material in the folder to an external hard drive;
• He knew what he was doing was wrong; and
• The DVDs and CDs located at his residence contained numerous downloads, which included child pornography, and included "everything downloaded".[3]

[7] Analysis of the applicant’s storage devices revealed 49,817 files which were classified as child pornography material.  Of these, 301 were videos.  They had been downloaded into a folder, predominantly using the eMule file sharing program, then transferred to the various devices.  The analysis showed that the applicant had used a carriage service on numerous occasions between 9 August 2005 and 1 June 2009 to access child pornography material; the offending ceased only when police raided his premises.  A six-page detailed tabulation of the material was included in the statement of agreed facts.  The applicant did not dispute the sentencing judge's description of it:

"Most of the children depicted in that material were under the age of 10.  The content is amongst the worst I have ever come across.

There were thousands of pictures of the rapes of very young children, including babies and toddlers.  335 images, including eight videos, were of the very worst kinds of perversion, including torture, bondage and other sado sexual acts, and bestiality using young children.  You had amassed a collection that captured unspeakable degrations and cruelty upon the most vulnerable of victims."

[8] Counsel for the applicant orally supplied the sentencing judge with additional information about the eMule program:

“HER HONOUR: … it's said that he was one of the users making the file available for others to download.

MR TAYLOR: Yes, and that's by virtue of the program.  Rather than being actively making it available it's by virtue of the nature of the application as opposed to, I suppose, going to a comic [sic; semble 'common'] spot meet whereby you're actively engaging others for the purposes of disseminating material.  This is one of those cases where the material is available by virtue of the means that's used to obtain it by the individual.”

The Crown Prosecutor replied on that point:

“MS GALBRAITH: Can I just - in relation to eMule and the way it works, can I just make a couple of submissions in respect to that?  In relation to actually downloading the material, search terms must be entered first that brings up all the material that is then - can be downloaded.

In this matter, the defendant made admission to using particular search terms that are known as bringing up hits, if you would call it, of child pornography.  One of those is PTHC, which stands for pre teen hard core, and the other one being Lolita, which is a common term used for child pornography type material.

So those types of search terms would have to be entered, the hits would then come up, and then the person must then physically click on those hits before they are downloaded.  It isn't just simply a matter of automatically being downloaded.  They must actually be selected for download before they download, and in relation to the sharing side of it, generally while you're downloading, anything can be downloaded by other people also downloading at the same time.

So his sharing is seen in that context, not in the context of then having them stored in a folder on the computer that could then be shared all the time.  It was simply - forensics showed us simply when he was downloading it could then be also downloaded by other people downloading at that time.”

The applicant raised no objection to this at the trial.

[9] The applicant was arrested on 1 June 2009, when the warrant was executed and immediately granted bail.  The ex officio indictment was presented in the District Court on 25 October 2011.  The applicant did not reoffend during that period.  The Crown Prosecutor attributed the delay of two years and four months to the need for forensic analysis of the material.

Personal circumstances

[10] The applicant was aged from 42 to 46 at the time of the offences and 48 at sentence.  He had a minor and irrelevant criminal history.  He had a good employment record which included military service and was supported by his wife.  Favourable references were tendered on his behalf.  He cooperated with the police by making full admissions and pleaded guilty to an ex officio indictment.  He accepted responsibility and expressed shame.  He was said to have attended some counselling sessions, but the nature of these was vague.

Sentencing remarks

[11] Clare DCJ described the conduct constituting the offence in these terms:

“For nearly four years, you searched for whatever material you could find.  You set up a search, an automated search, which included an inquiry for pre teen hard core pornography.  You collected the material indiscriminately, using a programme that made it available to other people across the world.  Federal Police were alerted to your activity by the German authorities.

…

I note that you didn't sell any material, and you didn't send it to any particular person, but you did make it easier for other people to access.”[4]

[12] Her Honour referred to the delay in presenting the indictment and continued:

“It is said, not surprisingly, that you [sic; semble 'your'] life has been on hold until the sentence.  Mr Taylor argues that this is the kind of delay that is relevant to sentence.  Undoubtedly, you must have been under some stress waiting for the sentence.

However, neither the passage of time or the evidence of rehabilitation is so marked in this case as to warrant more than a modest adjustment in the sentence, if any.”

[13] She set that against considerations of general deterrence and denunciation:

“General deterrence and denunciation are very important in a case of this kind.  The offences are the kind committed at home, alone, behind closed doors, but still they expose children to serious harm.  Even though you didn't touch any child, and even though you weren't engaged in the commission of any of the crimes depicted in your material, the 50,000 images that you collected recorded the abuse of real children.  You had images of the rape and degradation of very small children.

What you did was not just some invasion of their privacy; when you downloaded this material this material [sic] your conduct was an encouragement for the creation of more of the same - the abuse of more children around the world.

The sentence, therefore, must be sufficient to discourage others like you from further offending.  At the same time, it must be proportionate to what you did.”

[14] It is convenient to deal with the grounds of appeal in the same sequence as the parties.

Ground 3

[15] Relying on the passages emphasised above, the applicant submitted that her Honour had sentenced on the basis that the applicant had committed an offence under s 474.19(1)(a)(iv) rather than the offence charged under sub para (i):

“474.19  Using a carriage service for child pornography material

(1)A person is guilty of an offence if:

(a)the person:

(i) uses a carriage service to access material; or

(ii) …

(iii)  …

(iv)   uses a carriage service to make material available;

…; and

(b)the material is child pornography material.”

[16] The applicant submitted that the emphasised passages showed that her Honour found as a fact that he intended[5] by his use of the carriage service to make the material on his computer available to other users.  Not only was the offence under sub para (iv) not charged; but also there was no evidence of any such intention.

[17] It is correct that there was no evidence either that the applicant meant to make the material on his computer available to others or that he was aware that this would occur in the ordinary course of events.[6]  Her Honour's sentencing remarks do not suggest that she thought otherwise.  It does not appear that she attributed any particular state of mind to the applicant in relation to making the material available.  She merely recorded an outcome.  It was an outcome to which she properly had regard.  Public policy as embodied in the Code is opposed to the availability of child pornography material, including even drawings or other representations not involving actual children, on the ground that “its availability can fuel further demand for similar material”.[7]

[18] This factor cannot in my judgment be ignored as trivial, although its weight is not large.  The applicant downloaded nearly 50,000 digital files, including 300 video files.  He initially downloaded into an incoming eMule folder, which it may reasonably be inferred was located on an internal hard drive, accessible to other eMule users.  When that folder was full he transferred the images to CDs, DVDs and external hard drives, but the evidence is silent as to whether these were accessible to others.  As best one can determine from the evidence, the number of files available to others would have fluctuated, and at times may well have been minimal.

[19] The evidence does not disclose how long the applicant spent searching for these files, nor how long it took to download them, but plainly it must have been a long time.  The applicant submitted that only time spent downloading was relevant, on the basis that this was a concession made by the prosecutor in reply at first instance.[8]  If it were necessary to resolve that submission, I would reject it.  In context, the prosecutor was not distinguishing between the activity of using eMule to search for pornography and using it for the actual download process.  Nor is a judge obliged to profess total ignorance about how a computer works.  One would accept that the material on the applicant's computer was not available to others unless the computer was switched on, the software was loaded and the computer was connected to the Internet.  Once those conditions were satisfied, files on the internal hard drive would ordinarily be available on the file sharing network.  It is not necessary to resolve the submission because on any view, the time to download nearly 50,000 files must have been very substantial.

[20] The references made to this factor by her Honour do not suggest that she attributed undue weight to it.  I reject ground 3.

Ground 1

[21] The applicant cited three decisions in support of his submission that the head sentence of four years imprisonment imposed in respect of the Commonwealth offence was beyond the permissible range: R v Grehan[9], R v Garget-Bennett[10] and Melham v Regina.[11]  He conceded that the present case was more serious than the first two of those three.  That concession was rightly made, but for the reasons which follow it is irrelevant.

[22] The decision in R v Grehan concerned two counts under s 228D of the Queensland Code and one under s 474.19(1)(a)(i).  Only the Queensland counts were dealt with on the merits.  Chesterman JA, who delivered a judgment in which the other members of the court concurred, wrote:

“[43]I have not given any separate consideration to the Commonwealth offence, the subject of count 3.  It was not dealt with separately in submissions and although it carries a longer maximum penalty, 10 years, we were not asked to differentiate between the State and Commonwealth offences with respect to penalty.”

The decision is of little use in analysing sentences for offences under s 474.19.

[23] R v Garget-Bennett was an appeal against two convictions for the two offences the subject of the present appeal.  Although the conduct charged was assigned to the period March 2005 to September 2008, the majority held that the defendant’s conduct throughout the period could not be taken into account (to do so would have required a construction of the charge which would have been duplicitous[12]) and resentenced on the basis of one offence committed on 19 November 2006.  For that offence the court imposed a sentence of imprisonment for 12 months.  In the present case the applicant did not suggest that this was of assistance in assessing the appropriate sentence.  The majority wrote:

“[37]The fact that the sentence of imprisonment for twelve months for the Commonwealth offence is substantially less than the sentence of imprisonment in relation to the State offence provides no indication that in future similar cases the sentences for the Commonwealth and State offences should not be the same or that the sentence for the Commonwealth offence should not be longer than the State offence of possession.  The sentence that is appropriate to each offence, and the period of actual imprisonment ordered to be served, must depend on the circumstances of the case.

[38]In this case the applicant was charged with a single offence of using a carriage service to access child pornography, and the respondent did not seek to have other offences of accessing taken into account by the procedure provided for in s 16BA of the Crimes Act.  The sentence of twelve months imprisonment that we have ordered in respect of the Commonwealth offence does not indicate what an appropriate sentence would have been for the Commonwealth offence if the respondent had relied upon the s 16BA procedure and other offences had been taken into account.  The sentence of twelve months imprisonment does not detract from what this and other courts have said concerning the serious nature of the Commonwealth offence.  It reflects the fact that the sentence for the Commonwealth offence is for one act of accessing child pornography.”

I was in dissent but not on this point:

“[70]It is simply not correct that there was any analysis of cases of using a carriage service in Grehan.  The case analysis began at para [27] with the words 'Sentences of imprisonment are imposed for offences against s 228D of the Criminal Code (Qld) primarily by way of deterrence'.  The analysis which followed examined the cases from the point of view of that section.  A number of the cases did not involve the use of a carriage service.  The analysis concluded with an explanation of why it was so limited.”

Then followed a quotation of the passage set out above.[13]  I continued:

“It follows that Grehan is useless as a comparable case in respect of sentencing under s 474.19 of the Criminal Code (Cth).

[71]Lest the approach taken by counsel in Grehan be thought applicable in all cases, I point out that it should not always be assumed that the same sentence should be imposed for offences under the latter as for offences under the former.  At the relevant time the maximum penalty under the latter was imprisonment for 10 years, double the maximum under the former (it has since been increased to 15 years).  Sentences should take that fact into account.”

[24] I interpolate that the applicant expressly disclaimed reliance on any argument relating to duplicity in the present case.  Garget-Bennett was decided by reference to the precise facts contained in the statement of agreed facts in that case.  As the High Court held in refusing special leave, “[T]he majority did not hold that a charge under section 474.19(1) of the Criminal Code can never be constituted by more than one act.”[14]  As regards duplicity, the case should be treated as confined to its particular facts.

[25] The third case cited by the applicant, Melham v Regina, was a decision of the NSW Court of Criminal Appeal dismissing an appeal against sentences imposed for two offences: possession of child pornography[15]  and using a carriage service to access child pornography material[16].  At the time the maximum penalty for each offence was imprisonment for 10 years.  The trial judge had imposed partially cumulative sentences the net effect of which was a total head sentence of four years and three months with a non-parole period of three years.

[26] The applicant rightly conceded that Melham was factually very similar to the present case, albeit admitting an exception for an additional argument relating to the appellant's obsessive compulsive disorder.  It should also be noted that the material downloaded by the applicant was slightly more in quantity and significantly worse in quality than that downloaded by Melham, and that Melham was five years older than the applicant.  The sentence proceeded both at first instance and on appeal on the basis that Melham suffered that disorder, that it had a moderate impact on his criminal conduct but it was not the sole reason for that conduct. 

[27] The Court of Criminal Appeal rejected a submission that the sentencing judge had given the disorder insufficient weight as a mitigating factor.  It also rejected a submission that the sentences were manifestly excessive.  It held that although the case fell at the high end of the range of sentences imposed on similar offences, the sentences were not outside the range of discretion properly open to the sentencing judge.  The appeal was dismissed.

[28] The applicant submitted that it was difficult to reconcile Melham with Garget-Bennett.  In some respects there is force in that submission.  It is also arguable that in Queensland an offender whose conduct was motivated even in part by a psychiatric condition would not receive a sentence at the high end of the range.  However that cannot help the present applicant; there is no suggestion that he suffers from any such condition.  One must infer that absent the condition, Melham's sentence would have been even higher.  It is true that Melham was five years older than the applicant, but both men were in their 40s and the difference is of marginal importance.  Moreover the quantity and (more importantly) the nature of the material downloaded by the applicant were worse than in Melham. 

[29] It is true that there is some tension between the sentencing judge's approach which regarded the offences as being in the mid range of seriousness and that of the Court of Criminal Appeal which regarded the case as falling at the high end of the range of sentences imposed on similar offences.  The Court of Criminal Appeal did not expressly indicate its view of the sentencing judge's approach, but even if one accepts Melham as being at the high end of the range, it avails the applicant naught.  Both the head sentence and the non-parole period here were less than those in Melham.  The non-parole period was little more than half of that fixed for Melham.

[30] Melham does not support a conclusion that the sentence was manifestly excessive.

[31] I can see no feature of the case which would suggest manifest excess.  Two matters may be referred to.  It is true that the Crown Prosecutor submitted that imprisonment for three and a half years was “the appropriate head sentence in this matter”.  However she also submitted that the case was very similar to that of Melham and that in the circumstances, a sentence could be imposed of up to four years and three months.  Her view of what was appropriate was reached by taking into account the decisions in Grehan and Garget-Bennett, and to that extent it was ill-founded.  In any event, the submission did not constrain the sentencing judge.  Second, the proportion between the two sentences imposed for the Commonwealth and State offences (four years is to two and a half years) is, perhaps, higher than is commonly seen, but it was not submitted that it demonstrated error.[17]  On the contrary, it was submitted that if this court set aside the sentence for the Commonwealth offence, the sentence for the State offence should be reduced to maintain the same proportionality.

[32] In my judgment, ground 1 should be rejected.

Delay

[33] The applicant submitted that the applicable law was that stated in R v L:

“It is difficult to see why lapse of time between commission of an offence and sentence should be a mitigating factor in sentence unless that delay has resulted in some unfairness to the offender.  There are two obvious cases in which that will be so and in which, consequently, it has been said that that unfairness should mitigate the sentence which should otherwise be imposed.

The first is where there is delay between the date of apprehension of the offender, or first indication to him by some person in authority that he is likely to be prosecuted, and the date of sentence, in consequence of which the offender may have had his liberty curtailed or his reputation called in question or, at least, left in a state of uncertainty caused by a failure to prosecute his case more quickly.[18]

[34] He relied on the first example given by their Honours.  He submitted:

"k.Whilst the applicant can lay no claim to the second basis for leniency, the significant delay in finalising the matter is something that merited more than 'passing adjustment in the sentence, if any.'  Although the delay is nothing like that in L (10+ years after the first complaint), here the applicant co-operated in the investigation from the beginning, and thereafter must have had a settled, hopeless expectation of receiving a substantial term of imprisonment yet no real indication as to when it would be imposed.  The applicant did not bear any responsibility for the delay.  For many offenders, one of the most distressing aspects of a sentence of imprisonment might be the interminable waiting for it to happen.

l.The understandably high levels of stress associated with such a situation ought to have been reflected in a modest reduction in the appropriate non-parole period beyond that which was already appropriate for the very high levels of co-operation in the administration of justice that attended this case."

[35] In the present case there was no period prior to his arrest when the applicant was subjected to relevant delay.  Two years and four months elapsed between the date of his arrest and the date of his sentence.  There must have been negotiations between the parties during that period, for the ex officio indictment to which the applicant pleaded guilty was presented on the day of sentence.  During that time the applicant was on bail.  Initially he was subject to reporting conditions, but these were relaxed after 12 months.  He complied with conditions restricting his use of computers, but there was no suggestion that this was onerous.  The judge was told that during the period he did not return to work, but lived off his own means and the support of his partner.  It was said that he put his life on hold in anticipation of losing his living.

[36] Referring to the period of delay, the prosecutor submitted “that unfortunately in relation to these matters, that [delay] can occur quite frequently given the forensic analysis of the computer.”  The applicant did not suggest, far less attempt to prove, that the delay was more than might be expected having regard to the nature of the case and the volume of material.

[37] The onus of proving that delay should be taken into account in mitigation lies on the accused.[19]  An accused seeking such mitigation on the basis of the first example given in R v L should place facts before the court which demonstrate that he or she has suffered a curtailment of liberty or an unjustified questioning of reputation or some damaging consequence of a state of uncertainty.  One who seeks mitigation on the basis of the second example given in that case (damage to or interruption of a process of rehabilitation occurring during the period of the delay) must provide evidence of that rehabilitation.  Mere delay, by itself, does not warrant mitigation of sentence.  The effect of the delay must be examined and assessed in the context of the particular case; although that is not to say that the length of the delay is irrelevant.

[38] In the present case the period of two years and four months included the time taken to analyse and categorise the pornography material and, no doubt, some period of time involved in discussions regarding the ex officio indictment.  The applicant was not in custody, although for 12 months he was required to comply with a reporting condition and for the whole of the time he was subject to restrictions affecting his use of computers.  He was not working, but one cannot discern why he was not working, beyond the vague statement that he put his life on hold in anticipation of losing his living.  In my judgment he has not demonstrated that he suffered anything as a result of the delay of sufficient substance to warrant mitigation of whatever sentence would otherwise be imposed.

[39] Ground 2 should be rejected.

Order

[40] It follows that the application should be dismissed.

[41] MARTIN J:  I agree with Fryberg J.