R v Dittman; ex parte Director of Public Prosecutions (Cth)
[2017] QCA 302
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- R v Dittman; ex parte Director of Public Prosecutions (Cth)[2017] QCA 302
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R v Dittman; ex parte Director of Public Prosecutions (Cth)[2017] QCA 302
R v Dittman; ex parte Director of Public Prosecutions (Cth)[2017] QCA 302
SUPREME COURT OF QUEENSLAND
CITATION: | R v Dittman; Ex parte Director of Public Prosecutions (Cth) [2017] QCA 302 |
PARTIES: | R |
FILE NO/S: | CA No 47 of 2017 SC No 772 of 2016 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Appeal by Director of Public Prosecutions (Cth) |
ORIGINATING COURT: | Supreme Court at Brisbane – Date of Sentence: 21 February 2017 (Thomas J) |
DELIVERED ON: | 8 December 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 September 2017 |
JUDGES: | Gotterson and McMurdo JJA and Mullins J |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent was sentenced to concurrent terms of imprisonment in respect of offences relating to the possession and making available of child pornography material – where the most serious count involved 103 occasions, on 97 separate dates, on which the respondent made child pornography material available to two or more persons concurrently (“the aggravated count”) – where, at the time of sentence, the respondent had already begun to serve a sentence for an unrelated offence of maintaining a sexual relationship with a child, for which he had been sentenced to a three year term, suspended after 12 months (“the maintaining sentence”) – where the respondent was sentenced to four years’ imprisonment in relation to the aggravated count, with a non-parole period of 12 months, but that sentence was ordered to commence only upon the expiry of the suspended portion of the maintaining sentence – where the respondent was aged 28 to 30 years at the time of the offences and 32 when sentenced – where the respondent made timely pleas of guilty and demonstrated remorse and shame for his actions – where the sentences imposed were light in comparison with each of the comparable cases – whether the lightness of the sentence could be explained by the application of the totality principle – whether the sentence was manifestly inadequate Criminal Code (Cth), s 474.19, s 474.24A Lyons v R [2017] NSWCCA 204, considered Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Howe [2017] QCA 7, considered R v Linardon [2014] NSWCCA 247, considered R v Shultz, unreported, Supreme Court of Queensland, Atkinson J, 19 March 2013, considered |
COUNSEL: | W Abraham QC, with D K Whitmore, for the appellant T A Ryan for the respondent |
SOLICITORS: | Director of Public Prosecutions (Commonwealth) for the appellant Walker Pender for the respondent |
- GOTTERSON JA: I agree with the order proposed by McMurdo JA and with the reasons given by his Honour.
- McMURDO JA: This is an appeal by the Commonwealth Director of Public Prosecutions against sentences imposed in the Trial Division (Thomas J) for offences involving child pornography. The only ground of appeal is that the sentences are manifestly inadequate.
- There were four counts on the indictment. Count 1 was an offence under s 474.19(1) of the Criminal Code (Cth), by the use of a carriage service to make available child pornography material. That offence was committed over a two year period from April 2013.
- Count 2 was an aggravated offence, against s 474.24A of the Criminal Code (Cth), by using a carriage service to make available child pornography material on three or more occasions and involving two or more people. That offence was committed in a period between June 2013 and April 2015.
- Count 3 was an offence of the use of a carriage service to access child pornography material, contrary to s 474.19(1) of the Criminal Code (Cth). That offence was committed in a period from September 2013 to April 2015.
- Count 4 was an offence of possessing child exploitation material, contrary to s 228D of the Criminal Code (Qld), which was committed on 19 April 2015.
- The respondent was sentenced to concurrent terms of imprisonment of three years on count 1, four years on count 2, 18 months on count 3 and 18 months on count 4. Each sentence was ordered to be served from 2 December 2017. That was because the respondent had begun to serve a sentence for an unrelated offence of maintaining a sexual relationship with a child, which was committed in a period from January 2010 to November 2014, for which he had been sentenced to a three year term on 2 December 2016, suspended after 12 months. In other words, the subject sentences were ordered to be served from the expiry of the 12 months which he was required to serve for that earlier offence.
- A non-parole period of 12 months was fixed for the Commonwealth offences. For count 4, the 18 months term was suspended after six months, with an operational period of three years. Consequently, under the present orders he will be in jail for two years of what is effectively a period of imprisonment of five years.
- The relevant facts of the offending were agreed and set out in a statement which was given to the judge. The respondent used a file sharing program called GigaTribe, which allowed users to share files directly from their computer with “friends” over the internet. This is described as “peer-to-peer” software, by which only invited persons can share the files, rather than the files being available to the general public. Users are able to choose and select folders from their personal hard drive which they wish to share with “friends” within the network.
- In March and April 2015, covert detectives identified the respondent as a person using a certain GigaTribe username and communicated with him on five occasions, during which the respondent made available to them password protected folders that contained movies and images which were child pornography material. Police then searched his house and seized his computers and storage devices on 19 April 2015.
- The offence which was the subject of count 1 involved 957 occasions, over 430 separate dates, on which the respondent logged into his account and another person, who had been provided with the relevant passwords, was online. On those occasions, he made available material in three folders. On the first of these occasions, 11 files of material were made available to another person. By the end of the period the subject of count 1, there were 76 persons who had passwords for the folders and the respondent was making available to them 193 files of material.
- Count 2 involved a further 103 occasions, over 97 separate dates, on which the respondent made material available to two or more persons concurrently. The number of files of material corresponded with those which were the subject of the occasions constituting count 1.
- For count 3, there were 16 occasions in which the respondent used the program to download child pornography material.
- The police examination of the electronic storage devices, seized from the respondent’s house, identified more than 10,000 files of material stored on those devices. There were over 7,000 images, more than 2,000 videos and some documents. The material was categorised, using the Child Exploitation Tracking System, within the agreed Statement of Facts. The respondent possessed material within each of the categories, although most of them were within categories one and two.
- The respondent was aged 28 to 30 years at the time of the offences, and 32 when sentenced. He had two previous convictions: one, as mentioned, of maintaining an unlawful sexual relationship with a child, and another offence of making child exploitation material (which involved the same complainant). He was sentenced in the District Court on those matters, and given a three year term, suspended after 12 months with an operational period of three years upon the first offence, and a concurrent term of 12 months, followed by a probation period of two years, upon the second count.
- The sentencing judge described the respondent’s pleas of guilty as timely. The judge also allowed, in the respondent’s favour, for his cooperation with police, in which he said that the respondent had made admissions “without any effort by the people who were investigating.” In addition, the judge said, the respondent had provided his sign-in details which “would further assist investigation [of others]”. The judge found that the respondent had not engaged in any of this conduct for any commercial reason and he did not profit from it.
- The judge accepted that the respondent was remorseful and ashamed, which the judge said was demonstrated by his cooperation with police and his “frank, candid and extensive admissions” and his assistance with a further investigation.
- The judge said that for these offences, “[g]eneral deterrence is a very important sentencing consideration”. He spoke of the prevalence of offending of this kind and the difficulty of its detection. He correctly observed that “the possession of child pornography creates a market for the continued corruption and exploitation of children”. He made those comments having looked at a sample of the images which had been tendered.
- The judge was referred to three cases which I will discuss below, namely R v Linardon,[1] R v Howe[2] and R v Shultz.[3] He said that according to the authorities a number of factors were to be considered, including the nature and content of the material, the length of time over which the material was accessed or made available and the quantity of the material.
- The judge considered that the circumstance of the respondent serving the sentences imposed in the District Court engaged the totality principle.[4] He concluded that:
“[C]onsidering the impact of the relevant state offences and the totality principle, … the total effective sentence of five years is appropriate which means … a sentence of four years on the aggravated charge here and with a non-parole period on that overall sentence of two years.”
- As I have said, the sole ground of appeal is that the sentences, or alternatively the sentence upon count 2, were or was manifestly inadequate. It is not said that there is any evident error in the sentencing reasons. It is submitted for the appellant that the conduct in this case is a serious example of this type of offending, a submission that highlights these features:
- The offending was not “isolated or impulsive in nature”, but instead occurred over some two years;
- Throughout that period the respondent was an active participant in what is described as market for child pornography material (although no money changed hands);
- The number of occurrences was large;
- The number of people to whom material was provided was large;
- The amount of material possessed was large;
- The material possessed by the respondent included some which depicted real children, predominantly boys aged between about 10 and 14 years;
- The offending ceased only because it was detected by police.
- Moreover, it is said to be an aggravating feature that the offences were committed at a time when the respondent was committing an offence of maintaining a sexual relationship with a child.
- In R v Howe,[5] this Court endorsed the following principles for sentencing for offences involving child pornography material:
- General deterrence is the primary sentencing consideration, given the prevalence and ready availability of pornography involving children and the need to protect children from sexual abuse;
- There is a public interest objective in promoting the protection of children, recognising that the possession of child pornography is not a victimless crime – the possession of such material creates a market for the continued corruption and exploitation of children, which is supplied by the sexual abuse of children;
- The prior good character of an offender carries relatively less weight in such cases;
- Offending involving child pornography is difficult to detect;
- The fact that an offender does not pay to access a child pornography website, or is not involved in a commercial distribution or sale of child pornography, is not a mitigating factor;
- The maximum penalties available for such offences demonstrate the seriousness of them.
- In that case, the applicant was convicted of a number of counts of using a carriage service to access or make available child pornography material, and a further aggravated offence (as in the present case). He pleaded guilty and was sentenced to concurrent terms, the longest of which was a term of four years for the aggravated offence. A non-parole period of one year and nine months was fixed. The extent of the offending in that case was less than in the present one: the aggravated offence involved only four occasions on three different dates, over a 10 day period. Apart from the application of the totality principle, there were no features of the present case which indicated a lower sentence for this offender than in Howe. The Court held that the sentence was not manifestly excessive.
- In R v Linardon,[6] the offender pleaded guilty to four offences involving the transmission or accessing of child pornography, one of which was an aggravated offence under s 474.24A, together with an offence under the Crimes Act 1900 (NSW) of the possession of child abuse material. He was originally sentenced to several terms which were to be served in part concurrently, the total period of imprisonment being four years, four months with a non-parole period of effectively one year and 11 months.[7] He was re-sentenced on appeal to an effective period of imprisonment of five years, with a non-parole period of three years. The aggravated offence in that case involved the actual transmission of child pornography, rather than making it available. That occurred on three occasions and involved 10 recipients of 86 files of material. That offending was less extensive than in the present case. However on another count in that case, a charge of transmission of material, a greater volume of material was involved than in the present case, although on fewer occasions and over a shorter period. The individual sentences in that case were less than the four year term imposed in the present one. But in the present case, the terms were ordered to be served concurrently.
- The third of the cases cited for the appellant is a recent decision of the New South Wales Court of Criminal Appeal, Lyons v R.[8] That offender pleaded guilty to one offence of the possession of child abuse material under the Crimes Act 1900 (NSW) and five offences of using a carriage service to transmit or make available child pornography material, including an aggravated offence of making material available contrary to s 474.24A. He was originally sentenced to a number of terms, which were partly concurrent, resulting in a total period of imprisonment of nine years with effectively a non-parole period of six years. The Court allowed that prisoner’s appeal and re-sentenced him to terms amounting to a period of imprisonment of six years and three months, with a non-parole period of effectively four and a half years.[9] In the aggravated offence, the period of offending was only a week, involving four occasions and a total of 161 recipients. Overall, it can be said that the extent of the offending in that case was less than in the present one.
- The sentences in the present case are light in comparison with those in each of the cases to which I have referred. There was the same period of imprisonment in Howe, but the offending there was less extensive and the non-parole period was longer than in the present matter.
- The respondent cites R v Schultz, a decision at first instance where the prisoner had pleaded guilty to two counts of using a carriage service to transmit child pornography material, one count of using a carriage service to access such material, one count of an aggravated offence and one of an offence under the Criminal Code (Qld) for knowingly possessing child exploitation material. At the same time, he was sentenced on two counts of indecent treatment of a child under 16 and one count of unlawful sodomy. He was aged 26 at the time of the Commonwealth offences and 20 at the time of the offences involving the child. The aggravated offence involved some 59 occasions and 74 to 94 recipients over a period of about one month. There was a large number of files (1,452), making that case, in that respect at least, more serious than the present one. The sentencing judge imposed a term of three years’ imprisonment for the unlawful sodomy offence, and shorter concurrent terms for the other offences against the child. For the offences involving pornography, there were various terms imposed, concurrent with each other, but to commence one year into the terms for the offences against the child. The longest of those terms was five years for the aggravated offence. The result was a total period of imprisonment of six years. The judge ordered a non-parole period of 12 months for the pornography offences. The result was that that offender was to be released after two years, as in the present case. It is to be noted that that sentence was imposed prior to the decisions of this Court and the New South Wales Court of Criminal Appeal which I have discussed.
- In the present case, the extent of the offending was markedly prolonged, involving a period in excess of two years. There were many more occasions in this case than in those cases which I have discussed. On any view, these were light sentences, especially because the non-parole period was fixed after only 12 months. The only arguable justification for these sentences could be the operation of the totality principle. The appellant’s argument accepts that the totality principle was relevant.
- Where the one court is sentencing for several offences, it is necessary for the sentencing court to “look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences.”[10] The totality principle applies also where a prisoner is sentenced for an offence or offences, whilst already serving a term for a different offence. Again, the sentencing court must consider the entirety of the offender’s criminal conduct to ensure that the sentences which it is imposing are appropriate. In the present case, it is not said that there is any evident error by the judge in his sentencing reasons, including in respect of the totality principle. The judge did not extensively discuss the conduct involved in the earlier offence. But his Honour did say that he had considered “the overall criminality of what has been done”, having had the benefit of the sentencing remarks from the District Court.
- Ultimately, I am unpersuaded that the sentences which were imposed here were less than anything which could have been ordered without any error in the exercise of the sentencing discretion. The sentence in this case is one with which many judges would not agree, but that is not the present question. Absent the effect of the earlier sentence, I would have allowed this appeal. But it was open to the judge, because of totality considerations, to order as he did.
- I would dismiss the appeal.
- MULLINS J: I agree with McMurdo JA.
Footnotes
[1] [2014] NSWCCA 247.
[2] [2017] QCA 7.
[3] Unreported, Supreme Court of Queensland, Atkinson J, 19 March 2013.
[4] Mill v The Queen (1988) 166 CLR 59.
[5] [2017] QCA 7 at [25].
[6] [2014] NSWCCA 247.
[7] The non-parole period, fixed under s 19AB of the Crimes Act 1914 (Cth) was one year and 10 months, commencing on the commencement date of the first of the Commonwealth offences. There was a further one month in custody which preceded that period, when the prisoner was serving the first month of the term imposed for the State offence.
[8] [2017] NSWCCA 204.
[9] Again, the non-parole period fixed for the Commonwealth offences was three years, six months, but the prisoner was required to serve 12 months of his sentence for the State offence before any of the terms of the Commonwealth offences commenced.
[10] Barton (1972), cited in Thomas, Principles of Sentencing, 2nd ed (1979), pp 56-57, approved by Wilson, Deane, Dawson, Toohey and Gaudron JJ in Mill v The Queen (1988) 166 CLR 59 at [8].