R v Vantoosten[2009] QDC 2

Introduction

1. [1]
   The defendant has pleaded guilty to two counts of knowingly possessing child exploitation material under section 228D of the Criminal Code Act 1899 (Qld) (“the Criminal Code”).  This matter was set for trial today.  The defendant indicated that he would plead guilty on last Friday after the Crown indicated that it would not proceed on count 3.  Count 3 related to another 44 images.  It is unlikely that the sentence on count 3 would have added to the criminality on counts 1 and 2.  The material on counts 1 and 2 could be considered the worst type for this offence.

2. [2]
   The details of the counts are as follows:^[1]

Facts

The details of the counts are as follows, as appears in the agreed summary, exhibit 2.   A person with whom you were living found the relevant material and passed it on to police.  In total, you had in your possession, 71 images, 33 videos and two text files, all of which, it is agreed, constituted child exploitation material.

Count 1

"Child exploitation material on the 90 gigabyte hard drive was found in the following folders."  I will now summarise those.

Three child exploitation picture files, such as, "13 year, My little sister posing nude", and "Pedo Mum and Daughter." 

Two child exploitation text files in a folder entitled, "Pics.rar."  The folder is password protected and was accessed by analysts.

You gave your password to police.  There were some 68 child exploitation images.  The names in the file included, Six year old girl about to have sex with father."  "Seven year old girl playing with seven year old boy in shower."  "Eight year old, Natasha, about to have sex."  "Nine year old having sex with Dad."  "Eight year old having sex."

The images are of girls around six to nine years old.  They include images of naked children alone and in sexual acts with other children and adults, including vaginal penetration of young girls by male children, and penile and digital penetration of young girls by adults.  The images also depict young girls being orally penetrated by an erect adult penis.

Count 2

Five compact discs in your possession contained a total of 33 child exploitation video files.  The videos for the main depict girls of around eight years of age being vaginally penetrated by an adult male.  Videos include a bound girl being vaginally and anally penetrated, and group sex activity with girls as young as three years of age.  On one disc, there were 16 child exploitation files, including videos depicting young girls around eight years of age in various sexual acts, including being vaginally penetrated by adult male penises and exposing genitals.

There were six child exploitation videos.  Examples include, video footage of a child around eight years of age bound and being anally penetrated by an adult penis, and vaginally penetrated with a finger.  And, another girl, around six years of age, being vaginally penetrated by an adult penis.  And, one depicting girl of around eight years being held around the waist and pushed against an adult's erect penis.

Other files included three child exploitation videos;  three little girls, seven, eight and 11 year old "Sucking Grampa's dick."  11 year old girl fucked by the arse by older man.  "Lolita", a five year old, vaginal penetration.  The videos depict very young girls exposing genitals, digital, vaginal penetration, and group sexual activity with very young girls and an adult male, which includes both vaginal and anal penetration of children. 

Others include seven exploitation videos of young males masturbating each other, and young girls being orally penetrated by an erect adult penis.  And, finally, one child exploitation video material. 

Some were downloaded from the Internet, some were on compact discs, some were on a hard drive.  You initially denied that you had any child exploitation material.

3. [3]
   The court was not asked to view the material.  The description is adequate to form a view of the nature of the acts involved.  The defendant’s initial position was to deny the charges.  His pleas were entered this morning.  The present charges carry a five year maximum term of imprisonment.

Change in Legislation

4. [4]
   All of the Court of Appeal cases cited related to the provisions of s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) (“the Act”) as it existed before 1 December 2008.  On that date, section 9 was amended to add sub sections 6A and 6B:^[2]

(6A) Also, the principles mentioned in subsection (2)(a) do not apply to the sentencing of an offender for the following offences—

(6B) In sentencing an offender to whom subsection (6A) applies, the court must span style=""> have regard primarily to—

5. [5]
   The effect of subsection (6A)(d) was to exclude offences under s 228D of the Criminal Code from the provisions of s 9(2)(a) which provides as follows:

(2) In sentencing an offender, a court must have regard to—

(a) principles that—

(i) a sentence of imprisonment should only be imposed as a last resort; and

(ii) a sentence that allows the offender to stay in the community is preferable; and

6. [6]
   Reference was made in R v Riley ^[3] to the earlier requirement that “imprisonment is to be imposed only as a last resort and that a sentence that allows an offender to stay in the community is preferable.”  Other cases have referred to the principle which then applied. ^[4]  As was said in Riley:^[5]

Sentencing judges retain a broad discretion as to whether a non-custodial sentence is preferable in the circumstances of any particular case.

7. [7]
   The Court in Riley ^[6] went on to discuss R v Plunkett ^[7] and accepted that s 228D was subject to s 9(2)(a) of the Act.  The legislature saw fit to clarify the position and has specifically excluded s 228D from the provisions of s 9(2)(a).  In the second reading speech,^[8] there is no discussion of the reasons for the change.  The intention of the legislature is now obvious. Children under 16 ought to be protected and that those who knowingly possess child exploitation material lose the previous benefit of imprisonment being a last resort in the sentencing process.  It does not follow that imprisonment is required in each case.  The broad discretion still exists.

8. [8]
   The consequences to be taken into account in cases of this nature were discussed by McMurdo P in R v Richardson.^[9] The fact that proceedings are conducted in public leading to public shaming, having a conviction recorded as part of a suspended sentence and the consequences of the provisions of the Child Protection (Offender Reporting) Act 2004 (Qld) were considered relevant.  Other matters referred to by Keane AJ were that the images in that case were not shown to others, there was no commercial aspect to the case and that the Crown conceded that a fully suspended sentence was within the range.^[10] In that case, the offender had thrown away the material but it was discovered.  He pleaded at an early stage.  The discarding of the material, according to Keane AJ, made the case an exceptional one.^[11]

9. [9]
   When one compares the number of images, cases such as Plunkett (17000 images) are at one extreme.  There were 58 images in Daw and 55 images with 21 videos in Riley.  In the present case, there were 71 images, 33 videos and 2 text files.  The nature of the material in the present case is in the worst type category.  Tying up children and sexually exploiting them is abhorrent.  The nature of the acts seen in this type of case present for the court the worst side of human nature.  In those cases where one is requested to go through samples of images often in bound volumes with dozens of cases or even hundreds, the suffering of those children in the images is clear for all to see.  Given the description of the acts in the present case, it leaves little to the imagination.  There must be a strong general deterrence in cases of this nature.  The legislature has removed one restriction in relation to ordering an actual custodial sentence in cases of this nature.

Personal details of the defendant

10. [10]
    The defendant was born on 7 June 1975.  He was 30-31 years at the time of the offences.  He has a criminal history of little relevance.  It includes some domestic violence relating to a previous girlfriend and obstructing police and bail offences.  He achieved a grade 11 education and was brought up in foster homes.  His mother died when he was 21 and he has no contact with his father. There were submissions from the bar table that he had been treated for anxiety and major depression in the past.  There was no material to support that aspect.  However, the defendant is on a disability support pension.  He has a visual disability.  His only employment is as a volunteer announcer at a community radio station.  He is presently in a de facto relationship.  His partner has three children but he does not have access to them.

11. [11]
    Counsel submits that an order whereby the offender does not spend any actual time in prison is appropriate.  An intensive correction order is suggested with conditions for treatment.  It is submitted that the defendant has good rehabilitative prospects.  It is two and a half years since the offences, he has no internet connection to his residence and he is remorseful.  However, he has not sought any treatment in that period.  One has difficulty in measuring any remorse, particularly given the late plea.  Character references were provided by the defendant himself and two friends.

Factors to be considered

12. [12]
    Some of the matters relevant to s 9(6B) of the Act have been discussed.  This was a late plea.  The defendant’s cooperation in the administration of justice is late in coming.  This matter was set for 4 days. He has a minimal criminal history, and it was a full hand up committal.  The general deterrence in this type of case looms large.  As long as there is a demand for this type of material, children will be exploited and corrupted. As McMurdo P stated in R v Richardson:^[12]

In criminalising and making punishable by up to five years imprisonment conduct like that engaged in by Mr Richardson, the legislature plainly intended to deter people from downloading from the internet and possessing images of material sexually exploiting children. A reduction in the number of individuals who download and possess such material should help to diminish the general market for it and ultimately reduce the number of children abused in the evil child pornography industry.

13. [13]
    The material in this case contains some of the more abhorrent and serious images which one can imagine involving children. The ages of the children were from 3 years. The amount of material is not extensive as found in some cases.  Having considered the cases put before the court, a head sentence of twelve months on each count is appropriate to be served concurrently.  Any discount for a plea is tempered by its lateness.  In Riley, it was considered that s 228D was not an offence covered by s 9(5) of the Act.  It refers to offences of a sexual nature not being covered by s 9(2)(a). The legislature changed that in so far as that provision is concerned.^[13] In determining a parole date, offences which are of a sexual nature attract an eligible date, not a fixed date.^[14]  The date for parole is set at 12 May 2009.