R v Devenish[2016] QDC 236

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The issue which has arisen in these sentencing proceedings is whether s 9(4); (5); and (6) of the Penalties and Sentence Act 1992 (Q) (“PSA”) apply to offences charged under s 228C & 228D of the Criminal Code (“Code”).

2. [2]
   If they apply, the result is in this case that an actual term of imprisonment must be imposed on the defendant unless there are exceptional circumstances.

Background 

3. [3]
   The defendant is charged with one count of distributing child exploitation material contrary to section 228C of the Code and one count of possession of child exploitation material contrary to section 228D of the Code.

4. [4]
   As to the facts of this case there is no suggestion that the defendant knew any of the children contained in the images. With respect to Count 1 it is alleged that he made available on the Bit Torrent file sharing network, 90 images of individual girls under 10 posing sexually wearing underwear. There were about 19 different girls. All images fell into category one. With respect to Count 2 the allegation is that following search of the defendant’s computer 21,836 images were found. 18,747 were in category one, 56 category two, 2 category three, 1 category four and 3,030 category six. There were also 108 videos, 44 in category one and 64 in category six. Again there is no suggestion the defendant knew any of the children the subject of the images.

Submissions

5. [5]
   The crown submitted that section 9(4), (5) and (6) of the PSA do apply as these are sexual offences committed in relation to a child under 16. After the matter resumed the crown withdrew this submission.

6. [6]
   The defence submitted that on the facts of this case there was no offence committed in relation to a child under 16 and submitted the more specific provisions applied here.

Legislation

7. [7]
   Section 9 of the PSA provides:

4. (4)
   Also, in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years –

1. (a)
   the principles mentioned in subsection (2)(a) do not apply^[1]; and

2. (b)
   the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.

5. (5)
   For subsection (4)(b), in deciding whether there are exceptional circumstances, a court may have regard to the closeness in age between the offender and the child.

6. (6)
   In sentencing an offender to whom subsection (4) applies, the court must have regard primarily to –

1. (a)
   the effect of the offence on the child; and

2. (b)
   the age of the child; and

3. (c)
   the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and

4. (d)
   the need to protect the child, or other children, from the risk of the offender reoffending; and

5. (e)
   the need to deter similar behaviour by other offenders to protect children; and

6. (f)
   the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and

7. (g)
   the offender’s antecedents, age and character; and

8. (h)
   any remorse or lack of remorse of the offender; and

1. (i)
   any medical, psychiatric, prison or other relevant report relating to the offender; and

10. (j)
    anything else about the safety of children under 16 the sentencing court considers relevant.

8. [8]
   I note that s 9(6A) and (7) of the PSA specifically provide:

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

1. (a)
   an offence against the Classification of Computer Games and Images Act 1995, section 28 if the objectionable computer game is a child abuse computer game under the Act;

2. (b)
   an offence against any of the following provisions of the Classification of Films Act 1991 –

1. (i)
   section 41(3) or 42(3) or (4);

2. (ii)
   section 43 if the offence involves a child abuse film under the Act;

3. (c)
   an offence against any of the following provisions of the Classification of Publications Act 1991

1. (i)
   section 14;

2. (ii)
   section 12, 13, 15, 16 or 17 if the offence involves a child abuse publication or child abuse photograph under the Act;

4. (d)
   an offence against the Criminal Code, section 228A, 228B, 228C or 228D.

7. (7)
   In sentencing an offender to whom subsection (6A) applies, the court must have regard primarily to –

1. (a)
   the nature of any image of a child that the offence involved, including the apparent age of the child and the activity shown; and

2. (b)
   the need to deter similar behaviour by other offenders to protect children; and

3. (c)
   the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and

4. (d)
   the offender’s antecedents, age and character; and

5. (e)
   any remorse or lack of remorse of the offender; and

6. (f)
   any medical, psychiatric, prison or other relevant report relating to the offender; and

7. (g)
   anything else about the safety of children under 16 the sentencing court considers relevant.

9. [9]
   Turning then to the provisions of the Criminal Code, s 228C provides:

1. (1)
   A person who distributes child exploitation material commits a crime.

Maximum penalty – 14 years imprisonment.

2. (2)
   In this section – distribute child exploitation material includes–

1. (a)
   communicate, exhibit, send, supply or transmit child exploitation material to someone, whether to a particular person or not; and

2. (b)
   make child exploitation material available for access by someone, whether by a particular person or not; and

3. (c)
   enter into an agreement or arrangement to do something in paragraph (a) or (b); and

4. (d)
   attempt to distribute child exploitation material.

10. [10]
    And s 228D provides:

“A person who knowingly possesses child exploitation material commits a crime.

Maximum penalty – 14 years imprisonment.”

Cases

11. [11]
    In R v McGrath^[2] it was held by the Court of Appeal that s 9(5) & (6) of the PSA did apply to an offence contrary to s 218A of the Code despite the fact that the “victim” was an adult Police Officer.  This was because:

“Since the essence of the offence is using the internet with one of the two intentions, and what is done by the offender to demonstrate his intention is done, so far as he is subjectively concerned, in relation to a child under 16…”

12. [12]
    In R v Finch^[3], the appellant was charged with knowingly possessing child abuse computer games contrary to the classification of Computer Games and Images Act 1995 (Q).  It was held at [19] after referring to McGrath:

“…it is difficult to conclude that the offence here was ‘committed in relation to a child under 16 years’.  Whilst the expression ‘in relation to’ is generally given a wide meaning, there is certainly no identifiable child under 16 years with respect to whom this offence was ‘committed’.  In my view it is unhelpful to say that the images depict children under the age of 16 years.  [20] In the circumstances, I would conclude that in the absence of specific statutory provision, s 9(5) of the Penalties and Sentences Act 1992 (Q) does not apply to an offence under s 26(3) of the Act.”

13. [13]
    Finch was followed in R v Plunkett^[4]. In Plunkett the offender was charged with knowingly possessing child exploitation material contrary to s 228D of the Code.  It was held by the Chief Justice that the sentencing judge’s view that s 9(6) applied was wrong in light of that which was stated in R v Finch.  It was said:

“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.”

14. [14]
    More recently in the Dodge v Attorney General for the State of Queensland^[5] the Queensland Court of Appeal was concerned with a matter in which the appellant had been declared he was a dangerous sexual offender as the primary judge found inter alia the appellant had been detained in custody for an offence of a sexual nature committed “against children.” He had been convicted of engaging in sexual talk with an adult police officer on line. He believed the officer was a 14 year old boy. The court held that section 9(4) of the PSA is wider than the DPSOA provision. Therefore McGrath was of limited utility. It was held that the appellant had not been convicted of offence against a child. It is a question of fact whether offences are committed against a child.

15. [15]
    I also note that in the context of the DPSOA Peter Lyons J in Attorney-General (Q) v SBD^[6]  said:

“[70] The expression “in relation to” used in s 9(5) envisages a less direct connection between the offence and a child, than the expression “against”. That case provides, in my view, considerable support by way of analogy for the submission made on behalf of the respondent.

[71] It seems to me that the question whether an offence involving child pornography is an offence of a sexual nature “against children” will depend upon the facts said to constitute the offence. Where, for example, a person charged with the offence of the indecent treatment of a child under the age of 16, had procured the child to engage in sexual activity which was then photographed, it may well be the case the offence is an offence against that child, and that it comes within the definition of a serious sexual offence.

[72] On the other hand, it seems to me that where a person obtains pornographic material involving children, in the production of which that person has played no role, and that person uses the material to obtain sexual gratification from that person’s dealings with another adult, it does not seem to me that that involves the commission of a serious sexual offence, as defined in the DPSOA. The connexion between the offending conduct and any particular child seems to me to be too remote to come within the statutory provision.”

Disposition

16. [16]
    I am bound to follow the Court of Appeal decisions. It also should be borne in mind this is a penal statute it should be construed strictly in favour of the accused person^[7].

17. [17]
    In my view, bearing in mind the facts of this case, these offences are not committed in relation to children under the age of 16. There is no identifiable child nor is it suggested that the offender knew any of the children involved. I consider the reasoning in Finch and Plunkett applies here. 

18. [18]
    In those circumstances it is my view that s 9(4), (5) and (6) of the PSA do not apply and moreover the primary considerations are those set out in s 9(6A) and (7) of the PSA.