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Court of Criminal Appeal 4 November 2005

R v Gent

[2005] NSWCCA 370

Also reported as (2005) 162 A Crim R 29
Sexual offences
SENTENCING IMPORTATION OF CHILD PORNOGRAPHY SENTENCE NOT MANIFESTLY EXCESSIVE.

Citation: R v Gent [2005] NSWCCA 370
Court: NSW Court of Criminal Appeal
Date: 4 November 2005
Judge(s): McClellan CJ at CL, Adams J, Johnson J

Background

The applicant, a primary school teacher, was intercepted by Customs officers at Sydney Airport on his return from an overseas teaching posting. A search of his luggage revealed CDs and disks containing child pornography, including 16 video images and 601 still photographs depicting children as young as six engaged in sexual acts with adults and other children. The material was described by the sentencing judge as "disgusting in the extreme."

The applicant was charged with the intentional importation of Tier 2 goods, namely child pornography, under the Customs Act 1901 (Cth). He pleaded guilty and was sentenced in the Sydney District Court by Williams DCJ to 18 months' imprisonment with a 12-month non-parole period, accompanied by a recognisance release order. He then sought leave to appeal to the Court of Criminal Appeal.

  • Whether the sentencing judge erred in his approach to the applicant's prior good character as a mitigating factor
  • Whether the availability of summary disposal of the offence was a relevant consideration in fixing the appropriate sentence
  • Whether the sentence of 18 months' imprisonment was manifestly excessive

Decision

Prior good character: The Court considered whether Williams DCJ had appropriately weighted the applicant's previously good character. The Court affirmed that prior good character is a mitigating factor, but its weight varies with the nature of the offence. Given the gravity of child pornography importation and the significant moral culpability involved, the sentencing judge's limited weight afforded to the applicant's prior good character was not an error.

Summary disposal: The applicant argued that the fact the offence could have been dealt with summarily was relevant to the appropriate sentencing range. The Court rejected this submission. The availability of summary disposal does not operate as a cap or guide to the appropriate penalty in the District Court. The sentence imposed must reflect the actual circumstances of the offence, regardless of whether it might theoretically have been resolved in a lower court.

Manifest excess: The Court examined the objective seriousness of the offence in detail. Key factors included the nature and volume of the material, the age and vulnerability of the children depicted, and the absence of any commercial purpose (which would have aggravated the sentence further). The Court noted that general deterrence was a paramount consideration in this category of offence, and that specific deterrence was also significant on the facts. The subjective circumstances, including prior good character, were of limited assistance to the applicant given the nature of his conduct.

The Court was not satisfied that the sentence fell outside the permissible range. All four grounds of appeal were rejected. Even if specific error had been identified, the Court was not persuaded that any different sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Prior good character carries reduced mitigating weight where an offence involves significant moral culpitude, such as the importation of child pornography, and a sentencing judge's decision to limit that weight is not necessarily an error.
  • The theoretical availability of summary disposal does not set any ceiling on, or otherwise guide, the sentence a higher court should impose for a serious offence.
  • General deterrence is a paramount sentencing consideration for child pornography importation offences; specific deterrence may also be a significant factor depending on the circumstances of the individual offender.
  • In assessing objective seriousness for possession or importation of child pornography, relevant factors include the age of the children depicted, the gravity of the sexual acts shown, the number of images and children victimised, and whether the material was held for personal use or distribution.
  • No error was established in the 18-month sentence with a 12-month non-parole period, confirming that full-time custodial sentences are within range for offences of this kind where the material is serious and the offender's subjective circumstances provide limited mitigation.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233BAB(5)
- Crimes Act 1914 (Cth), s 19AC(1)
- Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000 (Cth)
- Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004 (Cth)
- Criminal Procedure Act 1986 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Mai (1992) 26 NSWLR 371
- R v NZ [2005] NSWCCA 278
- R v Assheton (2002) 132 A Crim R 237
- R v C; Ex parte Commonwealth DPP [2004] QCA 469
- Holland v The Queen [2005] WASCA 140
- Ryan v The Queen (2001) 206 CLR 267
- Weininger v The Queen (2003) 212 CLR 629
- R v Oliver [2003] 1 Cr App R 28
- R v Jones (1999) 108 A Crim R 50
- R v Liddington (1997) 97 A Crim R 400
- R v Bloomfield (1998) 44 NSWLR 734