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5
Local Court 9 May 2007

Police v Power

[2007] NSWLC 1

Sexual offences
CHILD PORNOGRAPHY SENTENCING PRINCIPLES PSYCHIATRIC EVIDENCE GOOD CHARACTER GENERAL DETERRENCE RELEVANT APPROACH

Citation: Police v Power [2007] NSWLC 1
Court: Local Court of New South Wales (Downing Centre)
Date: 5 September 2007
Judge(s): Chief Magistrate G L Henson

Background

The accused, a former Deputy Senior Crown Prosecutor and Senior Counsel in NSW, pleaded guilty to possession of child pornography under s 91H of the Crimes Act 1900. The charge arose after an IT analyst at the Office of the Director of Public Prosecutions discovered video files depicting the sexual abuse of young children on the accused's home computer, when the accused brought the machine in for repair following a system error.

The computer held a folder containing 31 video files with names indicating sexual content involving children. Two files viewed by the analyst depicted adult men engaging in sexual acts with young Asian boys. The accused had been overseas on annual leave in the period immediately preceding the discovery.

The matter proceeded in the Local Court after neither the prosecution nor the accused elected to have the charge dealt with on indictment in the District Court. The Local Court's sentencing jurisdiction was accordingly capped at a maximum of two years imprisonment.

  • The appropriate weight to give general deterrence in sentencing for child pornography offences
  • How psychiatric evidence bearing on the accused's mental state at the time of the offending should affect sentence
  • Whether the accused's prior good character and professional standing could substantially mitigate the penalty
  • Whether the accused's former profession and the resulting need for protective custody in prison constituted "special circumstances" justifying a variation to the standard non-parole period

Decision

Chief Magistrate Henson imposed a term of imprisonment, rejecting any suggestion that the seriousness of child pornography offending could be substantially displaced by good character, professional standing, or psychiatric factors. The court acknowledged that the accused had been a person of good repute and had suffered significant personal and professional consequences from the prosecution. However, it found that general deterrence remains a weighty sentencing consideration for offences of this kind, given the harm inflicted on children in the production of such material.

The court considered psychiatric evidence relevant to the accused's circumstances but did not treat it as a basis for avoiding a custodial sentence. The judgment recognised that child pornography offences carry inherent seriousness that limits the mitigating effect of personal circumstances, however compelling those circumstances might appear in other contexts.

On the question of protective custody, the court accepted that the accused's former role as a senior prosecutor created a genuine and documented risk to his safety in the general prison population. Probation and Parole reports and correspondence from the Department of Corrective Services confirmed that protective custody would be required throughout the sentence. The court found this constituted "special circumstances" justifying a departure from the standard statutory ratio between the non-parole period and the head sentence, though it cautioned that any such variation should not render the period of actual imprisonment meaningless.

Orders Made

  • The accused was convicted and sentenced to 15 months imprisonment with a non-parole period of 8 months.
  • The sentence commenced forthwith.
  • The non-parole period was set to expire on 8 January 2008, with the balance of the sentence expiring on 8 August 2008.

Key Takeaways

  • General deterrence carries significant weight in sentencing for child pornography possession, reflecting the harm to children involved in producing such material, and is not readily displaced by an offender's otherwise good character or professional background.
  • Prior good character and professional distinction may be acknowledged in mitigation but do not, in cases of this nature, substantially reduce the need for a custodial sentence.
  • Where credible evidence establishes that an offender's particular background creates genuine and ongoing custodial risk, a court may find "special circumstances" justifying a departure from the standard non-parole ratio under the Crimes (Sentencing Procedure) Act 1999.
  • The Local Court applied the principle from R v Mostyn [2004] NSWCCA 97 with caution, noting that while it can no longer be assumed protective custody is more onerous than the general population, the specific facts of this case made protective custody a practical certainty.
  • Psychiatric evidence, while relevant to the sentencing exercise, did not operate to reduce the sentence to a non-custodial outcome in circumstances where the objective seriousness of the offending demanded imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91H
- Criminal Procedure Act 1986 (NSW), ss 259, 267(2) and Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Veen v The Queen (No 2) (1988) 164 CLR
- R v Ma (2004) 145 A Crim R 434
- R v King (2004) 150 A Crim R 409
- R v Scott [2005] NSWCCA 152
- R v Doan (2000) 50 NSWLR 115
- R v Gent [2005] NSWCCA 370
- R v Oliver [2003] 1 Cr App R 28; [2002] EWCA Crim 2766
- R v Mostyn [2004] NSWCCA 97
- R v Harmouche [2005] NSWCCA 398
- R v Thomson and Holten (2000) 49 NSWLR 383
- R v Henry (1999) 46 NSWLR 346
- Ryan v R (2001) 206 CLR 267
- R v Israil [2002] NSWCCA 255
- R v Zamagias [2002] NSWCCA 17
- R v Engert (1996) 84 A Crim R 67
- R v Kennedy [2000] NSWCCA 527
- R v Sharpe 2001 SCC 2 (CanLII)
- R v Stroempl (1995) 105 CCC (3d) 187