Citation: R v William Geoffrey Leonard (No 3) [2008] NSWDC 211
Court: District Court of New South Wales
Date: 5 September 2008
Judge(s): Berman SC DCJ
Background
The offender, a 74-year-old man, appeared for sentencing on two separate offences. He had pleaded guilty to possessing child pornography, and a jury had found him guilty of using a carriage service (the internet) to make child abuse material available. The jury returned its verdict in the offender's absence after he was taken from the court by ambulance.
The offender had operated a website on which he publicly advocated for the removal of age-of-consent laws. In the course of that website activity, he republished police witness statements from his earlier child sexual assault prosecutions. Those statements described the abuse of two child victims. The Crown alleged that this material constituted child abuse material that reasonable people would find offensive, and that the offender was reckless as to that circumstance.
The child pornography offence arose from forensic examination of the offender's computer and hard drive after police seized them during investigation of the website. That examination revealed previously deleted images of child pornography. The Crown's case was not that the offender possessed the material at the time of seizure, but at an earlier time when the images remained freely accessible on his computer.
Legal Issues
- Whether the sentence for the child pornography possession offence should reflect the seriousness and nature of the material found on the offender's computer
- How to characterise the relative seriousness of the offence of using a carriage service to make child abuse material available, where the material consisted of legal documents rather than erotic or pornographic content
- What weight to give to the offender's age, poor health, and prior criminal history for child sexual assault in determining the appropriate sentence
- Whether the two sentences should be served concurrently or consecutively
Decision
The court treated the child pornography possession offence as the more serious of the two charges. The images ranged from relatively mild (clothed boys obtained for a sexual purpose) through to highly graphic material, including photographs depicting sexual acts between children and images of an adult male sexually abusing a pre-pubescent child. The court noted that some images were pencil sketches rather than photographs, which reduced, to a degree, the harm attributable to their creation.
On the carriage service offence, the court acknowledged that the republished police statements did constitute child abuse material within the meaning of the Commonwealth Criminal Code, as the jury found. However, because the material was not erotic or pornographic in nature, the court considered this to be well below the most serious examples of such offending. The court observed that the prosecution of this type of conduct may not have been the primary mischief the legislation was designed to address.
The offender had prior convictions for child sexual assault offences involving children aged between ten and sixteen. The court found no prospects of rehabilitation, though it acknowledged that the offender's age and this criminal experience might serve as practical deterrents to future offending. The court declined to find special circumstances that would warrant adjusting the statutory ratio between non-parole period and head sentence.
The offender's health was treated as a mitigating factor. At 74, having recently suffered a myocardial infarction, and likely to be placed on protection given the nature of his offences, the court found that imprisonment would bear more heavily on him than on a healthier offender. The two sentences were ordered to be served concurrently.
Orders Made
- For the offence of possessing child pornography: imprisonment with a non-parole period of nine months commencing 3 September 2008 and expiring 2 June 2009, with a head sentence of one year
- For the Commonwealth offence of using a carriage service to make child abuse material available: a fixed term of imprisonment of six months commencing 3 September 2008
- Both sentences to be served concurrently, with the offender to be released to parole on 2 June 2009
Key Takeaways
- The District Court confirmed that republishing police witness statements describing child sexual abuse on a public website can constitute making child abuse material available under the Commonwealth Criminal Code, even where the material is not erotic or pornographic in nature.
- A jury's finding of guilt on a carriage service offence does not require the underlying material to be pornographic; the test turns on whether reasonable people would regard the material as offensive in all the circumstances.
- Where an offender's age and poor health mean that a custodial sentence will bear more heavily than it otherwise would, those factors may properly be taken into account as mitigating considerations at sentencing.
- The sentencing court assessed the relative gravity of the two offences differently: possession of graphic child pornography was treated as the more serious matter, while the carriage service offence, involving non-erotic legal documents, was placed at the lower end of the range for that type of offending.
- Prior convictions for child sexual assault offences were relevant to the sentencing exercise, with the court expressly finding no prospects of rehabilitation in the offender's circumstances.
Legislation and Cases Referenced
Legislation:
- Commonwealth Criminal Code (Cth)
- Crimes Act 1900 (NSW)
Cases:
- An unspecified decision of the Court of Criminal Appeal dealing with how deleted material can remain accessible on a computer (the judge noted the name escaped him at the time of judgment)