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District Court 24 October 2008

R v David Bruce Elliott

[2008] NSWDC 238

Sexual offences
CRIMINAL LAW SENTENCE POSSESS CHILD PORNOGRAPHY DISSEMINATE CHILD PORNOGRAPHY PLEA OF GUILTY OFFENCES WHILST ON BAIL

Citation: R v David Bruce Elliott [2008] NSWDC 238
Court: District Court of New South Wales
Date: 24 October 2008
Judge(s): Hulme SC DCJ

Background

The offender pleaded guilty to five charges of possessing child pornography and four charges of disseminating child pornography, contrary to sections 91H(3) and 91H(2) of the Crimes Act 1900 respectively. The offending came to light after the Australian Federal Police received information in July 2006 about an Australian resident accessing a child exploitation website from the United States. Subsequent investigation identified the offender, who was living in a caravan park in Orange, New South Wales.

When police arrested the offender in March 2007, they seized a laptop computer, USB drives, personal computers, DVDs, CDs, 8mm film reels, and printed images. The material ranged across the COPINE scale (a ranking system for child exploitation material from level 1 to level 10) and included images at the most serious levels, depicting children as young as two years of age being subjected to sexual assault, sadistic acts, and penetrative abuse. Police also identified the offender as a participant in a paedophile network with interstate and overseas connections.

Following his arrest and release on bail, the offender breached his bail conditions by continuing to access the internet and disseminate child exploitation material. This included engaging with an undercover police operative and transmitting prohibited images on multiple occasions. Counts 5 to 9 on the indictment all related to this bail period offending.

  • What total sentence was appropriate, having regard to the objective gravity of the offending, including both the possession and dissemination charges?
  • How should the principle of totality be applied across nine separate counts involving offending that occurred across two distinct periods?
  • What weight should be given to the guilty plea, the offender's personal circumstances, and any mitigating factors?
  • How should the court treat the aggravating circumstance that the later offences were committed whilst the offender was on bail?
  • What approach to the COPINE scale was appropriate for characterising the seriousness of the material?

Decision

The court accepted the use of the COPINE scale, noting that it provided a convenient and agreed method for ranking the seriousness of child exploitation material. The court observed that the material in the offender's possession was extensive and that much of it reached the most serious categories on the scale, including images of infants and very young children subjected to sadistic abuse. The volume of the material, the range of its severity, and the offender's active role in a paedophile network all bore upon the objective gravity of the offending.

The court treated the offending as falling into two phases: the possession offences arising from the March 2007 arrest (Counts 1 to 4), and the dissemination and possession offences committed during the bail period from October 2007 onwards (Counts 5 to 9). The bail period offending was treated as a significant aggravating factor. The court applied the totality principle to ensure that sentences running consecutively were structured so as not to produce a disproportionate overall term.

The offender's guilty plea was acknowledged as a mitigating factor, and the court noted he would retain the benefit of having entered his plea at an early stage in the Local Court, notwithstanding the procedural complications that had required the indictment to be reformulated before sentencing. The court also took into account personal circumstances advanced on the offender's behalf, but concluded that these did not warrant a departure from what the objective gravity of the offending required.

Orders Made

  • Count 1 (Possession, 27 March 2007): Fixed term of 18 months from 15 December 2007, expiring 14 June 2009.
  • Count 2 (Possession, 27 March 2007): Fixed term of 3 years from 15 December 2007, expiring 14 December 2010.
  • Count 3 (Possession, 27 March 2007): Fixed term of 18 months from 15 December 2007, expiring 14 June 2009.
  • Count 4 (Possession, 27 March 2007): Fixed term of 3 years from 15 December 2007, expiring 14 December 2010.
  • Count 5 (Dissemination, bail period): Fixed term of 18 months from 15 December 2009, expiring 14 June 2011.
  • Count 6 (Dissemination, bail period): Non-parole period of 18 months, balance of 6 months, commencing 15 December 2009; non-parole period expiring 14 June 2011.
  • Count 7 (Dissemination, bail period): Fixed term of 18 months from 15 December 2009, expiring 14 June 2011.
  • Count 8 (Dissemination, bail period): Non-parole period of 1 year 10 months, balance of 8 months, commencing 15 December 2009; non-parole period expiring 14 October 2011.
  • Count 9 (Possession, bail period): Non-parole period of 2 years 1 month, balance of 1 year 5 months, commencing 15 December 2009; eligible for parole 14 January 2012; total sentence expiring 14 June 2013.
  • Total effective sentence: 5 years and 6 months imprisonment, with an effective non-parole component of 4 years and 1 month.
  • Forfeiture order made under the Confiscation of Proceeds of Crime Act 1989.
  • All sentences backdated to 15 December 2007 (date the offender entered custody).

Key Takeaways

  • The District Court treated offending committed whilst on bail as a seriously aggravating circumstance, structuring the sentences so that the bail-period counts ran consecutively to the initial possession counts.
  • Where child exploitation material spans a wide range of severity on the COPINE scale, and includes images at the most serious levels, the volume and nature of the material combine to place the objective gravity of the offending at the higher end of the range.
  • Active participation in a networked paedophile group, including the dissemination of material rather than mere passive possession, increases the seriousness of the conduct for sentencing purposes.
  • A guilty plea entered at an early stage in the Local Court can still be taken into account in mitigation even where procedural complications later require the indictment to be reformulated before sentencing in the District Court.
  • Applying the totality principle to multiple counts of child pornography offending requires the court to structure consecutive sentences carefully so that the aggregate term remains proportionate to the overall criminality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 91H(2) and 91H(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW)

Cases
- R v Oliver [2003] 1 Cr App R 28 (UK Court of Appeal, five-level ranking of child exploitation material)
- R v Kennedy [2000] NSWCCA 527
- R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370
- Mouscas v R [2008] NSWCCA 181
- R v Saddler [2008] NSWDC 48
- R v Stroempl (1995) 105 CCC(3d) 187
- R v Jones (1999) 108 A Crim R 50