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District Court 18 December 2008

R v Glenn Andrew LUSCOMBE

[2008] NSWDC 393

Sexual offences
CRIMINAL LAW SENTENCE POSSESS CHILD PORNOGRAPHY PLEA OF GUILTY AT EARLIEST OPPORTUNITY LEVEL 3 TO LEVEL 7 ON THE COPINE SCALE CRITERIA IN R V GENT

Citation: R v Glenn Andrew Luscombe [2008] NSWDC 393
Court: District Court of New South Wales
Date: 18 December 2008
Judge(s): Cogswell SC DCJ

Background

The offender pleaded guilty to two charges of possessing child pornography, contrary to s 91H(3) of the Crimes Act 1900, which carries a maximum penalty of five years imprisonment. The charges related to material found on his personal computer after an acquaintance lawfully obtained the computer and handed it to police. The offender initially denied knowledge of the material but confessed approximately two weeks after his arrest and made full admissions.

The material across both charges comprised over 4,800 images and thirteen video clips. On the COPINE scale (a 10-level classification system used to assess the severity of child exploitation material), the majority fell between level 3 (erotica) and level 7 (explicit sexual activity). The material in the second charge was assessed as more serious than that in the first.

The court received a detailed pre-sentence report, including a psychological report and a psychiatric report from Dr Stephen Allnutt. Both reports identified limited insight, sexual preoccupation, and social isolation as factors relevant to the offending, and both recommended therapeutic intervention including a sex offender rehabilitation program.

  • How serious were the offences compared to other possession-of-child-pornography cases, applying the criteria set out in R v Gent [2005] NSWCCA 370?
  • What weight should be given to the early guilty plea, the absence of remorse, and the offender's personal circumstances?
  • Whether special circumstances existed to justify adjusting the standard ratio between the non-parole period and the balance of the sentence.
  • Whether a suspended sentence or a community service order was appropriate, or whether a term of actual imprisonment was required.

Decision

The court assessed the offences as sitting at the lower end of the range of objective seriousness for this type of offending. Applying the Gent criteria, the court noted the COPINE ratings did not reach the worst categories (levels 8 to 10), the total number of items was modest compared to comparable cases (some involving tens of thousands of files), there was no evidence of attempted distribution or sale, no membership of any network, and no commercial gain. The material was held for personal use only.

The court acknowledged the early guilty plea and gave the offender credit for it. However, the court found no discernible remorse. The psychologist and psychiatrist agreed the offender had limited insight and an underlying paedophilic interest, though both considered him amenable to treatment. The court noted a further matter: the offender was shortly to face charges in the Local Court involving child sexual assault.

The court rejected the submission that a suspended sentence was appropriate, citing the need for general deterrence in child pornography cases. Actual custody was imposed. The court did, however, accept that special circumstances existed, specifically that this was the offender's first custodial experience and that a longer parole period would better support his rehabilitation and supervision on release. This justified departing from the standard ratio between the non-parole period and the parole period.

Orders Made

  • Count 1: Fixed term of imprisonment of 6 months (noted in the catchwords and headnote; the court's oral remarks to the offender referred to a 3-month sentence to 14 March, suggesting the sentences were structured to be served concurrently with count 2).
  • Count 2: Non-parole period of 5 months, with a balance of term of 7 months (total 12 months); earliest release date 14 May 2009.
  • Parole conditions imposed: good behaviour, compliance with court requirements, notification to the Parole Authority of any change of address, and acceptance of supervision and reasonable directions from the Probation and Parole Service, including counselling.
  • The child pornography the subject of both charges ordered to be destroyed, but not before 30 June 2009.

Key Takeaways

  • The Gent criteria remain the framework for assessing objective seriousness in child pornography possession cases in NSW, directing attention to factors such as COPINE level, number of items, evidence of distribution, network involvement, and commercial purpose.

  • Offences at the lower end of the COPINE scale (levels 3 to 7), involving a relatively small number of items and no distribution or network activity, are capable of being placed at the lower end of the range of objective seriousness, even when some material depicts conduct that approaches sexual assault.

  • A plea of guilty at the earliest available opportunity carries meaningful weight in mitigation, but the absence of genuine remorse limits the extent to which personal circumstances can reduce the sentence.

  • General deterrence in child pornography possession matters is treated as a significant sentencing consideration, sufficient to displace the option of a suspended sentence even where the offences are assessed as less serious within their class.

  • Special circumstances justifying an adjusted non-parole to parole ratio can be established where an offender is serving a first custodial sentence and where a longer supervised parole period is considered likely to assist rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91H(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50

Cases
- R v Gent [2005] NSWCCA 370
- R v Saddler [2008] NSWDC 48
- R v Stroempl (1995) 105 CCC (3rd ed.) 187