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Local Court 22 August 2008

P v Winter

[2008] NSWLC 15

Sexual offences
POSSESSION OF CHILD PORNOGRAPHY INTELLECTUALLY DISABLED OFFENDER WHETHER DEALT WITH ACCORDING TO LAW CONSIDERATION OF PENALTY

Citation: P v Winter [2008] NSWLC 15
Court: Local Court of New South Wales (Wagga Wagga)
Date: 22 August 2008
Judge(s): Magistrate P S Dare SC

Background

The defendant, a man with no prior criminal history, pleaded guilty to five charges involving child pornography: two counts of possessing child pornographic images and files under the Crimes Act 1900 (NSW), and three counts of using a carriage service to access child pornography under the Criminal Code Act 1995 (Cth). The conduct dated to 2003, when US authorities identified him as having subscribed to confirmed child pornography websites using his credit card. Australian police executed a search warrant at his West Wyalong residence in February 2008 and seized hard drives, discs, and related materials.

The defendant resided on his parents' property in a separate dwelling. Evidence before the court indicated he had experienced developmental difficulties from birth, had attended a special school, and had likely suffered from mild intellectual disability throughout his life. A forensic psychiatrist and a psychologist both reported that his condition amounted to a developmental disability, being a lifelong condition unlikely to change.

On the date originally listed for sentencing, defence counsel raised, for the first time, an application to have the charges dealt with under section 32 of the Mental Health (Criminal Procedure) Act 1990, which allows a magistrate to divert certain defendants with mental illness or developmental disability away from ordinary criminal process. The magistrate adjourned the matter to allow proper consideration.

  • Whether the defendant met the threshold for diversion under section 32 of the Mental Health (Criminal Procedure) Act 1990, as a person who was "developmentally disabled"
  • Whether, even if that threshold was met, it was "more appropriate" to deal with him under section 32 rather than according to law, having regard to the objective seriousness of the offending
  • What penalty was appropriate if the section 32 application was refused and the matter proceeded to sentence

Decision

The magistrate accepted that the defendant's mild intellectual disability satisfied the threshold condition of developmental disability under section 32(1)(a). However, the magistrate emphasised that establishing developmental disability alone is not sufficient to attract the section. The second limb requires the magistrate to assess whether it would be "more appropriate" to deal with the defendant under the section than according to law, and that assessment is directly tied to the gravity of the offending conduct.

To assess that gravity, the magistrate insisted on viewing a representative sample of the seized material, noting that no one else's characterisation of the content could substitute for the tribunal of fact's own assessment. Having viewed the material, the magistrate found the offending to be of sufficient objective seriousness that it was not more appropriate to divert the matter under section 32. The application was accordingly refused, and the court proceeded to sentence.

On sentence, the magistrate took into account the defendant's intellectual disability, absence of prior convictions, guilty pleas, and the circumstances revealed in the pre-sentence report, including his participation in the Salvation Army's Positive Lifestyle Program. The court imposed non-custodial orders across both the state and Commonwealth charges, reflecting these significant mitigating factors while still recording convictions.

Orders Made

  • Sequence 1 and Sequence 5 (NSW charges): Defendant convicted; sentenced to a bond under the applicable NSW provision requiring good behaviour for 12 months, supervision and guidance by the Probation and Parole Service (including compliance with counselling and treatment directions), and continuation of the Salvation Army Positive Lifestyle Program until completion.
  • Sequences 2, 3, and 4 (Commonwealth charges): Treated as one penalty under s 4K(4) of the Crimes Act 1914 (Cth); defendant convicted and released on a recognizance under s 20(1)(a) of the Crimes Act 1914 (Cth) in the sum of $500 with conditions of good behaviour for 12 months, Probation and Parole supervision, and continuation of the Positive Lifestyle Program.
  • Offending materials ordered to be forfeited and destroyed.

Key Takeaways

  • Under section 32 of the Mental Health (Criminal Procedure) Act 1990, the mere establishment of developmental disability or mental illness is not sufficient to warrant diversion. The magistrate must also be satisfied that diversion is "more appropriate" than dealing with the matter according to law, and that assessment requires consideration of the objective seriousness of the offending conduct.
  • Where child pornography charges are the subject of a section 32 application, the actual offending material must be placed before the court. The magistrate held that no other person's description or characterisation of the content can substitute for the tribunal of fact's own assessment of nature, content, and number of the images.
  • Section 32 applications are procedurally significant proceedings requiring advance preparation, including the provision of medical reports and the offending material itself. The magistrate expressed that such applications should not be raised for the first time on a busy list day without proper supporting materials.
  • Intellectual disability, although insufficient on its own to attract diversion, remains a relevant mitigating factor at the sentencing stage. Here, it contributed to the court imposing non-custodial orders despite the defendant having pleaded guilty to multiple child pornography offences.
  • Commonwealth charges arising from a single course of conduct may be treated as one penalty under s 4K(4) of the Crimes Act 1914 (Cth), and the sentencing court must comply with the explanation requirements of s 20A before imposing a conditional release recognizance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91H(3)
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(i)
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 32, 36
- Crimes Act 1914 (Cth), ss 4K(4), 16A, 20(1)(a), 20A
- Bail Act 1978 (NSW)

Cases
- Apps v R [2006] NSWCCA 290
- Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159
- Director of Public Prosecutions v El Mawaz [2006] NSWCA 154
- Mouscas v Regina [2008] NSWCCA 181
- Police v Power [2007] NSWLC 1
- R v Assheton (2002) 132 A Crim R 237
- R v C; Ex parte Commonwealth DPP [2004] QCA 469
- R v Doan (2000) 50 NSWLR 115
- R v Engert (1995) 84 A Crim R 67
- Regina v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370
- R v Hemsley [2004] NSWCCA 228
- R v Henry (1999) 46 NSWLR 346
- R v Israil [2002] NSWCCA 255
- R v Jones (1999) 108 A Crim R 50
- R v Malcolm [2006] NSWCCA 323
- Rigby v Regina [2006] NSWCCA 205
- R v Saddler [2008] NSWDC 48
- R v Scognamiglio (1991) 56 A Crim R 81
- Regina v Snellen (1991) 57 A Crim R 313
- R v Stroempl (1995) 105 CCC(3d) 187
- R v Thomson and Holten (2000) 49 NSWLR 383