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Local Court 14 November 2008

DPP -v- Little

[2008] NSWLC 19

Sexual offences
SENTENCE CHILD PORNOGRAPHY.

Citation: DPP v Little [2008] NSWLC 19
Court: Local Court of New South Wales (Downing Centre)
Date: 14 November 2008
Judge(s): Deputy Chief Magistrate P S Cloran

Background

The defendant, a senior NSW Police officer of 33 years' service, was found guilty on 7 November 2008 of possessing child pornography contrary to s 91H of the Crimes Act 1900. The offending conduct occurred in January 2006. The defendant appeared unrepresented at the sentencing hearing.

Two images of child pornography were discovered among a large volume of adult pornography material in the defendant's possession. The court found the images were not inadvertently mixed with the adult material, noting that both children depicted were pre-pubescent.

The central question at sentencing was how to weigh the relatively small number of images against the serious nature of their content, the defendant's professional background, and the absence of any guilty plea or demonstrated remorse.

  • Where on the spectrum of objective seriousness did this offending fall, given the small number of images but their serious content?
  • What weight should be given to the defendant's prior good character and length of public service in mitigation?
  • Whether a s 10 dismissal (no conviction recorded), a community service order, or some other sentencing outcome was appropriate?
  • How should the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 be reconciled and applied?

Decision

The court assessed the offending as falling towards the lower end of this category of offence, primarily because only two images were involved. However, the content of at least one image was assessed at Level 8 on the COPINE scale (sexual assault involving an adult), indicating serious gravity in the nature of the material itself, not merely its quantity.

On the question of good character, the court followed the approach in R v Gent [2005] NSWCCA 370, giving limited weight to the defendant's lengthy service record and lack of prior convictions. Established authority supports attaching less weight to prior good character for child pornography offences. The defendant's position as a police officer did not call for harsher treatment than any other community member, but the court noted he was uniquely placed to understand the nature of his conduct.

The court declined to record no conviction under s 10, finding that the objective seriousness of the offence precluded that outcome. A community service order, while proposed by the Crown, was also rejected as an unsuitable disposal. The court accepted the Crown's concession that a custodial sentence was not warranted given the very small number of images.

General deterrence was identified as a paramount consideration, consistent with R v Gent. The court emphasised that child pornography possession is not a victimless crime, that it fuels demand for material produced through the direct abuse of children, and that courts have a role in suppressing the market for such material through appropriate sanctions.

Orders Made

  • Conviction recorded.
  • Defendant ordered to enter a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for two years, with an obligation to appear for sentence if called upon during that period.
  • Fine of $4,000 imposed, plus court costs of $73.

Key Takeaways

  • Child pornography possession is confirmed as a category of offence where prior good character attracts limited mitigating weight, following the NSW Court of Criminal Appeal's approach in R v Gent.
  • The COPINE scale (a 10-level classification system for child sexual abuse material) was applied to assess the objective gravity of the images, with the content here classified at Level 8 despite the small number of items.
  • A s 10 dismissal was unavailable where the objective criminality of the offending was sufficiently serious, even when only two images were involved.
  • General deterrence operates as a paramount consideration in sentencing for child pornography offences, reflecting the court's recognition that demand-side conduct directly fuels the production of material involving child abuse.
  • Sentencing courts must perform an "instinctive synthesis" under s 3A of the Crimes (Sentencing Procedure) Act 1999, reconciling potentially conflicting purposes including punishment, deterrence, rehabilitation, and denunciation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91H
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10, 21A

Cases
- Police v Power [2007] NSWLC 1
- R v Carroll [2008] NSWCCA 218
- R v Doan (2000) 50 NSWLR 115
- R v Dodd (1991) 57 A Crim R 349
- R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29
- R v King (2004) 150 A Crim R 409
- R v MA (2004) 145 A Crim R 434
- R v Stroempl (1995) 105 CCC (3d) 187 (Canadian authority)