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Court of Criminal Appeal 10 December 2009

Puhakka v R

[2009] NSWCCA 290

Sexual offences
CRIMINAL LAW SENTENCE CHILD PORNOGRAPHY SPECIAL CIRCUMSTANCES

Citation: Puhakka v R [2009] NSWCCA 290
Court: NSW Court of Criminal Appeal
Date: 10 December 2009
Judge(s): Macfarlan JA, Blanch J, Johnson J

Background

The appellant was a 20-year-old university student with no prior criminal history who had been convicted on two counts of possessing child pornography contrary to s 91H(3) of the Crimes Act 1900 (NSW). Police executed a search of his premises in January 2008 and seized computer hard drives and compact disks containing a substantial volume of highly disturbing material. Examination of the hard drives revealed 834 still images and 77 video files depicting serious child sexual abuse, with content rated across the COPINE scale from level 5 to level 10.

At sentencing in the District Court on 30 April 2009, the sentencing judge imposed an effective total sentence of four years with a three-year non-parole period. The sentences were structured as partially cumulative terms. Despite expressly finding that special circumstances existed to vary the statutory ratio between the non-parole period and the balance of term, the sentencing judge imposed a sentence that reflected the statutory ratio and did not give effect to that finding.

The appellant sought leave to appeal, arguing that the special circumstances finding was not translated into the actual sentence structure, that the first count was improperly expressed as a non-parole period without a balance of term, and that the overall sentence was manifestly excessive given his subjective circumstances.

  • Whether the sentencing judge erred by failing to give practical effect to his own finding of special circumstances when structuring the sentence
  • Whether the first count was incorrectly expressed as a non-parole period only, without a balance of term
  • Whether the cumulative structure of the sentences was appropriate given the nature of the offending
  • Whether sufficient weight was given to the appellant's subjective circumstances, including age, absence of prior convictions, and prospects of rehabilitation

Decision

The Court of Criminal Appeal accepted the first ground of appeal. Although the sentencing judge had expressly identified special circumstances based on the appellant's youth, first-time imprisonment, absence of criminal history, and the psychiatric opinion that his deviant behaviour had been learned and could potentially be unlearned, the sentence as imposed retained the statutory ratio between non-parole period and balance of term. Blanch J concluded that the finding was appropriate and the sentences needed to be restructured to reflect it.

The Court also accepted the second ground. Because the first count had been expressed solely as a non-parole period without any balance of term, it was technically defective. It was corrected by re-expressing it as a fixed term of two years, concurrent with the second sentence. The concurrent structure was appropriate because the material found across both counts was of the same character.

On the question of manifest excess and the weight given to subjective factors, the Court surveyed comparable sentencing decisions and confirmed that general deterrence carries particular weight for child pornography offences. Blanch J endorsed the reasoning in R v Rodric David Booth that possession of child pornography is a callous and predatory crime because the material cannot exist without the exploitation and abuse of real children. However, the Court found that the appellant's subjective circumstances, including his youth, good rehabilitation prospects, and cautiously optimistic psychiatric prognosis, warranted the reduction in the effective sentence that flowed from properly applying the special circumstances finding.

Orders Made

  • On count 1: leave to appeal granted, sentence quashed, and a fixed term of 2 years imposed from 30 April 2009
  • On count 2 (and taking into account the Form 1 matter): leave to appeal granted, sentence quashed, and a non-parole period of 2 years imposed from 30 April 2009 with a balance of term of 1 year
  • The appellant ordered to be released to parole on 29 April 2011

Key Takeaways

  • A sentencing court that expressly finds special circumstances must actually vary the statutory ratio between the non-parole period and balance of term; a finding of special circumstances that produces no change to that ratio is an error.
  • Where a first count is expressed as a non-parole period alone, without any balance of term, the sentence is technically defective and must be corrected on appeal.
  • The Court of Criminal Appeal confirmed that general deterrence is a particularly significant sentencing consideration for child pornography offences, given the direct connection between demand for the material and the exploitation of children in its production.
  • Subjective factors, including youth, absence of prior criminal history, first-time imprisonment, and genuine prospects of rehabilitation supported by psychiatric evidence, can warrant a reduction in the effective sentence even for serious child pornography offending.
  • This decision predates the January 2009 amendment that increased the maximum penalty for possessing child pornography under s 91H to 10 years; the Court noted this change when surveying comparable cases.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(3)
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Cases:
- R v Rodric David Booth [2009] NSWCCA 89
- Saddler v R [2009] NSWCCA 83
- R v Gent (2005) 162 A Crim R 29
- Power v the DPP, NSWDC, unreported, 19 July 2007
- Mouscas v R [2008] NSWCCA 181
- R v Leonard [2008] NSWDC 211
- R v Elliott [2008] NSWDC 238
- R v Jones [2009] NSWDC 8
- Sivell v R [2009] NSWCCA 286