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District Court 27 March 2009

R v ROSS

[2009] NSWDC 104

Sexual offences
CRIMINAL LAW SENTENCE POSSESS CHILD PORNOGRAPHY

Citation: R v Ross [2009] NSWDC 104
Court: District Court of New South Wales
Date: 27 March 2009
Judge(s): Berman SC DCJ

Background

The offender pleaded guilty to three offences involving child pornography: possessing child pornography (a State offence), using a carriage service to access child pornography, and using a carriage service to transmit child pornography (both Commonwealth offences). Police attended the offender's home on 15 May 2008 and found a computer containing child pornography on its hard drive, along with four compact disks and 38 floppy disks also containing such material. In total, more than 8,000 images and videos were discovered.

The material ranged from children in erotic poses through to extremely serious depictions involving penetrative sexual acts with children as young as one year of age, as well as sadism and bestiality. The offender had also used a peer-to-peer file sharing program to transmit 243 images of child pornography to other internet users.

At the time of the offences, the offender was aged 30 and was serving a two-year section 9 bond imposed in 2006 following a conviction for committing an act of indecency with a person under 16 years of age. He lived with his mother, in whose home the offences were committed.

  • What sentences were appropriate for three offences involving child pornography, one under State law and two under Commonwealth law?
  • How should the court structure sentences combining State and Commonwealth matters, given the different non-parole period ratios that apply to each?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio applicable to the State offence.

Decision

The court treated general deterrence as a primary consideration in sentencing for offences of this kind, noting that the harm caused to children involved in the production of such material is enormous, as is the harm to the broader community. Personal deterrence was also an elevated consideration because the offender committed these offences while subject to a bond for a prior sexual offence against a child.

The court found that the gravity of the offending was significantly aggravated by the offender's prior conviction and the fact that he was on a bond at the time. The volume of material, the extreme nature of much of it, and the active transmission of images to others were all treated as serious features of the offending.

On the question of structuring the sentence, the court noted that State and Commonwealth non-parole period ratios differ. The standard State ratio is 75 per cent of the head sentence, while the Commonwealth ratio ordinarily falls between 60 and 66 per cent. The court found special circumstances existed in relation to the State offence, principally because of the need for close supervision of the offender upon release given the risk of future sexual misconduct involving children. This justified aligning the overall non-parole period with the lower Commonwealth ratio.

The court also remarked critically on the Crown's decision to tender a compact disk containing sample images and videos for the judge to view, observing that doing so perpetuated one of the very harms that these offences cause, namely the publication of images of children, without any apparent forensic necessity.

Orders Made

  • For possessing child pornography (State offence): fixed term of two and a half years imprisonment, commencing 15 May 2008.
  • For using a carriage service to access child pornography (Commonwealth offence): two and a half years imprisonment, commencing 15 November 2008.
  • For using a carriage service to transmit child pornography (Commonwealth offence): two years imprisonment, commencing 15 May 2010.
  • Non-parole period for the Commonwealth offences: two years, commencing 15 November 2008.
  • Effective overall sentence: four years imprisonment with a non-parole period of two and a half years, with the offender eligible for release to parole on 14 November 2010.

Key Takeaways

  • The District Court confirmed that general deterrence is of particular importance when sentencing for child pornography offences, given the serious harm caused both to individual children and to the community.
  • A prior conviction for a sexual offence against a child, combined with the offender being on a bond at the time of the later offences, constituted a significantly aggravating feature that elevated the need for personal deterrence in sentencing.
  • Where State and Commonwealth offences are sentenced together, the court must navigate differing non-parole period ratios; special circumstances can justify departing from the standard State ratio to achieve a coherent overall sentence structure.
  • The need for close post-release supervision of an offender who poses an ongoing risk of sexual offending against children can itself constitute special circumstances warranting a reduction in the non-parole period relative to the head sentence.
  • The court expressed criticism of the Crown's practice of tendering sample child pornography material for viewing by the sentencing judge where the content is not in dispute, observing that such conduct unnecessarily perpetuates the harm inherent in the production and dissemination of such material.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) (possession of child pornography; section 9 bond provisions)
- Criminal Code Act 1995 (Cth) (using a carriage service to access and transmit child pornography)

Cases:
No cases were cited in the portions of the judgment provided.