Citation: Gosling, Anthony v D.P.P [2009] NSWDC 93
Court: District Court of New South Wales
Date: 23 January 2009
Judge(s): Nicholson SC DCJ
Background
The appellant, a school teacher with thirteen years of experience, was charged with possessing child pornography after Australian Federal Police executed a search warrant at his home. A USB storage device and laptop were seized, revealing a total of approximately 1,432 images and 38 videos. Of those, fifty images depicting sexual activity between children and adults formed the basis of the charge.
The appellant pleaded guilty before a Deputy Chief Magistrate in the Local Court and was sentenced to nine months' imprisonment with a non-parole period of five months. He appealed to the District Court on the ground that the sentence was excessive.
The broader collection of material seized included images categorised across several levels of seriousness, from erotic posing through to videos depicting apparent rape of a minor. The charged fifty images fell within the most serious category: children engaged in sexual activity with adults.
Legal Issues
- How should the objective seriousness of a child pornography possession offence be assessed, including the relevance of uncharged material also found in the offender's possession?
- What role does the Copine Scale play in grading the severity of child pornography offences for sentencing purposes?
- Whether the appellant's diagnosis as addicted to internet pornography was a mitigating factor warranting reduced sentence.
- Whether a compulsory rehabilitation program, rather than a confirmed term of imprisonment, better served the sentencing objectives of community protection and deterrence.
Decision
The court undertook a detailed assessment of the objective criminality of the offence. While only fifty images formed the charge, the court held that the criminality of the offender's possession of those fifty images had to be assessed against the backdrop of the entire 1,432 images and 38 videos in his possession. The charged images depicted the most serious category of conduct, namely sexual activity between children and adults.
The court applied the Copine Scale, a graduated framework for categorising child pornography by severity, as a tool for assessing objective seriousness. The defence argument that the remaining 1,382 images fell into the lower half of the Copine Scale categories was noted, but this did not diminish the seriousness of the charged material itself.
The court rejected the diagnosis of addiction to internet pornography as a mitigating factor of significant weight. It also declined to treat the appellant's loss of his teaching career and the personal devastation flowing from his arrest and prosecution as factors substantially reducing objective culpability, though they remained relevant to the sentencing exercise overall.
On rehabilitation, the court accepted the forensic psychologist's assessment that the appellant presented a minimum risk of sexual recidivism and that he was a suitable candidate for a community-based treatment program. The court concluded that compulsory participation in the sexual offenders' program run by Forensic Psychological Services, supervised by Probation and Parole, would more effectively serve community protection and deterrence than confirming the term of imprisonment. On that basis, the court proposed suspending the nine-month sentence conditional on the appellant entering into a nine-month bail bond with strict compliance requirements.
Orders Made
- The appellant to enter into bail pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 for a period of nine months from the date of judgment.
- Conditions of the bail bond: the appellant must be of good behaviour; accept supervision by Probation and Parole and obey reasonable directions of his supervising officer; attend all appointments, counselling sessions, and treatment (failure to do so constitutes a breach of bail).
- The appellant must participate in the sexual offenders' program conducted by the Forensic Psychological Services of the Department of Corrective Services; failure to attend any appointment, counselling, or treatment with that service also constitutes a breach of bail.
- Probation and Parole's role was described by the court as oversight of compliance rather than requiring additional programs from the appellant.
Key Takeaways
- The District Court confirmed that the objective seriousness of a child pornography possession charge must be assessed in the context of all material found in the offender's possession, not merely the images forming the subject of the charge.
- The Copine Scale functions as a practical grading tool in sentencing, allowing courts to locate charged and uncharged material within a spectrum of severity and calibrate the sentence accordingly.
- A claimed diagnosis of addiction to internet pornography was insufficient, on the facts here, to operate as a meaningful mitigating factor in the sentencing exercise.
- Community protection is the primary sentencing consideration in child pornography cases, reflecting the court's recognition that possession of such material contributes directly to the exploitation and abuse of children depicted in it, a principle drawn from the Canadian authority R v Stroempl.
- Where a forensic psychologist assesses an offender as presenting minimum risk of reoffending and recommends community-based treatment, a court may, in appropriate circumstances, suspend a custodial sentence in favour of compulsory rehabilitation under strict supervision.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11
Cases:
- R v Stroempl (1995) 105 CCC (3d) 187 (Ontario Court of Appeal, Canada)
- Oliver [2003] 1 Cr App R 28