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Court of Criminal Appeal 5 June 2014

Sabel v R; R v Sabel

[2014] NSWCCA 101

Also reported as (2014) 242 A Crim R 49
Sexual offences
CRIMINAL LAW POSSESSION OF CHILD PORNOGRAPHY CRIMES ACT 1900, S 91H(3) MEANING OF "GENUINE SCIENTIFIC PURPOSE" WHETHER SCIENTIFIC METHOD NECESSARY REASONABLENESS OF CONDUCT CRIMINAL LAW

Citation: Sabel v R; R v Sabel [2014] NSWCCA 101
Court: NSW Court of Criminal Appeal
Date: 5 June 2014
Judges: Beazley P; Hidden J; Fullerton J

Background

The appellant was a software developer charged with four child pornography offences following a police search of his home in December 2008. He pleaded guilty to two counts of accessing child pornography using a carriage service (contrary to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth)) and pleaded not guilty to two counts of possessing child pornography (contrary to s 91H(3) of the Crimes Act 1900 (NSW)).

The appellant's defence to the possession charges rested on s 91H(4)(c) of the Crimes Act (since repealed), which provided a defence where material was possessed for a genuine scientific purpose and the conduct was reasonable for that purpose. He argued he had downloaded and possessed the material to research methods of monitoring or blocking the transmission of child pornography over peer-to-peer file-sharing networks, with a view to developing a commercial product.

After a judge-alone trial, Puckeridge ADCJ found the appellant guilty of all possession offences. The judge entered convictions on counts 2, 3, and 4 and imposed two-year good behaviour bonds. On count 1 (one of the access offences), the judge discharged the appellant without proceeding to conviction under s 19B of the Crimes Act 1914 (Cth). Both the appellant and the Crown appealed various aspects of the conviction and sentence.

  • Whether the "genuine scientific purpose" defence under s 91H(4)(c) of the Crimes Act 1900 required the use of proper scientific method, including note-taking and documentation
  • Whether research conducted for the purpose of developing a commercial product could qualify as a "genuine scientific purpose"
  • Whether failure to approach authorities was relevant to the availability or reasonableness element of the defence
  • Whether the convictions for possession were unreasonable or unsupported by the evidence
  • Whether the sentencing judge erred in entering convictions on counts 2, 3, and 4 rather than discharging the appellant under s 19B
  • Whether the prospect of registration under the Child Protection (Offenders Registration) Act 2000 and adverse social consequences were relevant sentencing considerations
  • Whether the s 19B discharge on count 1 was properly reasoned and whether the sentence was manifestly inadequate

Decision

Conviction appeals (counts 3 and 4) dismissed. The Court held that the "genuine scientific purpose" defence requires the use of proper scientific method. The trial judge did not err in finding that the appellant's complete failure to employ any scientific method, including any note-taking, meant the defence was unavailable to him. The Court also confirmed that research aimed at developing a commercial product is not disqualified from constituting a "genuine scientific purpose," but that consideration did not assist the appellant here. While the Court accepted that sufficient doubt had been raised about whether the appellant possessed the material for an erotic purpose, the defence of genuine scientific purpose was nonetheless not made out, and the convictions were not unreasonable or unsupported by the evidence.

Appellant's sentence appeals (counts 2, 3, and 4) dismissed. The Court upheld the decision to enter convictions rather than grant s 19B discharges on those counts. Although the appellant held a genuine belief in his research's commercial prospects, his conduct was criminal and serious. The Court also clarified two important sentencing principles. First, the prospect that an offender may become a registrable person under the child protection registration scheme is not a permissible sentencing consideration, with s 24A of the Crimes (Sentencing Procedure) Act 1999 applying to federal offenders by operation of the Judiciary Act 1903 (Cth). Second, adverse social consequences flowing from a conviction for child pornography offences are not a relevant mitigating consideration: those consequences are a direct result of the offending conduct itself.

Crown appeal against sentence on count 1 upheld. The Court found the trial judge's reasoning under s 19B of the Crimes Act 1914 (Cth) was fundamentally flawed, as the judge failed to apply the required two-stage enquiry. The Court also found insufficient weight had been given to general deterrence. Accessing child pornography creates a market for that material regardless of the offender's stated motives. The sentence was manifestly inadequate, and the Court declined to exercise its residual discretion under s 5D of the Criminal Appeal Act 1912 to refrain from intervening. The Court re-sentenced the appellant on count 1, recording a conviction and releasing him without passing sentence on a $500 good behaviour security for two years.

Orders Made

  • Appeal against conviction dismissed.
  • Leave granted to the appellant to appeal against sentences on counts 2, 3, and 4.
  • Appellant's appeal against sentence on counts 2, 3, and 4 dismissed.
  • Crown appeal against sentence on count 1 upheld; the s 19B order quashed; the appellant convicted of accessing child pornography using a carriage service on 21 November 2007 and released without passing sentence, on giving security of $500 to be of good behaviour for 2 years (pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth)).

Key Takeaways

  • The "genuine scientific purpose" defence under s 91H(4)(c) of the Crimes Act 1900 (now repealed) required actual scientific method. Possession of child pornography for research that involved no note-taking, no documentation, and no structured methodology did not satisfy the defence, regardless of the researcher's claimed purpose.
  • Research aimed at producing a commercial product was not automatically excluded from constituting a "genuine scientific purpose," though the commercial character of the research remained relevant to the overall assessment.
  • Failure to approach authorities was not a precondition to the defence, but the Court confirmed it was relevant to whether the conduct was reasonable in all the circumstances.
  • Under s 24A of the Crimes (Sentencing Procedure) Act 1999 (which applies to federal offenders via the Judiciary Act 1903 (Cth)), a sentencing court must not take into account the possibility that an offender will become a registrable person under the child protection registration scheme.
  • In dismissing the relevance of adverse social consequences, the Court confirmed that social embarrassment or reputational harm flowing from a child pornography conviction is not a mitigating sentencing consideration, as it is a direct consequence of the offending conduct itself.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(3), s 91H(4)(c) (repealed)
- Criminal Code 1995 (Cth), s 474.19(1)(a)(i)
- Crimes Act 1914 (Cth), ss 19B, 20(1)(a)
- Criminal Appeal Act 1912 (NSW), ss 5D, 6(1)
- Criminal Procedure Act 1986 (NSW), s 133
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 24A
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
- Judiciary Act 1903 (Cth), ss 68(1), 79(1)

Cases:
- Bugmy v The Queen [2013] HCA 37; 302 ALR 192
- Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 122 A Crim R 568
- FB v Regina [2011] NSWCCA 217
- Fox v Percy [2003] HCA 22; 214 CLR 118
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hedges v Regina [2011] NSWCCA 263
- Keir v R [2007] NSWCCA 149
- M v The Queen [1994] HCA 63; 181 CLR 487
- MFA v The Queen [2002] HCA 53; 213 CLR 606
- Minehan v R [2010]