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District Court 17 April 2019

R v Legallant

[2019] NSWDC 227

Sexual offences
CRIMINAL LAW SENTENCE POSSESS CHILD PORNOGRAPHY GENERAL DETERRENCE PROTECTION OF CHILDREN EXPLOITATION OF CHILDREN

Citation: R v Legallant [2019] NSWDC 227
Court: District Court of New South Wales
Date: 17 April 2019
Judge: Hunt DCJ

Background

The offender appeared before the District Court for sentencing on two Commonwealth offences. The first was possessing or controlling child pornography material for use through a carriage service, contrary to s 474.20(1) of the Commonwealth Criminal Code. The second was using a carriage service to solicit child pornography material, contrary to s 474.19(1)(a)(iii) of the same Code. Both offences carry a maximum penalty of 15 years imprisonment.

The offending involved the possession and solicitation of images depicting real children, including very young victims. The offender, then in his late twenties, had used a software application called ManyCam, which was found on his devices and assessed as being used solely to store and share child pornography. The software also made detection less likely, indicating at least some degree of planning and organisation.

There was no evidence of any commercial motivation. The precise number of individuals with whom material was shared or exchanged could not be determined from the investigation, though the circumstances were consistent with sharing with at least one other person.

  • What sentence was appropriate for these two Commonwealth child pornography offences, applying Part 1B of the Crimes Act (Cth) and the relevant sentencing principles?
  • What weight should be given to general deterrence, and how does it interact with other sentencing considerations such as good character and personal circumstances?
  • Whether the objective seriousness of the offences, assessed against the factors identified in Minehan v R, warranted full-time imprisonment.
  • Whether any other sentencing option short of full-time imprisonment was appropriate under s 17A of the Crimes Act (Cth).

Decision

Hunt DCJ applied the sentencing framework in Part 1B of the Crimes Act (Cth), including s 16A(2) (relevant matters to be considered) and s 17A (which requires a court to be satisfied that no other sentence is appropriate before imposing imprisonment). His Honour confirmed that a term of imprisonment is ordinarily expected for child pornography offences, and that general deterrence is a primary consideration. The rationale is that such offences are not victimless: children are abused to supply the market, and victims may suffer ongoing trauma from knowledge that images of them continue to circulate.

His Honour assessed the objective seriousness of the offences by reference to the Minehan factors, including: the involvement of real children, the ages and vulnerability of victims depicted, the gravity of the sexual acts shown, the number of images, the use of software to organise and facilitate sharing, and the absence of any commercial element. The use of ManyCam was treated as indicative of planning, even absent evidence of broad dissemination. Conversely, there was no evidence of sadomasochism or overt additional cruelty, and no commercial benefit was obtained.

On the question of the offender's good character, Hunt DCJ applied the principle from R v Gent that less weight can properly be given to prior good character in child pornography cases. His Honour acknowledged that imprisonment would have adverse consequences for the offender, including disruption to family relationships, employment and protective social factors identified by a psychologist. However, those consequences did not outweigh the other sentencing considerations, and no alternative to full-time imprisonment was available.

A 15 per cent utilitarian discount was applied to reflect the offender's guilty plea. His Honour imposed an aggregate sentence under s 19AB(1) of the Crimes Act (Cth), arriving at the final term by treating the two offences as partly concurrent and partly cumulative.

Orders Made

  • Count 1 (possession/control): indicative sentence of 2 years and 6 months (starting point before discount: 3 years).
  • Count 2 (solicitation): indicative sentence of 2 years and 6 weeks (starting point before discount: 2 years and 6 months).
  • Aggregate sentence of 3 years and 6 months, commencing 17 April 2019 and expiring 16 October 2022.
  • Non-parole period of 2 years and 3 months, with earliest release to parole on 16 July 2021.
  • Forfeiture order made by consent.

Key Takeaways

  • General deterrence is a primary sentencing consideration for child pornography offences because the offending sustains a market for the sexual abuse of children, making these crimes fundamentally not victimless.
  • Under the principle confirmed in R v Gent and applied here, prior good character carries reduced weight in child pornography cases, and the absence of financial motivation does not operate as mitigation.
  • The District Court assessed objective seriousness by reference to the multi-factor framework from Minehan v R, including the nature of the material, the ages of children depicted, the degree of planning, and the proximity of the offender to the production of the images.
  • A 15 per cent utilitarian discount for a guilty plea was applied before arriving at the indicative sentence on each count, consistent with the standard Commonwealth approach.
  • Section 17A of the Crimes Act (Cth) requires a sentencing court to be satisfied that no other sentence is appropriate before imposing full-time imprisonment; in this case, the objective seriousness of the offending meant that threshold was met despite otherwise protective factors in the offender's personal circumstances.

Legislation and Cases Referenced

Legislation:
- Commonwealth Criminal Code, ss 474.19(1)(a)(iii), 474.20(1)
- Crimes Act 1914 (Cth), ss 16A(2), 17A, 19AB(1)

Cases:
- Minehan v R [2010] NSWCCA 140
- R v Gent (2005) 162 A Crim R 29
- Xiao v R [2018] NSWCCA 4