Buddle, Jeremy Philip v The Queen [TASCCA]

• Jurisdiction: Tasmania
• Judge: Crawford CJ,Blow J,Porter J
• Judgment Date: 17 August 2011
• Court: Court of Criminal Appeal
• Date: 17 August 2011
• Docket Number: CCA 178/2010

[2011] TASCCA 11

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Crawford CJ, Blow and Porter JJ

CCA 178/2010

Buddle, Jeremy Philip

and

The Queen

REPRESENTATION:

Counsel:

Appellant: K Cuthbertson

Respondent: I M Arendt

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Sentence manifestly excessive or inadequate — Accessing and possessing child pornography material — Whether sentences manifestly excessive.

Orders of the Court

• 1 Appeal allowed.

• 2 Sentence on count 1 of 18 months' imprisonment, and order permitting release on recognizance after serving 12 months of that sentence, quashed.

• 3 On count 1, appellant sentenced to nine months' imprisonment with effect from 4 March 2011, concurrently with the sentence of 12 months' imprisonment on count 2.

• 4 The appellant is to be released after serving six months of that sentence upon giving security without sureties by recognizance in the sum of $1,000 that he will be of good behaviour for two years after his release from prison.

• 5 The appellant is to be eligible for parole after serving six months of the sentence of 12 months' imprisonment imposed on 4 March 2011 on count 2.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Crawford CJ

1 I agree with the reasons for judgment of Blow J and with the proposed orders.

Blow J

2 The appellant is appealing against sentencing orders that were made by Tennent J after he pleaded guilty to two charges relating to child pornography.

3 Count 1 was a charge of using a carriage service (the internet) to access child pornography material, contrary to the Criminal Code (Cth), s474.19, between 15 November 2005 and 25 November 2009. On that charge the appellant was sentenced to 18 months' imprisonment. The learned sentencing judge made a recognizance release order under the Crimes Act 1914 (Cth), s20(1)(b), permitting him to be released after serving 12 months of that sentence.

4 Count 2 on the indictment was a charge of possessing child exploitation material, contrary to the Criminal Code (Tas), s130C, on 25 November 2009. That was the date of a search of his home by officers of the Australian Federal Police (‘AFP’). On that charge the appellant was sentenced to 12 months' imprisonment, concurrently with the sentence on count 1. No order was made permitting parole.

The grounds of appeal

5 The appellant contends that his sentences were manifestly excessive. Also, he contends that the learned sentencing judge made an error in imposing a heavier sentence on count 1, the accessing charge, than on count 2, the possession charge, when the possession charge was the more serious charge.

6 In a case like this, when an offender views child pornography material on the internet, downloads it, and retains possession of it for the purposes of personal gratification, keeping possession of the downloaded material is generally regarded as more serious criminal conduct than accessing it: R v Oliver (2003) 1 Cr App R 28 at par[12]; Colbourn v R [2009] TASSC 108 at par[33]; R v Talbot [2009] TASSC 107 at par[9]. Counsel for the respondent rightly conceded that the possession charge was the more serious charge in this case. However the question this Court has to decide is whether, in relation to either or both of the appellant's sentences, a less severe sentence is warranted in law: Criminal Code, s402(4). Even though the sentence on the less serious charge is longer than the concurrent sentence on the more serious charge, neither of those sentences should be set aside unless it is manifestly excessive, there being no suggestion in this case of any identifiable specific error in the sentencing process.

The appellant's crimes

7 The appellant used his personal computer at his home to access the internet to obtain child pornography material over a period of about four years, from 15 November 2005 to 23 November 2009. He transferred the material, along with other photographic images, onto an external hard drive. The images were saved in sub-folders identified according to their subject-matter.

8 The appellant's offending was detected as the result of a British website having been accessed from an email address that was attributed to him. On 25 November 2009 the appellant's home was searched, and computer equipment was seized. Some 420,000 images were found on his hard...