Colbourn, Michael John v The Queen

• Jurisdiction: Tasmania
• Judge: Crawford CJ,Porter J
• Judgment Date: 10 December 2009
• Docket Number: 758/2008
• Date: 10 December 2009
• Court: Supreme Court of Tasmania

[2009] TASSC 108

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Crawford CJ, Blow and Porter JJ

758/2008

Colbourn, Michael John

and

The Queen

Hutchins v Western Australia [2006] WASCA 258 , followed.

Aust Dig Criminal Law [3250]

DPP v Latham [2009] TASSC 101 , referred to.

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Sentence — Relevant factors — Nature and circumstances of offence — Circumstances of offence — Accessing and possessing child pornography material — Whether relevant that no payment made for material.

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

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Crawford CJ

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

Blow J

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

3 Count 1 on the indictment was a charge of using a carriage service to access child pornography material, contrary to theCriminal Code (Cth), s474.19, between 31 March 2005 and 2 March 2007. On that charge the appellant was sentenced to two years' imprisonment.

4 Count 2 on the indictment was a charge of possessing child exploitation material, contrary to theCriminal Code (Tas), s130C, on 2 March 2007. On that charge the appellant was sentenced to four years' imprisonment. The learned sentencing judge proceeded to order that 18 months of the two-year Commonwealth sentence was to be cumulative with the four-year State sentence, but that the sentences were otherwise to be concurrent. She also ordered that the appellant was to be eligible for parole when he had served ‘three years of the effective custodial sentence of 5¹/₂ years’.

The grounds of appeal

5 The appellant contends that his sentences were manifestly excessive, and that the learned sentencing judge made a number of specific errors in the sentencing process. His grounds of appeal, as amended, read as follows:

1. ‘1 That the Learned Judge erred by imposing a sentence which was manifestly excessive having regard to all the circumstances of the case.

2. 2 That the Learned Judge erred in that she found that the fact that the appellant did not pay for any of the material was irrelevant when it was relevant.

3. 3 That there was a miscarriage of justice in the imposition of the sentence in that the appellant was sentenced on the basis that he was in possession of 142,000 pornographic images on compact discs when in fact he was in possession of 98,709 pornographic images on compact discs of which 17,768 images were duplicates and 1,841 images were cartoon images.

4. 4 That the Learned Judge erred in failing to order that the two periods of imprisonment be served wholly concurrently with each other.

5. 5 The learned sentencing judge erred in imposing one non-parole period with respect to the sentences of imprisonment imposed.’

The appellant's crimes

6 The appellant's offending was detected as a result of investigations by the United States Federal Bureau of Investigation (‘FBI’) and by the Australian Federal Police (‘AFP’). The FBI investigation related to an internet website which allowed people anonymously to post computer files containing child pornography material, and messages about such material. On 2 March 2007 the appellant's home was searched, and computer equipment was seized. It was found that 3,122 child pornography images were stored on the computer hard drive. Child exploitation material was found on 75 compact discs out of a total of 83 discs that were seized. On those 75 discs, there were 98,709 child pornography files, of which 17,768 were duplicates. Excluding duplicates, there were 80,941 child pornography files, most of which were still images, but some of which were videos.

7 The prosecutor told the learned sentencing judge that count 1 related only to the downloading of the 3,122 images found on the hard drive, and that count 2 related only to an estimated 142,000 images said to have been found on the CDs.

8 On the appellant's hard drive, AFP officers found a series of spreadsheets that constituted a catalogue of many of the appellant's child pornography files. That catalogue was created by him over a period from 2 April 2004 to 1 March 2007, the morning before the search of his home. It occupies 353 A4 pages in our appeal books. It contains details of thousands of items, including what they depict and, in some cases, a rating indicating the appellant's opinion of their quality as child pornography. For example, he gave a rating of ‘A+++’ to a video with the description, ‘4yo sucks cock in bathroom. Great shots in mirror & man cums at end.’

9 AFP officers examined the images on 14 of the seized CDs. They saw thousands of scenes depicting children of all ages, including babies, toddlers and pre-teens. There were scenes depicting each of the following:

• • Naked children.

• • Adult males engaging in or attempting to engage in oral, vaginal and anal sex with naked infants and pre-pubescent girls.

• • Naked boys and girls, bound by their arms and legs, being sexually abused by adult males.

• • Sexual activity between boys and girls.

• • Sexual activity between women and boys.

• • Sexual activity between women and girls.

• • Sexual activity between girls.

• • Girls having items pushed into their vaginas.

• • Children urinating and defecating.

• • An animal being encouraged to lick a girl's vagina.

• • Other acts of bestiality involving children.

10 The appellant participated in a police interview, in which he admitted that he had regularly downloaded child pornography from the internet since 1998 or 1999, except for a break in 2005 and/or 2006 when a particular internet site became unavailable. TheCriminal Code (Cth) did not prohibit the accessing of child pornography until s474.19 came into effect on 1 March 2005. Count 1 originally alleged that the appellant commenced contravening that section on 21 August 2004, but the indictment was amended by changing that date to 31 March 2005. I do not know why the amended date was 31 March, rather than 1 March, but the choice of 31 March would appear to make no significant difference for sentencing purposes.

Ground 2 —Material obtained without payment

11 When she sentenced the appellant, the learned sentencing judge said this:

‘There is no suggestion that you have profited financially from the material you downloaded. You told police that you did not pay for any of the material. In my view that is irrelevant. Whether it is paid for or not does not change the underlying premise that, were it not for people ready to access this type of material, there would be little, or no, demand for its creation.’

12 The appellant contends that the learned sentencing judge erred in saying that it was ‘irrelevant’ that he did not pay for any of the material. He contends that that fact was relevant, on the basis that his offending would have been worse if he had paid for any of the material.

13 InHutchins v Western Australia [2006] WASCA 258, McLure JA, with whom Steytler P and Wheeler JA agreed, said at par26:

‘I accept that payment for pornographic images can aggravate the offence. It may do so by reflecting on the strength of the offender's motivation for obtaining possession of child pornography. … Further, payment is one way of contributing to an economic market for child pornography. However, I am not persuaded that payment for accessing a site is the only means of contributing to an economic market for such images. In any event, whether or not payment is made does not alter the fact that the generation and existence of demand stimulates the supply side of the incalculable harm to the children involved. The absence of payment does not mitigate the offending, but its presence may aggravate it.’

I agree with that approach in relation to payment and non-payment for child pornography, and with the reasons stated by McLure JA for taking such an approach.

14 At the hearing of the appeal, both counsel seemed to accept that paying for child pornography material is an aggravating factor, but that not paying for it is not a mitigating factor. This ground of appeal really raises a question of what the learned sentencing judge meant when she said that not paying for the material was ‘irrelevant’. In one sense, that factor was relevant because an aggravating factor was absent. In another sense, not paying for the material was irrelevant, in the sense that it was not a factor weighing in favour of a lighter sentence. The learned sentencing judge did not make the mistake of treating the absence of payment as a mitigating factor. There is nothing in what she said to indicate that she would not have treated the making of payment as an aggravating factor, and any such mistake would have been irrelevant since this was not a case where any payment was made. There is nothing to indicate any material error as to the fact that the appellant did not pay for any of the material. Ground 2 must therefore fail.

Ground 3 —Quantity of material

15 Before the sentencing of the appellant, AFP officers counted the number of child pornography files on 14 of the 83 compact discs that had been seized from the accused's home. There were about 28,000 child pornography files on those 14 discs. They assumed that the other 69 discs all contained similar quantities of child pornography material, and undertook some calculations on that basis. We were not provided with those calculations, but it seems likely that they were unsophisticated and imprecise. As a result of those calculations, it was estimated that the appellant's CDs contained 142,000 child pornography images, inclusive of video images. On the day he was sentenced, the prosecutor told...