DPP v Latham, Lindsay Gordon

• Jurisdiction: Tasmania
• Judge: Evans J,Porter J
• Judgment Date: 12 November 2009
• Docket Number: 373/2009
• Date: 12 November 2009
• Court: Supreme Court of Tasmania

[2009] TASSC 101

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Evans and Porter JJ

373/2009

Director of Public Prosecutions

and

Latham, Lindsay Gordon

REPRESENTATION:

Counsel:

Appellant: T J Ellis SC and J Ansell

Respondent: P A Warmbrunn

R v Jones (1999) 108 A Crim R 50 ; R v Oliver [2003] 1 Cr App R 28; R v Gent (2005) 162 A Crim R 29, applied.

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Crown appeal — Production, distribution and possession of child exploitation material — Production by typing words in online discussion — Approach to child pornography offences — Whether sentence manifestly inadequate.

Orders of the Court

• 1 Appeal allowed.

• 2 Sentence 10 months' imprisonment to commence on 9 April 2009, the execution of six months of which was suspended on condition that he be of good behaviour for a period of three years, quashed.

• 3 Respondent sentenced to imprisonment for two years to date from 14 August 2009.

• 4 The respondent is not to be eligible for parole until he has served one half of that sentence of imprisonment.

REASONS FOR JUDGMENT

COURT OF CRIMINAL APPEAL

Evans J

12 November 2009

1 I have had the benefit of reading the reasons for judgment prepared by Porter J and agree with his reasons for allowing the appeal. Had it not been that a significant aspect of the respondent's criminal conduct was producing child exploitation material by means of his involvement in internet chat room conversations, I doubt that I would have allowed the appeal. It has only been since the growth of the internet that criminal conduct of the nature of the respondent's has become the subject of the criminal law. In the time that has passed since the crimes for which the respondent has been convicted were introduced into the Criminal Code Act 1924 (‘the Code’), no discernible sentencing range has emerged from the sentences imposed for these crimes. There is however, an increasing tendency for crimes such as these to attract an immediately effective sentence of imprisonment. I strongly favour this tendency and the message it sends, which is that those who might be similarly inclined can expect to serve an actual term of imprisonment if they act on that inclination. The impact of this message comes more from the certainty of imprisonment than the length of the term imposed. Whilst the sentence imposed on the respondent sent that message (he received an immediately effective sentence of four months' imprisonment) I am nevertheless satisfied that the total length of his head sentence, ten months, was manifestly inadequate in the circumstances of his criminal conduct.

2 The aspect of the respondent's criminal conduct upon which I focus is his production of child exploitation material by participating in written internet online conversations in the course of which he encouraged the other participant to engage in sexual activities with children. In these conversations the respondent purported to be a 27 year old female and the sexual activities canvassed included rape, sadism, torture, bestiality and genital mutilation. As explained by Porter J, the respondent was a more than willing and enthusiastic participant in the discussions. He raised abusive suggestions for the purposes of the discussions and offered direct encouragement to the other participant. The seriousness of his conduct was compounded by the fact that he assumed the identity of a mother who gravely abused her children and encouraged others to do so. The respondent knew nothing of the personal circumstances of the other participants in his conversations; he knew nothing of their mental state; their susceptibility to suggestion; their access to children or the likelihood of them putting into effect the abuses discussed. These conversations cannot be dismissed as abhorrent but harmless fantasises. The pictures that are the subject of the respondent's convictions plainly demonstrate that there are those who act on their abhorrent fantasies. There is a real risk that the respondent's participation in these conversations may have fuelled the abusive fantasies of others and encouraged them to carry them into effect.

3 As to the sentence warranted in substitution for the sentence imposed on the respondent, I agree with Porter J that it should be two years imprisonment, should commence ninety days' prior to the date of the respondent's return to custody and that the respondent should be eligible to apply for parole after serving one half of the sentence.

Porter J

The appeal

4 The respondent pleaded guilty before a judge to one count of possessing child exploitation material, 25 counts of producing child exploitation material and 67 counts of distributing child exploitation material. The crimes are created by the Criminal Code, ss130C, 130A and 130B respectively. These sections and related provisions came into force on 1 August 2005. The production and distribution charges relate to the respondent's conduct from that date until 18 April 2007, when his conduct came to the attention of police. The possession charge relates to the day of the police search of his home; 18 April 2007.

5 Relevant definitions in the Criminal Code are as follows:

• • ‘ “child exploitation material” means material that describes or depicts, in a way that a reasonable person would regard as being, in all the circumstances, offensive, a person who is or who appears to be under the age of 18 years —

  • (a) engaged in sexual activity; or

  • (b) in a sexual context; or

  • (c) as the subject of torture, cruelty or abuse (whether or not in a sexual context).’

• • ‘ “produce” includes make, film, print, photograph and record.’

6 On 29 April 2009, the respondent was convicted of all counts and sentenced to 10 months' imprisonment to commence on 9 April 2009, the execution of six months of which was suspended on condition that he be of good behaviour for a period of three years. An order was made that his name be placed on the Register pursuant to the Community Protection (Offender Reporting) Act 2005, and that he comply with the reporting obligations under that Act for a period of seven years.

7 The Director of Public Prosecutions has appealed to this Court against the sentence of imprisonment imposed. The grounds of appeal are as follows:

• ‘1 The Learned [sic] Judge erred in law in that she imposed a sentence which was manifestly inadequate in all the circumstances of the case.

• 2 The Learned [sic] Judge erred in law and the sentence she imposed was inadequate because she and it failed to give any, or any sufficient weight to:

  • a) the seriousness of the crimes of production and distribution;

  • b) the nature of the material produced and the effect it may have had on encouraging the actual commission of the crimes and depravities on the children it described;

  • c) the fact that the Respondent intentionally distributed child exploitation material in order to gratify the recipients and to receive more material himself.’

The indictment

8 Count 1 on the indictment, that of possessing child exploitation material, alleged that the accused ‘on the 18 ^th day of April 2007 possessed 38,054 pictures of girls and boys under the age of 18 years performing and receiving oral, vaginal and anal sex, and a number of these pictures depicted the torture of persons under the age of 18 years’.

9 In relation to the 25 counts of producing child exploitation material, it was alleged that the respondent had produced the material by writing his part of an internet on-line conversation describing sexual activity between adults and persons under the age of 18 years. In 11 of those counts, it was alleged that the description included the torture of persons under the age of 18 years, the description in one of those counts including the sending of pictures. In general terms, there is a connection in time and material between the production counts and the distribution counts.

10 Of the 67 counts of distributing child exploitation material:

• • 42 counts alleged that between various dates, the respondent distributed numbers of pictures (varying between three and 1000) of girls or of girls and boys, under the age of 18 years ‘performing and receiving oral, vaginal and anal sex’.

• • the remaining 25 of those counts alleged that on various dates, the respondent distributed material ‘by electronically sending his part of an internet chat room conversation describing sexual activity between adults and persons under the age of 18 years’.

• • as to 12 of those 25 ‘internet conversation’ counts, in 10 it was alleged that the description of sexual activity included the torture of persons under the age of 18, and in two counts, the description included the sending of pictures depicting the torture of persons under the age of 18 years.

The facts before the sentencing judge

11 The sentencing judge was told that on 19 March 2007 Tasmania Police received a report from the Australian Federal Police Online Child Sexual Exploitation Team in relation to the respondent being suspected of communicating with a known child sex offender in the USA by way of the Google ‘Hello’ file sharing program. (This program enabled simultaneous viewing and on-line conversing by at least two people.) As a result, the respondent's premises were searched on 18 April 2007. A computer tower, a number of floppy discs and CD/DVDs were seized. On examination the following were discovered:

• • approximately 1,000 child exploitation images in the ‘My Documents’ folder.

• • 80 child exploitation images in emails.

• • use of the Google ‘Hello’ messaging and photo sharing program between May 2005 and September 2006 by a user who had the ID number 1140400. That user (admitted by the respondent to be him) had had contact with 182 other users.

• • 97 user chat logs, which showed the respondent actively chatting and...