Louis James Bretherton v David Moore

• Jurisdiction: Northern Territory
• Judge: Martin (BR) CJ
• Judgment Date: 07 June 2006
• Neutral Citation: [2006] NTSC 44
• Date: 07 June 2006
• Court: Supreme Court
• Docket Number: FILE NO: JA20 of 2005 (20322456)

[2006] NTSC 44

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Martin (BR) CJ

FILE NO: JA20 of 2005 (20322456)

Between:

Louis James Bretherton

Appellant

and

David Moore

Respondent

REPRESENTATION:

Counsel:

Appellant: I Rowbottom

Respondent: M Heffernan

R v Jones (1999) 108 A Crim R 50, referred to.

R v Brock (unreported, Supreme Court of the Northern Territory, SCC 20402654, 2 December 2004), followed.

Criminal Code (NT), s 125B

CRIMINAL LAW

Appeal — Justices Appeal — possessing child pornography — s 125B Criminal Code — “possession” — conviction quashed — resentenced.

REASONS FOR JUDGMENT

(Delivered 7 June 2006)

1 The appellant pleaded guilty to four offences of possessing child pornography contrary to s 125B(1)(a) of the Criminal Code. The maximum penalty for each offence was two years imprisonment. The following sentences were imposed:

Count1	10 months imprisonment
Count 2	12 months imprisonment
Count 3	4 months imprisonment
Count 4	4 months imprisonment

2 The learned Magistrate ordered that the sentences be served concurrently and that they be suspended after the appellant had served four months upon condition that he be under the supervision of the Director of Correctional Services and obey the directions of the Director as to residence, reporting, employment, counselling and psychiatric treatment. The operational period of the suspension was two years.

3 The appellant filed a notice of appeal complaining that the sentence was manifestly excessive and that the Magistrate had failed to properly take into account ‘the mental condition of the offender in the circumstances of the commission of the offending’. The notice also complained that the Magistrate failed to properly consider the necessity for supervision during the operational period of two years.

4 Shortly before the hearing of the appeal, the appellant filed an amended notice of appeal adding a complaint that the Magistrate ‘erred in finding that the offence set out in count 1 was made out’.

5 The appellant was represented before the Magistrate by the same counsel who appeared on the appeal. Following the pleas of guilty the prosecutor presented facts to the Magistrate both orally and in a document tended as an exhibit headed ‘Agreed Facts’. The plea was conducted on the basis that the facts were agreed. The exhibit setting out the facts was as follows:

‘At sometime prior to 17 October 2003, the offender obtained numerous electronic image files depicting child pornography by downloading the images from the internet to a Directory on his personal computer.

On that day, Police spoke to the offender about the alleged possession of child pornography at which time he denied that he possessed any such material but agreed to provide his personal computer to Police for analysis in addition to some compact discs. On 22 October 2003, Police conducted an analysis of the offender's personal computer and the discs and located a substantial number of image and movie files on the offender's computer and three of the CDs which depicted child pornography.

The offender was arrested and conveyed to Darwin Police Station on 23 October 2003 at which time he participated in an electronically recorded interview. In the course of the interview, the offender made admissions to possessing a number of the images which had been located and which were shown to him in the course of the interview. A full analysis of the offender's computer and the CDs had not been completed at the time of the interview and additional images containing child pornography were subsequently identified including:

Media Name	Media	Total Files	Location	Description
093_H1	Hard Drive	579	3/55 Boulter Road, Berrimah	544 Images 35 Movies
093_03CD018394	Compact Disc	5905	Top Drawer of cupboard in Lounge Room at Berrimah residence	5863 Images 42 Movies
093_03CD018396	Compact Disc	123	Top Drawer of cupboard in Lounge Room at Berrimah residence	123 Images
093_03CD018399	Compact Disc	421	Top Drawer of cupboard in Lounge Room at Berrimah residence	421 Images

The nature of the images located were varied, ranging from “subtle” pornography involving children to images of naked children involved in sexual acts with both adults and other children.

The material which is the subject of the charges was sent to the Commonwealth Office of Film and Literature Classification which classified them as ‘refused classification’ and issued evidentiary certificates to that effect pursuant to Section 87 of the Classification (Publications, Film and Computer Games) Act.’

6 During submissions counsel for the appellant tendered a report from a psychiatrist which provided extensive detail about the appellant's personal history and his past and current mental state. In the course of that report, the psychiatrist reported as follows:

‘Sometime in about year 2000, he started getting pictures over the Internet. He found some bulletin boards and eventually made contact with a man in Darwin who gave him a CD of explicit child pornography. He then found more sites and downloaded further material which he knew to be illegal. He said the sites were free but he was quite emphatic that he did not view the material for sexual purposes. When asked his motivation, he was unable to give an explanation: “Something in me said to do it but I don't know why. I'd look at them and didn't do anything. It wasn't for sex. I can't work out why”.

In about July or August, 2003, he deleted the material from his computer and did not access the sites again but said he did not know about the back up files for downloaded files. When the Police asked him if he had any prohibited material on his computer, he said he did not and apparently willingly handed them his computer for inspection.’

7 In his submissions, counsel for the appellant advised the Magistrate that the images on the hard drive ‘were found in a folder which was called “lost files”’. Counsel then said:

‘What had in fact happened is my client had deleted them some months before. He had no idea that they would be retained and I'm not sure exactly how that came about but he had no idea they would be retained on the computer but it appears that Windows somehow, if you don't delete things properly, retains it and retains it under the windows folder in lost files.’

8 Counsel continued by advising the Magistrate that the appellant became upset about the files and deleted them. He repeated that the appellant did not realise the files were still within the hard drive. Counsel added: ‘But having said that, the reality is they were and in any event [he] possessed them’.

9 It is common ground that under s 52 of the Justices Act, the time limit for the making of the complaint was six months from the date on which the appellant was in possession of the pornographic images contrary to s 125B(1)(a) of the Criminal Code. Police attended at the home of the appellant on 17 October 2003 and the complaint was made six months later. The plea before the Magistrate proceeded on the basis that sometime prior to 17 October 2003 the appellant had ‘destroyed’ the images on the hard drive and, as at 17 October 2003, he was unaware that the images remained on the hard drive and could be retrieved.

10 The Crown did not dispute that the matter proceeded before the Magistrate on the basis that as at 17 October 2003 the appellant was unaware that the images continued to be stored on the hard drive. In the absence of knowledge of the existence of the images on the hard drive, the Crown agreed that the appellant was not in ‘possession’ of those images for the purposes of s 125B(1)(a).

11 In these circumstances, the Crown properly conceded that the conviction on count 1 should be set aside. As the complaint with respect to count 1 was laid out of time, count 1 is quashed.

12 The existence of the offending in count 1 was relevant to the gravity of the total criminal conduct in respect of which the Magistrate was required to impose sentence. It was a relevant factor in the exercise of the sentencing discretion. As count 1 has been quashed, it is appropriate to set aside the sentences on the remaining counts and to exercise my independent discretion in imposing sentence.

13 Strictly speaking, it is unnecessary to deal with the complaints about the approach of the Magistrate. However, bearing in mind the nature of the complaints, I will indicate my views.

14 I am unable to discern any error in the approach of the Magistrate. Her Honour recognised that general deterrence was of importance, but she also made specific reference to the...