The Queen v Talbot, Mark Anthony

• Jurisdiction: Tasmania
• Judge: Crawford CJ,Blow J,Porter J
• Judgment Date: 18 December 2009
• Court: Supreme Court of Tasmania
• Docket Number: CCA 531/2009
• Date: 18 December 2009

[2009] TASSC 107

SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

Crawford CJ, Blow and Porter JJ

CCA 531/2009

The Queen

and

Talbot, Mark Anthony

Aust Dig Criminal Law [3521]

Criminal Law — Appeal and new trial — Appeal against sentence — Grounds for interference — Crown appeal — Accessing, possessing and making available child pornography material — Whether sentence manifestly inadequate.

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 This is a Crown appeal in respect of sentences imposed on the respondent for crimes relating to child pornography material. He accessed such material on the internet, kept such material in his possession, and made such material available to others over the internet. His activities involving the internet amounted to crimes under Commonwealth legislation. Possessing child exploitation material is a crime under State legislation. The respondent pleaded guilty to three charges, and a judge imposed separate sentences for the Commonwealth and State crimes. For accessing the pornography and making it available, the respondent was sentenced to 12 months' imprisonment, subject to a recognizance release order that permitted his release after serving six months of that sentence. For possessing child exploitation material, he was sentenced to a concurrent term of six months' imprisonment. The Crown contends that those sentences were manifestly inadequate.

The respondent's crimes

The charges

3 The three charges on which the respondent was convicted and sentenced were as follows:

1. 1 Using a carriage service to access child pornography material, contrary to theCriminal Code (Cth), s474.19(1)(a)(i), between 1 March 2005 and 31 October 2008.

2. 2 Using a carriage service to make available child pornography material, contrary to theCriminal Code (Cth), s474.19(1)(a)(iv), between 25 July 2008 and 21 October 2008.

3. 3 Possessing child exploitation material, contrary to theCriminal Code (Tas), s130C, on 31 October 2008.

Count 3 – Possessing child exploitation material

4 The respondent's offending was detected during an Australian Federal Police investigation relating to the exchanging of child pornography and child abuse material using internet file sharing programs. On 31 October 2008, his home was searched, and computer equipment was seized. The items seized contained 30,125 different still images and 889 video files of child pornography and child abuse material. The learned sentencing judge gave a thorough description of that material. The respondent does not dispute anything in that description. It should be noted that the figures in that description include duplicate images. About 24 per cent of the images referred to were duplicates. His Honour described the seized material as falling into five categories, as follows:

‘Level 1 – Images and videos depicting erotic posing with no sexual activity:

There were 23,044 images, including duplicates, and 191 videos in this category consisting of children:

• • Posing in a sexually explicit manner.

• • Posing naked or partially clothed, many with a focus on the genitals and breasts.

• • Naked and stretching the skins around their vagina and anus;

• • Urinating;

• • Having a close up photograph taken of the vagina, penis and anus.

Level 2 – Images and videos depicting sexual activity between children, or solo masturbation by a child:

There were 1,811 images, including duplicates, and 74 videos in this category consisting of children:

• • Performing oral sex on each other;

• • Engaged in penetrative sex with each other; and

• • Engaged in self penetration by hand or objects such as vibrators, pens and bottles.

Level 3 – Images and videos depicting non-penetrative sexual activity between adults and children:

There were 7,508 images, including duplicates, and 149 videos in this category consisting of children:

• • Holding, touching or preparing to perform oral sex on the penis of adult males;

• • Adults touching the genital and breast areas including hands stretching the skin around the vagina and anus region;

• • Being ejaculated on by adult males or posing with semen on their face, vagina, anus or body;

• • Being urinated on by adult males or female children urinating and defecating on adult males; and

Level 4 – Images and videos depicting penetrative sexual activity between adults and children:

There were 6,824 images, including duplicates, and 454 videos in this category consisting of children:

• • Being penetrated orally, vaginally and anally by the penis, hand or tongue of adult males and females;

• • Being penetrated vaginally and anally by objects such as screwdrivers and other tools, vibrators, pens and bottles being held by adult males and females;

Level 5 – Images depicting sadism or bestiality with children (child abuse):

There were 368 images, including duplicates, and 21 videos in this category consisting of children:

• • Naked, gagged with their hands and feet bound together or tied and bound to a wall, bed seat or bench.

• • Naked and being whipped;

• • Images of female and male children aged between 5 and 15 years pictured naked and locked up in small animal cages;

• • Orally, anally and vaginally penetrated by the penis or tongue of animals, including dogs, cats and larger farm animals;

• • Having knives held against the head, neck and genitals.’

Count 1 – Accessing child pornography material

5 The respondent admitted to the police that he had been accessing child pornography on the internet for about five years, at least once or twice per week, though he said that he had had several breaks. In particular, about two years before the police search he had wiped all the child pornography off his hard drive and not accessed any more for about nine months. TheCriminal Code (Cth) did not prohibit the accessing of child pornography until s474.19(1)(a)(i) came into effect on 1 March 2005. Accordingly the respondent was charged with accessing child pornography between that date and the date of the police search.

Count 2 – Making available child pornography material

6 The respondent made child pornography and child abuse images available to other internet users by means of two file sharing programs named Gigatribe and eMULE. The undisputed facts stated by the prosecutor in relation to the making available of such files can be summarised as follows:

• • The respondent made available 18,344 image files and 455 video files using Gigatribe.

• • Gigatribe did not make those files available to all the world, but only to individuals whom the respondent accepted as Gigatribe friends. Each of his Gigatribe friends was able to access any or all of the available material freely at any time.

• • The respondent had 33 Gigatribe friends.

• • One of the investigating police officers had become one of his Gigatribe friends. The respondent made available to that officer about 7,262 files containing child pornography material.

• • Seven of the respondent's Gigatribe friends were accessing his material at the time of the police search.

• • The respondent also made available 13,562 image files and 294 video files using eMULE. It was implicit that he had made these files available to at least one other eMULE user, but no information was provided as to the number of eMULE users to whom the relevant files were made available.

7 The respondent communicated with other child pornography enthusiasts about the sorts of pornography that he and they wanted to access. He sent each of the following messages during the period of about three months covered by the charge of making available child pornography material:

• • ‘u have no files that im interest in, please add some hc [hard core] or I will have 2 delete u. PS or share others names who do have hc [hard core]. TIA’

• • ‘u don't seem 2 have any shared files, does not seem fair 4 u 2 share mine, please correct this or I nwill have 2 delete u srry. TIA’

• • ‘we love the same thing, thx 4 sharing, hope u enjoy my files, although it seems we have a very similar collection’

• • ‘nice file collection, im mainly into pthc [pre teen hard core], hope u enjoy my files’

• • ‘You're the greatest uncleted, thanks 4 sharing, seems 2 be a struggle 2 find people with new stuff lately, if u see anything new please let me know TIA. PS you say private files are available to verified traders, do I qualify 4 this’

• • ‘u must have more than that cmon dude look what ive shared with u’

• • ‘14 is to old I like 1 to 8 yo [year old]’

• • ‘I like to trade preteen girls if u have any please share or I will have to say goodbye’.

Mitigating factors

8 The following matters were put to the learned sentencing judge about the respondent and his circumstances:

• • He was 40 years old, and married with three children. His wife was a public servant. He was principally engaged in home duties. He went to great lengths to protect his wife and children from any exposure to the material he accessed.

• • He co-operated with the Australian Federal Police at the time of the search and when interviewed. He made full admissions. He allowed an officer to use his Gigatribe account to track down otheroffenders. This led to a number of enquiries and potential prosecutions, both in Australia and overseas. He offered to provide a statement to the AFP, if required, in relation to any prosecution. However, it seemed unlikely that one would be needed.

• • He pleaded guilty to all charges in the Magistrates Court.

• • He had no prior convictions.

• • As I have said, he ceased offending for about nine months, commencing about two years before the police search.

• • He obtained treatment from a clinical psychologist in order to minimise the risk of re-offending. His first treatment session was only 12 days after the police search.

• • There was a low risk of him re-offending.

• • He was remorseful. In...