The Queen v Vernon Hancock

• Jurisdiction: Northern Territory
• Judge: Riley CJ,Mildren J,Southwood J
• Judgment Date: 18 November 2011
• Date: 18 November 2011
• Court: Court of Criminal Appeal
• Docket Number: FILE NO: NTCCA 8 of 2001

[2011] NTCCA 14

COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Riley CJ, Mildren and Southwood JJ

FILE NO: NTCCA 8 of 2001

Between:

The Queen

Appellant

and

Vernon Hancock

Respondent

REPRESENTATION:

Counsel:

Appellant: M. McColm

Respondent: S. Cox QC

Bretherton v Moore [2006] NTSC 44; Mouscas v R [2008] NSWCCA 181; R v Booth [2009] NSWCCA 89; R v Jones (1999) 108 A Crim R 50; Ryan v The Queen (2001) 206 CLR 267; Walker v The Queen (2008) NTCCA 7; followed.

Buddle v The Queen [2011] TASCCA 11; R v Oliver & Ors [2003] 2 Cr. App. R (S) 15; R v Stroempl (1995) 105 CCC (3d) 187; Romeyko v Samuels (1972) 2 SASR 546; State of Tasmania v Cooper (sentencing remarks) Tennant J 17/5/2011; referred to.

Crimes Act 1914 (Cth) s 20(1)(b)

Criminal Code Act 1995 (Cth) ss 474.19(1)(a)(ii), 474.19(1)(a)(iii), 474.22(1)(a)(ii)

Criminal Code (NT) s 125B(1)

Sentencing Act (NT) ss 5 (2)(e), 6, 40 (1), 40 (6)

CRIMINAL LAW — Sentencing guidelines — sexual offences — possession of child abuse material — using carriage service to transmit child abuse material and child pornography — crown appeal against sentence — whether sentences manifestly inadequate — relevance of general deterrence in sentencing process — relevance of previous good character — appeal allowed in part

REASONS FOR JUDGMENT

(Delivered 18 November 2011)

Riley CJ

1 I agree with the judgment of Mildren J and the orders he proposes.

Mildren J

2 This is an appeal brought by the Crown against inadequacy of sentence, that being the sole ground of appeal.

3 The respondent pleaded guilty to one count of possession of child abuse material, contrary to Section 125B (1) of the Criminal Code (NT) (count one); two counts of using a carriage service to cause child pornography material to be transmitted to himself, contrary to Section 474.19 (1) (a) (ii) of the Criminal Code (Cth) (counts two and four); one count of using a carriage service to cause child abuse material to be transmitted to himself contrary to Section 474.22 (1) (a) (ii) Criminal Code (Cth) (count three); two counts of producing child abuse material contrary to Section 125B (1) of the Criminal Code (NT) (counts five and six) and one count of using a carriage service to make available child pornography material contrary to Section 474.19 (1) (a) (iii) of the Criminal Code (Cth) (count seven).

4 The sentences imposed by the learned sentencing Judge were as follows:

• (1) Count one — imprisonment for two years commencing 20 May 2011;

• (2) Count five — four months imprisonment cumulative upon count one;

• (3) Count six — four months imprisonment cumulative upon count one but concurrent with count five;

• (4) Counts two and four — six months imprisonment commencing 20 May 2011;

• (5) Count three — six months imprisonment commencing 20 May 2011; and

• (6) Count seven — nine months imprisonment commencing 20 May 2011.

5 In respect of the Territory offences there was an effective head sentence of two years and four months. The sentence was backdated and deemed to have commenced on 20 May 2011. Pursuant to Section 40 (1) of the Sentencing Act (NT), his Honour directed that those sentences be suspended after six months of the total head sentence of two years and four months had been served, upon conditions. In addition, an operational period for the purposes of Section 40 (6) of the Sentencing Act (NT) of two years was fixed.

6 In respect of Commonwealth offences the four sentences were made concurrent with each other. Pursuant to Section 20 (1) (b) of the Crimes Act 1914 (Cth) his Honour directed that the respondent be released after he served six months imprisonment in respect of those offences upon giving security without sureties by his own recognizance in the sum of $1,000.00 that he would be of good behaviour for a period of two years.

7 So far as the conditions of the suspended sentence imposed under the Sentencing Act (NT) are concerned, the conditions included supervision by a probation officer, the requirement to participate in assessment, counselling and/or treatment as directed, the requirement to register with his probation or parole officer all computers, laptops, mobile phones or other devices with internet capability owned or used by him during the period of the order, and if requested, to immediately deliver those items for forensic examination by his probation or parole officer. Further, unless given specific permission by his probation or parole officer, he is not to own or use any computer, laptop, mobile phone or other device with internet capability unless it has been registered with his probation officer. There was also a condition that police or a probation or parole officer may enter any premises at which he resided at any time to search and seize any computer, laptop, mobile phone or other devices with internet capability for the purposes of forensic examination.

8 The offences followed the execution by police of a search warrant of the respondent's home in Alice Springs on 8 January 2010, where a computer and external data storage devices were seized, which upon subsequent examination were found to contain a large amount of child abuse material.

9 Count one on the indictment was the offence of possession of child abuse material. The images and videos were found on the external hard drive. In terms of the Oliver Scale, this material was broken down as follows:

Level	Description	Typology	Images	Movies	Stories
1	Images depicting naked/sexual posing with no sexual activity	Deliberate posing suggesting sexual content. Deliberate sexual or provocative poses. Explicit sexual posing with emphasis on genital area.	121,403	416	7
2	Sexual activity between children or masturbation of self by child	Explicit sexual activity not involving an adult	17,753	2,058	83
3	Non-penetrative sexual activity between adults and children	Sexual assault by adult(s) or child(ren)	6,344	274	15
4	Penetrative sexual activity between child(ren) and adult(s)	Sexual intercourse by adult on child	4,540	802	8
5	Torture, cruelty or abuse	Sexual images involving torture, etc	788	249	72
		Total	150,828	3,799	185

10 The categories one to five identified in the table are based upon the five levels of offending in ascending seriousness identified in the judgment of the Court of Appeal in R v Oliver & Ors 1. There is a difference in the category five which is referred to as torture, cruelty or abuse in the description given in the table. It is described in the Oliver Scale as sadism or bestiality. Undoubtedly torture, cruelty or abuse is properly categorised as category five. It is not necessary to further describe the nature of the images in the various categories.

11 So far as possession is concerned the Court of Appeal said 2:

‘The court agreed that the custody threshold would usually be passed where any of the material has been shown or distributed to others, or in a case of possession, where there was a large amount of material at level 2, or a small amount at level three or above. A custodial sentence of up to six months would generally be appropriate in a case where (a) the offender was in possession of a large amount of material at level 2 or a small amount at level 3; or (b) the offender had shown, distributed or exchanged indecent material at level 1 or 2 on a limited scale, without financial gain. A custodial sentence of between six and 12 months would generally be appropriate for (a) showing or distributing a large number of images at level 2 or 3; or (b) possessing a small number of images at level 4 or 5.

A custodial sentence between 12 months and three years would generally be appropriate for (a) possessing a large quantity of material at levels 4 or 5, even if there was no showing or distribution of it to others; (b) showing or distributing a large number of images at level 3; or (c) producing or trading in material at levels 1, 2 or 3. Sentences longer than three years should be reserved for cases where (a) images at level 4 or 5 had been shown or distributed; or (b) the offender was actively involved in the production of the images at levels 4 and 5, especially where that involvement included a breach of trust, and whether or not there was an element of commercial gain; or (c) the offender had commissioned or encouraged the production of such images. An offender whose conduct

merited more than three years would merit a higher sentence if his conduct was within more than one of the categories (a), (b) and (c) than one where the conduct was within the only one such category. Sentences approaching the 10 year maximum would be appropriate in a very serious cases where the defendant had a previous conviction either for dealing in child pornography of for abusing children sexually or with violence. Previous such convictions in less serious cases might result in the custody threshold being passed and would be likely to give rise to a higher sentence where the custody threshold had been passed.

12 The levels of sentences indicated by the Court of Appeal were considered appropriate for adult offenders after a contested trial and to the extent that the Court had indicated, without previous convictions.

13 The Court then discussed some factors which were capable of aggravating the seriousness of the particular offence. Relevant to a possession charge was whether or not there were a large number of images. Obviously the larger the number the more serious the offending particularly if there are a large number of images in the higher categories. On the facts of this case there were a large number of...