New South Wales District Court CITATION: Gosling, Anthony v D.P.P [2009] NSWDC 93 HEARING DATE(S): 14/01/2009 and 15/01/2009 JUDGMENT DATE: 23 January 2009 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: S.11 Bail is granted on conditions CATCHWORDS: Criminal Law - Severity Appeal from Local Court - possess child pornography - 50 images obtained from internet sites - part of larger collection of erotic posing - Copine Scale - principles in assessing objective seriousness of child pornography - school teacher - loss of career - diagnosis of addiction to internet porn viewing sites, rejected. LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Stroempl (1995) 105 C.C.C (3d) 187 Oliver [2003] 1C.AR.28 PARTIES: Anthony Gosling Director of Public Prosecutions FILE NUMBER(S): 2008/12/1166 COUNSEL: Defence: S Russell SOLICITORS: Crown Mr Gibson JUDGMENT 1. This appellant begins a suicide note written to his wife, as best I can tell on 22 February last year, "Words cannot begin to describe the sorrow I am feeling. I have single-handedly destroyed everything that is good in our lives. Being with you and James is what life is about. I cannot live without either of you. As for our new baby, not what we had in mind but a true blessing anyway. The only way forward for you is without me." And he finished the note, "Don't go into the garage without somebody with you". 2. In the preceding two days he had been arrested, charged with possessing child pornography, to wit fifty images on a storage device. Initially he was bail refused but released to bail, as I understand it, on the same day. Upon his return home the account of his charges and arrest had made the local newspaper and other publicity outlets. He was a schoolteacher of thirteen years' experience. The day before his arrest he had attended interviews for two different assistant principal positions. His world had imploded with horror and shame. 3. He alone was the sole author of his misfortunes. In the note he had written, "I had never wanted this to happen. I couldn't stop myself. I would sit at the computer telling myself it was wrong, but unable to stop. I tried to ask you for help a few times, but I guess the shame prevented me. In hindsight, that shame would have been nothing [compared to what has happened now]. 4. As I said in another case having some similarity with this, "There is a world of difference between ending one's life on account of depression caused by one's anti-social behaviour, and accepting accountability to the community for one's criminal conduct associated with that behaviour. The first is conduct of a beaten man. The second is conduct of a man who accepts that there still may be feats to achieve, mountains to climb, respect to be regained. Sometimes that second course is by far and away the more courageous." 5. Anthony Gosling, no doubt with the support of significant others in his family, has begun the task of being held accountable for his conduct. He pleaded guilty before Deputy Chief Magistrate Cloran. He was sentenced to nine months' imprisonment with a non-parole period of five months. He has appealed against the severity of the sentence. The appellant's prospect of success on appeal depends very much upon his capacity to rehabilitate, and whether that kinetic capacity can be converted to positive results. The Facts 6. On 28 June 2004, as a result of investigations conducted by the Australian Federal Police, an account with the user name "Username" and an identified email address was noted as accessing the Google "Hello" program and obtaining child pornography material. The Google Hello Internet protocol log records, dated between 9 December 2006 and 22 April 2007, show that a number of the IP addresses were used by "Username" and the identified email address. Six selected IP addresses on the Google Hello log records revolved back to an Australian Internet Service Provider, Primus Telecommunications. Enquiries with Telstra revealed that all six IP addresses were subscribed to by the appellant. 7. On 21 February, AFP members attached to the Child Protection operation attended his premises at Glenwood and executed a s 3E search warrant. During the execution of the search warrant the appellant was present. A USB storage device was seized and analysed. Analysis showed it contained several images that were regarded as child pornography. There appears to be no doubt about that. A laptop was also seized during the search warrant. It contained several child pornographic images stored within a file path referencing the program, Google Hello. A quantity of images had been deleted from the program. There were, however, thirty-four images identified as erotic posing with no sexual activity. 8. Further analysis of the compact discs, USB storage device and laptop by AFP computer forensics revealed approximately 1,432 images and thirty-eight videos deemed to be child pornography. The material saved onto the computer discs, the USB storage device and laptop was organized into folders. Some of the folders are named, LULAC555, LEZ2, TEENS, LATEST, FITNTRIM, GCXANADU WEB CAM and VOYEUR. The 1,432 images and thirty-eight videos were viewed by AFP Child Protection Operations Team. That material has been catalogues as follows: · Images depicting erotic posing - of the 1,432 images, 1,365 are of girls aged between ten and sixteen in various stages of undress, focusing on their genitalia, dancing and undressing. · Images depicting sexual activity between children and solo masturbation by a child - of the 1,432 images, seventeen are of girls aged between ten and fifteen involved in solo masturbation, digital penetration and penetration by vibrator. · Imaging depicting sexual activity between children and adults - of the 1,432 images, fifty are of girls between ten and fifteen engaged in oral sex and intercourse with adult males. The adult males range between twenty and fifty years. · Videos depicting sexual activity between children and solo masturbation by a child - there were thirty-three videos of young girls masturbating, posing naked, dancing, rubbing and touching bodies including the genital areas. The greater majority of these involved erotic posing and dancing with a lesser amount involving solo masturbation. They range from about twenty seconds to twenty minutes. The age of the children ranges from ten to sixteen years. · Videos depicting sexual activity between an adult and a child - there were five videos that appeared to be in a series depicting a young girl aged between fourteen and sixteen, apparently being raped by an adult male aged about thirty. These videos range in duration from twenty-nine seconds to two minutes. They were located in a folder "DEN". This series of videos begins with the adult male grabbing the young girl by the hair, forcing his penis into her mouth. He then handcuffs her to a water heater and cuts her pants off using a knife. The adult male proceeds to apparently penetrate the young girl vaginally with his penis. 9. While there were a total of 1,432 images in the possession of the appellant, fifty of them are subject of the charge; they are the images that have been detailed. However, the criminality of the offender's possession of these fifty images is to be assessed against the backdrop of his possession of the entire 1,432. 10. Mr Russell, counsel who appears for the appellant, makes the point that the other 1,382 images comprise images falling into the lower half of categories set out on the COPINE Scale. Objective Criminality 11. Before a sentence can be formalized, a sentencing judge is required to assess what is called the objective criminality of an offence, against the criminality of offences of a similar kind. In the normal course of events the court has no interest in the sexual activities of men and women in the community. There are, however, at least two obvious exceptions to this. Firstly, sexual activity that is forced upon another without that other's consent. The other area is sexual activity, whether consensual or not, which involves a power imbalance between a normal adult and young children. The concern to protect young children from this power imbalance, and from exploitation, applies equally to pornographic images. 12. In a Canadian case, decided in the Ontario Court of Appeal, R v Stroempl (1995) 105 C.C.C (3d) 187, the court held, "The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense, possessors such as the appellant instigate the production and distribution of child pornography, and the production of child pornography in turn frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts thought the imposition of appropriate sanctions stifled the activities of prospective purchasers and collectors of child pornography, this would go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place." That observation has been applied in other cases in Australia. 13. The viewing of child pornography by men - it is mainly men - such as the appellant requires them to suspend reality as they view images such as I saw when this matter was last before the Court. The reward to suspension of reality is some form of sexual gratification or stimulation. The cost, however, is that suspension of reality requires the suspension of the true values of sexual relationships. The further cost is that suspension of the true values of relationships becomes easier when the users are away from the computer, that is, when the observer is away from the computer. If violence, roughness in the treatment of minors and power imbalance are rewarding when they are reviewed on the screen, it is not a great step forward to see the same corrupt enjoyment can be experienced away from the computer. 14. The exploitation of a child is difficult to empathise with on the screen unless the image is that of your own daughter or son. Simply put, child pornography, even when captured in the privacy of one's home, is child exploitation. Child exploitation is anti-social conduct of a high order and therefore criminal conduct. Child pornography is a crime against the person - the child or children whose image or images have been exploited to satisfy the lust of unseen men. 15. In a thoughtful, thorough and erudite judgment, Boulton ADCJ of this Court drew attention to another passage in the Canadian case that sought to catalogue a range of factors bearing on the objective seriousness of possessing child pornography. At para 127 he cites them as follows: "(a) The nature and content of the pornographic material, including the age of the children and the gravity of the sexual activity portrayed, (b) The number of images or items of material possessed by the offender, (c) Whether the possession or importation is for the purpose of sale or further distribution, (d) Whether the offender will profit from the offence. It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimized." 16. Mr Russell has referred me to an English case of Oliver [2003] 1C.AR.28. While there is little point in considering comparative sentencing between England and New South Wales, nonetheless, Oliver is meant to be a guideline judgment in England. It has, therefore, some value so far as we are concerned here. 10. "As to the nature of the material, it will usually be desirable for sentencers to view for themselves the images involved, unless there is agreed description of what those images depict. Subject to one matter we accept the [Sentencing Advisory] panel's analysis of increasing seriousness by reference to five different levels of activity derived from the COPINE project's description of images...As it seems to us, neither nakedness in a legitimate setting nor the surreptitious procuring of an image give rise of itself to a pornographic image, accordingly with that amendment to the panel's proposals we categorize the relevant levels as: (1) Images depicting erotic posing with no sexual activity, (2) sexual activity between children or solo masturbation by a child, (3) non-penetrative sexual activity between adults and children, (4) penetrative sexual activity between children and adults, (5) sadism or bestiality." 11. "Any element of commercial gain will place an offence at a higher level of seriousness. In our judgment, swapping of images can properly be regarded as a commercial activity, albeit without financial gain, because it fuels demand for such materials. Wide scale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to potential use of the images by active paedophiles and by reference to the shame and degradation to the original victims." 12. "Merely locating an image on the Internet would generally be less serious than downloading it. Downloading it will generally be less serious than taking an original film or photograph of an indecent posing or activity. We agree with the panel that the choice between a custodial and non-custodial sentence is particularly difficult. On the one hand there is considerable pressure, demonstrated by Parliament increasing the maximum permissible sentence, to make society's abhorrence of child sexual abuse and child pornography by the use of custody. On the other hand there is evidence that sexual offender treatment programs can be effective in controlling offenders' behaviour and thus preventing the commission of further offences. We agree with the panel's recommendation that in any case which is close to the custody threshold, the offender's suitability for treatment should be assessed, with a view to imposing a community rehabilitation order with a requirement to attend a sex offender treatment program. We also agree with the panel that the appropriate sentence should not be determined by the availability of additional orders or by the availability of treatment programs for offenders in custody." 17. It is to be remembered that the offence I am dealing with focuses upon the fifty images on the USB. It is difficult on the facts before me to identify with any precision the fifty images on the USB because they appear to have been merged with other images as part of the total of 1,432 (see para 9 of the statement of facts from the AFP). 18. My starting point is an assumption that the USB did not contain all 1,432 images, however it may well have contained more than fifty images. I have determined the best approach is to find some of the images included the five videos (para 17 of the facts), a number of the thirty-three videos (para 15 of the facts), and a number of the fifty images (para 16 of the facts). So composed, the bulk of the relevant fifty images on the USB falls into two categories, namely:- (3) and (4) of the Copine Scale. 19. The USB was portable and easily transferable, however there is no evidence of sharing or swapping of material. None of the images in the collection was the photographic work of the appellant. The appellant is not proximate to nor directly responsible for any of the original abuse, nor did he seek to take further advantage of the abuse of the children by disseminating the material more widely. 20. The appellant was well aware that what he was doing was criminal conduct, but believed that the circumstances in which he was doing it would not see him come to grief because it was being done in the intimate privacy of his own home, nor did he see it as impacting upon his capacity to engage in his employment. His collection of the material must have been over some time. His interest in pornography manifested some two years or so prior to sentencing. In the course of pursuing this interest he came across images of children under sixteen. Prior to his arrest he was spending about four hours nightly engaged in viewing pornography, including child pornography. 21. In the absence of evidence as to what portion of the two years and what portion of the four hours was spent on child pornography as distinct from adult pornography is difficult for me to assess, but I am satisfied that time so spent was substantial to very substantial. 22. The same young female child is the demeaned and abused subject of each of the five explicit videos. She is aged between fourteen and sixteen, she is post-pubescent but only just. Thus a single girl rather than a number of children is depicted, although, of course, the abuse for her is thereby prolonged. 23. Mr Russell also argues that there are matters of mitigation captured by s 21A. They are: no evidence of any injury or harm to anyone; not a part of any planned or organised criminal activity; no significant criminal record by the appellant; he was a good person of good character and making a useful contribution to the community; unlikely to re-offend; good prospects of rehabilitation; shown remorse; plea of guilty. 24. There is an argument, or one he argues, that he may not have been fully aware of the consequences of his action because of a mental disability diagnosed by specialists. On that score I am not with him. I am satisfied the appellant well knew what he was doing. 25. Mr Russell premised his submissions upon a proposition the court was dealing with 1,432 images. The terms of the charge make clear the court is dealing with only fifty. The significance of the 1,432 as I earlier said is the criminality associated with the fifty, as assessed against the background that they are part of a collection. 26. In Patrick John Power Bolton J there was dealing with the criminality of 400 plus images against the background that they were part of a collection of nearly 29,000 images. Upon this basis Dr Power's criminality was far greater than this appellant's. He was sentenced to fifteen months imprisonment, with a six-month non-parole period and a balance of term of nine months. 27. Nonetheless the objective circumstances of this offence call for imprisonment. As with Dr Power's appeal, the issue is the form that the term of imprisonment should take. Subjective Matters 28. Anthony Gosling is a thirty-nine year old married man, the father of two young children, well supported by his wife and family. Work Experience 29. He was a primary school teacher of thirteen years experience, well regarded by his colleagues, some of whom have supplied testimonials for him. As earlier remarked the promotional ladder to leadership positions within the profession was within his grasp. His work as a teacher still stands for him on sentence, but rightly that career path is no longer open. 30. His counsel sought to put a money value of the loss. It is impossible to gauge because his work ethic is such that he will find another career path. Whether that career path will be as illustrious or more illustrious or less illustrious than his last is a matter of speculation so far as I am concerned. General Health 31. He appears to be of good physical health. There is nothing that I can see which suggests any ailment that would interfere with his rehabilitation prospects. Mental Health 32. Clearly depression and shock at arrest are reflected by his suicide attempt. It was sought to argue that the appellant was addicted to the Internet. Dr Heint, consultant psychiatrist, and Peter Cox, in a very useful report, described him as addicted or compelled to view porn sites. Dr Heint considered him suffering a mental disorder. Mr Cox conceded the claimed disorder had not yet reached the DSM diagnostic guidelines, but that Internet pornography addiction is nonetheless a real psychological problem. 33. I accept that, as the dynamics and characteristics of the phenomenon of pursuing prolonged and habitual viewing of pornography or other internet viewing becomes clearer to those qualified to make judgments, that phenomena will bear a label. The label may be classified as an addiction psychosis disorder or something greater. But as recently as the turn of the century it had not been so classified. This court can only operate on evidence and as yet the criteria for diagnosis of any mental illness, condition or disorder relating to viewing collecting child pornography is not in. Even where addiction is established, for example drug or gambling addiction, a link must be made between the addiction and the commission of a crime. That is, in what way, if at all, it is to be taken into account in assessing the objective seriousness of the offence; in what way, if at all, is it to be taken into account in assessing the subjective features. I am prepared to find his "addiction" to Internet pornography ultimately predisposed him to download images. 34. The addiction was not one that was overwhelming. The appellant agreed in evidence he felt secure that his conduct would not be detected. I am satisfied that had he believed he would have been detected, he would not have collected the child pornography. The potential or uncertainty of detection was sufficient antidote to the addiction. Yes, he would have felt the urge but he would not have succumbed to it. Addiction that can tolerate terms for its survival is not the kind of addiction that will mitigate criminality. Mr Gosling has continued treatment with his community-based psychologist. I sense there is a level of trust that has developed between counsellor and counselled. I also sense there is a greater willingness of Gosling to face up to issues than was apparently the situation when the offender first spoke to Terri Roumanous of the Probation and Parole Office. Extra- Curial Consequences 35. As a result of this criminal conduct there has been attendant adverse publicity. Mr Gosling's wife and parents and other members of the family, not surprisingly, have found the time difficult for them. The offender is conscious his acts have brought distress to innocent members of his family by virtue of their close association with he and his wife. That awareness has been distressing for him. Because of changed employment circumstances the family has had to move to Bidwill. I have inferred the move is to more humble circumstances than was previously the case. I have already referred to the lost of career path and to the enjoyment and sense of fulfilment attached to a teaching career. Remorse 36. Mr Gosling's remorse appears based upon a clear assessment of the moral worthlessness of his conduct. He appears sincere, profound and has used his contrition as the basis of motivation for personal change. Character and Criminal Antecedence 37. In 1992 there was a stealing and a minor matter of resist arrest. On my view he is entitled on this record to be regarded as a person of good character and entitled to some level of mitigation. Psycho Sexual Assessment 38. The number of dynamic risk factors described as "stable" and "acute" were identified as potential areas of risk. The static 99 put him in the relatively low risk of sexual recidivism. My reading of the static/historical risk assessment led me to a view it was speculative only and I would not give it any great weight. A number of "positive factors", that is factors pointing to lowering of risk of re-offending, was also identified. The author of the psychosexual report, Ruth Marshall, forensic psychologist, opined Mr Gosling presents as having minimum risk. Her recommendation was that he take part in the community treatment program provided by forensic psychological services in the event he was not placed in custody. I note that recommendation echoes the recommendation in the guideline judgment of Oliver. She said if that course was followed he should be given a supervised bond of at least eighteen months. 39. The prime focus of sentencing is the protection of the community, in this case those vulnerable youthful persons who are sexually and criminally exploited for their sexual attractiveness to sexually dysfunctional males. The course I propose is one of compulsory rehabilitation, assuming that rehabilitation is successfully undertaken, then to suspend the nine months sentence given in the Local Court. Such a course is more effective in achieving this aim than confirming the term of imprisonment. It will demand an eighteen-month commitment from the offender, he will have to submit to a compulsory rehabilitation program. It is a sentencing outcome containing elements of personal and general deterrence. 40. The orders that I make are the appellant is to enter into bail, pursuant to s 11 of the Crimes (Sentencing Procedure) Act, for a period of nine months from today. That bond will have these conditions: that he will be of good behaviour; that he will accept supervision of Probation and Parole and obey reasonable directions of his Probation and Parole officer, any failure to attend any appointment, counselling session or treatment will be regarded as a breach of bail; he is to participate in the sexual offender's program conducted by the psychological services session of the Department of Corrective Services, provided by the Forensic Psychological Services, failure to attend any appointment, counselling or treatment with that group will also be deemed a breach of bail. Given that he is undertaking that course, I would anticipate no further courses would be required of him from the Probation and Parole Service, they are simply oversighting for my benefit his participation. I want you to understand they are my eyes and my ears. 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