New South Wales Court of Criminal Appeal CITATION: Puhakka v R [2009] NSWCCA 290 HEARING DATE(S): 4 December 2009 JUDGMENT DATE: 10 December 2009 JUDGMENT OF: Macfarlan JA at 1; Blanch J at 2; Johnson J at 19 DECISION: (1) On first count grant leave to appeal, quash sentence imposed and instead impose sentence of 2 years fixed term to date from 30 April, 2009; (2) On second count and taking into account matter on Form 1, grant leave to appeal, quash sentence imposed and impose a non-parole period of 2 years to commence 30 April, 2009 and a balance of term of 1 year. Order his release to parole on 29 April, 2011. CATCHWORDS: CRIMINAL LAW - sentence - child pornography - special circumstances LEGISLATION CITED: Crimes Act (NSW) 1900, s91H(3) Child Protection (Offenders Prohibition Orders) Act 2004 CATEGORY: Principal judgment R v Rodric David Booth [2009] NSWCCA 89 Saddler v R [2009] NSWCCA 83 R v Gent (2005) 162 A Crim R 29 Power v the DPP, NSWDC unreported 19 July 2007 CASES CITED : Mouscas v R [2008] NSWCCA 181 R v Leonard [2008] NSWDC 211 R v Elliott [2008] NSWDC 238 R v Jones [2009] NSWDC 8 Sivell v R [2009] NSWCCA 286 PARTIES: Marcus Puhakka (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2008/16243 COUNSEL: S Wilkinson (Applicant) N Noman (Respondent) SOLICITORS: Hancock Alldis & Roskov (Applicant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/11/1052 LOWER COURT JUDICIAL OFFICER: Sorby DCJ LOWER COURT DATE OF DECISION: 30 April 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Marcus Puhakka IN THE COURT OF CRIMINAL APPEAL CCA 2008/16243 MACFARLAN JA BLANCH J JOHNSON J 10 December, 2009 Marcus PUHAKKA v Regina JUDGMENT 1 MACFARLAN JA: I agree with Blanch J. 2 BLANCH J: The applicant seeks leave to appeal against sentences imposed in the District Court on 30 April, 2009. On that day he was sentenced as follows: 1. On count 1 for an offence of possess child pornography contrary to s91H(3) of the Crimes Act 1900 which carries a maximum penalty of 5 years, he was sentenced to "a non-parole period of 2 years to date from 30 April, 2009 and conclude on 29 April, 2011"; 2. On count 2 which was also a charge of possess child pornography contrary to s91H(3) of the Crimes Act and taking into account one matter of possess child pornography on a Form 1, he was sentenced to a non-parole period of 2 years from 30 April, 2010 with an additional term of 12 months. The effective overall sentence was one of 4 years with a non-parole period of 3 years. 3 A summary of facts was tendered before the sentencing judge indicating that as a result of information received from authorities in the USA, police began an investigation into the activities of the applicant. It appeared that there was a transfer to the applicant of a child pornography picture involving two children, one male and one female engaged in sexual intercourse with an adult male. This transfer was on 28 June, 2003 at which time the applicant was 15 years of age. In January, 2008 police conducted a search of the applicant's premises and they seized computer hard drives, rewritable compact disks, rewritable digital versatile compact disks, newspaper articles relating to child pornography and erotic sex stories involving the rape of children as young as two. The police examined 25,000 files which represented 25% of the files on the hard drive and 834 child pornography picture images were located, including animated and real life children engaged in sexual intercourse with adults. In addition, 77 video files were located, including footage of sexual intercourse involving children with adults. Some showed children clearly distressed and in pain while being assaulted. The files were downloaded between 2006 and December, 2007. 4 The first count in the indictment related to material found on the hard drive. Police were able to access 45 video files and found images that ranged on the COPINE scale from a level 5 through to level 10 which is the most serious category. These videos depicted girls aged between three and 14 performing sexual acts with adult males. 5 Count 2 referred to images found on the compact disks. One of the compact disks depicted a cartoon of a dog having sexual intercourse with a girl apparently under the age of ten. There were 14 videos with a COPINE rating of 10 and included videos of a baby bound and sexually assaulted, a two year old girl subjected to anal intercourse, numerous images of young girls apparently heavily sedated being sexually assaulted and a girl under ten bound and subjected to an act of anal intercourse while crying with the pain. 6 The matter on the Form 1 related to the printed document telling the story of a volunteer who went to work at a child orphanage. There he sexually assaults a two year old child. 7 The applicant at the time of sentence was aged 20. He was in third year at the University of New South Wales studying Materials Engineering. He had no prior criminal history. On his behalf in the sentencing proceedings, there was tendered a psychological report from the Department of Corrective Services. That report indicated he was born in Australia. His parents separated when he was three and until six he lived between his mother and father but his mother eventually obtained full custody of him. His mother remarried and at sentence he had a half-sister aged 12. He denied any physical, sexual or emotional abuse as a child. That report said he "… displayed little insight and little affect regarding the charges." The report also noted he had viewed pornography from an early age and his sexual development possibly became conditioned because of that. 8 A report was also tendered from Dr Westmore, psychiatrist dated 14 November, 2008. This report states the applicant has never had sexual contact with another person and that he started accessing pornographic sites on the internet when he was ten years of age. Dr Westmore thought he had some insight into the inappropriateness of his behaviour. He thought the applicant had possibly learned inappropriate sexual behaviour from his access to the internet and because of that it could be "unlearned". He recommended continuing treatment by a psychologist. 9 The first ground of appeal is that the sentencing judge failed to give effect to his finding of special circumstances. The sentencing judge did say "The offender has no criminal record and this will be his first experience of prison and that fact together with his age I consider to be a special circumstance to vary the statutory ratio." It appears to me that in making that assessment he was referring to the total sentence to be contemplated and not just one of the offences. It is also the fact that the ultimate sentence of 4 years with a 3 year non-parole period reflects the statutory ratio and does not give effect to that statement by the sentencing judge. In my view the finding that there were special circumstances to vary the statutory ratio was appropriate. It was not only because the applicant is a young man going to gaol for the first time in circumstances where he has no prior criminal history. It is also because of Dr Westmore's opinion that he has learned deviant behaviour and he now has some insight into that and is capable of unlearning it with appropriate assistance. 10 The second ground of appeal points to the fact that on the first count the sentencing judge did not fix a balance of term but simply imposed a non-parole period. That submission is also well founded and in my view, the sentence imposed should be expressed as a fixed term of 2 years. 11 The other grounds of appeal are directed at the imposition of a partly cumulative sentence, giving insufficient weight to subjective features and the assertion that the sentence is manifestly excessive. There is no doubt the offences are serious and that general deterrence must form a significant element in the sentencing process. In R v Rodric David Booth [2009] NSWCCA 89 Simpson J said at [40]-[43]: "It seems to me that possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime. In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material. What makes the crime callous is not just that is exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes. And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material." 12 That case dealt with an offender who had been given a bond for possession of pornography. The images there involved what appeared to be more than 100 images of young males, many under the age of ten involved in sexual activity including with adult males and a video. On a Crown appeal against the inadequacy of the sentence, he was sentenced to a non-parole period of 6 months with a balance of term of 18 months. The offender in that case had a prior conviction which involved 14 offences of sexual misconduct with a boy aged about 11 or 12. He had been sentenced for those offences and for possession of child pornography to a minimum term of 5 years with an additional term of 3 years. 13 In Saddler v R [2009] NSWCCA 83 Buddin J was dealing with a case involving 45,000 images and 700 child pornography movies. It involved children from below the age of one to toddlers, both boys and girls involved in sexual activity with adults and some involved children performing sexual acts with a dog. In that case the sentence was reduced to a total term of a non-parole period of 3 years and 9 months with a balance of term of 1 year and 3 months. The offender in that case had a criminal record including two previous sentences of imprisonment, one involving a minimum term of 3 years for assault and robbery and another involving a minimum term of 3 years with a non-parole period of 12 months for an offence of sexual intercourse without consent. In the course of his judgment, his Honour referred to a number of other cases involving the possession of child pornography. They included: 1. R v Gent (2005) 162 A Crim R 29 involving the importation of child pornography which carries a maximum penalty of 10 years. It involved images of boys aged between 8 and 11 and girls aged between 6 and 14 including sado-masochistic images. The offender had no prior convictions and was sentenced to 18 months with a non-parole period of 12 months. 2. Power v the DPP, NSWDC unreported 19 July 2007 – the material included 31 videos of men engaged in sexual activity with children under 10 and adolescents. It included a video of a five year old child handcuffed and anally raped. There were 28,000 images of pornography of which 433 involved children. The offender had no prior convictions and was ultimately sentenced to 15 months with a non-parole period of 6 months. 3. In Mouscas v R [2008] NSWCCA 181 there were 41,923 files and 251 video files depicting oral, anal and vaginal sex with girls as young as four or five. It included photographs of children involved in sexual acts with animals. There were many hundreds of victims depicted, the offender had no prior record and was sentenced to 2 years and 9 months with a non-parole period of 18 months. 4. In R v Leonard [2008] NSWDC 211 the offender had 276 images depicting naked male children aged between seven and 13 in erotic or sexual poses. He had a prior history of convictions for child sexual assault. He was 74 with health problems and was sentenced to 12 months with a 9 month non-parole period. 5. In R v Elliott [2008] NSWDC 238 the offender pleaded guilty to five charges of possession and four of disseminating child pornography. He was arrested as a result of information received from the USA. The charges involved 17 child pornography movie films depicting adolescent males between 10 and 15 involved in sexual activity, 27 movie files and approximately 3,100 still images, some of which rated between 7 and 10 on the COPINE scale. The images involved children as young as two being subjected to pain and humiliation. Some of the images involved penetration of young children causing obvious pain and distress. On the hard drive of his computer, there were 29,000 images of male children engaged in sexual activity with one another and with adults. Most of the images were assessed as being between 7 and 10 on the COPINE scale. The offender was 51 without prior convictions. He was sentenced to a term of 5 years and 6 months with a non-parole period of 4 years and 1 month. 6. In R v Jones [2009] NSWDC 8 the offender pleaded guilty to two counts involving images of girls between six and 12. His computer contained 51 images and one video of child pornography. There were 25 compact disks containing 23,000 image files and 220 video files of child pornography. Many of the images were assessed at levels 9 or 10 on the COPINE scale. Children involved babies and 18 month old toddlers. Images involved children showing pain and distress. The offender was 64 without a prior criminal history. He suffered from significant health problems. He was sentenced to 2 years and 3 months with a 20 month non-parole period by way of periodic detention. 7. In the recent case of Sivell v R [2009] NSWCCA 286 – the offender failed in an appeal against the severity of a sentence of a non-parole period of 1 year 11 months with a balance of term of 10 months. He was found in possession of a computer disk containing 85 pornographic images of young females aged between five and ten and links to pornographic internet websites. The files were saved between March and October, 2006. The sentencing judge classified them as falling into categories 6 or 7 on the COPINE scale. The offender had an extensive criminal history including for sexual offences related to female children. He was also in breach of an order under the Child Protection (Offenders Prohibition Orders) Act. 14 It is noted that the offences involved in the above cases were prior to the amendment to the Act in January, 2009 when the maximum penalty for possessing child pornography was increased to 10 years. 15 This survey of cases reveals a wide range of sentences. Despite that they are consistent in denouncing this offence and emphasising the need for deterrent sentence. The main factor differentiating the sentences appears to be the subjective factors relating to the offender including age, prior criminal history and prospects of rehabilitation. 16 In this case the key subjective circumstances are the young age of the offender, his lack of criminal convictions and his prospects of rehabilitation appear to be good. His offending behaviour arose from his isolated social situation. The assessment has been made that he may be able to unlearn that behaviour and he was a third year university student with a professional career in prospect. Dr Westmore said "I think his prognosis should be considered cautiously but perhaps with some optimism, particularly if he can continue the psychologist and particularly if therapy reveals that his primary or basic sexual drive is not of a paedophile type." The assessment of the sentencing judge was undoubtedly correct that special circumstances exist to vary the statutory ratio, it is appropriate now to re-sentence the applicant in order to give effect to that assessment. The re-sentencing should reflect the applicant's prospects for rehabilitation. 17 On the first count I would rectify the sentence and grant leave to appeal, quash the sentence imposed and instead impose a sentence of 2 years fixed term to date from 30 April, 2009. It is a fixed term because it will be concurrent with the second sentence. It is appropriate for the sentences to be concurrent because the nature of the material found is the same in respect of each count. 18 On the second count and taking into account the matter on the Form 1, I would grant leave to appeal, quash the sentence imposed and impose a non-parole period of 2 years to commence on 30 April, 2009 and a balance of term of 1 year. I would order his release to parole on 29 April, 2011. 19 JOHNSON J: I agree with Blanch J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.