Local Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v WT [2013] NSWLC 33 Hearing dates: 6 December 2013 Decision date: 12 December 2013 Jurisdiction: Criminal Before: Magistrate Antrum Decision: I am satisfied that the defendant possessed child abuse material and the offence is proved Catchwords: INTERPRETATION - possess child abuse material - meaning of "child abuse material" - meaning of "implied to be" - distinguished from "is" and "appears to be" - community attitudes Legislation Cited: Crimes Act 1900 United States Code (US) Criminal Code Act 1995 (Cth) Cases Cited: DPP v Annetts [2009] NSWCCA 86 Texts Cited: Hansard NSW Legislative Assembly Category: Procedural and other rulings Parties: Director of Public Prosecutions (NSW) WT (Defendant) Representation: Ms V Morgan (DPP) Mr C Hazelwood (Defendant) File Number(s): 2013/00166030 Publication restriction: Non publication order with respect to identity of complainants, the defendant, and the township where the offences occurred Judgment THIS IS AN EDITED VERSION OF THE TRANSCRIPT OF THE EX TEMPORE REASONS GIVEN BY MAGISTRATE ANTRUM on 12 December 2013. 1I note that I am giving this decision in the matter of WT today after a hearing on 6 December 2013, six days ago. The matter requires determination essentially on a construction issue, but is not of wide compass. Originally I had sought a longer period to consider these relatively novel matters (in the legal sense), but it is in the interests of all parties, including the victims and the defendant, that the matter should be determined expeditiously. Giving the decision now will also avoid further delay that would be occasioned by the Christmas break. 2I note that a non-publication order is in existence which prevents the disclosure of the identity of the offender, the victims, and the township where the victim resides. 3There are three charges to determine. Sequence 1 was a charge pursuant to s91H(2) of the Crimes Act of possess child abuse material, specifically, two photos and one video. A plea of "not guilty" was entered to that charge. 4Sequence 2 was a charge of travel to and meet a child groomed for sexual activity, and that is pursuant to s 66E (b) (2)(a) of the Crimes Act. A plea of "not guilty" has been entered to that charge. 5There was a third charge of incite person under 16 years to commit an act of indecency pursuant to s 61N (1) of the Crimes Act and a plea of "guilty" has been entered to that charge. 6With respect to the possession of child abuse material charge the young victim, who I will refer to as KB, is a 15 year old female who assisted a friend in a scam in which the defendant was the target. The scam involved photos and a video, the subject of this charge, being sent to the defendant for money. The photos and video were purported to be, and expected by the defendant to be, of the 15 year old KB. 7These photos and video were actually pornographic images from another unknown and probably adult person downloaded from the internet. 8The material was received by the defendant and it was located during the investigation of his mobile phone. 9With respect to sequence 2, the defendant had entered into a Facebook conversation with a young female person, whom I will refer to as BK. That young person was 14 years of age at the time of the alleged offence. The defendant was 21 years of age at the time of the alleged offence. 10On the material before me, which includes a printout of the Facebook conversation, the relationship started off innocently enough, the defendant and the young person knew each other incidentally from school although they were of course in different years, and quite some years apart. 11The Facebook conversation quickly becomes one in which the defendant compliments the victim on her appearance and makes certain other comments of a suggestive nature. Ultimately the defendant visits BK at her home while her parents are away and his conduct gives rise to the charge which is at sequence 3 to these proceedings. 12Section 91H (2) is in the following terms: "A person who produces, disseminates, or possesses child abuse material is guilty of an offence". 13It is noteworthy that, on indictment, the maximum penalty is a term of imprisonment for ten years. 14Defences are set out at 91HA and they include innocent production, dissemination or possession, a public benefit defence, law enforcement inquiries, classified materials and material produced pursuant to approved research. 15Child abuse material which is a development from the earlier term of child pornography, at least in the statutory sense, is defined at s 91FB and it means: Material that depicts or describes in a way that reasonable persons would regard as being in all the circumstances offensive; a person who is, appears to be, or is implied to be a child is a victim of torture, cruelty or physical abuse; or (b) a person who is, appears to be, or is implied to be a child engaged in, or apparently engaged in a sexual pose or sexual activity, whether or not in the presence of other persons. (d) the private parts of a person who is, appears to be, or is implied to be a child. 16Subsection (2) then goes into a number of matters to be taken into account which are broadly consistent with the law as it existed before 2010. It refers to: Standards of morality, decency, impropriety, generally accepted by reasonable adults, literary, artistic or educational merit, journalistic merit and general character. 17Sequence 2 is the grooming charge and specifically meeting or travelling to a child groomed for sexual activity. Section 66EB (2A) is in the following terms: An adult person who intentionally meets a child, or travels with the intention of meeting a child whom the adult person has groomed for sexual purposes and who does so with the intention of procuring the child for unlawful sexual activity with that adult person, or any other person, is guilty of an offence. 18The defendant says that while sexual activity took place at the relevant meeting, it was not as a result of any intention to engage in that activity, and any intention that was formed was not formed prior to or at the time of travelling to meet the child. 19There is Facebook conversation prior to that meeting on 10 May that might be described as having a sexual tone. For example "How big is your boobs?" "Damn I want to see them". "Do you have big nipples?" 20But the meeting itself, and the circumstances immediately preceding it, do not disclose on my view any specific intent on the part of the defendant to engage in unlawful sexual activity. 21There may have been a real hope of the relationship moving beyond online exchanges, but a reading of all of the material, including the interview with the young person, suggests that the defendant's main interest was in meeting the young person. 22The defendant just prior to travelling to the meeting suggests that he might help her clean, or that they might talk. There may have been hopes and desires but I am unable to come to a view beyond a reasonable doubt that there was any specific intent with respect to unlawful sexual activity with the complainant. 23The meeting that they had lasted around two hours with the defendant and the alleged victim largely engaged in conversation, and the defendant watching the young person clean the house for a good part of that meeting. 24The young person, after what appears to be some badgering or coaxing by the defendant shows the defendant her breasts briefly. The defendant shows her a photo of his penis. The defendant then leaves the premises. 25In my view there is a reasonable doubt as to the mens rea required for this offence, and that charge is dismissed. 26Sequence 1 has a number of significant features on the facts. Firstly, the photos and video are not of the subject young person. Possibly, and most likely, they are of an adult unknown person. I have not seen them and it was indicated by both the crown and the defence that that would not assist me in my determination. 27Secondly, the photos and the video are sent to the defendant as part of a dishonest or unlawful enterprise. 28Thirdly, the defendant seeks and hopes to receive, in exchange for money, visual material of the 15 year old victim. That material, if it were of the young person, would undoubtedly be child abuse material. 29There has been some discussion of the variance in community attitudes around what is considered offensive, the test that is required by the section. 30I have no difficulty whatsoever in accepting the Crown's submission that any depiction of a child's private parts in a sexually evocative way is offensive. None of the defences available under the Act are applicable here. The defendant sought the material for a plainly sexually gratifying purpose. 31A decision of the Court of Criminal Appeal in DPP (NSW) v Annetts [2009] NSWCCA 86 goes some way to clarifying that the objective criteria around content may still be informed to a degree by the circumstances around the creation, viewing or use of the images. Such circumstances, including the motivation of the image's creator, as was observed by McClellan CJ at CL in that decision, provides context to the image portrayed objectively. 32In these proceedings the Crown relies primarily on the term "impliedly", to make out the offence. That is, the images were, if not actually, impliedly that of a teenage girl such as would attract the operation of s 91H. (My emphasis). The defendant resists that construction. The defendant submits there is no evidence to make out that implication either prior to or at the time of receipt of the material. 33As I have earlier indicated, if it could be shown to be actually, apparently or impliedly a 15 year old girl then I am satisfied that the material is child abuse material. There is no dispute that the defendant was in possession of it. 34Both the Crown and the defendant agree that there is little in the way of settled authority on the term "impliedly" as it is posited within this section. This term entered the New South Wales statute books after amendments made in 2010 by the New South Wales Parliament following recommendations of the Child Pornography Working Party. That working party was established to inquire into the adequacy of the New South Wales child pornography legislation after a controversial exhibition of photographs by the photographer Mr Bill Henson, which amongst other things depicted nude teenagers. That exhibition was closed after consultation between the exhibiting gallery owners and the NSW Police, pending further investigation. 35The principal outcome was to align New South Wales child pornography legislation closer to the Commonwealth model. This included introducing the broader term of "child abuse material" in the place of "child pornography". 36I note that the Member for Epping, the Hon Greg Smith, in noting the then Opposition's "Agreement in Principle" during the introduction of the Bill, indicated that: I understand that the references to "sexual pose" and "implied" are extensions to the current definition. Hansard Legislative Assembly 17 March 2010 37This is the only explanatory reference to the term "impliedly", or "implied", that I could find in the Parliamentary debates. The Hon Barry Collier, Parliamentary Secretary during that discussion, referred to Mr Smith's comments: The Member for Epping mentioned the case of McEwan v Simmons. The Court held in that matter that cartoon images were in breach of child pornography provisions despite the fact that they did not involve real children. The Child Pornography Working Party reached the conclusion, assisted by the submission of Mr Paul Winch, Public Defender, that this interpretation of the provisions was in conformity with the intent of the legislation by ensuring that material showing abuse of children was not distributed to a large audience, thereby potentially normalising such behaviour. As such the working party recommended no changes to the law in this regard. Hansard Legislative Assembly 17 March 2010 38The term "impliedly" is relatively unique to the New South Wales legislation however it does appear as a component of the definition of "child abuse material" in Part 10.6 of the Commonwealth Criminal Code Act. Without becoming unnecessarily expansive in these reasons, I note that the Child Obscenity and Pornography Prevention Act 2003, which amended the United States Code, has a more restricted view of child pornography. Title 18, Pt1 of Ch110 of the United States Code deals with child pornography and it refers to (specifically citing ss(b)): Child pornography means any visual depictions, including any photograph, film, video, picture or computer or computer generated image or picture whether made or produced by electronic, mechanical or other means of sexually explicit conduct where: (b) Such visual depiction is a digital image, computer image, or computer generated image that is or is indistinguishable from that of a minor engaging in sexually explicit conduct. The term indistinguishable used with respect to a depiction means virtually indistinguishable in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct. 39That is a significantly higher threshold than that which we now have in New South Wales. It requires a higher degree of certainty around the content of the image. The constitutional history of the United States is very different to our own, and the development of the common law in NSW has taken a decidedly different path on this issue. 40In s 91FB (1) the term "implied" is a distinction from the other two states of "being" that are set out in that section. 41The child abuse material must be "a person who is, appears to be or is implied to be, a child". The defendant submits that the images are not, in fact, of a child, therefore there is not a child, and could not appear to be, beyond a reasonable doubt, a child. Consequently, the Crown must rely upon the new and relatively unique status of a person who is "implied" to be a child. The Crown accepts that as its position with respect to these facts. I do not accept that there is an absence of evidence with respect to the defendant's intentions prior to the receipt of the images. There is ample evidence to show that arrangements were made, money was discussed, and the defendant himself went to extra lengths to verify the identity of the person depicted in the photos and the provenance of the images and footage. 42One distinction that can be drawn between the second state (appears to be) and the third state (impliedly is) is that the principal actor in forming a view as to what the image "appears to be", is the "viewer", in this case the defendant. 43In the third state (implied to be) the focus shifts to the sender, or the creator of the image. This is the person who creates a set of circumstances (or an image) that implies a certain thing to another person. Of course, it must still have the ability, whatever the intention of the creator, to make a particular implication on its own material presentation. 44In this case it was very much the express and explicit statement of the 15 year old alleged victim that the images were of her. It is this implication that the defendant relies upon and acts upon. 45The New South Wales legislature has acted upon the Child Pornography Working Party recommendations. From that discussion and the debate in Parliament it seems abundantly clear that Parliament has sought to "cover all bases" so as to make it very clear that even where the content is not in fact a depiction of a child, any person who seeks to obtain any sexual gratification from a perception or an assumption that the image is of a child, should be subject to sanction. 46Parliament's view around the passage of the amendments in 2010 was that any such behaviour should not be normalised or in any way acceptable, and that technical or contrived exceptions should not escape legal scrutiny. Any activity contributing to or encouraging or seeming to make acceptable the production, possession or viewing of child abuse material should be captured by s91H so long as it is offensive and not otherwise capable of attracting one of the statutory defences. 47On that basis and on the evidence before me I am satisfied that the defendant possessed child abuse material and the offence is proved. Matter adjourned for Sentence to another date. Amendments 02 December 2014 - replaced name with WT Amended paragraphs: 1 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. Decision last updated: 02 December 2014