Special Bulletin 11 — May 2016

DPP (Cth) and DPP (Vic) v Garside [2016] VSCA 74

Child pornography/abuse offences

This Bulletin explains the intermediate appellate court decision of DPP (Cth) and DPP (Vic) v Garside [2016] VSCA 74 which concerned sentencing for child pornography offences. The High Court has held repeatedly that, when sentencing federal offenders, State courts must have regard to sentencing practices across Australia and follow decisions of intermediate appellate courts in other States and Territories, unless convinced that they are plainly wrong: The Queen v Pham (2015) 90 ALJR 13 at [18]. The case of DPP v Garside is significant for federal sentencing because the Victorian Court of Appeal declined to follow the sentencing principle that there must be exceptional circumstances before a non-custodial sentence can be imposed for child pornography offences (see most recently R v De Leeuw [2015] NSWCCA 183).

In DPP v Garside, the court dismissed a joint Crown appeal against sentence brought by the Commonwealth and State Directors of Public Prosecutions. The respondent had pleaded guilty to one count of accessing child pornography using a carriage service, contrary to s 474.19(1) of the Criminal Code (Cth) (maximum penalty of 15 years), and one count of knowingly possessing child pornography, contrary to s 70(1) of the Crimes Act 1958 (Vic) (maximum penalty of 5 years at the time). The judge imposed the same penalty for each charge. The respondent was sentenced for each offence to a four year community correction order (CCO) with 300 hours of community work and a $5,000 fine.

Redlich and Beach JJA in a joint judgment held that the sentence imposed was manifestly inadequate but decided to exercise the residual discretion not to intervene: DPP v Garside at [5], [75], [82]. Priest JA joined in dismissing the appeal but said the sentence was not manifestly inadequate: DPP v Garside at [84], [100]. The court reviewed the sentencing principles for child pornography/abuse offences.

Principles of sentencing for child pornography offences

The court in DPP v Garside at [19], [73], [94] reiterated that general deterrence is a paramount consideration for offences involving child abuse and child pornography material: see R v Booth [2009] NSWCCA 89 at [40]–[44]. The court in DPP v Garside noted at [25] that the principles were expanded upon in R v De Leeuw. In that case, the court (Johnson J; Ward JA and Garling J agreeing) summarised the principles which had been “consistently stated” by appellate courts as being relevant to sentencing for child pornography offences, including the primacy of general deterrence and the principle that unless “exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted”. The court in R v De Leeuw cited decisions from Victoria, Western Australia and Queensland in support of the latter proposition. The majority in DPP (Cth) v Zarb [2014] VSCA 347 at [37] had also endorsed the observation of Coghlan JA in DPP (Cth) v Guest [2014] VSCA 29 at [48] that a non-custodial disposition should only be contemplated in exceptional circumstances: DPP v Garside at [44].

During the hearing, the Commonwealth DPP accepted that the courts must be careful not to impose a sentencing standard not prescribed in the statute. He conceded that the use of the term “exceptional circumstances” in DPP v Guest and DPP v Zarb was “problematic”: DPP v Garside at [61]. The court said at [61]: “The Directors thereafter no longer pressed the argument that there must be ‘exceptional’ circumstances before a non custodial disposition will be appropriate”.

The court in DPP v Garside did not accept the principle stated by Johnson J in R v De Leeuw. Their Honours preferred the position of Nettle JA in DPP v Smith [2010] VSCA 215 at [23] and the dissenting judgment of Priest JA in DPP v Zarb at [71]. The preferred principle is that a term of immediate imprisonment will ordinarily be expected for such offending. No broader principle is needed as each case must be decided according to its own circumstances: DPP v Garside at [62]; Priest JA at [86]–[87].

Redlich and Beach JJA concluded that the judge’s failure to impose an immediate and substantial period of imprisonment did not conform to prevailing sentencing practice. A CCO was not a reasonably open disposition given the nature and circumstances of the offending: DPP v Garside at [73]. However, the Directors did not negate any reason why the residual discretion not to intervene in a Crown appeal should be exercised: DPP v Garside at [82], [103]. Priest JA, on the other hand, at [99]–[100] opined that a CCO was a reasonably open disposition.

The court endorsed the approach to the setting of consecutive sentences set out in R v Porte [2015] NSWCCA 174 at [99]–[100] which had followed Cahyadi v R (2007) 168 A Crim R 41: at [65].

Assessing the objective seriousness of child pornography offences

The court made some further observations about the classification of pornographic/abuse material. The pornographic material found on the respondent’s laptop and hard drive totalled 6,018 images and videos. Ninety-five per cent of that material (5749 files) was classified as “Category 1” by the Australian National Victim Identification Library (“ANVIL”). Category 1 is the least serious and Category 5 the most serious (the categories are explained in DPP v Garside at [9]). The files were predominantly photographs of girls in their early teens engaging in sexually suggestive poses. The other materials ranged between ANVIL Categories 2 to 5.

Redlich and Beach JJA held the fact the material accessed by the respondent was largely Category 1 did not detract from the gravity of the offending. Caution must be exercised when assessing the objective gravity of offending by reference to its categorisation in child pornography cases: DPP v Garside at [67]–[71]. Although Categories 1 to 5 involve escalating gravity of conduct, it should not be assumed that Category 1 material is mild in content: DPP v Garside at [68]; R v Porte at [77]. Redlich and Beach JJA at [70] cited Heathcote (a pseudonym) v R [2014] VSCA 37 at [44] where it was held that it is important to consider the actual content of the images and not merely their classification. Further, as DPP (Cth) and DPP (Vic) v Watson [2016] VSCA 73 illustrates, there will be varying degrees of seriousness within each category. Sufficient attention must be given to the particular features of the offences at hand. The absence of material in higher levels of classification must not unconsciously result in a minimisation of the objective gravity of possessing lower level categories: DPP v Garside at [71].

Redlich and Beach JJA held the respondent’s offending was objectively serious, as it involved thousands of images, some including infants and most being close up images of children exposing their genitals. The offending was not isolated and spanned a protracted period of time: DPP v Garside at [72].