THIS ISSUE: Child Pornography and Duplicity
Section 474.19 (1) of the Criminal Code (Cth) states it is a criminal offence to use a carriage service to access child pornography.
R v Garget-Bennett [2010] QCA 231 held section 474.19(1) did not create an offence that can be defined in terms of course of conduct or a series of events. It represents a discrete offence. It is created each time a carriage service is used to access child pornography.
The applicant pleaded guilty to a single charge of using a carriage service to access child pornography and one count of knowingly possessing child exploitation material (s 228D Criminal Code Act 1899 (QLD)).
The facts indicated that the applicant:
- Used the internet everyday and “had a problem with pornography”;
- Had been looking at child exploitation material for the past five tears;
- Had previously paid (on two occasions) for child exploitation material;
- Generally searched for child pornography each weekday before work;
- Downloaded child exploitation material from newsgroups and peer to peer networks; and
- Had transferred material onto CDs because he did not want to lose images given the time he had spend downloading them;
No single incident was identified at sentence as constituting the section 474.19(1) offence. The proceedings were carried out on the basis that the conduct set out in the facts constituted one s 474.19(1) offence. The applicant appealed against the sentence imposed.
The Court allowed the applicant’s sentence appeal and subsequently reduced the sentence for each charge.
Holmes JA and Applegarth J found that the 474.19(1) charge interpreted erroneously and the sentencing judge either proceeded to sentence on a wrong basis or imposed a sentence that was manifestly excessive.
Section 474.19(1) of the Criminal Code (Cth) contemplated a discrete offence committed on every occasion a carriage service was used to access child pornography.
The court found the evidence indicated that the matters were isolated offences. Whilst some offences were limited to the applicant’s conduct in accessing child pornography on successive weekdays between specific hours, the access to child pornography on these occasions did not indicate an immediate connection in time, place and purpose to warrant a single charge.
The court also highlighted the other activities mentioned in the statement of facts (downloading material at different times) were not so related to justify being treated as a single activity. Dealing with all the separate acts of accessing child pornography mentioned in the facts under the one charge gave rise to ‘latent duplicity’.
There was no evidence to indicate the applicant had intended to plead guilty to more than one single offence in relation to using a carriage to access child pornography. Therefore, in the absence of any agreement, the sentencing judge could not properly sentence the applicant with respect to every single offence mentioned in the statement of facts.
Ultimately it was decided that given the section 474.19(1) charge is duplicitous, the Court should (in determining the sentence appeal), define and limit the conduct for that offence as that immediately highlighted in the statement of facts and the prosecutor’s submissions at sentence- that is, the applicant accessed a hard core exploitations website on the early morning of 19 November, 2006.
