The jurisprudence on this complex topic continues to grow, suggesting perhaps appellate courts are not entirely settled on the approach to sentencing for child pornography offences — or perhaps ‘just’ their proper application.

In DPP (Cth) v Ison [2010] VSCA 286, the Court of Appeal considered again an appeal against a non-immediate custodial sentence. I suspect the reason we’re seeing a few of these is because the general principles laid down by the Courts suggest that jail is appropriate, but in some cases it’s not warranted. Quite where the bright dividing line falls between immediate jail and sentences in the community isn’t always clear.

In Ison, the Court considered there was no error of the type required for a prosecution appeal, and approved the sentencing judge’s decision.

The Court referred again to the appropriate principles, taken from DPP v Smith [2010] VSCA 215 at [23] and DPP (Cth) v D’Alessandro [2010] VSCA 60 (discussed in this post).

[23] The precepts which apply to the sentencing of offenders for offences of possessing child pornography are tolerably clear.

1) First, the nature and gravity of the offending ordinarily falls to be determined by reference to the four criteria adumbrated by Johnson J in R v Gent:

(a) The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted.

(b) The number of images or items possessed.

(c) Whether the material is for the purpose of sale or further distribution.

(d) Whether the offender will profit from the offence.

In the case of child pornography for personal use, the number of children depicted and thereby victims is also regarded as a relevant considerations.

2) Secondly, general deterrence is regarded as the paramount sentencing consideration – because of the public interest in stifling the provision and use of child pornography; and less or limited weight is given to an offender’s prior good character because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character: DPP (Cth) v D’Alessandro [2010] VSCA 60 at [21].

3) Thirdly, a sentence of immediate imprisonment would ordinarily be warranted — R v Jongsma [2004] VSCA 218; (2004) 150 A Crim R 386 at 395; Hill v The State of Western Australia Unreported, WACA, 1 December 2008 at [28] and the cases there cited; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267; DPP v Groube [2010] VSCA 150 at [24] — but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded — R v Gordon; ex parte DPP (C’th) [2009] QCA 209 at [43]; R v Sykes [2009] QCA 267 at [24].

In this case, the offender pleaded guilty at the committal stage, was assessed as not being ‘frankly paedophelic’ by a psychologist (and it seems the sentencing judge was confident putting some store in that psychologist’s views), was socially isolated, gainfully employed, had good prospects for rehabilitation and might suffer significant and rapid mental-state deterioration in custody, and the psychologist considered it imperative he participate in a sex offender program and receive individual psychotherapy.

The Court of Appeal considered at [2] and [29] the sentence was appropriately crafted, achieved the necessary sentencing purposes, and at [30] that it wasn’t in the public interest to allow the appeal and jail the offender when he was half-way through his community based order.