Edited by Bart D. Daly, BL, and Agatha Clancy, BL. Associate editor: Michael Keogh, BL
People (Director of Public Prosecutions) (respondent) v Carl Loving (applicant)
Criminal law - Application for leave to appeal - Sentencing - Principles to be applied - Accused sentenced to five years in respect of child pornography - Whether trial judge erred in sentences imposed - Level of seriousness in respect of images of child pornography to be considered when sentencing - Child Trafficking and Pornography Act 1998 (No.22), section 6 - Criminal Law (Theft and Fraud Offences) Act 2001 (No. 50), section 6.
The Court of Criminal Appeal (Mr Justice Fennelly, Mr Justice Gilligan, Ms Justice Dunne); judgment delivered on March 10th 2006
Any court imposing a sentence for possession of child pornography will have regard to two of the basis mitigating factors in sentencing. They are firstly whether the accused accepts responsibility for the offence, including his plea of guilty. Secondly, the previous character of the accused with particular reference to the offence in question.
The learned trial judge was in error in imposing the sentences which he did. It is unusual to impose the maximum sentence allowed by law for any offence. Such a decision implies that the actual offence is at the highest level of seriousness. It also fails to make any allowance for the two most basic mitigating points: previous good character and an early admission of guilt. The imposition of the maximum sentence necessarily implies that the particular offence is at the highest level of seriousness. The court must observe the principle of proportionality, considering, on the one hand, the policy of the law as laid down by the Oireachtas and, on the other the circumstances of the individual and his degree of culpability.
The Court of Criminal Appeal so held by reducing the sentences imposed.
Aileen Donnelly, SC and William Galvin, BL for the applicant; Una Ni Raifeartaigh, BL for the respondent
Mr Justice Fennelly, delivering the judgment of the court, commenced by outlining the background to the case. The applicant sought leave to appeal against severity of sentence. Mr Justice Fennelly stated that the court had already pronounced its decision reducing the sentences imposed, and it now gave its reasons for doing so. The case raised an important issue concerning sentencing for possession of child pornography.
The applicant pleaded guilty before the Dublin Circuit Court to two offences as follows:
1. making a gain by deception contrary to section 6 of the Criminal Law (Theft and Fraud Offences) Act, 2001, in that, on July 9th , 2003, by deception, he induced one Theresa Corcoran to pay him €700 cash;
2. possession of child pornography contrary to section 6 of the Child Trafficking and Pornography Act, 1998, in that, on September 9th, 2003, he knowingly had possession at his home of child pornographic images by way of pictures and floppy discs.
The applicant was sentenced by His Honour Judge McDonagh, in respect of the deception offence to two years imprisonment, with the final six months suspended, and in respect of the child-pornography offence to five years imprisonment, with the last two years suspended. At its hearing on February 10th, 2006, the Court of Criminal Appeal announced that it was reducing the first of these sentences to six months imprisonment and the second to one year's imprisonment.
The deception happened as follows. Mrs Theresa Corcoran responded to a newspaper advertisement for the fitting of kitchens in the name of Jewel Kitchens. She spoke to the applicant, who gave a false name, calling himself Alex Condren. He visited her home, and gave a quotation. He asked for a deposit of €700, which was paid. She attempted unsuccessfully to reach "Alex Condren". She contacted the gardaí, who traced the applicant to his home. The gardaí obtained a search warrant and items found on the search led the gardaí to seize the applicant's computer and floppy discs. Images of child pornography were found. Fifty floppy discs were found. They contained a large amount of adult pornography, but also 175 discrete images of child pornography. The child pornography included naked poses of young girls as well as young girls in the 7-14 age group either in naked poses engaged in sexual intercourse or oral sex with adults. On interview by the gardaí, the applicant disclosed some but not all of the facts. He offered as an excuse the fact that he had been in partnership with another man, who had effectively bought him out and that they had gone their separate ways. In respect of the child pornography, on the other hand, the garda witness accepted that he was frank and admitted that he had saved the material onto floppy discs. It was accepted that there was nothing of the nature of distribution going on. Nor had he paid for any of the child pornography. He downloaded free samples, but did not go further.
Mr Justice Fennelly summarised the applicant's background as follows: the applicant was born in 1952 in the United States. He moved to Ireland in 1979. He has been married both in the United States and in Ireland. He has also had a number of relationships and has children from several of them. He set up his own business and got into debt. He is now an Irish citizen. The applicant has three convictions on his record in this jurisdiction.
The applicant was arrested in September, 2003. When questioned, he stated that he had been alone at the time he began accessing pornography. He had been drinking very heavily and would go to the computer after coming home from the pub. He said that he had not originally been interested in pornography and certainly not child pornography, but pop-ups appeared which were continuous and appetising and that his curiosity got the better of him. He had also printed some pornographic photographs of children from the internet. He said that he then lost interest and threw them in a closet, where he had not bothered about them since. He said that he had had a curious fixation for a couple of months. He said that he was alone, that he had no partner and that he was bored. He dropped it after a couple of months.
Mr Justice Fennelly summarised the approach regarding sentencing taken by the learned trial judge in the Circuit Court as follows: the learned trial judge asked counsel for the prosecution to place the offence in terms of a scale of horror. Counsel replied that the Court of Criminal Appeal had not yet indicated a scale and that she could not point to any existing scale. The learned trial judge said that he had a certain element of sympathy for the applicant, but that he had very little sympathy for anyone who downloads images of children of the type described. The learned trial judge expressed his bitter regret that the maximum penalty imposable was five years imprisonment.
He said that he took account of the plea of guilty, when he eventually "turned up" and that he had not engaged in dealing with the images. He also noted his troubled background, that his previous convictions were a long time ago and that he had kept out of trouble for a long time. He said that shame and remorse cut no ice because the images were downloaded over quite a period of time. He said that this indicated an element of deliberate involvement with child pornography. The learned trial judge imposed sentences as outlined above.
Mr Justice Fennelly then considered the offence in relation to the legislation and to other child pornography cases.
Mr Justice Fennelly stated that the 1998 Act, as a whole, represented the response of the Oireachtas to widespread concern, not confined to Ireland, concerning the scandal of the abuse and exploitation of children for the sexual gratification of evilly disposed persons.
Mr Justice Fennelly stated that an offence under s.5 and under s.6 may be dealt with summarily and that, on summary conviction, the same maximum penalty applies. In the case of a conviction on indictment under s.6, unlike s.5, a fine, subject to a maximum of €5,000 may, as an alternative to, or in addition to, imprisonment be imposed.
Moreover, the maximum term of imprisonment under s.5 is 14 years and under s.6 five years. Mr Justice Fennelly stated that there was only one case where the Court of Criminal Appeal had to consider the appropriate sentence in the case of a conviction for an offence under s.6 of the Act.
Mr Justice Fennelly further stated that counsel for the applicant provided the court with a very helpful list of 14 cases reported in The Irish Times from January 1st, 2003, to February 1st, 2006. Counsel for the prosecution did not dispute the accuracy of this material. In every case, there was a guilty plea. In seven cases, heard in the Circuit Court, the court imposed a suspended sentence of two or three years, in three of those cases accompanied by a fine. In one case, a term of nine months (not suspended) was imposed.
In one, involving a very large number of images, many of extremely young children, the court imposed a sentence of two years, with the last six months suspended. Both these cases were Circuit Court cases based on Operation Amethyst. In the remaining three cases, heard in the District Court, the sentences were respectively, six months suspended, six months (not suspended) and a fine of €1,000 and 240 hours Community Service.
Mr Justice Fennelly stated that in Director of Public Prosecutions v G.McC. 3 IR 609, the applicant had pleaded guilty, before the Central Criminal Court, to a number of offences against six young male victims. One was of male rape, which was accompanied by the recording of a video. Other offences were under s. 5(1) of the Child Trafficking and Pornography Act, 1998. They included producing child pornographic images of a victim and allowing a victim to be used for the production of child pornography.
In one case, the boy was not only shown child pornography on the applicant's computer, but gross sexual acts were filmed and recorded on to the computer. It is clear that the offence of possession of child pornography in that case was accompanied by the gravest possible abuse of the boys. The trial court imposed lengthy sentences on the other counts and one of five years imprisonment (which was later reduced to three) on the s.6 count. There were 200,000 images on various discs, including 783 of child pornography. Mr Justice Fennelly stated that the court referred to the decision of the English Court of Appeal (Criminal Division) in R. v Oliver 1 Cr. App. R. 28, where the court suggested the following graduated levels of seriousness in respect of images of child pornography:
1. Images depicting erotic posing with no sexual activity;
2. Sexual activity between children solo or masturbation as a child;
3. Non-penetrative sexual activity between adults and children;
4. Penetrative sexual activity between children and adults;
5. Sadism or bestiality.
Rose LJ(at p.467), writing for that court, suggested the following elements as being relevant to the offender's proximity to and responsibility for, the original abuse:
"Any element of commercial gain will place an offence at a high level of seriousness. . . because it fuels demand for such material. Wide-scale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals. Merely locating an image on the internet will generally be less serious than downloading it. Downloading will generally be less serious than taking an original film or photograph of indecent posing or activity . . ."
Mr Justice Fennelly stated that the task of the courts was, following the guidance given by the Oireachtas, to measure the seriousness of individual cases and to fix appropriate penalties. Two points emerge from the legislation itself. Firstly, the Act distinguishes between cases of active use of child pornography involving either dissemination of images for commercial or other exploitative purposes (s.5) and mere possession (s.6).
Secondly, the Act recognises the offence of possession as a "hybrid" one. It may be tried summarily, at the behest of the Director of Public Prosecutions. It followed that the Oireachtas did not intend that every offence of possession of child pornography must automatically attract a penalty of more than one year's imprisonment, still less the imposition of the maximum of five years. The Oireachtas did not prescribe any minimum penalty.
Mr Justice Fennelly said that any court imposing a sentence for possession of child pornography will have regard to two of the basic mitigating factors in sentencing. They are: firstly whether the accused accepts responsibility for the offence, including his plea of guilty. Secondly, the previous character of the accused with particular reference to the offence in question.
The court believes that the applicant was entitled to put both these factors forward as mitigating factors, subject, it is true, to some qualification. The value of his acceptance of responsibility was necessarily tempered by the fact that, once the incriminating material had been found in his home, there was little scope for plausible denial. Nonetheless, the garda accepted that he had facilitated their inquiries and he undoubtedly relieved them of the necessity to prove their case.
On the second point, the applicant had some previous convictions, but these, as the learned trial judge fairly acknowledged, dated back for a good number of years and none at all related to this type of offence. Secondly, it is necessary to consider the individual offence. The first question is how serious and numerous were the actual pornographic images. The evidence did not address in any detail the seriousness of the pornographic images. So far as it goes, it suggested that some of the images were in the first category and that some, though not all, of the images qualified for inclusion in the third and even the fourth category of the classification adopted by the English Court in R. v Oliver 1 Cr. App. R. 28.
On the other hand, the number of images of child pornography was, at 175, much fewer than that in other cases where a shorter sentence of imprisonment had been imposed. The great bulk were of adult pornography. Thirdly, a court should consider the circumstances and the duration of the activity leading to the possession of the images. In the present case, they were downloaded during a comparatively short period from December, 2002, to January, 2003.
He did not subscribe to these sites. Most significantly, it seems clear that he ceased using them after that time. Fourthly, it was fully accepted that the applicant had never shared the material with any other person or otherwise circulated or distributed it in any way. Mr Justice Fennelly stated that unlike the case of DPP v G.McC 3 IR 609, there was no link whatever with the commission by the applicant of any other sexual offence or any improper relations with children.
Mr Justice Fennelly stated that the learned trial judge was left with a very difficult position in the absence of any guidance from counsel or from previous decisions of this court. In particular, he did not have the benefit of the history of sentencing of similar cases from which this court had been able to examine the pattern of sentencing for this offence over a three year period. Mr Justice Fennelly stated that this was not a criticism of anyone involved. It is a feature of our system of sentencing. Nonetheless, the court was satisfied that the learned trial judge was in error in imposing the sentences which he did.
Mr Justice Fennelly stated that it was unusual to impose the maximum sentence allowed by the law for any offence. Such a decision implies that the actual offence was at the highest level of seriousness. It also failed to make any allowance for the two most basic mitigating points: previous good character and an early admission of guilt. A sentencing policy which failed to make allowance, in particular, for the latter element provided no incentive to accused persons to plead guilty.
For reasons already given, the applicant was entitled to some mitigation of sentence for the two reasons mentioned. Furthermore, theimposition of the maximum sentence allowed by the legislature necessarily implied that the particular offence was at the highest level of seriousness capable of being envisaged for that offence, both as to its intrinsic quality and as to the circumstances in which it was committed. The court must approach the matter objectively. It must consider the seriousness of the offence from all the aspects mentioned. It must observe the principle of proportionality, considering, on the one hand, the policy of the law as laid down by the Oireachtas and, on the other the circumstances of the individual and his degree of culpability.
As to the offence of deception, Mr Justice Fennelly stated that the court agreed with the submission made by counsel in the court of trial that the matter would have been tried summarily, had it not been for the fact that it had become linked with the child-pornography matter. Mr Justice Fennelly stated that the court had accordingly decided to treat the application for leave to appeal as the hearing of the appeal and to reduce the sentence on count number one to six months' imprisonment. In respect of count number four it reduced the sentence to one of one year's imprisonment. The applicant had already spent more than a year in prison.
The decision did not imply that the applicant should have received an unsuspended prison sentence in the first place. An examination of the cases showed that the courts had frequently imposed suspended sentences or fines in cases where much more child pornography was involved and where credit cards had been used. Where the offence is at the lower levels of seriousness, there is no suggestion of sharing or distributing images, the accused is co-operative and it is a first offence, the option of a suspended sentence should at least be considered.
Finally, Mr Justice Fennelly stated that it should be recalled that the applicant would be placed on the register of sex offenders .
Mr Justice Gilligan and Ms Justice Dunne joined with Mr Justice Fennelly in the judgment of the court.
Solicitors: Chief Prosecution Solicitor (for the respondent); Michael J. Staines (Dublin) (for the applicant).
Kieran O'Callaghan, barrister.