Court reduces sentences for child pornography and deception, emphasizing proportionality and mitigating factors.

COURT OF CRIMINAL APPEAL

Fennelly J.

Gilligan J.

Dunne J.

115/05

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

CARL LOVING

Applicant

JUDGMENT of the Court delivered on the 10th day of March, 2006 by FENNELLY J.

The applicant sought leave to appeal against severity of sentence. The Court has already pronounced its decision reducing

the sentences imposed. It now gives its reasons. The case raises an important issue concerning sentencing for possession of

child pornography.

The Offences

The Applicant pleaded guilty before the Dublin Circuit 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

9th July 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 9th

September 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 10th February 2006, this Court announced that it was reducing the first of these sentences to six months

imprisonment and the second to one year’s imprisonment.

The Facts

The deception happened as follows. Mrs Theresa Corcoran saw a newspaper advertisement for the fitting of kitchens in the

name of Jewel Kitchens. She responded to the telephone number given in the advertisement. She spoke to the Applicant,

who gave a false name, calling himself Alex Condren. He visited her home, showed a video of other work, measured and

designed for a kitchen and gave a quotation of €2,000. He asked for a deposit of €700, which was paid. He left a receipt

and an order form in the name of Jewel Kitchens, with an address that turned out to be false, though he also gave a

telephone number, which turned out to be that of his home at Lucan. She attempted unsuccessfully to reach “Alex

Condren” by telephone - the number had been disconnected - and became suspicious when she saw similar advertisements

in the newspaper. She contacted the gardaí, who conducted a thorough investigation and traced the Applicant to his home.

The gardaí obtained a search warrant pursuant to section 48 of the Criminal Justice (Theft and Fraud Offences) Act, 2001,

which was executed on 9th September 2003. Items found on the search led the gardaí to seize the Applicant’s computer and

computer related materials including floppy discs. Upon forensic examination, images of child pornography were found.

Fifty floppy discs were found. They contained a large amount of adult pornography. Relevantly to the present case, they

contained what was described in the evidence as 175 discrete images of child pornography. The discs were marked and

tagged. 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 was described as being neither cooperative nor uncooperative with regard to the

deception matter. He 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.

Background and previous convictions

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. Some are grown up,

but he has one child aged about six. He has a history of irregular employment, though he has been working in the kitchen

business for a number of years. He set up his own business and got into debt. He is now an Irish citizen.

According the garda evidence, he has three convictions on his record in this jurisdiction: six counts of larceny and six counts

of criminal damage in 1980, for which he received a suspended sentence at Limerick Circuit Court; possession of cannabis

resin in 1982, for which he was fined; conviction and fine for a drink driving offence in 1991, for which a disqualification

and a fine were imposed.

Evidence was also given that he had served a sentence of two years imprisonment in the United States in 1970 for theft of a

motor vehicle. He was also convicted of theft of $50 in 1972, for which he does not appear to have served any sentence.

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 thought he was merely looking at

advertisements for the particular sites but accepted he had got drawn into them over a couple of months, and had saved

them onto floppy discs. 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 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. The garda, in answer to a question from the learned trial judge said that the images were downloaded

over a period from December 2003 to January 2004. It had occurred on about fifteen occasions.

The applicant told the garda that he is not a paedophile, has no interest in young women or boys and that, once he had got

over his curiosity, he did not go near that area again and would have no interest in doing so in the future. He pointed out that

he had children himself.

He was released on bail. He failed to appear in Court in February 2004. A bench warrant was issued. He was working, as an

employee, under his own name. He explained to the garda that he feared shame and embarrassment from the publicity,

especially in relation to his children.

A psychiatric report on the applicant indicated that, at the time of the offences, everything had snowballed: his mother had

died; his drinking; his financial trouble. He was then off drink, though moderately depressed. The psychiatrist indicated that,

prior to his arrest, the applicant’s main problem was one of alcohol dependence syndrome. The applicant had also claimed

to have suffered sexual abuse in childhood.

The Sentence

The learned trial judge asked counsel for the prosecution to place the offence in terms of a scale of horror. Counsel replied

that this Court 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. He 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 of involvement with child pornography.

In relation to the deception count, the learned trial judge said he did not see this as a course of fraud, but that it had become

one. He mentioned that Mrs Corcoran was seriously out of pocket.

He imposed a sentence of two years imprisonment on the deception count backdated to 9th December 2004, when the

applicant had been taken into custody. He suspended the last six months. He imposed a sentence of five years imprisonment

on the child pornography count. He suspended two years of that term on condition that the applicant avail of any and all

psychiatric services available within the prison service and that he place himself under the guidance of the probation service

on emerging from prison. He also directed that the applicant refund €700 to Mrs Corcoran within two years of his release

from prison.

Child pornography: Other Cases

Section 6, sub-section 1 of the Act of 1998 provides:

“Without prejudice to section 5(1)(e) and subject to subsections (2) and (3), any person who knowingly

possesses any child pornography shall be guilty of an offence and shall be liable—

(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12

months or both, or

(b) on conviction on indictment to a fine not exceeding £5,000 or to imprisonment for a term not exceeding 5

years or both.”

The Act, as a whole, represents to 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. The Act created a

number of very serious offences: section 3 criminalises trafficking in children, subject to a maximum penalty of life

imprisonment and certain types of sexual exploitation of children, with a maximum penalty of fourteen years imprisonment.

Section 4 created the offence of allowing a child to be used for the production of child pornography, with a penalty of

fourteen years imprisonment. Section 5 created a number of offences concerned with the knowing production, distribution,

printing, publishing, importing, exporting, selling, showing child pornography and extending to knowingly possessing child

pornography for any of those purposes. Any offence under that section may be dealt with as follows:

“(i) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or

both, or

(ii) on conviction on indictment to a fine or to imprisonment for a term not exceeding 14 years or both.”

It will be noted that both an offence under section 5 and under section 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 section 6, unlike section 5, a

fine, subject to a maximum of the euro £5,000 may, as an alternative to or in addition to imprisonment be imposed.

Moreover, the maximum term of imprisonment under section 5 is fourteen years and under section 6 five years.

It is well established that, when imposing sentence, the courts will have regard, together with all other relevant elements, to

the maximum term of imprisonment prescribed by the Oireachtas.

It is undoubtedly the case that there have been very few cases, in fact only one, where this Court has had to consider the

appropriate sentence in the case of a conviction for an offence under section 6 of the Act.

Counsel for the applicant has provided the Court with a very helpful list of fourteen cases reported in the Irish Times from

1st January 2003 to 1st February 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.

That meant that the culprits had been traced as a result of investigations in the United States, where credit cards had been

used to purchase child pornography. 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.

Only one significant case has come before this Court. In Director of Public Prosecutions v G.McC. [2003] 3 I.R. 609. The

judgment of the court was delivered by Geoghegan J). 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 section 5(1) of the Act of 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 on the section 6

count. There were 200,000 images on various discs, including 783 of child pornography.

The court referred to the decision of the English Court of Appeal (Criminal Division) in R. v Oliver [2003] 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 L.J., writing for that court, suggested the following elements as being relevant to the offender's proximity to and

responsibility for, the original abuse (see page 467 of the report):

"Any element of commercial gain will place an offence at a high level of seriousness. In our judgment,

swapping of images can properly be regarded as a commercial activity, albeit without financial gain, 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, both by reference to the potential use of the

images by active paedophiles and by reference to the shame and degradation to the original victims.

Merely locating an image on the internet will generally be less serious than down-loading it. Down-loading

will generally be less serious than taking an original film or photograph of indecent posing or activity ..."

In DPP v G.McC, the court pointed out that: “A serious aspect of this case is that, in each instance, the pornographic

pictures were produced in relation to children over which the applicant was in a position of trust.”

The judgment of the court also remarked on a number of the other elements that appeared in that case:

“On the other hand, as has already been pointed out, it is not suggested that the images were used or intended

to be used for anything other than the applicant's own sexual gratification. There was no commercial or quasi-

commercial user. Nor is there any evidence of the applicant using these images for the purpose of swapping

with others and still less in connection with any paedophile ring. The offences in relation to the different

victims all came to light at more or less the same time and were included in the same indictment. A higher

sentence has to be imposed than would be imposed if there was simply one individual child involved, but that

does not mean that the sentence should be the maximum sentence and certainly not on the basis that the overall

sentence would be more than fourteen years if consecutive sentences were imposed. There were undoubtedly

aggravating factors here, not merely in relation to the position of trust but there was also a strong element of

depravity in the surrounding circumstances in which the photographs were taken. Nevertheless, credit must be

given for the plea of guilty, the absence of previous convictions and the cooperation with the gardaí. In all the

circumstances and taking into account that there were five children involved and not merely one, the

appropriate sentence would seem to be eight years.”

The court concluded that the sentence of five years should be reduced to three for the following reasons:

“Although there is no evidence that the "possession" of the child pornography was for any commercial use or

for the purpose of any swapping of pictures, etc., there is certainly evidence that the collection was being used

to show to others when it suited the applicant for his own sexual gratification. In these circumstances, a

custodial sentence is appropriate and given the surrounding circumstances in this case as to how this

collection was put to use, this court considers that the correct sentence is three years notwithstanding the

mitigating factors..”

The offence of possession of child pornography is comparatively new in our law. It is a response to the very serious

evidence of gross and shocking child abuse that has emerged over recent decades. It also highlights the possibility of the

abuse of the wonders of the internet to transmit degrading images of abuse of both adults and children. The legislature has

chosen to criminalise activities concerning child pornography. It has been discovered that many individuals have a propensity

to access and use images of child pornography. The task of the courts is, 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 it distinguishes between cases of active use of child

pornography involving either dissemination of images for commercial or other exploitative purposes (section 5) and mere

possession (section 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 follows 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.

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 is 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 suggests 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 English. 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 has 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, the garda evidence was that they were downloaded during a comparatively short period from December

2002 to January 2003, when the applicant accessed the sites in question a maximum of fifteen times. He did not subscribe to

these sites. Most significantly, it seems clear that he ceased using them after that time. When his house was searched in

September 2003, it seems clear that he had not accessed any of them since January of that year. There is no reason to

dispute his own statement that he had lost interest and had left the material unused in a box over that time. It is also of note

that he had ceased to abuse alcohol, which, as was accepted by his psychiatrist, was a significant factor in his becoming

engaged in this activity.

Fourthly, it is fully accepted that the applicant had never shared the material with any other person or otherwise circulated or

distributed it in any way. Unlike the case of DPP v GMcC, there was no link whatever with the commission by the applicant

of any other sexual offence or any improper relations with children.

Counsel for the applicant was at pains to emphasise that, in spite of the suspension of the final two years, the sentence

imposed by the learned trial judge should properly be analysed as a sentence of five years for the purpose of the present

application. The English Court of Appeal (Criminal Division) in a decision of 13th October 1983 in R v David Ivanhoe

Cohen Mah-wing held that: “When a court passes a suspended sentence, its first duty is to consider what would be the

appropriate immediate custodial sentence, pass that and go on to consider whether there are grounds for suspending it.

What a court must not do is pass a longer custodial sentence than it would otherwise do, because it is suspended.” The

Court does not think the learned trial judge has offended that proposition in the present case. He indicated from the start that

he considered that the maximum sentence was warranted. However, it is correct that the sentence has to be considered by

this court as one of five years and not of three.

It is also necessary to consider the sentence of two years, with the last six months suspended, which was imposed for the

offence of deception. There is no doubt that the offence involved a nasty piece of fraud. It may be that it was not an

entirely calculating one, as it seems to have been accepted that, to some extent, the applicant was hoping that the work on

the kitchen would be done by another person. Counsel for the applicant submitted to the learned trial judge that this matter

would have been tried summarily, had it not been for the fact that it was linked with the other offence.

Decision

It should be said at once 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 has been able to examine the pattern of sentencing for this offence over a three year

period. This is not a criticism of anyone involved. It is a feature of our system of sentencing. Counsel for the prosecution

are precluded from making submissions as the appropriate level of sentence. There is no system of sentencing guidelines.

Nonetheless, the court is satisfied that the learned trial judge was in error in imposing the sentences which he did. There is

no record of any comparable sentence for an offence involving no other sexual crime.

It is unusual to impose the maximum sentence allowed by the 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. A sentencing policy which fails to make allowance, in particular, for

the latter element provides 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, the imposition of the maximum sentence allowed by the legislature necessarily implies that the particular

offence is 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.

This judgment has recited in some detail the individual elements of this offence. The acts of accessing child pornography

were committed over a short period of time and then stopped. The pornographic materials were left unused thereafter. The

applicant had ceased to abuse alcohol, which had played a large part in his offending. It was not disputed that the applicant

was genuinely remorseful and ashamed, though the learned trial judge entirely discounted this element.

Most importantly, there was no suggestion whatever, in contrast with the case of DPP v G.McC., that the applicant had

spread or circulated or shown any of the material to anybody else or that he was likely to do so.

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, the court agrees 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.

If it had been tried in the District Court, the maximum penalty would have been twelve months’ imprisonment. In addition,

the applicant had not been convicted of any offence of dishonesty for more than twenty years. On the whole he came

across as a person who had worked regularly, if in a number of different jobs, for a long number of years.

The Court has accordingly decided to treat the application for leave to appeal as the hearing of the appeal and to reduce the

sentence on Count number 1 to six months’ imprisonment. In respect of Count Number 4 it reduces the sentence to one of

one year’s imprisonment. The applicant has already spent more than a year in prison. This decision does not imply that the

applicant should have received an unsuspended prison sentence in the first place. An examination of the cases shows that

the courts have 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 cooperative and it is a first offence, the option of a suspended

sentence should at least be considered. Finally, it should be recalled that the applicant will be placed on the register of sex

offenders.