Court of Criminal Appeal reduces three-year sentence to two years for child pornography possession, adding post-release supervision.

THE COURT OF CRIMINAL APPEAL

CCA No. 195/12

O’Donnell J.

Moriarty J.

White J.

Between/

The People at the Suit of the

Director of Public Prosecutions

Respondent

And

Bryan O’Byrne

Appellant

Judgment of the Court delivered on the 17th day of December 2013, by O’Donnell J.

1 The appellant pleaded guilty to possession of child pornography contrary to s.6 of the Child Trafficking and Pornography Act 1998

and on the 23rd of May 2012 was sentenced to a term of three years imprisonment. Section 6 of the Child Trafficking and

Pornography Act carries a maximum sentence on conviction on indictment of five years. The penalty on summary conviction is a

maximum of 12 months imprisonment.

2 The offence in question occurred on the 9th of December 2008. Gardaí from the Paedophile Investigation Unit having received

information on computer activity as a result of international cooperation sought and obtained a warrant to search the appellant’s flat

at Newbridge Avenue in Sandymount. There they found some expensive and sophisticated computer equipment. A hard drive was

found on the floor close to the computer desk. On subsequent examination it was found to contain 15,000 images and of those 3,200

video clips and movies were classified as child pornography. There was quite a sophisticated system in place for the obtaining of

those images. The appellant had what was described as an eMule software programme which ran in the background of the computer

using peer to peer technology to search for images and on finding them, downloaded them to the hard drive. It appears then that the

appellant would access the images particularly when he had been drinking. The appellant had been carrying out this activity for some

two years before he was apprehended.

3 Many of the images obtained from the hard drive have been ranked at either the second highest or possibly the highest level of

seriousness on a scale now used to assess the content of child pornography. The acts depicted rape and sexual abuse of children of

both sexes carried out both by adults and other children. The acts depicted also involved abnormal sexual activity and elements of

sadism. The ages of the children in the images ranged from very young children to early teenagers. Perhaps the best indicator

however of what was involved can be obtained from a consideration of the succinct search term used by the appellant to seek and

obtain these images:

“Baby paedo kidnap rape and snuff.”

A consideration of the type of images likely to be captured by this search illustrates in the most succinct way the combination of both

degradation and calculation involved in the appellant seeking images conforming to this search term for his own sexual gratification.

4 It is clear form the transcript of the sentencing hearing that the learned sentencing judge approached the sentencing of this

offender with care and attention. In this appeal the appellant has contended however that the trial judge erred in principle in a

number of respects. First is the contention that there was at least confusion as to the quantity of images found. There was a

reference to 15,000 images and no reference to the fact that of these images 3,200 were considered to be child pornography.

Second, it is pointed out that the judge said that the seriousness of the offence was an aggravating factor. Third, it is argued that

the judge did not attempt to locate the offence on the scale of gravity before applying mitigating and aggravating factors. Finally the

judge did not consider the question of suspending any portion of the sentence or imposing a supervision order. In addition it was

submitted that insufficient regard was paid to the mitigating factors, as outlined in a number of expert reports submitted on behalf of

the appellant.

5 This Court does not consider that sentencing should be approached in an overly punctilious or pedantic way. The formulaic

repetition of a checklist is not necessarily the sign of a proper sentence. The function served by having standard steps and criteria

which are expected in any sentence is in the first place to remind the sentencer of the factors which need to be addressed, secondly

to explain to interested parties and the public at large the reasoning process by reference to which the particular sentence is arrived

at, and thirdly thereby to facilitate review in an appropriate case. However it remains possible to arrive at a correct sentence without

specifically invoking familiar headings as it is indeed possible to name check standard criteria and yet arrive at an incorrect sentence.

6 The sentencing of individual offenders is itself a difficult and complex task. There is also a requirement of consistency between

sentences for offences which are similar. It is not easy to judge this since the information available about decisions is often limited to

a very compressed account. That is not to say that the question of consistency in sentencing of offenders who are broadly similar,

and who have committed similar offences, is not a matter of legitimate public interest. Indeed, it is a matter of legitimate and real

individual concern. Many offenders who plead guilty or are found guilty may at some level understand and accept that justice requires

that they be punished. However, it can often give rise to a real sense of injustice if an offender believes that an apparently similar

case has received a considerably lighter sentence. By the same token the victims and their families will be understandably bewildered

if, after the considerable trauma involved in being the victim of a criminal offence and being involved in an investigation and then

prosecution, the offender receives a sentence which does not appear to be comparable to those given in other cases.

7 These observations apply with some force in the particular case of child pornography since this is a relatively recent offence and

the emergence of public awareness of the offence is itself closely connected to the development of the internet, itself a relatively

recent phenomenon. There is not therefore a long history of experience of the offence, or knowledge of the technology used, or

public consensus as to treatment to give clear guidance in sentencing. The law is adapting incrementally in response to developing

knowledge and experience about the offence, the damage it does and the psychology of offenders.

8 It is indeed a depressing feature of modern life that an extraordinary and life changing technological development such as the

internet, intended originally to facilitate the rapid exchange of knowledge between institutions of learning, can produce a situation in

which a man in a small suburban flat can readily acquire equipment which will permit him, in five carefully chosen words, to bypass

every worthwhile piece of knowledge, culture or entertainment, and all opportunities for any fruitful enriching social interaction, to

produce instead 3,200 images of unspeakable degradation, to be viewed and reviewed on lonely nights when inhibitions are

suppressed by alcohol or other drugs, so that urges, which to the majority of the population are both repellent and incomprehensible,

emerge.

9 The sentencing of persons guilty of an offence of possession of child pornography is not a well worn or well lit path where

experience has built up a significant consensus on the appropriate sentences. On the contrary, it is to venture into a relatively new

and murky area where knowledge is still developing and where there are few enough landmarks. Child pornography is both baffling and

revolting to the general public. Even though the images may be viewed in private, those images can rarely if ever be created without

some child somewhere being violated, often unspeakably. Furthermore, the legislature is fully entitled to consider that the personality

traits revealed by accessing child pornography are not healthy and that persons viewing such material should not be encouraged to

indulge the urges and appetites it excites. It is however difficult to evaluate different cases. The technology, while ubiquitous, is little

understood. There are strident demands that the internet should not be subject to any restriction. There is an increasing recognition

that some offenders may themselves be damaged. Others may reveal a chilling lack of awareness that their activities are wrong. It is

increasingly clear that there is no single template for all cases.

10 Valuable guidance is to be obtained from the leading case of Director of Public Prosecutions v. Carl Loving [2006] 3 I.R. 355 in

which a sentence of five years imprisonment with two years suspended imposed in the Circuit Court on a plea of guilty was reduced

to one year by the Court of Criminal Appeal. Delivering the judgment of the court, Fennelly J. set out a number of factors which

should be taken into account: the seriousness and number of the images; the circumstances and duration of the activities; the

interaction of any dependence on alcohol and other drugs; whether the images were shared, distributed, circulated or commissioned

(albeit that any such matter could be a separate and more serious offence); and finally whether the individual had created material or

shared it with children or had improper relations with children. On the other hand, mitigating factors were whether the accused

accepted responsibility for the events including a plea of guilty, albeit that in many such cases there is little scope for plausible

denial. Nevertheless it is relevant if the accused has facilitated garda inquiries, relieved them of the necessity to prove their case,

and seemed genuinely cooperative. Fennelly J. also observed that in the case of a first offence the court should at least consider the

possibility of a wholly suspended sentence. It is worth elaborating upon this point. Since the offence of possession of child

pornography is often the reflection of the proclivities and appetites of the offender, then any professional assessment of the

offender’s attitude and state of mind is valuable. In particular, any assessment of the extent to which the offender genuinely

recognises that his conduct is wrong, and is willing to engage in appropriate therapy and treatment, and does so, may be important.

In such circumstances, it may be appropriate to consider suspending a portion of the sentence or imposing a supervision order under

the Sex offenders Act 2001 (hereinafter “the 2001 Act”) on terms which would require the offender to engage both with probation

services, and any treatment recommended and supervised by them. This approach is arguably consistent with the fact that the 2001

Act specifically requires a sentencing court to consider the possibility of imposing a supervision order. This approach is, arguably,

consistent with the fact that s. 28 of the 2001 Act requires a sentencing court to consider the possibility of imposing a supervision

order.

11 More general guidance is to be obtained from a number of sources. In the recent Martin Tansey lecture published in the Irish

Probation Journal, Mr Justice Peter Charleton has provided some valuable and stimulating insight in to the question of sentencing,

particularly the question of consistency of sentencing. He points out, that there is a significant degree of information now available

through the ISIS Project (Irish Sentencing Information System Project) in relation to different types of offences and when available it

should be brought to the attention of the sentencing judge. As has been observed, this is slow and painstaking work, but immensely

valuable. This information, especially where it is synthesised in a lucid and accessible way is an essential step in understanding what

range of sentence is being applied in respect of some offences, and identifying or allowing developments in the approach to

sentencing for particular offences. In the field of sentencing for offences relating to child pornography information of this sort

together with analysis exemplified in Loving, and the factors identified in other jurisdictions such as those set out in the decision of

the English Court of Appeal in R v. Oliver [2003] 1 Cr. App. R. 28 can provide a useful structure for the analysis of individual offences.

12 Turning to the facts of this case, it is clear to this Court that the sentencing judge was quite correct to consider that this was a

case which in terms of the constituents of the offence disclosed by the evidence, was at the upper end of the scale. This much was

acknowledged at the hearing of this appeal. However, this Court has come to the conclusion that the matters outlined by the

appellant did amount to an error of principle in the sentencing process. In particular, perhaps as a consequence of the adjournment of

the sentencing hearing, this Court has come to the conclusion that the sentencing process did not sufficiently address the extensive

mitigating factors as outlined in the reports submitted on behalf of the appellant. Since however, it is possible for an appropriate

sentence to be arrived at without necessarily addressing factors which might appear on reflection to be appropriate, it is necessary

to consider afresh the appropriate sentence in this case. In doing so it is useful where appropriate to draw comparisons with other

cases, and particularly the decision in Director of Public Prosecutions v. Loving.

Seriousness of Offence

13 The nature of the images, their quantity, the manner in which they were obtained and/or are retained, and the period over which

the images are retained and accessed are all relevant in assessing the intrinsic seriousness of the offence, and in attempting to place

it on the spectrum of possible offences under s. 6 and therefore to locate it on the scale of sentencing which the Oireachtas has

prescribed in this case.

14 Here the images were themselves of a very serious nature. On the scale which is now broadly accepted, they included images up

to the second highest level and also perhaps the highest level of seriousness. Some of the images involved acts outside the bounds of

what would be normal intercourse between consenting adults, showed intercourse and penetrative sex between adults and children,

and included the rape and sexual abuse of female and male children by adults and other children and included elements of sadism. The

assessment of these images on this scale is a very important component in any child pornography case. Not only does it mean that at

some level children were subjected to this horrifying level of violation, but it also gives a real and practical insight into the attitude of

an accused who would obtain and retain, view and review, such images.

15 Furthermore, a very significant quantity of images was involved. Three thousand two hundred (3,200) images including movies and

video clips is a very substantial number. By way of comparison, there were 175 images involved in the Director of Public Prosecutions

v. Loving case. It was also apparent that there was quite a sophisticated system set up to obtain these images. This was not a case

in which an unhealthy curiosity coupled with a limited understanding of the internet led someone unwittingly through levels of adult

pornography and on to sites providing images of child pornography. It is a central and starkly chilling feature of this case that these

images were obtained by the use of software obtained it appears, for that purpose and by using a search term deliberately

constructed to seek out images of this nature. It is acknowledged however that these images were obtained by peer to peer

technology and did not to that extent involve any acquisition, purchase, commercialisation or onward distribution. Nor is this a case in

which the images were shown by the appellant to any one else nor was there any connection with any other sexual offence. It is

nonetheless worth observing that it is important that the court be given a clear picture of the technology involved and what the

accused knew of it. It is the case in at least some instances of peer to peer access on the internet that the programme employed

involves not only downloading material, but also permitting files on the user’s own computer to form part of a pool of images so that

another person can retrieve a single image by accessing small digitised portions from a large number of similar files. Where this is the

case it may be relevant in its own terms, albeit much less significant than active involvement in a ring of people circulating material

such as this. But it is also important, because if such is the case, and is so understood by the individual accused, it may indicate a

level of indifference to the circulation of the material which itself would be significant. There was however no such detailed evidence

in this case, and the case proceeded upon the basis, which this Court must accept, that what was involved here was a downloading

of material without making it or any other material available, even in part, to other persons seeing images of this nature. It is certainly

the case that the appellant did not take active steps to circulate the material he downloaded.

16 The length of time over which these images were accessed is itself significant. It appears that the activities took place over at

least two years. It is also of some significance that the software programme was set up to run continuously in the background and

was then accessed and reviewed by the appellant when desired. This is more serious than individual instances of temptation leading

to search, accessing and downloading. Again, taking the case of Director of Public Prosecutions v. Loving as a point of reference, in

that case the images were accessed over a relatively short period between December 2002 and January 2003 when the sites in

question were accessed a maximum of 15 times. Furthermore, he ceased using them shortly after that time and when his house was

searched in September of that year it appeared very clear that he had not accessed any of the sites since January of that year.

Accordingly, the court considered there was no reason to dispute his own statement that he had lost interest and left material

unused in a box over that time. The same cannot be said here.

17 Bad though this case is, it must be acknowledged that it is possible to conceive of worse cases which would still have to be dealt

with under s.6. There may be cases of previous convictions, where there is an element of commerciality and payment for the images,

where there may be aspects of commissioning or circulation (albeit that those might be separate and more serious offences), where

there may be even more images of more concentrated depravity and in particular, there may have been the use of such images in

cases of sexual contact or grooming or sexualisation of children. Nevertheless, this was a serious case and this Court considers that

had no guilty plea been offered and had there been a conviction after a full trial, and in the absence of other mitigating factors, this

is a case which could have merited a sentence in the region of four years imprisonment.

Aggravating Features

18 The exercise of placing an offence on the scale of severity and then considering aggravating and mitigating factors is not a

mechanical process to be slavishly followed. Its principal function is to assist the sentencer in considering and giving weight to all the

appropriate factors in the case, and where necessary, facilitating a review of that sentence. It is not particularly important therefore

under what heading a particular factor is assessed, but it does become important to avoid unintentional double counting. Thus, if a

factor is taken into account as increasing the seriousness of the offence, it ought not to be considered again as an aggravating

factor. Similar logic applies in relation to some factors, or perhaps more accurately the absence of matters, often relied on both as

indicating a decreased level of seriousness and as mitigating factors. However the matter is phrased, it is important to avoid giving

either too much weight to certain factors, or allowing too much credit for others. In this case it does not appear that there are

separate or aggravating features.

Mitigating Factors

19 In addition to submissions made by counsel, reports have been obtained and provided to the court. Sentencing courts have

become familiar with the range of such reports. It is rare that oral evidence is given or is subject to cross-examination. Unless the

report is requested by the court, it would be proffered on behalf of the accused and it is to be assumed that only helpful reports will

be submitted. It is thus necessary for the court to maintain a level of scepticism about what is contained in any such report. But if a

report is itself carefully prepared and if the author has expressed opinions that are consistent with the evidence and other information

available and the report is internally consistent and persuasive and within the author’s area of professional expertise, then such

reports can provide very valuable assistance to the court in providing information on the accused and his or her background over and

above that which can obtained from the evidence given in relation to the offence. In the field of sexual offending in particular, such

reports, if credit worthy, can often provide information on the psychological background of the offender, and the risk of re-offending,

something which is particularly important in this area.

20 In this case, the solicitor for the accused man collected a large number of reports which together provide a very comprehensive

picture of the accused’s family life, background and psychological makeup and behaviour after detection. These reports included two

references from the Dún Laoghaire Community Training Centre where the appellant had engaged from 2002-2006; a report from a HSE

counsellor specialising in addiction who dealt with him between August 2002-2005; a detailed medical report from the appellant’s

general practitioner as from January 2012; a report on the 16th of March 2012 from Ms Proudfoot, the senior counsellor attached to

the HSE’s alcohol treatment unit; a comprehensive report produced by a team consisting of a psychotherapist, a forensic psychologist

and the director of a private psychological services organisation; an up-to-date report in May 2012 from a consultant neurologist, and

finally two detailed letters from the appellant’s mother who at the time of sentencing had re-established her relationship with him and

who was supportive of him.

21 From this information which was broadly consistent, the following picture emerged. The appellant who at the time of sentencing

was 32 years of age, had had a very troubled family background. The relationship with his parents was one of serious conflict. His

mother says, and it does not appear to be seriously in dispute, that his father was both violent and controlling. She recalled a number

of serious beatings which the father administered to the appellant. Furthermore, the father sought to control the family and

discouraged contact with the extended family and/or friends. The result was a very socially isolated childhood characterised by

shyness, anxiety and nervousness. The appellant engaged in offending behaviour which his father sought to control by further

beatings. The appellant tended to fight back. The end result was that the parents obtained a barring order which his mother now

says was the result of the father’s controlling behaviour.

22 The appellant has had a difficult medical history. From an early age he suffered from chronic psoriasis. In 2000 he suffered a

complex injury to his right lower leg following an accident as a motorcyclist and required long term physiotherapy. In early 2002 he

suffered partial seizures which required treatment with anti-epileptic drugs. In 2003 he underwent a craniotomy and excision of a

malformation in the right temporal lobe of his brain. He continues to suffer from epilepsy and requires ongoing treatment with anti-

convulsant drugs and regular reviews. Any significant stress or secondary head injury has the capacity to make his epilepsy and

neurological situation worse. In the view of his consultant neurologist, it would be reasonable to take this fact into account in his

sentencing. The risk of head injury while in prison is something which is an additional source of stress to the appellant. He was socially

isolated as a child and young man. He did not effectively communicate or integrate with peers. He has few acquaintances and fewer

friends. During his life he had a dependency upon alcohol and drugs. He had attendance in the St John of God hospital and was

admitted for treatment. In 2005 he presented himself at the hospital doused in petrol and threatening to burn himself. At the age of

21 he moved to Manchester and began taking ecstasy and cocaine and became involved in the local drug culture. He reported being

forcibly sexually assaulted by males over time. Combinations of illicit psychoactive substances were a feature of such abuse.

23 Despite this troubled history while a teenager, the reports of his engagement with social services during that time contain a

number of positive assessments. He was described as “bright, intelligent, sensitive, caring and full of potential” and “extremely

pleasant honest and genuine person who is keen to develop his skills and career”. One of his counsellor’s stated that “personally I felt

that while he really wanted to progress himself and distance himself from his early life, he struggled with this all the time”.

24 A significant feature of this case is that the sentencing took place in May 2012 for an offence committed in December 2008. The

court was informed that the delay was due in part to the length of time which it now takes to examine, analyse and categorise the

images in cases such as this. However, that period of time meant that the court was provided with information as to the appellant’s

conduct in the aftermath of his arrest and charge. In many cases it will be represented to a sentencing court that an offender

recognising his or her wrongdoing and is intent on getting their life back on course. It is often difficult to assess such assurances but

in a case such as this where a significant time has elapsed since the offence occurred, there is much more evidence of an accused’s

behaviour and approach.

25 Here the court was furnished with a report from Ms Lesley Proudfoot the senior counsellor in the HSE’s alcohol treatment unit. That

recorded that the appellant had attended for initial assessment in January 2009 shortly after the offence. It recorded that he had to

deal with an “extreme anxiety state that has made it virtually impossible for him to socialise and interact with people compounding his

isolation”. He had stopped drinking in January 2009 and at that point he had already stopped using other drugs. Ms Proudfoot records

that the appellant has been “honest about his situation and is fully aware and takes responsibility for his situation”. He participated

fully in all aspects of the services provided by the HSE, had attended education programmes, group therapy and continues to attend

for individual counselling. By March 2012 therefore, she could record that he had made tremendous progress, making significant

changes in his life in order to maintain his sobriety. He has made efforts to return to full time education but this was abandoned due

his extreme anxiety state however this would be part of his plan for his future. He was fully aware of the need to continue with

ongoing support for the foreseeable future and was quite willing to do that. Ms Proudfoot concluded that he “would have a positive

future ahead of him if he maintained his sobriety from alcohol and other drugs and was afforded an opportunity to access therapeutic

support”.

26 There is also an up-to-date report from forensic psychological services which was the product of cooperation between a forensic

psychologist and two clinical psychologists. That recorded that the appellant had been admitted to hospital on several occasions as a

child with head injuries sustained from beatings he received from his father. He had neurotic symptoms as a child from age five years

including night terrors and bed wetting. It was noted that he had refrained from further illicit substance use and had abstained from

alcohol for the past three years. Furthermore his attendance at regular individual counselling sessions over that period was an

indication of mature capacity to address aspects of a deeply troubled life. On an assessment of risk using two different tools he was

assessed as being in the low category of risk on the Stable -2007 scale. The Risk Matrix 2000 put him in a medium category risk but

that score was attributable to his age at the time of offending together with the notable absence of a monogamous committed

relationship over time. The report concluded that he did not evidence affixation any more or an attraction to minors. He had an intact

sense of morality and accepted the wrongfulness of his conduct over the internet. It was essential that he continue to maintain a

level of risk in the low range. This was the lowest possible level of risk attainable measuring factors that are amenable to influence

and change. It was considered that he could do this by remaining medication compliant, continuing at active supportive counselling in

the alcohol treatment unit, remaining free from illicit substance use and alcohol abuse and attending a psychotherapy group for men

who had sexually offended.

27 In addition to these features which were significant features personal to the appellant, an important mitigating factor was that he

had pleaded guilty at the very earliest opportunity, and indeed had acknowledged and accepted responsibility for the possession of

the material immediately and before seeking any legal advice. This is an important factor not merely in avoiding the time, cost and

expense involved in preparing a case for trial, but also since it indicates an acknowledgement of his personal responsibility. Although

he had four previous convictions for driving matters he had no previous convictions for any offence of possession of child pornography

or any related offence, or indeed any offence of a sexual nature.

28 Notwithstanding his plea of guilty and absence of relevant prior convictions, this is on any view, a serious case. It deserved an

immediate custodial sentence and the judge was right to impose one. It was a more serious offence than that involved in the Director

of Public Prosecutions v. Loving case. However, it can be said that there are more extenuating circumstances present in this case.

The appellant’s early life and experiences provide some explanation (but not an excuse) for the mindset which allowed him to commit

the offences. Of most relevance in this regard is the significant evidence that the appellant had sought to address his addiction to

alcohol and drugs, and with apparent success, between 2009 and the date of his sentence. It is also very important that he is

assessed at being at low risk of re-offending so long as he maintains such sobriety and that he had no innate morbid sexual interest in

children. The appellant must be given credit for the significant efforts he has made to address the addictions and mindsets which led

him to commit this crime. A court must take account of the fact that the fact of conviction for this offence, the fact of a significant

term of imprisonment, and finally the fact that such conviction carries with it the consequence of registration as a sex offender under

the 2001 Act, are all heavy burdens which the appellant must bear even after release from prison and which must necessarily, and

understandably, make it more difficult for him to obtain employment and to integrate himself in society. In the circumstances of this

case the court considers a sentence of three years imprisonment is excessive, and did not give sufficient weight to the mitigating

factors, nor did it give sufficient consideration to seeking to insure that on his release from prison, the appellant would have the

incentive to continue to attend appropriate courses and avoid behaviour which would put him at risk of re-offending. The court

recognises that in many cases which are effectively, first offences, a conviction on a plea of guilty to a charge under s.6, would

often lead to a suspended sentence or a very short custodial sentence. However in a number of cases custodial sentences have been

imposed precisely because of the nature of the images involved, and the degree of organisation and sophistication in seeking to

obtain the images. Those features were present here and made this a serious offence. Accordingly the court considers the

appropriate course in this case would be to set aside the sentence of three years imprisonment and substitute a sentence of two

years imprisonment, and at the same time make a post-release supervision order pursuant to s. 29 of the 2001 Act requiring the

appellant for a period of three years post-release to be under the supervision of a probation and welfare officer and to comply with

any directions given to him by the probation services to abstain from alcohol and drugs, for the attendance at appropriate courses of

therapy to deal with his addiction to alcohol and drugs, and also if it is considered appropriate, to attend appropriate therapy for

persons who have been found guilty of sexual offences. Since however, this matter was not canvassed on the hearing of the appeal

the court will hear submissions from counsel as to the appropriate form of that portion of the order.