Area of Law – Sexual Offences
An Article about Child Pornography Matters
The Courts, when sentencing people charged with child pornography offences (possessing, accessing, transmitting, or making child pornography) consider the following relevant factors:
- The nature and content of the pornographic material, including the age of the children portrayed in the material and the seriousness of the activity portrayed;
- The number of images or items found in the person’s possession;
- Whether the images or items have been distributed for the purposes of sale or further distribution; and
- Whether there has been or will be any financial gain obtained by virtue of their possession of the material.
When considering the nature and content of the pornographic, the Court will consider the images or items (e.g., videos) accordingly to their classification by Police. The images or items are ranked according to increasing levels of seriousness:
- Images depicting nudity or erotic posing, with no sexual activity;
- Sexual activity between children, or solo masturbation by a child;
- Non-penetrative sexual activity between adult(s) and child(ren);
- Penetrative sexual activity between child(ren) and adult(s); and
- Images depicting sadism or bestiality.
In sentencing, the Courts have to balance issues of deterrence (that is, stopped the person or others in the community from committing this particular crime) and just punishment with matters that are specific to the person charged with the offence. In the case of the Commonwealth Director of Public Prosecutions (DPP) v D’Alessandro (November 2009), Mr D’Alessandro pleaded guilty to six charges which included charges of accessing, transmitting and possessing child pornography. The Police examining his computer found that he had shared more than 16,000 images as well as engaging in online chat in relation to child pornography. Mr D’Alessandro was around 25 years of age at the time of Court, and had no prior Court appearances or convictions. Following a plea in the County Court, he was sentenced to a total effective sentence of 2 years’ imprisonment, but was released immediately on a recognizance release order on the condition that he be of good behaviour for a period of 3 years. The DPP appealed to the Court of Appeal saying that the sentence was too lenient. Justice Harper of the Court of Appeal stated that the child pornography found in Mr D’Alessandro’s possession was some of the worst they had seen, but said that “[t]here are scales of pornography. It is not all the same.” The Court considered the need for it to protect children from exploitation and harm on the one hand, and the psychiatric and psychological reports which highlighted the need for Mr D’Alessandro to have access to ongoing treatment on the other. Nonetheless, the Court considered the imposition of what was essentially a wholly suspended sentence to be too lenient and re-sentenced the offender to a period of imprisonment of 3 years, to be released after serving 2 years of that sentence.