R v Silva [2009] ACTSC 108 (4 September 2009)

CRIMINAL LAW – disputed facts hearing – using a carriage service to access child pornography material in contravention of s 474.19 Criminal Code 1995 (Cth) – number of images classified as child pornography material – use of Oliver Scale.

CRIMINAL LAW – sentencing – using a carriage service to access child pornography material – seriousness of the offence – relevance of nature and content of pornographic material, quantity of material involved, number of children depicted – meaning of “indicative material” – relevance of “indicative material” to sentencing.

CRIMINAL LAW – using a carriage service to access child pornography material – meaning of “child pornography material” – meaning of “depict” – significance of intention on the part of the maker of the image – meaning of “in a sexual pose” – significance of child-like behaviour in adult sexuality – “pose” involves a deliberately-struck attitude drawing attention to sexual aspect of subject’s identity or personality – no need for child to understand sexual connotations of pose – “in all the circumstances” applies to depiction, not location or use of the image – meaning of “reasonable persons” and “offensive” – “reasonable persons” are reasonable members of the Australian community – interpretation of “offensive” requires reference to level of community tolerance of approaches to sexualisation of children.

Collins English Dictionary and Thesaurus, viewed at http://dictionary.reverso.net on 28 August 2009, definition of “pout”

Macquarie Dictionary Online (viewed at www.macquariedictionary.com.au on 28 August 2009), definitions of “babe”, “depict”, “pose”

(a) Of the 20,588 images found on Mr Silva’s laptop computer, 8,259 images are child pornography classified as level 1 on the Oliver scale and 12,329 images are indicative material.

1. Alexandro Silva has been charged with one count of using a carriage service to access child pornography. This offence is created by s 474.19 of the Criminal Code Act 1995 (Cth) (the Criminal Code). He pleaded guilty to that charge on 26 May 2009, but the prosecution and the defence have been unable to reach agreement on some matters of fact; sentencing was deferred to allow for a disputed facts hearing, which took place on 11 June 2009.

2. Mr Silva held a post-graduate scholarship at the Australian National University. ANU issued him with a computer with a personal log-in. Mr Silva owned a laptop and a USB thumb drive. As a result of the execution of a search warrant at Mr Silva’s accommodation at Uni Lodge, police found child pornography on Mr Silva’s laptop and his thumb drive, and also found two DVDs containing child pornography material in the form of video material. Mr Silva’s ANU computer was subsequently seized and also found to contain child pornography material.

3. For the purposes of the sentencing process the prosecution proposes to rely on both information about the number of images and videos held by Mr Silva and information about the nature of that material. Both of those matters are recognised as relevant to determining the seriousness of the offence as required by normal sentencing practice. For instance, the New South Wales Court of Criminal Appeal in R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, a case relating to the importation of child pornography, identified (at [99]) a range of factors which bear upon the objective seriousness of offences of this nature. These included:

(a) the nature and content of pornographic material─including the age of the children and the gravity of the sexual activity portrayed; and

5. Accordingly, the Director of Public Prosecutions (DPP) obtained from the Australian Federal Police (AFP) information about the numbers of images and videos found on each piece of equipment, and about how the AFP classified those images and videos.

6. The classification of pornographic material is commonly done by the AFP for the prosecuting authorities using what is known as the Oliver scale, from R v Oliver [2004] UKHL 43; [2003] 1 Cr. App. R. 28, in which the Criminal Division of the Court of Appeal of England and Wales, having referred to proposals made by the Sentencing Advisory Panel (a body set up originally to advise the Court of Appeal and now to advise the Sentencing Guidelines Council), said at [10]:

7. It was accepted by counsel for the DPP that material classified as level 1 on the Oliver scale would not necessarily satisfy every definition of child pornography in Australian legislation.

8. The child pornography material found on Mr Silva’s computer equipment was relatively low-level material. Counsel for the DPP advised that using the 5 level Oliver scale, all but one item (a video found on the ANU computer), would be categorised as level 1 material (that is, the least serious material, being images depicting “erotic posing with no sexual activity”).

9. A substantial proportion of the material discovered was initially classified by the AFP as not child pornography but as “indicative material”. The concept of “indicative” material was explained by the DPP as material involving children that did not amount to child pornography. Counsel said that such material is regarded as indicating “an interest in children”, and may show “the context in which the child pornography images have been found”.

10. The significance of indicative material in sentencing is not particularly clear. It is hard to see why indicative material should be directly relevant in sentencing any more than material depicting scenery, animals, houses or any other non-pornographic images. One would imagine that a person who only has indicative material will not come before the courts anyway. The sentence imposed where a person has child pornography material and indicative material should relate to the nature and quantity of the child pornography, not the nature or quantity of any indicative material. However, indicative material might be indirectly relevant in sentencing in a case in which possessing or accessing a large quantity of indicative material and a much smaller quantity of child pornography is claimed to indicate that the child pornography has been accidentally obtained in the course of the lawful acquisition of indicative material, but in such a case, only the existence of indicative material would be relevant, not its content.

11. The volume and classification of the material seized was initially as follows:

Table 1: Initial classification of material
Source of material	Indicative material	Oliver scale Level 1	Oliver scale Level 2
ANU computer (apart from around 5,000 images also on the laptop)	442 images	253 images 1 video	1 video
Laptop (including around 5,000 images also on ANU computer)	18,255 images 4 videos	2,333 images 11 videos
DVDs		8 videos
Thumb drive	639 images under review
Total (excluding thumb drive)	18,697 images 4 videos	2,586 images 20 videos	1 video

12. At some point, a decision was made by the prosecution to review the initial classification of much of the material as indicative. This resulted in re-classification, on behalf of the prosecution, of the majority of the indicative images from the laptop (14,814 out of the 18,255 images) as child pornography.

13. The effect of the DPP’s proposed reclassification of the laptop material would be that Mr Silva would be sentenced on the basis of having accessed over 17,000 child pornography images in total, as compared with the less than 2,600 images indicated in the original case statement. This might be significant in his sentencing (see [3] above), although I note in this context that the volume of images accessed by an accused may be less important in general than the nature of the images. On the assumption that the purpose of criminalising this material is the protection of children, not directly the condemnation of individual sexual preferences, it is arguable that possession of even extremely high numbers of low level images would not require such a severe sentence as possession of a small number of the most disturbing and exploitative images. However, whatever the significance of the volume of images, that significance will increase the more objectionable are those images.

14. Mr Silva’s counsel also separately reviewed a sample of the reclassified images and Mr Silva now concedes that a further group of those reclassified images (around 2,000 images) are properly classified as child pornography.

15. The material still in dispute between Mr Silva and the prosecution therefore consists of over 12,000 images previously classified as indicative but that the prosecution proposes to re-classify as child pornography.

16. Because of the failure of the prosecution and Mr Silva to agree on this re-classification, the Court has been asked to review a sample of the images by reference to the Criminal Code definition of “child pornography material”, and to make a finding of how many of the images in question should be treated as child pornography.

17. Before describing that review, and explaining the calculations resulting from it, it is appropriate to comment on the definition of “child pornography” and how I interpreted that definition for the purposes of my review of the disputed material.

18. The definition of child pornography material is found in s 473.1 of the Criminal Code, which is set out in the Appendix to this judgment.

19. Section 473.4 of the Code, which provides some assistance in determining whether reasonable persons would regard material as being, in all the circumstances, offensive, is also set out in the Appendix.

20. It seems that in most of the child pornography cases that are considered by the courts, the material concerned is obviously objectionable and there is no argument about whether or not it amounts to child pornography. Counsel for the DPP was not able to refer me to any Australian authorities on the topic of distinguishing child pornography from other images of children.

21. In explaining the approach I took to the images in question, it may be useful first to identify the issues that are not raised by this case. The images in dispute in this case do not include any images that are claimed to be of persons 18 years of age or older. Nor are there any images of children apparently engaged in sexual activity, or children in the presence of a person apparently engaged in a sexual pose or sexual activity. Nor is there any material in which the depiction of the children might be said to be incidental. Accordingly, the relevant part of the definition of “child pornography material” is paragraph (a), and it relevantly defines child pornography material as:

22. There are several issues that arise in interpreting this definition in the current case.

23. First, “depict” is defined by the Macquarie Dictionary Online (viewed at www.macquariedictionary.com.au on 28 August 2009) as “to represent by or as by painting; portray; delineate; to represent in words; describe”.

24. It seems to me that “depict” is an active verb implying some intention on the part of the maker of the image. It would not cover, for instance, an accidental image such as a water stain that could be seen as resembling a sexual organ. Nor, in the context of child pornography, would the word cover images, even including images of naked or scantily clad children, that appear to have been taken with completely innocent intentions (it would be a rare family album that does not contain photographs of young children in the bath). Among other things, this means that images that are otherwise unobjectionable should not be found to have taken on the character of child pornography by reason of possibly having been made available to people with an interest in child pornography. Accordingly, in considering the images, I did not consider where Mr Silva might have obtained any of the images, but purely the images themselves and the kinds of circumstances in which such images might have been created.

26. One of the difficulties in doing so is that the Australian community in 2009, with a small number of vocal exceptions, appears to tolerate a wide range of activity, often in commercial contexts, that undeniably involves the sexualisation of young children, whether this involves young children flirting with each other in television advertisements or the sale of padded bras for pre-pubescent girls.

27. The phrase “in a sexual pose” also raises a number of issues relating to the interpretation of adult and child sexual behaviour and the sexual significance of adult women behaving like children and vice versa. One does not have to be a particularly radical feminist to accept that some of the actions that are regarded as sexually inviting when performed by adult women reflect behaviour that in a non-sexual context is much more common among children than among adults. Adult women are sometimes seen as sexually appealing when they are behaving like children. For instance, the pout, properly the province of sullen small children, becomes in adult females a gesture with the lips “to make themselves sexually attractive” (Collins English Dictionary and Thesaurus, viewed at http://dictionary.reverso.net on 28 August 2009, which gives as an example a reference to “gorgeous pouting models”). The word “babe” is defined in the Macquarie Dictionary Online (viewed at www.macquariedictionary.com.au on 28 August 2009) to mean both a baby and a “sexually attractive female”. That dictionary also gives a meaning of “sexually attractive male”, but I suspect an examination of the development of this usage would indicate that it reflected a reaction to the use of the word to describe adult women rather than a direct development from the original meaning of the word.

28. The complexities of female sexuality or sexualisation do not excuse an interest in child pornography; however, they do add another layer of difficulty to any attempt to categorise images of children that do not depict sexual activity or naked sexual organs. They may mean, for instance, that childish mannerisms which, when used by an adult, carry sexual connotations do not necessarily carry the same sexual connotations when used by a child. Classifying images may require a differentiation between images showing childish mannerisms used innocently by a child and images showing childish mannerisms that may be significant in adult sexuality and that have been encouraged in a child (often accompanied by age-inappropriate clothing) for the apparent purpose of providing sexual gratification to observers.

29. As to the concept of a “pose” (defined relevantly by the Macquarie Dictionary, viewed at www.macquariedictionary.com.au on 28 August 2009, as “to assume or hold a position or attitude for some artistic purpose”), I take a sexual pose to be a deliberately-struck attitude that draws attention to the sexual aspects of the subject’s identity or personality. When children are involved, I do not consider it necessary that the child subject actually understands the sexual connotations of the pose she or he has adopted, and indeed whether this was so in any case would be impossible even to guess at in the context of child pornography (this may be the significance of the inclusion of the words “appears to be engaged in” in the definition of “child pornography material”).

30. I also accept the DPP’s submission that nudity is not a prerequisite for a sexual pose.

31. What is covered by the words “in all the circumstances” must also be considered. If those words included the circumstance that the image has been found on a computer on which the user has also stored more obviously pornographic images, such that a reasonable person might infer that the image is kept by that person for some kind of sexual gratification, then even the most innocent images of children might be questionable. However, as a matter of syntax, “in all the circumstances” qualifies “depicts a person ... in a way that”—it is the depiction, being the deliberate creation of the image as such (see [23] and [24] above), that must be assessed for offensiveness, not the location or apparent use of that depiction.

32. Finally, there is the question of what reasonable persons would regard as offensive. I take “reasonable persons” to mean reasonable members of the Australian community in 2009.

33. In assessing what such people would regard as offensive, I am obliged by s 473.4 of the Criminal Code to take account of the standards of morality, decency and propriety generally accepted by reasonable adults. I consider that this requires a recognition of what appear to be general community standards of what can be tolerated in the community at large in art, literature and particularly the mass media (including what is tolerated by people who would not necessarily regard particular standards as acceptable in their own lives), including the matters already mentioned in relation to community tolerance of various approaches to children and sexuality.

34. The Court’s review concerned the 18,255 images found on Mr Silva’s laptop and originally classified as indicative material. As I understand it, no review is planned of the images unique to the ANU computer. The position has not been made clear to me in relation to the thumb drive images, but the relatively small number of images on the thumb drive means that even if the review of those images proceeded and produced a classification of all those images as child pornography, this would not have a significant impact on the total numbers of images for consideration in the sentencing process.

35. The AFP conducted its review by means of a re-examination of a random sample consisting of 10% (1,825) of the images originally classified as indicative. The defence accepted that the sampling mechanism was appropriate and did not require evidence to be given of how the random sample was obtained

36. The 1,825 images in the sample were examined by an AFP officer. As a result of that re-examination, the prosecution concluded that 1,481 of those images should be re-classified as child pornography material, and, extrapolating from this sample, that 14,814 of the 18,255 laptop images previously classified as indicative should be re-classified as child pornography. The effect of this would be to change the distribution of the laptop images set out in Table 1 as shown in bold in the following table:

Table 2: Revised by prosecution
Source of material	Indicative material	Oliver scale Level 1	Oliver scale Level 2
ANU computer (apart from around 5,000 images also on the laptop)	442 images	253 images 1 video	1 video
Laptop (including around 5,000 images also on ANU computer)	3,441 images 4 videos	14,814 + 2,333 = 17,147 images 11 videos
DVDs		8 videos
Thumb drive	639 images under review
Total (excluding thumb drive)	3,883 images 4 videos	17,400 images 20 videos	1 video

37. Mr Silva, as already mentioned, disputes the prosecution’s proposed re-classification of the images originally classified as indicative.

38. The matter for me to determine was agreed between the parties to be what proportion of the images proposed to be re-classified as child pornography images should be treated as child pornography images for sentencing purposes.

39. The Court review of the images in dispute was, by agreement between the parties, undertaken as follows.

40. First, I was shown, in a closed court with only myself and the two counsel able to view the images, 233 images that had been originally classified as child pornography and 51 images that had been originally classified as indicative. The 51 images came from the material originally classified as indicative, but were not identified as a benchmark for an indicative classification because they included images that arguably required re-classification.

41. I note that although I could see most of the images sufficiently clearly to assess them, a small number were images that had been saved as thumbnails and could not be enlarged. Where such images were covered by my review, I generally assessed them as not child pornography unless it was clear that the image was a reduced version of a child pornography image that I had already seen. I note, without reaching any conclusions for present purposes, that there must be a point at which an image, however objectionable originally, becomes too small or too ill-defined to be made out by the viewer and therefore, in that form, impossible to categorise as pornography of any kind.

42. Next, I was shown 100 images, being a random sample of the 1,481 images classified as child pornography on the AFP review of the sample of 1,825 of the images that had originally been categorised as indicative. I considered each image individually, rather than in the context of the other images that I had already seen (even where it appeared that an image was one of a series of images of the same girl or girls taken on the same occasion). During that viewing, I noted for each image whether I regarded it as child pornography material or indicative material on the basis of the interpretation of the legislation discussed at [18] to [33] above.

(b) All the girls appear to be aged between about five years old and about 10 years old (the bulk of the images are of girls at the older end of the range).

(d) Some of the images involve two girls, but, as previously indicated at [21] above, there is no suggestion of sexual activity between them.

(e) Many of the images can be grouped into sets involving the same girl or girls, so that the 100 images involve a considerably smaller number of different girls.

44. The images that I assessed as child pornography generally have the following characteristics:

(a) Most involve the girls striking crudely sexually inviting poses, such as lying on their backs with their legs spread, crouching with their buttocks displayed towards the camera, or stretching their underwear away from their body so as to invite attention to areas concealed by the underwear.

(b) Some involve the girls wearing clothing that is not only age-inappropriate but unlikely to be worn by adult women except for the purposes of appearing sexually provocative, and striking poses that, while not so crudely sexual as those mentioned above, would certainly be interpreted in adult women as conveying a sexual message.

45. The images that I did not regard as child pornography can be grouped into the following categories:

(a) Family album images: girls in age-appropriate clothing engaging with the camera in appealing but not necessarily sexual poses; these images include what I thought of as the gymnastics series—a girl in age-appropriate clothing (being a t-shirt and unrevealing underpants) striking a series of poses that might be observed in any gymnastics class around Australia.

(b) Model portfolio images: girls in age-appropriate clothing in mildly provocative poses that might be included in a portfolio of photographs of a child for whom work as a child model is being sought—images not dissimilar to what might appear in a department store catalogue, but slightly spiced up in order to get the child noticed.

(c) Child beauty contests: girls in age-inappropriate clothing (and possibly make-up) striking adult poses, but within the limits of what appears to be acceptable in children’s beauty contests in the United States as shown on Australian television screens (although it must be conceded that an Internet search for Australian references to “children’s beauty contests” produced more sites on which people comment unfavourably about such contests than sites promoting or defending them).

46. At the end of the viewing described in [42] above, I had assessed 40 of the 100 images as child pornography and 60 of them as indicative.

47. Noting the sampling process that was used, this led me to a finding that 40% of the laptop images originally classified as indicative should be reclassified as child pornography. The effect of that finding on the classification of the relevant material is as follows:

Table 3: Revised as a result of Court finding
Source of material	Indicative material	Oliver scale Level 1	Oliver scale Level 2
ANU computer (apart from around 5,000 images also on the laptop)	442 images	253 images 1 video	1 video
Laptop (including around 5,000 images also on ANU computer)	12,329 images 4 videos	5,926 + 2,333 = 8,259 images 11 videos
DVDs		8 videos
Thumb drive	639 images under review
Total (excluding thumb drive	12,771 images 4 videos	8,512 images 20 videos	1 video

48. The sentencing will therefore proceed on the basis of the figures set out in Table 3, subject to any agreed classification of the 639 thumb drive images.

49. The Court finds that of the 20,588 images found on Mr Silva’s laptop computer, 8,259 images are child pornography classified as level 1 on the Oliver scale and 12,329 images are indicative material.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

(a) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:

(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(b) material the dominant characteristic of which is the depiction, for a sexual purpose, of:

(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or

(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;

in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or

(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;

and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and

Supreme Court of the ACT

R v Silva [2009] ACTSC 108 (4 September 2009)