Courts are too soft on child pornography

To any sensible person, the case in question is a no-brainer.

Any self-respecting employee would regard the failure of a job applicant to include his or her criminal history as a clear and irrevocable breach of trust. It seems like AHRC is set upon another embarrassing act of self-harm.

Those with a particular interest in child protection who read through the specifics of the case, would find it raised a far more important question. Namely why the possession of and/or publication of child pornography or child abuse material as our legislators prefer to call it these days, is not viewed with sufficient seriousness by the courts?

I am not normally the tough on crime type, urging long mandatory sentences for offenders but in the case of the possession and dissemination of child pornography, sentences handed out are almost laughably light. In the vast majority of cases, custodial sentences are not handed down.

The possession of child abuse material is both a state and federal crime. Maximum penalties across the jurisdictions vary from five years to ten years’ imprisonment. Tasmania is a stand out offering a maximum penalty of 21 years’ imprisonment for the offence.

New South Wales and Victoria have recently legislated to increase sentences as well as redefining the nature of the offending, to keep up with technological changes to the ways in which child abuse material can be sourced and obtained.

The Australian Federal Police is at the vanguard of law enforcement across international borders and routinely and regularly collaborates with law enforcement agencies like the FBI to identify offenders here and overseas.

The problem is not with enforcement or black letter law.

Recent studies are thin on the ground but one undertaken by the Australian Institute of Criminology in 2005 revealed that of 62 cases that came before the courts and led to convictions in NSW, only eight per cent were subject to full time custodial sentences. More than half were placed on bonds. Of these more than half again were not subject to any court-imposed supervision. In other words, those convicted were simply told to be of good behaviour for a fixed period without any further restrictions.

Certainly, this type of offending poses certain difficulties to judges and magistrates. Many offenders do not have criminal backgrounds. More often than not, there are no prior convictions, no criminal history. The usual path of a career criminal starting as a youth offender committing property crime, periodically graduating to more serious offences against the person as an adult, is rarely seen and not especially relevant.

Offenders come from all parts of the community. It is not unusual to see teachers, police officers, youth workers and others who work with children standing before the courts. We’re often shocked to learn this when reports of arrests are made but we shouldn’t be. Those who possess child abuse material and use it for sexual gratification live among us ostensibly as law abiding citizens. This type of offending does not follow the normal pathways into criminality.

Child pornography cannot be obtained by Google search. One does not stumble across it. Offenders can only possess the material by deliberate and often complex means like peer-to-peer file sharing on the dark web.

An AFP officer I spoke to who has carried out raids on homes where computers and other devices were seized, told me offenders often would be waiting for the knock on the door.

The officer told me he could not count the times offenders made remarks of the type, “I’ve been waiting for you.” Yet, their computers, thumb drives and mobile phones sat replete with the most horrible images, even including the sexualised torture of infants. Hard drives were intact and rarely was an attempt made to delete the incriminating material.

On the surface the behaviour is completely bizarre. No criminal who wants to avoid prosecution would leave evidence casually lying about but this type of offender almost invariably does. It speaks of a lack of impulse control so profound that it can be no great leap to physically acting out a sexual offence against a child.

It may not, of course, but the risk is always there to some degree and the courts need to appreciate that.

But when law enforcement conducts prosecutions, the sentences handed down are almost inevitably of the slap on the wrist variety. In numerous cases applications to the court seeking to conceal the identity of the offender have been successful, meaning offenders can be convicted anonymously. Most offenders plead guilty, provide character references and legal counsel inform the courts that their clients are in all other ways respectable citizens by way of mitigation.

What seems to be barely considered in sentencing are the obvious facts. The possession and distribution of child pornography spreads the ugly fantasy that children are appropriate sexual partners. The possession of it contributes to an underground market where children are physically and sexually abused in increasing number. It may be used to groom victims and provides an active encouragement for child sex offenders to commit further offences. Moreover, child pornography traumatises victims further knowing these images are in circulation and can reappear at any time.

Times have changed, governments have caught up and law enforcement is as efficient as it possibly can be but sentencing lags well behind community expectation. There appears to be little regard given to general deterrence. Given the secretive nature of this type of offender, it is no empty speculation to suggest those who come before the courts are merely the tip of the iceberg. How big the iceberg is, is guess work but my best guess is the problem is a lot bigger than our courts realise.

This article was first published in Thee Australian on 4 July 2018.