DPP v Loving

JurisdictionIreland
JudgeFENNELLY J.
Judgment Date10 March 2006
Neutral Citation[2006] IECCA 28
CourtCourt of Criminal Appeal
Docket Number[C.C.A. No. 115 of 2005]
Date10 March 2006
DPP v LOVING
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
CARL LOVING
Applicant

[2006] IECCA 28

Fennelly J.

Gilligan J.

Dunne J.

115/2005

COURT OF CRIMINAL APPEAL

CRIMINAL LAW:

Sentence

Severity of sentence - Maximum sentences - Principles to be applied - Mitigating factors - Child pornography - Whether sentences too severe - Child Trafficking and Pornography Act 1998 (No 22), ss 5 and 6 - Sentence reduced (115/2005 - CCA - 10/3/2006)[2006] IECCA 28, [2006] 3 IR 355 People (DPP) v Loving

CRIMINAL LAW (THEFT & FRAUD) OFFENCES ACT 2001 S6

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S6

CRIMINAL LAW (THEFT & FRAUD) OFFNECES ACT 2001 S48

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S6(1)

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S5

DPP v MCC (G) 2003 3 IR 609

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S5(1)

R v OLIVER 2003 1 CAR 28

R v ENGLISH 1999 1 CAR 261

R v COHEN UNREP CA (CRIM) 13.10.1983 (UK)

1

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

2

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
3

The Applicant pleaded guilty before the Dublin Circuit to two offences as follows:

4

1. Making a gain by deception contrary to section 6 of the Criminal Law (Theft and Fraud Offences) Act, 2001, in that, on 9 th July 2003, by deception, he induced one Theresa Corcoran to pay him €700 cash.

5

2. Possession of child pornography contrary to section 6 of the Child Trafficking and Pornography Act, 1998, in that, on 9 th September 2003 he knowingly had possession at his home of child pornographic images by way of pictures and floppy discs.

6

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.

7

At its hearing on 10 th 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
8

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.

9

The gardaí obtained a search warrant pursuant to section 48 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, which was executed on 9 th 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.

10

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
11

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 had also had a number of relationships and has children from several of them. Some are grown up, but he had 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.

12

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.

13

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.

14

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.

15

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.

16

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.

17

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
18

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.

19

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.

20

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.

21

He imposed a sentence of two years imprisonment on the deception count backdated to 9 th 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...

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