Case Law Database

Cybercrime

Computer-related specific acts

• Production/distribution/ possession of child sexual abuse materials

R v Porte

Australia

Fact Summary

David Fernando Porte pleaded guilty to charges of using a carriage service to access child pornography material, possessing child abuse material and possessing a prohibited weapon (a canister of “Mace” brand pepper spray). Mr Porte migrated to Australian at the age of six from Chile. He was self-employed between 2001 and 2011 when his industrial hardware business collapsed. This was partly due to a work related injury which contributed to his unemployment until the time of his arrest in 2013. Following his arrest, he had secured employment until the time of his sentencing. Mr Porte had been married for 21 years, however had no children. Mr Porte had a criminal history including an offence of malicious injury in 1986. He developed an interest in teenage girls and was found to have downloaded child exploitation material from the internet. At his trial, he indicated that any material involving younger girls had been downloaded as part of bulk downloads of files, and not specifically sought out. He also denied that he sought sexual gratification from such material. During his trial, evidence was given by his psychiatrist, who diagnosed Mr Porte with depression and a hoarding disorder. He was not diagnosed with a disorder of abnormal sexual interest such as heterosexual paedophilia.
 Mr Porte’s offending was extensive and had been conducted between 2011 and 2013. He had accessed child exploitation material using peer-to-peer file sharing technology (computer technology allowing the creation of a network with a group of computer uses with the same networking program, directly connecting with each other to access files on each user’s hard drives), and had also used a carriage service to access child exploitation material between 5 March and 12 March 2013. Through these techniques, Mr Porte had accessed and downloaded 34,000 items of child abuse material including videos and images.
As part of an Australian Federal Police investigation into online child exploitation material in 2013, Mr Porte’s Internet Protocol address was found to have been used in connection with downloading such material. The Australian Federal Police executed a search warrant at Mr Porte’s premises in March 2013 and seized computer hardware and hard drives. Additionally, they discovered a prohibited weapon being a canister of Mace (Pepper Spray). During the execution of the warrant, Mr Porte was found to be in the process of downloading 916 files which were confirmed to include child exploitation material.

Commentary and Significant Features

Child exploitation offences are objectively serious. Mr Porte plead guilty to three offences of using a carriage service to access child pornography material, possessing child abuse material and possessing a prohibited weapon without a permit. He was sentenced to concurrent terms of 18 months’ imprisonment on each count with the terms of imprisonment to be served by way of an Intensive Correction Order. On appeal, the Court found that the sentencing Judge had made a number of significant errors in arriving at a sentence that was, in the opinion of the Court, manifestly inadequate. Mr Porte was re-sentenced to a total effective sentence of two years and nine months imprisonment, with an effective minimum term of one year and six months.
Sentence Date:
2015-07-02
Author:
Ben Russell, Graduate Intern, Macquarie University and Australian Institute of Criminology

Cross-Cutting Issues

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Electronic Evidence

• Electronic Evidence/Digital Evidence

Procedural Information

Legal System:
Common Law
Latest Court Ruling:
Appellate Court
Type of Proceeding:
Criminal
 
Proceeding #1:
  • Stage:
    first trial
    • Decision Date:
    Sat Nov 14 00:00:00 CET 2015

    Court

    Court Title

    New South Wales District Court
     
    • Criminal

    Description

    Mr Porte’s extensive offending was related to a number of criminal offences including possession of a prohibited weapon contrary to s.7(1) Weapons Prohibition Act 1988 (NSW), possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW) and use of a Carriage Service to access child pornography contrary to s.474.19(1)(a)(i) Criminal Code (Cth). The material he possessed was categorised in accordance with the Child Exploitation Tracking System (CETS) scale that ranged from least (category 1) to most serious (category 6) material. 
    Category 1 - nudity or sexually suggestive posing with no sexual activity;
    Category 2 - non-penetrative sexual activity between children, or solo masturbation by a child;
    Category 3 - non-penetrative sexual activity between adult(s) and child(ren);
    Category 4 - penetrative sexual activity between children or adult(s) and child(ren);
    Category 5 - sadism, humiliation or bestiality; and
    Category 6 - animated or virtual depictions of children engaged in sexual poses or activity.
    The 34,143 items that Mr Porte was found to have possessed were classified in the following categories:
    Category 1 – 27,720 images and videos
    Category 2 – 1,156 images and videos
    Category 3 – 2,161 images and videos
    Category 4 – 2,567 images and videos
    Category 5 – 240 images and videos
    Category 6 – 299 images and videos
    Mr Porte plead guilty to all offences. In sentencing, the trial judge noted that law enforcement agencies estimate that 85 percent of child exploitation material seized in Australia is distributed via the internet and that there are ever-increasing demands for new material with higher levels of depravity and corruption. The judge also noted the massive scale of such offending which is becoming more widespread. This has led to substantial penalties being needed in order to enhance general deterrence.
    In relation to Mr Porte’s particular offending, the judge noted that Mr Porte was not alleged to have engaged in distribution of child exploitation material, which is regarded as a more serious offence than possession of material. Accordingly, the trial judge sentenced Mr Porte to concurrent terms of imprisonment of 18 months for each offence, to be served by way of an Intensive Correction Order (ICO). (An ICO is served in the community under strict supervision of a community corrections officer)
     
    Proceeding #2:
  • Stage:
    appeal
  • Official Case Reference:
    R v Porte [2015] NSWCCA 174
    • Decision Date:
    Thu Jul 02 00:00:00 CEST 2015

    Court

    Court Title

    New South Wales Criminal Court of Appeal
     
    • Criminal

    Description

    The Crown appealed the sentence given to Mr Porte on 5 of grounds. The first was that his honour had failed to take into account matters set out in s.16A of the Crimes Act 1914 (Sentencing Procedure). In regard to this ground it was submitted that the sentencing remarks were only relevant to Mr Porte’s subjective case rather than reflecting the objective seriousness of the offence. The second ground was that the trial judge had been in error in ordering that the sentences be made concurrent. It was submitted that ordering that the sentences be served concurrently was not reflective of the criminality within Mr Porte’s offences. The third and fourth grounds of appeal were that the sentencing judge had erred in ordering the sentence be served as an intensive correction order. It was submitted that in so ordering the sentencing judge had failed to properly apply the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW). That Act provides that before an ICO may be imposed, the offender’s suitability must be examined and that the court must first consider all other alternatives to imprisonment. On appeal, this ground was upheld with the court finding that the trial judge had not appropriately followed relevant procedures. The final ground of appeal was that the sentence was manifestly inadequate which was also upheld.

    In allowing the appeal, the court found that the sentencing Judge had made a number of significant errors in arriving at a sentence that was, in the opinion of the Court, manifestly inadequate. Those errors included a failure to assess the objective seriousness of the offending, a failure to explain how the sentence was arrived at, a failure to give principled consideration to the question of concurrency and accumulation, and an impermissible approach to the question of whether an ICO was appropriate. The Court set out a number of principles to be applied in sentencing for child pornography offences.

    The appeal court then re-sentenced Mr Porte to a head sentence of two years and nine months imprisonment, with an effective minimum term of one year and six months. For the Mace Offence, he was convicted but no other penalty was imposed.

     

    Defendants / Respondents in the first instance

    Defendant:
    David Fernando Porte
    Gender:
    Male
    Nationality:
    Australian
    Age:
    47

    Charges / Claims / Decisions

    Defendant:
    David Fernando Porte
    Legislation / Statute / Code:
    s.91H(2) Crimes Act 1900 (NSW)
    Charge details:
    Possession of Child abuse material
    Verdict:
    Guilty
    Legislation / Statute / Code:
    s.474.19(1)(a)(i): Crimes Act 1900 (NSW)
    Charge details:
    Use of a Carriage Service to access child pornography contrary to Criminal Code
    Verdict:
    Guilty
    Legislation / Statute / Code:
    s.7(1) Weapons Prohibition Act 1988
    Charge details:
    Possession of a prohibited weapon contrary to (NSW)
    Verdict:
    Guilty
    Term of Imprisonment:
    1 year 3 Months

    Court

    New South Wales Criminal Court of Appeal

    Sources / Citations

    https://www.caselaw.nsw.gov.au/decision/5591eebae4b06e6e9f0f717c#

    Attachments