New South Wales man, 49-year-old David Porte had his sentence increased to two years and nine months imprisonment for accessing and possessing child pornography and possession of a prohibited weapon following a successful appeal of the inadequacy of his original sentence. The non-parole period is one year and six months.
The Australian Federal Police (AFP) commenced an investigation into known child pornography material being shared or downloaded over the internet.
On 12 March 2013, the AFP executed a search warrant at Porte’s residence following detection of the IP address connected to the Porte’s internet account sharing child pornography material via “peer to peer” based file sharing.
During the execution of the search warrant a preliminary examination of computers and other electronic devices located at the premises. An examination of a laptop computer located in the bedroom revealed a ‘peer-to-peer’ file sharing program running and in the process of downloading approximately 916 files. The filenames of many of the files being downloaded were indicative of child pornography material.
A number of items were found to contain child pornography material and were seized from the premises during the execution of the search warrant, including an Asus laptop computer, a desktop computer, 14 external HDDs and a compact disc (CD). Also located during the search as a packaged canister of ‘Mace’ which was subsequently seized.
AFP Digital Forensic Team members conducted an examination of each electronic storage device located on the premises and these devices were found to have child pornography material stored on them. A total of 65 image and video files of child pornography material were accessed over the internet by the offender using the Asus laptop computer between 9 and 12 March 2013. A total of 34,143 files of child abuse material was identified.
A forensic examination of the contents of the canister of Mace brand pepper spray identified it contained chemical compounds commonly known as tear gas (or CN) and oleoresin capsicums (or OC). The offender is not the holder of a permit to possess a prohibited weapon.
On 14 November 2014 David Porte was sentenced to concurrent terms of 18 months imprisonment to be served by way of Intensive Correction Order in relation to:
- One count of using a carriage service to access child pornography material contrary to section 474.19(1)(a)(i) of the Criminal Code (Cth)
- One count of produce, disseminate or possess child abuse material contrary to section 91H92) of the Crimes Act 1900 (NSW)
- One count of possess prohibited weapon without a permit contrary to section 7(1) of the Weapons Prohibited Act 1998 (NSW)
The Crown lodged an Appeal due to (i) Failure to take into account matters under s.16A Crimes Act 1914 and 21A Crimes (Sentencing Procedure) Act 1999, (ii) Error in making the sentences concurrent (iii) Error with respect to the ordering of an ICO and (iv) the sentence being manifestly inadequate.
Crown Appeal – result / Appeal upheld
The CCA upheld all of the Crown’s appeal grounds and on 2 July 2015 David Porte was re-sentenced to two years and nine months imprisonment with a non-parole period of one year and six months in relation to the abovementioned charges.