Court of Appeal dismisses appeal against child pornography possession sentence for failing to consider partial suspension.

THE COURT OF APPEAL

Approved

No Redaction Needed

Neutral Citation: [2025] IECA 183

Record No: 160/2024

Edwards J. Burns J. O’Moore J.

Between/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

V

OISIN CANNON

Appellant

JUDGMENT of the Court delivered by Mr. Justice O’Moore on the 6th day of February, 2025.

Introduction

1. Before this Court is an appeal brought by Mr. Oisin Cannon against the severity of the sentence imposed on him by the Circuit Criminal Court in respect of his conviction for three counts of possession of child pornography contrary to s. 6(1) of the Child Trafficking and Pornography Act, 1998.

2. The appellant had entered a guilty plea several months before he was sentenced.

3. On the 15th of May 2024 the Court below sentenced the appellant in respect of three Bill Numbers: DUDP1397/2020, DUDP0044/2023, and DUDP0681/2022. The appellant was sentenced to 2.5 years’ imprisonment for one count of possession of child pornography on Bill Number DUDP1397/2021, a mandatorily consecutive 15 months for possession of child pornography on Bill Number DUDP0681/2022, and a concurrent sentence of two years on Bill Number DUDP0044/2023. The effective sentence was one of three years and nine months. The maximum sentence for the offence of possession of child pornography is five years’ imprisonment. The sentence of 15 months was in respect of an offence committed while on bail, hence was one which was required by law to be consecutive.

4. The appellant appeals this sentence on the grounds that it was unduly harsh having regard to comparators, that the sentencing judge erred in not nominating a headline sentence prior to arriving at the effective sentence, that the sentencing judge did not attach appropriate weight to the mitigating factors when arriving at the effective sentence, and that the sentencing judge attached disproportionate weight to the aggravating factors when arriving at the effective sentence. However, at the hearing of the appeal counsel for the appellant focused on a further ground highlighted in the written submissions, namely an alleged error of principle on the part of the sentencing judge in failing to consider or impose a partial suspension of the sentence.

Factual Background

DUDP1397/2021

5. At the sentencing hearing on the 15th of May 2024, the Court heard evidence from Detective Garda Kevin Drennan in respect of Bill Number DUDP1397/2021.

6. The gardaí received information indicating that child sexual abuse material may be found at the appellant’s address and subsequently applied for a search warrant, which was granted. On the 5th of August 2017, this search warrant was executed and a number of electronic devices were seized including a mobile phone, a tablet, and a HP laptop. The appellant accepted responsibility and ownership of the devices and provided passcodes for access to these devices.

7. The mobile phone contained 22 images of child pornography, a mixture of category one and two. The tablet contained eight images of child pornography, a mixture of category one and two. The HP laptop contained 1,011 images of child pornography, of which 860 were category one and the remainder were category two. The laptop also contained 102 videos depicting child sexual abuse material with a total run time of 31 hours, of which 65 videos and

19 hours were category one. The TOR browser had also been downloaded onto the laptop, which allows users to access the dark web and search the internet without a record of the IP address. There were a number of bookmarks on the TOR browser with names indicating that they were in relation to child sexual abuse material.

8. On the 18th of May 2020, the appellant was arrested by appointment for the purpose of interview. During the interview the appellant answered all questions put to him and accepted responsibility and ownership of the devices, but denied having deliberately viewed or stored child pornography. When evidence of the search terms was put to the appellant, he denied having made such searches. When evidence was put to the appellant of link files showing the dates on which the child sexual abuse material had been accessed on the HP laptop, the appellant denied having accessed the files. The appellant indicated that his only exposure to child sexual abuse material was when 20 pop-up advertisements appeared on his laptop while he was browsing the internet, but stated that he closed and did not save the images. The appellant suggested that other family members may have had access to the relevant device or that viruses may have been responsible for the child pornography on his device.

9. On the 2nd of September 2020, the appellant was arrested by arrangement for the purpose of charge. The appellant was released on station bail on the same day. The appellant was charged as set out on the charge sheets before the trial court. It is accepted that the appellant was generally cooperative with the investigation.

DUDP0044/2023

10. At the sentencing hearing on the 15th of May 2024, the Court heard evidence from Garda Chris Moylan in respect of Bill Number DUDP0044/2023.

11. The gardaí received information in January 2019 indicating that child sexual abuse material may be found at the appellant’s address and subsequently applied for a search warrant, which was granted. On the 17th of May 2019, this search warrant was executed and a number of electronic devices were seized including an iPad. The appellant accepted responsibility and ownership of the iPad and provided the passcode for access to the iPad.

12. The iPad contained 349 images and 34 videos with 108 screenshots of child pornography, a mixture of category one and two.

13. On the 18th of June 2021, the appellant was arrested by appointment for the purpose of interview. During the interview the appellant answered all questions put to him and explained that he had won the iPad in a raffle approximately one month prior to the search. The appellant denied having downloaded any of the information or child sexual abuse material that was found on the iPad. When shown a number of applications that had been installed on the iPad and accessed, the appellant either denied or stated that he did not recall installing these applications. Later examination revealed that the appellant’s email address was associated with the applications. The appellant suggested that other family members may have had access to the relevant device (although he did not recall giving anyone the password) or that the applications may have been installed by a remote user rather than a physical user of the iPad. When it was put to him that the screenshot images could not have been taken remotely, the appellant answered “possibly, I don’t know”. The appellant did disclose that he had been interviewed in relation to Bill Number DUDP1397/2020.

DUDP0681/2022

14. At the sentencing hearing on the 15th of May 2024, the Court heard evidence from Detective Garda Anthony McCabe in respect of Bill Number DUDP0681/2022.

15. The gardaí received information indicating that child sexual abuse material may be found at the appellant’s address and subsequently applied for a search warrant, which was granted. On the 16th of September 2020, this search warrant was executed and a number of electronic devices were seized including a mobile phone. The appellant accepted responsibility and ownership of the mobile phone and provided the passcode for access to the phone.

16. Initial analysis of the device uncovered 61 category one images, 49 category two images, and 23 videos of mixture category one and category two material. All were found in the gallery which is a user accessible location.

17. On the 8th of September 2021, the appellant was arrested by appointment for the purpose of interview based on the initial analysis of the phone. During the interview the appellant answered all questions put to him and accepted responsibility and ownership of the phone. The appellant denied having downloaded any of the child sexual abuse material that was found in the initial analysis of the phone. The appellant stated that if he had been aware of the existence of child pornography material on the phone then he would have reported it to the gardaí. When it was put to him that the material was immediately apparent to any user of the normal phone gallery, the appellant was unable to account for this. The appellant suggested that the images may have been accidentally sent to or placed on the phone by a virus.

18. Later analysis by the cybercrime investigative branch revealed that additional child pornography material was stored in an encrypted location disguised as a calculator application. This application contained 619 category one images, 4,933 category two images, 23 category one videos with a total run time of one hour and 23 minutes, and two category two videos with a total run time of two minutes.

Personal Circumstances of the Appellant

19. The appellant was born in 1991. He was 33 years of age at the time of sentencing. He married his wife in 2022 and his first son was born in 2023. The appellant is described by counsel as having a “close, loving family” and the Court received mitigation letters from the appellant’s wife, father, mother, and two brothers. At the time of the offences, the appellant lived with his father and mother.

20. The appellant has no previous convictions. The appellant had previously received the benefit of the Probation Act in the District Court in relation to a minor matter of no relevance to the present case.

21. On the sentencing date, the Court received a psychological report from Dr Ríoghnach O’Leary dated 13th May 2024. This report provides a diagnosis of major depressive disorder and describes an attempt by the appellant to take his own life after the second garda search in 2019. The report identifies the appellant as being at low risk of re-offending in the next five years.

22. The appellant works in IT. At all three interviews the appellant identified himself as tech and computer literate.

Sentencing Judge’s Remarks

23. On the 15th of May 2024, the judge in the court below passed sentence on the appellant. The judge noted the factual background of the case as described by Detective Garda Drennan, Garda Moylan, and Detective Garda McCabe.

24. In calculating the appropriate sentence, the sentencing judge made the following remarks: “Eventually he has entered what could be termed early pleas. Now, obviously there was a lot of child pornographic material, a lot of videos, a lot of images, so the Court must take those factors into account. The mitigating factors are the pleas of guilty, the general co-operation with the guards, prior to these events the lack of previous convictions. There is a good strong work record. He comes from a very good and decent family. It seems he had certain problems, as set out in the psychological report, I believe. And obviously the Court to some degree will take those into account. Do I think [the appellant] will re-offend in the future? That's an open question. I hope not. I hope he will learn from his experience, but it's somewhat concerning that he reoffended on these three occasions. Now, do I believe that he deserves an immediate term of imprisonment? The Court's view is yes. Obviously, most cases that come before this Court involving child pornographic material involve one event, and obviously certain pleas can be made in the case of one event. But obviously the same cannot be said for [the appellant], and therefore he must suffer imprisonment. I consider his behaviour to be very serious, in the sense that he repeated the behaviour. And that demonstrates something.”

25. The sentencing judge imposed an effective sentence of three years and nine months. This comprised a 2.5 year term of imprisonment in relation to Bill Number DUDP1397/2020, a mandatorily consecutive 15 months in relation to DUDP0681/2022, and a concurrent sentence of two years in relation to DUDP0044/2023.

Submissions on Appeal

Appellant’s Submissions

26. The appellant seeks to appeal the sentence imposed in this case on the following grounds:

1. Unduly harsh relative to comparators, in particular DPP v. Loving [2006] 3 IR 355 and DPP v. O’Byrne [2013] IECCA 93.

2. Failure to nominate a headline sentence before arriving at the effective sentence.

3. Failure to take into consideration systemic delay in the prosecutions in imposing sentence, relying on DPP v. McGinty [2019] IECA 27.

4. Failure to consider part-suspension of the custodial sentence.

5. Failure to have sufficient regard for the collateral effects of conviction, including the appellant’s registration as a sex offender.

6. Failure to have sufficient regard for the conclusion of the psychological report that the appellant was at low risk of reoffending.

7. Failure to have sufficient regards for the appellant’s pleas and lack of previous convictions.

8. Imposition of a disproportionate sentence.

27. The appellant submits that the sentence imposed was unduly severe and that the sentencing judge attached disproportionate weight to the aggravating factors and insufficient weight to the mitigating factors in this case.

Respondent’s Submissions

28. The respondent submits that the sentence imposed in the court below is not unduly severe on the following grounds: a. The sentence is not unduly harsh relative to comparators. The Loving case involved a guilty plea at a much earlier date, “the offending by the Appellant quite plainly outweighs that by Mr. Loving in its seriousness” and “[p]ersonal mitigation is comparable between the cases, save for as regards, again, this Appellant’s return again and again to access more child pornography.” In the O’Byrne case a premitigation sentence of four years would have been imposed if not for the fact that Mr. O’Byrne pleaded guilty at the earliest opportunity. The respondent submits that “a similar pre-mitigation sentence would have been warranted” in the present case. b. “While the nomination of a headline sentence and clarity in the application of mitigating and possibly aggravating circumstances thereto is preferable, it is wellestablished [as outlined in DPP v. Konar [2023] IECA 145] that ‘sentencing judges at first instance…are not obliged to do so. Sentencing by instinctive synthesis has always been, and remains, a legitimate approach to sentence.’” c. The discussion of delay in the McGinty case is relevant only insofar as it weighed heavily on Mr. McGinty’s mind. “The manner in which Mr. McGinty responded to his offending being detected was to attend Swords Garda Station with his wife and make full admissions. He at all times intended to plead guilty.” The delay in this case did not appear to weigh heavily on the appellant’s mind because he continued to consume child pornography material after his first and second arrests. “Moreover, the Appellant himself contributed to delay – he took trial dates on each of the prosecutions delaying the ultimate resolution of these cases.”

d. “[I]t is pure speculation that the Sentencing Judge, one of the most experienced in the jurisdiction, failed to consider [suspension, partial suspension, or the collateral effects of conviction]. A Sentencing Judge is not compelled to recite aloud every consideration which they have undertaken in passing sentence.” e. “[T]he Appellant has failed to demonstrate that there has been an actual failure by the Judge to have adequate regard to the contents of this [psychological] report. In imposing sentence, the Judge stated: ‘It seems he had certain problems, as set out in the psychological report, I believe. And obviously the Court to some degree will take those into account.’” f. “The Judge in passing sentence also stated that he would have regard to the lack of previous convictions ‘prior to these events… [,] good strong work record… [,] very good and decent family’. It is submitted that limited weight must attach to these factors, given the particular facts of the case, and no error was made by the Learned Judge.” g. The respondent submits that the sentence imposed was not disproportionate due to the particular facts of this case. The respondent additionally submits that “it would have flown in the face of reality for the Sentencing Judge to have treated the Appellant equally as leniently as a person with no previous convictions might usually be. The Appellant was being sentenced for three serious offences committed on three separate occasions with a gap of years between them; for all intents and purposes, he was already a recidivist.” The Court was “compelled” to have regard for the appellant’s repeated offending.

29. The respondent submits therefore that there is no error in principle and that the sentence should be upheld.

Court’s Analysis & Decision

30. While it would certainly have been preferable for the sentencing judge to have indicated a headline sentence, we accept the submission of the Director to the effect that it was legitimate for the judge to have proceeded as he did; DPP v Konar [2023] IECA 145 at paragraph 22. This did not therefore reflect an error in principle on the part of the sentencing judge.

31. Taking each of the appellant’s submissions in order, we agree with the Director that neither Loving nor O’Byrne assist Mr. Cannon. As his own submissions emphasise, in both of the comparator cases a striking feature was the interaction between the offences and a serious dependence on alcohol. In Loving, at least, that risk factor had been seriously diminished as he had ceased to abuse alcohol thereby reducing the prospect that he would reoffend. In the current case, the appellant has found himself repeatedly acquiring child pornography without any suggestion that his behaviour is influenced by drug or alcohol dependence. In O’Byrne, the accused did not indulge in the evasive and dishonest behaviour displayed by Mr. Cannon who, among other untruths, suggested that members of his own family could have been responsible for placing images on his device.

32. With regard to delay, the current case is clearly distinguishable from O’Byrne and from McGinty. In the latter case, the accused had made very full admissions as to his guilt, and at all times intended to plead guilty; it was in those very specific circumstances that this Court commented that the delay “must have weighed heavily on his mind”. The behaviour of the appellant over the period from initial detection and prosecution was materially different. Indeed, Mr. Cannon contributed to the delay in the resolution of his case by his evasive accounts to the gardaí and by taking trial dates in each case before he pleaded guilty.

33. As already noted, at the hearing of the appeal, particular emphasis was placed upon the alleged failure of the sentencing judge to consider, or to direct, partial suspension of the sentence. It was accepted that some custodial sentence had to be imposed, not all of which should have been suspended. However, it was submitted that in light of the contents of the psychological report and of certain facts put before the sentencing judge (notably the period of three years and nine months between the third raid and the sentencing hearing, over which the appellant had no recourse to child pornography) consideration should have been given to suspending part of the sentence.

34. Counsel for the appellant stressed that objective factors identified within the report suggested a low risk of reoffending. These included the fact that the appellant was in a cohabiting long term relationship, the appellant had made admissions to the offence that were not available to the investigation, the lack of previous convictions, the lack of evidence suggesting sodomistic attitudes, evidence that the appellant was not prone to blaming or resenting others, the appellant’s capacity for empathy, the lack of evidence suggesting the use of sex as a coping mechanism, the lack of evidence that the appellant was sexually preoccupied, the lack of evidence that the appellant had any deviant sexual interests, and the fact that the appellant was cooperative and forthcoming throughout the assessment.

35. However, as counsel for the Director submitted, the report, when viewed in the round, is far more nuanced. It records a statement by the accused that “he never searched for pornography online” and a further statement that “he only used his Apple iPad on two occasions after he won it at work in 2019”. The report also notes that the appellant informed his psychologist “that he cannot explain how the child pornography got onto his devices. He consistently maintained that he never downloaded child pornography intentionally.” These statements are profoundly misleading.

36. The report records that the appellant attended a total of twelve therapeutic sessions of an unspecified nature beginning in November 2023. These had finished by the date of the report (13th of May 2024). While the report recommended that the appellant would “continue to engage with regular individual therapy…”, there was no evidence that he had agreed to do so.

37. Given the contents of this report, and the surrounding circumstances, the sentencing judge was quite entitled to decline to suspend any part of the sentence. In his brief ruling, he took into account the contents of the psychological report specifically referring to the appellant’s problems and the likelihood of the appellant re-offending. As the account provided by the appellant to his psychologist was in important respects fundamentally wrong and selfdeluding, the sentencing judge was right to view the possibility that the appellant would offend again as “an open question.”

38. It was also undoubtedly the case that much of the psychological report is based not on objective factors but on the account of Mr. Cannon himself. As already noted, that account is in important ways unreliable and self-serving. Apart from the clear errors set out at paragraph

35 of this judgment, the report sets out that the appellant was cooperative and forthcoming during the course of the garda investigation; this is in stark contrast to the actual facts, including the fact that the appellant had sought to blame members of his own family for the presence of these images on his own device. Counsel for the appellant is correct to submit that the sentencing judge was aware that, for a period of some 45 months up to the sentencing hearing, there had been no reoffending by the appellant and he had both married and had a child. As against that, there had been repeated offending prior to the third offence, that offence had been committed while the appellant was on bail, and the appellant had neither commenced nor undertaken to commence any specific course of treatment designed to address his earlier delinquent behaviour. The circumstances relied upon by his counsel do not, against the full background of this case, require any partial suspension of the custodial sentence imposed by the court below. As to the argument that a partial suspension of that sentence was not even considered by the sentencing judge, we accept the submission of the Director that this is in large measure a speculative proposition. The sentencing judge is a very experienced one, and it would be expected that he would at least give consideration to the appropriateness of suspending some or all of any sentence.

39. For the same reason, there is no reason to believe that the collateral effects of convictions of this sort were not considered by the sentencing judge. There is nothing about the length of the sentences actually imposed that would suggest this was the case. As to the remaining appeal points, the sentencing judge expressly took into account the guilty pleas and lack of previous convictions. There is no basis upon which it could be said that the sentences were disproportionate, in particular given the nature of the images found on Mr. Cannon’s devices.

40. We therefore find that there was no error in principle on the part of the sentencing judge, and dismiss the appeal.