Pervert appeals sentence
A 36-year-old man who was previously given a four month suspended prison sentence for the possession of indecent images of children has been unsuccessful in appealing the sentence.
hane Cunningham, formerly of Weir View Apartments, Stephen St and now with an address in Galway appealed the sentence on severity only, at Sligo Circuit Criminal Court yesterday (Monday, 12th).
He had been given the suspended sentence last October after pleading guilty to possession of six images of child pornography, an offence contrary to Section 6 of the Child Trafficking and Pornography Act.
At Monday’s court it was heard an investigation began in August 2014 and in September 2014 gardaí met with an acquaintance of the defendant who expressed concerns regarding what admissions Cunningham had made in relation to his conduct.
She told gardaí the defendant made certain comments at a social gathering, and she was concerned this meant he had viewed child pornography.
Gardaí spoke to another of Cunningham’s acquaintances who had been privy to the conversation and said the defendant spoke about viewing certain material which sounded like child porn.
Sergeant Lisa Sewell told Sligo Circuit Court a search was carried out at Cunningham’s rental address on September 5th 2014 and electronic items, emails and passwords were handed over to gardaí for examination.
Detective Garda Cliff Cullen of the National Child Exploitation Unit, examined the electronic items and found six images he believed to be child porn on a Seagate Barracuda hard drive. The images were of children who ranged in age of 4 months old to 16 years old, details of what was contained in the images were outlined to the charges
The six images were found among over 64,000 images of adult pornography that Cunningham had downloaded in June 2012.
Sgt Sewell had informed the court the investigation found there was no evidence that Cunningham had opened or interacted with the child porn images.
At the District Court hearing last year Sgt Sewell clarified that though the images were not viewed, they were available to be viewed on a thumbnail on the hard drive.
The investigation also found that Cunningham had made two searches on two separate search engines, one for ‘paedophile guide’ and the other for ‘underage fem dom’.
Although not involved in the original investigation, Detective Garda Paul Fitzpatrick of the Garda National Cyber Crime Bureau told the court that in relation to the images found, somebody would have had to download or copy them to that hard drive and the images may not have been opened since.
The detective garda said the images could have been taken directly from a website and put on to a hard drive. He added that the images could have been viewed on a website but were not viewed on the hard drive.
He said the file was created on Cunningham’s hard drive in 2013 so they were copied from another device.
In relation to the searches under ‘paedophile guide’ and ‘underage fem dom’, the detective garda said the searches although they could have been deleted, like, perhaps a Word document, were saved to the computer’s Random Access Memory.
“Data still resides on the computer even if deleted. It is all saved to RAM.”
He said though there was no ‘time stamp’ for when the search took place for the ‘paedophile guide’ the Google search for ‘underage fem dom’ took place on March 18th, 2012.
Defence barrister, Mr Niall Flynn, instructed by Mr Gerard McGovern, solicitor, put it to the detective that there was no evidence his client ever viewed or interacted with the six images.
Judge Francis Comerford commented, “One would anticipate someone would have viewed them.”
The detective garda said there was no evidence the copies of the images had been viewed.
When it was put to him by the defence that ‘snapshots’ can be taken on the internet without this being known by the user, the detective said the images had been saved specifically to a folder.
In relation to the search engine words, Mr Flynn told the court his client will say the search for ‘paedophile guide’ was in relation to a news article on the internet and his search for ‘underage fem dom’ was actually meant to be ‘under cage fem dom’, which Mr Flynn told the court was a ‘specific type of activity’.
State prosecutor, Mr Leo Mulrooney, BL informed the court when questioned, Cunningham was cooperative with gardaí and said although he had downloaded large quantities of pornography over the last 15 to 16 years, he did not intentionally download child pornography.
The court was told the defendant had said he downloaded adult pornography from the website ‘4chan’ and he had seen mention of the site in relation to child pornography.
When asked if Cunningham provided gardaí with an explanation for the search terms relating to ‘paedophile guide’ and ‘under age fem dom’, Sgt Sewell informed the court no explanation was given for the first term, and in relation to the second term he said, he ‘literally had no memory of this’ and said ‘it is something I would search because it’s fem dom but I’ve no memory, I was literally f***ed out of my head on drugs’.
Giving evidence at the appeal hearing and when asked if he had any recollection of downloading the images to his hard drive, Cunningham said ‘not specifically’ and said he downloaded “huge amounts of information, hours and hours on end, not just porn, films, games books, pages and pages of info.”
Asked why he did this, the defendant said it was a “repetitive action to calm myself, an obsessive thing to do.”
Cunningham said he had only been diagnosed with Asperger’s at the time and was “confused about who I was” and spent all day every day in front of his computer.
When asked what he thought of child pornography, Cunningham said, “It makes me sick that it exists” and said he “never intentionally looked at it”.
By way of explaining the search terms gardaí were concerned with, Cunningham told the court the ‘paedophile guide’ was an eBook that was in the news at the time that had been removed from Amazon. He told the court it was ‘newsworthy’ and he was ‘curious’ about it.
He told the court the other search term had been a ‘mistype’ and he was searching for ‘under cage fem dom’.
In cross examination, Mr Mulrooney said it was difficult to believe he was telling the truth as he had not provided these explanations to gardaí when interviewed.
Cunningham told the court in the intervening period he had went back to college and studied law and philosophy and completed 7 of 8 entrance examinations (FE1s) to the Law Society of Ireland. He said he is in a relationship and hoped to get married.
“If I can get this out of way I hope to get married. This is literally tearing everything apart,” said the defendant.
Along with the suspended sentence Cunningham was placed on the Sex Offenders Register.
Asked how this would hinder him, he said, “it basically stops me from doing anything, leaves me with no future.”
On behalf of his client, Mr Flynn asked the court to consider leaving Cunningham without a recorded conviction.
This request was denied by Judge Francis Comerford who affirmed the District Court sentence and said the facts concluded that from what was ‘approaching an addiction to pornography’, the judge believed he did view ‘child sexual pornography’. A destruction order for two of the defendant’s devices was made to the court.