Man, 36, who had child porn fails in Circuit Court appeal

A 36-YEAR-OLD law graduate who was “approaching having an addiction to pornography” failed in his bid to have a four-month suspended jail sentence for possession of child pornography lifted on appeal at Sligo Circuit Court. Shane Cunningham, previously of Weir View Apartments, Stephen Street, but now resident in Galway, was convicted of having six images of child pornography, some of a gross nature, at Sligo District Court last October. The defendant was appealing against severity only having pleaded guilty in the district court to having the images in his apartment in Stephen Street. Last Monday’s court heard that in September 2014 gardaí met with two acquaintances of the defendant’s who had heard the defendant had made remarks at a social gathering that suggested that he had looked at child porn. Investigating Sergeant Lisa Sewell said the defendant’s flat was searched and a number of items seized, including electronic passwords and emails. Detective Garda Paul Fitzpatrick of the Garda National Cyber Crime Bureau told the court the analysis was carried out by a colleague Detective Garda Cliff Cullen of the National Child Exploitation Unit.

They showed children ranging from four months to 16 years and were of a gross nature. There was no evidence that the images had been opened or viewed.

At the district court hearing the Sergeant said the images could be viewed as a thumbnail on the hard drive. They were created in 2013.

The court heard that Cunningham had made two searches ‘paedophile guide’ and ‘underage fem dom’.

A user account entitled Shane showed a search was made for “underage fem dom” on March 18, 2012.

The court heard that although the images were not viewed on the hard drive, they could have been viewed on a website.

Defence counsel Niall Flynn, instructed by solicitor Gerry McGovern, said there was no evidence that the defendant viewed or interacted with the images.

Judge Francis Comerford said: “One would anticipate that someone would have viewed them.”

Mr Flynn said six images were found out of 64,000 images. Mr Flynn said his client would tell the court that the search for the paedophile guide was about a news article and the search for “underage fem don” was actually undercage fem dom which was a distinct type of activity.

The court heard there were no videos and no degree of sophistication. At interview the defendant said he did not intentionally download the images although he admitted downloading large quantities of adult porn over a period of 15 to 16 years.

State Prosecutor Leo Mulrooney told court the defendant was arrested on October 14, 2018, and he answered all questions.

When asked for an explanation for the child pornography he said he downloaded “lots of porn.”

“I was high, I understand how it could have got there and it could have happened,” he said.

Sergeant Sewell told the court that when asked for an explanation for searching the “paedophile guide” he had no explanation at that time. Regarding ‘underage fem dom” he said he had no memory of it.

If there was child porn, he did not deliberately download it.

Mr Flynn said the defendant was not known to the gardaí before or since this matter. He had a number of mental health issues and had Aspergers. The defendant pleaded guilty in the district court which was of help to the prosecution.

He told gardaí that in 2012 he was going through a bad time, was spending a lot of time in front of the computer screen and was taking a lot of prescription drugs.

The defendant was now 36 and was 27 at the time of the offences.

He told the court that he did not specially remember the six images.

The defendant added that he downloaded a huge amount of information, anything including books and pages of information.

He said he was doing these repeated actions to calm himself and it was “an obsessive thing to do.

‘I was in a bad place,” he said. He had only found out he had Aspergers and was suicidal and was “self- medicating with drugs”.

The defendant said he was on the computer from 6.20am and said that he did not sleep that much at the time. He said he had never intentionally looked at the six images.

The defendant said the ‘paedophile guide’ came up about a book that was removed from Amazon. “I was just curious.”

He said that that the search for ‘underage fem dom’ was a typo and should have been ‘undercage fem dom’. The defendant said the first he had heard a description of the six images was in court.

He admitted that he had downloaded a lot of porn in 2012.

The defendant said that since the incident he was on daily medication for Aspergers, had spent four years at NUI Galway and got a degree in law and philosophy. He had one more FE1 exam to complete in October.

The defendant was in a relationship and hoped to get married.

“This is literally tearing everything apart,” he told the court.

He added: “I realise there are victims of child pornography all over the world. I have no words, it is disgusting, I am not like that. They horrify me that they were on my hard drive.”

The defendant now had a criminal conviction and had been placed on the Sex Offenders Register.

“This will stop me from doing anything, it will leave me with no future.” In cross-examination State Prosecutor Leo Mulrooney asked the defendant if he had “told gardaí the truth.” Mr Mulrooney said the defendant was expecting the court to believe that his search was a typo and should have been ‘undercage fem dom’ instead of ‘underage fem dom’.

The defendant had not given this explanation to the gardaí when previously questioned.

Mr Mulrooney said the defendant told gardaí initially that he had no memory of doing this as he was out of his head on drugs.

The prosecutor said it was “hard to believe” that the defendant was telling the truth.

When asked why he did not tell gardaí initially about the typo, the defendant said he did not think it was important, it was back in 2012 and he was tired.

Mr Flynn said the defendant had pleaded guilty to this horrific matter and material was downloaded to his hard drive.

He was in a very negative place but the fact that there was the presence of six child porn images out of 64,000 images was a mitigating factor.

The defendant was not habitually engaged in this matter and there was no chat forum or sharing of images. There was no technical evidence that the images had been opened only the evidence from two witnessed that they had been opened.

The defendant had since taken a law degree, but the delay had an effect on him. He wanted to get on with his life. Society takes a certain view of offences of this nature, as does the court, but this is at the lower end of the ladder.

The counsel asked the court not to burden the defendant with a noose around his neck and consider leaving him without a conviction on his record. Judge Francis Comerfod said the defendant had pleaded guilty to knowingly being in possession of child pornography.

The judge said the defendant had given evidence and a case was made that he was innocent. “I don’t accept that this is so,” he said.

The judge said that on the evidence he was satisfied that Cunningham did view the child pornography.

They are serious matters, the court heard.

The judge said he accepted that a criminal conviction would be serious matter for the defendant, but there were no grounds for the Probation Act. The judge said the matter did not demand an immediate jail sentence as he affirmed the decision of the district court and the term of suspension was for six months.