High court puts limits on child-porn charges

Defendants accused of possessing multiple images of child pornography can only be prosecuted for one offense, no matter the number of images or how many children are depicted, the state Supreme Court ruled Thursday.

The 8-1 ruling drew a sharp dissent from Justice James Johnson, who said defendants should not be entitled to a "volume discount."

It also drew criticism from the King County Prosecutor's Office, which said the ruling will have "statewide implications" and lead to shortened sentences for people convicted of possessing a large volume of child pornography.

The court's decision came in a Grays Harbor County case in which a jury convicted Randy Sutherby in 2005 of child rape and molestation of a 5-year-old female relative.

He also was convicted of 10 counts of possessing depictions of minors engaged in sexually explicit conduct, relating to images of other children found on computer files in his home. The judge, at sentencing, reduced the counts to seven based on a new interpretation of the images.

In its decision, the Supreme Court sent the case back to Grays Harbor County, ruling that Sutherby could only be sentenced for one count of possessing child pornography because of the wording of state law.

In a separate 6-3 vote, the court also overturned the rape and molestation convictions, finding that Sutherby was poorly represented by his trial attorney.

Writing for the majority on the child-pornography issue, Justice Debra Stephens said state law makes it illegal to possess "any" visual or printed image depicting a minor engaged in sexually explicit conduct.

The court, in other cases, has consistently found the word "any" means everything, regardless of the quantity, Stephens wrote.

Johnson wrote that the majority's opinion undermines the state Legislature's intent to suppress the demand for child pornography by allowing stiffer punishment for possessing multiple images.

Ian Goodhew, deputy chief of staff in the King County Prosecutor's Office, said the Legislature should address the ruling "to ensure that possessors of child porn are punished for the actual harm that they cause to each child depicted."

"The possession of child pornography is extremely troubling when you consider that in each image a child is being forced to engage in a sexual act," Goodhew said. "Each child suffers real harm in every image."

The court, he said, found there is no difference between possessing one or 100 images.

The sentencing range for one count of possessing child pornography is 12 to 14 months in prison for first-time offenders, Goodhew said.

The range has increased to 26 to 34 months for two counts and more for each additional offense, he said.

But under the court's ruling, additional time won't be allowed even if a defendant possesses "thousands of images" of children being raped, he said.

James Lobsenz, a Seattle attorney who represented Sutherby on appeal, said the law already allows the makers of child pornography to be punished for each time they produce an image of a minor.

But a people looking at the material — who generally possess large quantities — don't victimize minors in the same way, Lobsenz said.

"I think the court got it right," Lobsenz said. "The Legislature did not intend to make astronomical sentences that kept getting increased and increased and increased because you possessed more than one."

Lobsenz said he expects other defendants imprisoned on multiple child-pornography counts to ask the courts for new sentences.

Gerald Fuller, chief criminal deputy of the Grays Harbor County Prosecutor's Office, said his office might ask the Supreme Court to reconsider its decisions.

He said his office also would review the case and talk to the girl's family before deciding whether to retry Sutherby on the rape and molestation counts.

Fuller said his office could seek a sentence of more than 12 months against Sutherby on the child-pornography count, because the jury found Sutherby acted with sexual motivation, an aggravating factor that permits a higher sentence.

Sutherby was sentenced to more than 23 years in prison on the child-rape conviction. He also was sentenced to nearly 14 years on the molestation conviction, to be served concurrently, and one year for each of the seven child-pornography counts, all to be served concurrently.

Sutherby was released from prison in September 2007 when the state Court of Appeals first overturned his child-rape and molestation convictions and ordered resentencing on the pornography count.

Lobsenz argued his client's original lawyer erred when he didn't seek separate trials on the sexual-assault and child-pornography charges because of the prejudicial effect of combining the two.

Agreeing with the appeals court, Justice Stephens wrote that Sutherby's trial lawyer had no valid reason for not seeking separate trials.

Justice Johnson, who dissented with two other justices against overturning the rape and molestation convictions, referred to the girl, under her initials, as "Poor little L.K."

"This innocent young girl was victimized at age five" by a relative, Johnson wrote, "and now by a justice system that is supposed to protect her."

Johnson noted that Sutherby and his original lawyer had valid reasons for proceeding with one trial, including similar defenses that he accidentally downloaded the images and might have accidentally touched his relative in an improper way.

Information from The Daily World of Aberdeen is included in this story.

Steve Miletich: 206-464-3302 or smiletich@seattletimes.com