Decision concerning the number of crimes committed by a person who has provided child pornography to unspecified persons or a number of persons and also possessed child pornography for the purpose of providing the same to unspecified persons or a number o

http://www.courts.go.jp/english/judgments/text/2009.07.07-2008.-A-.No..1703-115922.html
Date of the decision
2009.07.07
Case number
2008 (A) No. 1703
Reporter
Keishu Vol. 63, No. 6
Title
Decision concerning the number of crimes committed by a person who has provided child pornography to unspecified persons or a number of persons and also possessed child pornography for the purpose of providing the same to unspecified persons or a number of persons
Case name
Case charged for violation of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children, for selling obscene pictures and possessing obscene pictures for the purpose of sale, and for violation of the Act on Punishment of Organized Crimes and Control of Crime Proceeds
Result
Decision of the Second Petty Bench, dismissed
Court of the Second Instance
Tokyo High Court, Judgment of August 13, 2008
Summary of the decision
1. Where a person provides child pornography to unspecified persons or a number of persons, and also possesses child pornography for the purpose of providing the same to unspecified persons or a number of persons, the crime of providing child pornography set forth in Article 7, paragraph (4) of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children and the crime of possessing child pornography for the purpose of provision set forth in paragraph (5) of said Article can be construed to constitute crimes for consolidated punishment.

2. Where a person sells and provides items which fall within both the category of child pornography and the category of obscene objects under Article 175 of the Penal Code, to unspecified persons or a number of persons, and also possesses these items for the purpose of selling and providing the same to unspecified persons or a number of persons, on the grounds that the act of selling obscene objects and the act of providing child pornography can be construed as a single act constituting multiple crimes, and the same applies to the relationship between the act of possessing obscene objects for the purpose of sale and the act of possessing child pornography for the purpose of provision, all of these acts as a whole constitute a single crime, provided that the act of selling obscene objects and the act of possessing the same for the purpose of sale can be regarded as collectively constituting a single crime.
References
(Concerning 1 and 2) Article 7, paragraphs (4) and (5) of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children; (Concerning 1) Article 45 of the Penal Code; (Concerning 2) Article 54, paragraph (1) and Article 175 of the Penal Code

Article 7, paragraphs (4) of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children
(4)　Any person who provides child pornography to unspecified persons or a number of persons, or displays it in public shall be sentenced to imprisonment with work for not more than five years and/or a fine of not more than five million yen. The same shall apply to a person who provides electromagnetic records or any other record which depicts the pose of a child, which falls under any of the items of paragraph 3 of Article 2, to unspecified persons or a number of persons in a visible way through telecommunication lines.

Article 7, paragraphs (5) of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children
(5)　Any person who produces, possesses, transports, imports to or exports from Japan child pornography for the purpose of the activities prescribed in the preceding paragraph shall be punished by the same penalty as is prescribed in the said paragraph. The same shall apply to a person who retains the electromagnetic records prescribed in the preceding paragraph for the purpose of the same activities.

Article 45 of the Penal Code
Two or more crimes which have been committed but for which no judgment has yet become final and binding shall constitute crimes for consolidated punishment. When a judgment imposing imprisonment without work or a greater punishment becomes final and binding for a crime, only that crime and other crimes committed before such judgment became final and binding shall constitute crimes for consolidated punishment.

Article 54, paragraph (1) of the Penal Code
When a single act constitutes two or more separate crimes, or when an act as the means or results of a crime constitutes another crime, the greatest among the punishments prescribed for such crimes shall be imposed.

Article 175 of the Penal Code
A person who distributes, sells or displays in public an obscene document, drawing or other objects shall be punished by imprisonment with work for not more than 2 years, a fine of not more than 2,500,000 yen or a petty fine. The same shall apply to a person who possesses the same for the purpose of sale.
Main text of the decision
The final appeal is dismissed.
The 210 days of pre-sentencing detention for this instance shall be regarded as implementation of part of the sentence of imprisonment with work rendered by the judgment in first instance.
Reasons
Among the reasons for final appeal argued by the defense counsel, OKUMURA Toru, the reason alleging violation of the cited judicial precedent, 2004 (U) No. 49, judgment of the Fukuoka High Court, Naha Branch of March 1, 2005, and there is no premise to support the reason alleging violation of the cited judicial precedent, 2005 (U) No. 2131, judgment of the Tokyo High Court of December 26, 2005, because neither the judgment in prior instance of this case nor these judicial precedents indicated the reasoning as argued by the appeal counsel; the reason alleging violation of the cited judicial precedent, 2003 (U) No. 361, judgment of the Tokyo High Court of June 4, 2003, and also alleging violation of the cited judicial precedent, 2008 (U) No. 121, judgment of the Osaka High Court of April 17, 2008, is unlawful because it is an allegation disadvantageous to the accused in terms of the counting of the number of crimes; and the rest, including the reason alleging violation of the Constitution, are in effect assertions of unappealable violation of laws and regulations; and none of these reasons can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.
Having examined the arguments, however, we make a determination by this court's own authority concerning appropriateness of the procedure for altering the count carried out by the court of first instance with regard to the crime indicated in III of the judgment in first instance of this case.

1. According to the fact-finding by the court of prior instance, the course of facts regarding the alternation of the count mentioned above is as follows.
(1) The outline of the initial version of the charged fact regarding the crime indicated in III of the judgment in first instance of this case is as follows: "the accused, on about 11 occasions, sold to and provided three persons with a total of 11 DVD-Rs, which fall within both the category of child pornography and the category of obscene pictures, and a total of 25 DVD-Rs, which fall within the category of obscene pictures, thereby selling and providing these items to unspecified persons or a number of persons."
(2) Subsequently, the public prosecutor, while maintaining the allegation about the act of provision described in (1), made a request for altering the count as follows by adding the allegation about the act of provision on five more occasions: "the accused, on about 16 occasions, sold to and provided four persons with a total of 21 DVD-Rs, which fall within both the category of child pornography and the category of obscene pictures, and a total of 67 DVD-Rs, which fall within the category of obscene pictures, thereby selling and providing these items to unspecified persons or a number of persons." The court of first instance allowed this alteration of the count.
(3) The public prosecutor, while maintaining the allegation about the act of provision described in (2), further made a request for altering the count as follows by adding an allegation about the act of possession: "the accused, (a) on about 16 occasions, sold to and provided four persons with a total of 21 DVD-Rs, which fall within both the category of child pornography and the category of obscene pictures, and a total of 67 DVD-Rs, which fall within the category of obscene pictures, thereby selling and providing these items to unspecified persons or a number of persons, and (b) possessed, at home, a total of 20 DVD-Rs, which fall within both the category of child pornography and the category of obscene pictures, and a total of 136 DVD-Rs, which fall within the category of obscene pictures, for the purpose of providing or selling these items to unspecified persons or a number of persons." The court of first instance allowed this alteration of the count, and conclusively found the facts as thus alleged.

2. Where a person provides child pornography prescribed in Article 2, paragraph (3) of the Act on Punishment of Activities Relating to Child Prostitution and Child Pornography, and the Protection of Children, to unspecified persons or a number of persons, and also possesses child pornography for the purpose of providing the same to unspecified persons or a number of persons, in light of the legislative purpose of said Act, i.e. protection of the rights of children, the crime of providing child pornography set forth in Article 7, paragraph (4) of said Act and the crime of possessing child pornography for the purpose of provision set forth in paragraph (5) of said Article can be construed to constitute crimes for consolidated punishment. However, in cases where a person sells and provides items which fall within both the category of child pornography and the category of obscene objects under Article 175 of the Penal Code, together with items which fall within only the category of obscene objects, to unspecified persons or a number of persons, and also possesses these items for the purpose of selling and providing the same to unspecified persons or a number of persons, as in this case, the act of selling obscene objects and the act of possessing the same for the purpose of sale can be regarded as collectively constituting a single crime. The act of selling obscene objects, which constitutes part of this single crime, and the act of providing child pornography exist as a single act when they are viewed as social or natural phenomena, and they can be construed as a single act constituting multiple crimes. The same applies to the relationship between the act of possessing obscene objects for the purpose of sale, which constitutes part of said single crime, and the act of possessing child pornography for the purpose of provision. Therefore, it is appropriate to construe that all of these acts that the accused is alleged to have committed, as a whole, constitute a single crime. The appeal counsel argues that such construction is inappropriate on the grounds that the crime of providing child pornography and the crime of possessing child pornography for the purpose of provision basically constitute crimes for consolidated punishment, but this argument cannot be accepted.

3. Consequently, the determination of the court of prior instance is justifiable in that it denied, on grounds that are in line with our reasoning, illegality in the procedure for altering the count carried out by the court of first instance.

Therefore, according to Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, and Article 21 of the Penal Code, the decision is rendered in the form of the main text by the unanimous consent of the Justices.
Presiding Judge
Justice NAKAGAWA Ryoji
Justice IMAI Isao
Justice FURUTA Yuki
Justice TAKEUCHI Yukio