Aubrey v The Queen

[2021] SASCA 71

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

AUBREY v THE QUEEN

[2021] SASCA 71

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Bleby and the Honourable Justice Blue)

15 July 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE

Appeal against sentence.

Following a trial by judge alone, the appellant was convicted of nine counts of possessing child exploitation material (‘CEM’) and six counts of aggravated possession of CEM, each count attracting maximum penalties of five and seven years’ imprisonment respectively.

The appellant was sentenced to two and half years’ imprisonment for the offending, with a non-parole period of 18 months. The sentencing judge declined to order that the sentence be suspended or that it be served on home detention.

The appellant contended that when the judge turned her mind to the paramount consideration of the safety of the community, pursuant to s 69(2) of the Sentencing Act 2017 (SA), she failed to undertake a two stage process identified in R v Dell and failed to have regard to factors and recommendations contained in a psychological report which pointed to the conclusion that the safety of the community would be enhanced by the appellant serving his sentence on home detention.

Held (by the Court), dismissing the appeal:

1.  There was no issue whether the appellant was a suitable candidate for a home detention order, being the first stage of the two stage process, and no need for the judge to make or express a finding on this question.

2.  The judge manifestly gave consideration to the matters about which the appellant complains.

3.  It was open to the judge to give particular weight to the principle of general deterrence in sentencing the appellant. The sentencing remarks do not indicate error.

Criminal Law (Sentencing) Act 1988 (SA) s 33BB(3); Sentencing Act 2017 (SA) ss 69(2), 71(1), Sch 1 cl 1, referred to.
Liddicoat v The Queen [2021] SASCA 18; R v Dell & Dell (2016) 126 SASR 571, considered.

AUBREY v THE QUEEN
[2021] SASCA 71

Court of Appeal - Criminal:     Kelly P, Bleby JA & Blue AJA

1. THE COURT:         This appeal against sentence raises an issue of whether the sentencing judge correctly applied the applicable statutory criteria in determining that the sentence imposed should not be served on home detention.

2. Following a trial by judge alone, the appellant was convicted of nine counts of possessing child exploitation material (‘CEM’), each attracting a maximum penalty of up to five years’ imprisonment, and six counts of aggravated possession of CEM, each attracting a maximum penalty of up to seven years’ imprisonment.

3. The appellant was sentenced to two and half years’ imprisonment for the offending, with a non-parole period of 18 months. The sentencing judge declined to order that the sentence be suspended or that it be served on home detention. The sentence commenced on 8 December 2020.

   The offending

4. In 2015, the appellant’s relationship with his wife, Mrs Aubrey, broke down. Mrs Aubrey told the appellant that she would move out of their home for a short period, giving time for the appellant to pack his things. The appellant eventually left the home and relocated to an address in another suburb. He left behind many items in a rumpus room and in sheds at the rear of the family home.

5. Mrs Aubrey and her two adult daughters (from a previous relationship) began clearing out the items the appellant had left behind. Whilst they were clearing out the rumpus room, they found some USBs in a desk drawer and inside a bag. The bag also contained a laptop. Further USBS were found amongst the appellant’s possessions in the sheds. Mrs Aubrey’s daughters divided the USBs amongst themselves with the intention of going through them to find travel and family photographs they believed were saved on them.

6. During their review of the material on the USBs, each daughter discovered what appeared to be CEM. On 31 May 2016, one of the daughters took the laptop and the USBs to the Salisbury Police Station and reported what she and her sister had seen. A preliminary review of the USBs by police confirmed the presence of CEM.

7. On 25 June 2016, police officers attended the appellant’s new address and arrested the appellant for possessing CEM. They conducted a search and seized further USBs and a tower computer. A total of 86 files containing CEM were ultimately located across the devices found at both addresses.

8. The trial judge found that the only proper and rational inference to be drawn, having regard to the strength of the circumstantial evidence, was that it was the appellant who had transferred the CEM files to the tower computer. He was in possession of the CEM on the computer, showing he had an interest in it and a desire to possess it in a digital format.

9. Digital evidence established that the same person had watched the same material on both the laptop found at the family home and the tower computer found at the appellant’s new address. Common files between the USBs and the tower computer demonstrated a level of interaction with the material. The ‘overwhelming inference’ from the evidence was that the user of the USBs, the laptop and the tower computer had an interest in viewing and transferring CEM.[1]

   [1]     R v Aubrey [2020] SADC 84 at [528].

10. The judge excluded any rational hypothesis that something or someone other than the appellant was responsible for the CEM, and found that she was satisfied beyond reasonable doubt that the appellant was knowingly in possession of the CEM on each of the devices at the relevant times.[2]

    [2]     R v Aubrey [2020] SADC 84 at [528].

    The appellant’s personal circumstances

11. The appellant was 76 years of age at the time of sentencing. He was born in the United Kingdom and moved to South Australia at the age of 14. He had a happy childhood, and nearly continuous employment history since leaving school at the age of 15. The sentencing judge described him as having a strong work ethic. The appellant’s father died when the appellant was only 21 years old. The appellant was significantly bereaved for a year following that death.

12. The appellant had no drug, alcohol or gambling issues, and no prior convictions. He had a son and daughter from his first marriage. His son died by suicide about seven years prior to sentencing. His second marriage lasted 36 years, and he became a step-father to his wife’s two daughters. He enjoyed a good relationship with them until the marriage broke down. His partner at the time of sentencing remained supportive of him, despite his legal circumstances.

13. The sentencing judge had before her a report of a psychologist, Dr Balfour. The report summarised various aspects of the appellant’s life, including his family and his educational, occupational, developmental, medical and financial history.

14. A large part of the report discussed the appellant’s psychosexual history. It noted that the appellant had clearly been sexualised during his childhood, which led to him developing an excessive interest in sexual matters over time. Dr Balfour considered that the appellant had developed hypersexuality as an adult, and was prone to push the boundaries to explore his sexuality. He wrote:

    I believe that his childhood sexualisation would have also led to him developing ambivalent feelings of sexual attraction towards children that have led to his current offending behaviour, and sexually objectified children for him. I believe that he was reliving his own childhood sexualisation when he viewed CEM. His problem is that he does not view what happened to him during his childhood as sexually inappropriate. He lacks insight into his childhood sexual victimisation; and this has limited his ability to experience empathy for the victims of CEM.

15. The report noted the appellant’s entrenched denial of his offending, and that he would require intense therapy at Owenia House to assist him to overcome that denial. Dr Balfour considered the appellant’s motivation to participate in such therapy to be poor.

16. Nevertheless, Dr Balfour’s final recommendations were that the appellant should participate in a supervised, structured rehabilitation program, including referral to Owenia House and cognitive-behavioural therapy with a clinical psychologist. He considered that the appellant would respond well to strict community supervision and assertive case management.

    The judge’s sentencing remarks

17. The sentencing judge recounted the appellant’s personal circumstances outlined above and considered the report of Dr Balfour, particularly with regard to the appellant’s childhood sexualisation. She noted the appellant’s lack of insight into his childhood sexual victimisation and the limiting effect this had on his ability to experience empathy for the victims of CEM.

18. She noted that the images located across the devices were not as numerous as have been found in many other cases, but that they were nonetheless very serious, showing penetrative sexual activity with young children. She considered a sentence involving an immediate term of imprisonment to be ordinarily warranted in such a case, with less or limited weight given to the appellant’s prior good character.

19. The judge noted that offending involving child pornography is difficult to detect, and creates a market for the continued abuse and exploitation of children. The appellant had shown no remorse, maintained his innocence and expressed a belief that he was framed by his former wife and step daughters with respect to the CEM.

20. After imposing the sentence outlined above, the judge turned to the questions of whether the sentence should be suspended or served on home detention. She concluded her remarks as follows:

    In the end I do not consider there is good reason to suspend the sentence. The images involved included those of very young children, some falling into the most serious category. Nor do I consider this is an appropriate case for home detention. Sentences for offending of this type, as I have said, must serve as a deterrent, and the protection of the community is paramount. A sentence served on home detention does not in my view deter others, nor is it adequate punishment for your offending here.

    The appeal

21. The grounds of appeal complained that the sentencing judge erred by applying an incorrect test in determining that the sentence imposed should not be served on home detention.

22. A judge of this Court granted permission to appeal. The hearing of the application for permission to appeal focussed on whether it was reasonably arguable that the sentencing judge made a process error by applying a test that reflected the terms of the repealed Criminal Law (Sentencing) Act 1988 (SA) (‘the repealed Act’), rather than those of the Sentencing Act 2017 (SA) (‘Sentencing Act’), and whether the grounds of appeal sufficiently raised that issue. However, at the hearing of the appeal, both parties agreed that no such error was made, the relevant sections of the Sentencing Act being to the same effect as the sections of the repealed Act.  This agreement narrowed the scope of the appeal considerably.

23. Section 71(1) of the Sentencing Act empowers the Court to order that a sentence of imprisonment be served on home detention if it considers that the sentence should not be suspended and that the defendant is a suitable person to serve the sentence on home detention. Section 69(2) provides that the paramount consideration when determining whether to make a home detention order must be to protect the safety of the community (whether as individuals or in general). Bleby JA observed recently in Liddicoat v The Queen:[3]

    In R v Dell & Dell, this Court concluded that whether to order home detention under the former s 33BB(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the predecessor to, and in materially the same terms as, s 71(1) of the Sentencing Act 2017 (SA)) required a two stage process of consideration.[4]  It held that this requires first, a narrow inquiry as to the suitability of the defendant for a home detention order, focusing on their personal circumstances.  If the Court is satisfied that they are a suitable person, it may then proceed to exercise the broader description encompassed in the words, ‘the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention’.[5]

    The corresponding provision in s 71(1) does not contain the words ‘may suspend the sentence under this Division and’, but that does not, in my view, alter the conclusion that a two-stage process is required.

    [3] [2021] SASCA 18 at [34]-[35].

    [4]     R v Dell & Dell (2016) 126 SASR 571 at [45]-[48] (Doyle J, Kelly and Parker JJ agreeing).

    [5]     Criminal Law (Sentencing) Act 1988 (SA) s33BB(1), repealed by Sentencing Act 2017 (SA) Sch 1 cl 1.

24. In R v Dell & Dell (‘Dell’),[6] when discussing s 33BB(3) of the repealed Act (the predecessor to s 71(1)), Doyle J commented on the interaction between the paramount consideration of the safety of the community and other relevant considerations that may militate against the making of a home detention order:[7]

    I observe in relation to s 33BB(3) that while the existence of a threat to the safety of the community will often go close to foreclosing an exercise of discretion in favour of a grant of home detention, I do not consider that the converse proposition necessarily holds true. The mere fact that there is limited identifiable risk to the safety of the community may not mean there is a strong case for a home detention order. Put another way, while the considerations in favour of a home detention order will rarely outweigh a significant threat to the safety of the community (given the paramountcy of this consideration), considerations militating against a home detention order may more readily outweigh the absence of any identifiable threat to the safety of the community.

    [6] (2016) 126 SASR 571.

    [7]     R v Dell & Dell (2016) 126 SASR 571 at [54].

25. The appellant’s argument on appeal is relatively simple. The report of Dr Balfour recommended that the appellant attend various rehabilitation programs. These programs are not available to the appellant while in custody, but would be available if the sentence were to be served on home detention.

26. The appellant submitted that, when the judge turned her mind to the paramount consideration of the safety of the community, she failed to have regard to his childhood sexualisation, which Dr Balfour considered caused him to develop ambivalent feelings of sexual attraction towards children that led to his offending behaviour. He also complained that the judge did not have regard to his acknowledgement of his obsession with pornography and desire to submit to a treatment program to address this.

27. The appellant contended that these considerations pointed to the conclusion that the safety of the community would be enhanced by his attending the recommended rehabilitation programs. The effect of the judge failing to consider them was that she overlooked the rehabilitative effect that serving his sentence on home detention would provide.  In his case, the paramount consideration of the safety of the community was best served by giving full effect to this rehabilitative opportunity.  It followed that a home detention order should have been made.

28. The appellant framed this argument, to some extent, in terms of the judge having failed to undertake the two-stage process identified in Dell and to identify first whether he was a suitable candidate for a home detention order.  However, it is apparent from the transcript of the submissions on sentencing that this was not in contest: the prosecution did not contend that the appellant was not a suitable person.  The contest was framed in terms of the second stage of consideration.  In the circumstances, it was unnecessary for the judge to make an express finding on the question of suitability for home detention.[8]

    [8]     R v Dell & Dell (2016) 126 SASR 571 at [67].

29. As to the specific complaints the appellant raises, the sentencing judge noted the appellant’s admitted interest in adult pornography.  She later observed:

    You described to Mr Balfour your sexualisation during childhood.  Mr Balfour concluded that this has led to you developing an excessive interest in sexual matters during your life, and as an adult having developed hypersexuality.  He said you are prone to push the boundaries and believes that you were reliving your own childhood sexualisation when you viewed the material.

    You are said to lack insight into your childhood sexual victimisation and this has limited your ability to experience empathy for the victims of such material.  Mr Balfour says that you will require intense therapy at Owenia House to assist you to overcome your denials, and to accept personal responsibility for your offending behaviour.

    Your motivation to participate in therapy would, Mr Balfour says, be considered poor.  Nevertheless, he concludes that this is not an insurmountable impediment to you benefiting from psychological rehabilitation.

30. It is against the background of these observations that the judge observed that the appellant had shown no remorse, and that this was not an appropriate case for home detention.

31. The judge manifestly gave consideration to the matters about which the appellant complains.  As counsel for the Director submitted, she clearly took the view that the protection of the community was best served in this case by giving particular weight to the principle of general deterrence.  It was open for her to do so.  Having considered expressly what would be required for the appellant’s rehabilitation, in the circumstances of the appellant’s continued denial of the offending and lack of remorse, it was not necessary to go further and rehearse those possibilities again when considering the course that would best serve the protection of the community.  The sentencing remarks do not indicate error.

    Conclusion

32. We dismiss the appeal.