BALDWIN v POLICE

[2007] SASC 415

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

BALDWIN v POLICE

[2007] SASC 415

Judgment of The Full Court

(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Layton)

23 November 2007

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL

Application to Full Court for permission to appeal in private - appeal against sentence - permission refused.

Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Supreme Court Civl Rules 2006 (SA) r 285(1)(b); r 291(3)(b); Criminal Law Consolidation Act 1935 (SA) s 63A; Criminal Law (Sentencing) Act 1988 s 10(4); s 10(1)(ec), referred to.

BALDWIN v POLICE
[2007] SASC 415

Application for permission to appeal

FULL COURT:  Duggan, Bleby and Layton JJ

1. THE COURT:      This is an application for permission to appeal to the Full Court.

2. Permission to appeal is required by s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA). The decision the subject of the application was made by a judge on appeal from the Magistrates Court.

3. The application for permission to appeal is made under r 285(1)(b) of the Supreme Court Civil Rules 2006 (SA).

4. The Full Court has determined to decide the application without hearing oral argument: r 291(3)(b).

5. The court has considered the summary of argument filed on behalf of the applicant, the supporting affidavit, the sentencing remarks of the magistrate and the reasons of the single judge for dismissing the appeal.

6. The applicant pleaded guilty in the Magistrates Court to two charges of possessing child pornography contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA).  According to the prosecution case, over 2,400 images of children engaging in sexual acts with adults and other children were found on the applicant’s home and workplace computers.  He was sentenced to imprisonment for 16 months with a non-parole period of five months.  The sentence was not suspended.

7. On appeal to a single judge of this court the judge found that the magistrate erred by making a general comment that a suspended sentence for charges of this nature could not be a sufficient deterrent. 

8. The single judge then considered the matter afresh, but reached the conclusion that the sentence was appropriate in any event.  The sentence was confirmed and the appeal dismissed.

9. According to the proposed grounds of appeal, the judge erred in not suspending the period of imprisonment.

10. One of the matters which the applicant wishes to argue on appeal is that the judge placed excessive weight on s 10(4) of the Criminal Law (Sentencing) Act 1988 (“the Act”) which provides:

    A primary policy of the criminal law is to protect children from sexual predators by ensuring that, in any sentence for an offence involving sexual exploitation of a child, paramount consideration is given to the need for deterrence.

11. Section 10(1)(ec) of the Act states that one of the matters to which the court should have regard in sentencing in the case of a sexual offence committed against a child is the need to give proper effect to the policy stated in s 10(4). There was some discussion before the single judge as to whether the offence of possessing child pornography was “a sexual offence committed against a child” within the wording of s 10(1)(ec).

12. In her reasons for decision, the single judge expressed her view on this argument:

    Section 10(4) of the Criminal Law (Sentencing) Act 1988 provides that a primary policy of the criminal law is to protect children from sexual predators by ensuring that in any sentence for an offence involving sexual exploitation of a child paramount consideration is given to the need for deterrence.

    In my view, this policy is applicable to offences under s 63A of the Criminal Law Consolidation Act, irrespective of the question whether this is an offence that can be categorised for the purpose of the section as one which falls within the terms of s 10(1)(ec). If I am wrong about that conclusion, I accept the respondent’s submission, that in any event, s 10(4) appears to codify well established principles which apply in relation to the sentencing for sexual offences involving young children.

13. Irrespective of whether the present offences come within s 10(1)(ec), it is clear that s 10(4) sets out a general sentencing principle which is not confined in its application to the circumstances described in s 10(1)(ec). The offences to which the applicant pleaded guilty involve the sexual exploitation of children and so attract the policy referred to in s 10(4). It was therefore appropriate to have regard to that policy in this case.

14. The single judge took into account the applicant’s personal circumstances.  The applicant is a 52 year old married man.  He has one dependent child aged 20.  He has no previous convictions.  His employment was terminated as a result of these offences.  The judge concluded that the prospects of rehabilitation for the applicant are reasonably good.  There was also the applicant’s plea of guilty at the earliest opportunity.  After considering these matters the judge reached the following conclusions:

    All of these factors were reflected in the moderate head sentence and merciful non-parole period imposed by the Magistrate.  As I have already remarked, the circumstances of the appellant’s offending in this case are serious, particularly in the light of the contents of the material, the ages of the various children and the nature of the sexual activity depicted.  I do not consider that the mitigating factors, even in combination, provide good reason to suspend the term of imprisonment warranted by this offending.

15. In our view it is not reasonably arguable that the sentencing discretion miscarried by reason of the fact that the sentence was not suspended.

16. The application for permission to appeal against sentence will be dismissed.