Baldwin v Police
[2007] SASC 214
•14 June 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BALDWIN v POLICE
[2007] SASC 214
Judgment of The Honourable Justice Kelly
14 June 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
Appellant pleaded guilty to two charges of possessing child pornography – sentence of imprisonment of 16 months with a non-parole period of five months imposed by the magistrate – appellant appeals on the ground that the sentence should have been suspended – magistrate erred in concluding that a suspended sentence in the case of offences involving the possession of child pornography could never act as an effective deterrent – consideration of respective levels of seriousness in cases involving possession of child pornography – appellant re-sentenced – same sentence as that imposed by the sentencing magistrate.
HELD: appeal dismissed.
Criminal Law Consolidation Act 1935 s 63A; Criminal Law (Sentencing) Act 1988 s 10(4), s 10(1)(ec), referred to.
R v Gent [2005] NSWCCA 370; R v Oliver [2003] 1 Cr App R 28, discussed.
BALDWIN v POLICE
[2007] SASC 214Magistrates Appeal: Criminal
Kelly J: This is an appeal against sentence. The appellant pleaded guilty in the Adelaide Magistrates Court to two charges of possessing child pornography and was sentenced to 16 months imprisonment with a non-parole period of five months. The sentence was not suspended. The appellant appeals on the sole ground that the term of imprisonment should have been suspended.
Background
The appellant pleaded guilty to two charges of possessing child pornography, at his home at Hallett Cove and at his workplace, knowing it was pornographic in nature. Police searched his home computer and the computer at his workplace on 27 March 2006 and found over 2,400 still images of children engaging in various sexual activities with adults and other children.
It is well established that an appellate court may only interfere with a sentence imposed by a magistrate if there is a demonstrable error of law or fact or if the penalty is so manifestly excessive or inadequate as to indicate an undisclosed error in the sentencing process. An appellate court should not interfere with the penalty imposed by a magistrate simply because it might have imposed a different penalty. The sentence should only be interfered with if the sentencing discretion has miscarried.
Counsel for the appellant submitted that the Magistrate erred in concluding, in effect, that a suspended sentence in the case of offences involving the possession of child pornography, could never act as an effective deterrent. He pointed to the following passages from the Magistrate’s sentencing remarks which he argued revealed the error:
21However, the deterrent capacity of a suspended sentence can depend to some extent on the conduct sought to be discouraged. For example, the commission of an offence of dishonesty, while subject to a suspended sentence for an earlier offence of dishonesty, will require at least a degree of deliberation. That deliberation may be beneficially influenced by an awareness of the danger that the sword of Damocles may be released by a decision to re-offend.
22On the other hand, private bathing in the fetid river of pornography provided by the internet, requires no more than the click of a computer mouse, a click so quiet that it could not disturb the hair by which the sword is suspended.
23Those driven towards this market will think of the deterrent power of suspended sentences with disdain in the unlikely event that they think of it at all.
It is not entirely clear what the Magistrate was suggesting in those paragraphs, however on one view, the Magistrate’s remarks could be interpreted as a general comment that a suspended sentence in a case involving possession of child pornography could never have a sufficient deterrent effect.
Counsel for the respondent fairly conceded that a general comment to that effect would plainly be an error. However, she submitted that what the Magistrate did was to weigh up the need for general deterrence and conclude that in this case the need for general deterrence outweighed the personal circumstances which went towards mitigation. If that is all the Magistrate intended by those remarks, then I would not consider there to be any error disclosed.
As this Court has observed on many occasions, the question of whether a suspended sentence is an adequate punishment must always be considered on a case-by-case basis. One of the considerations here was the seriousness and intrinsic character of the offending, but that was not the only consideration. The overall circumstances of the offending including the circumstances of the appellant and the need to consider both general and specific deterrence were all matters to be taken into account when deciding what form of sentence should be imposed.
After considering the Magistrate’s remarks as a whole, I infer that the Magistrate was making a general observation about the inappropriateness of a suspended sentence in cases involving possession of child pornography. To that extent, I consider that his remarks do disclose a material error.
In the light of the error it is necessary for this Court to consider afresh the appropriate sentence for these offences. In carrying out this task I was unable to find any authority in this State which specifically touches on the topic of sentencing for offences of possession of child pornography. However, I was referred to two recent authorities from other jurisdictions.
In R v Gent[1], the New South Wales Court of Criminal Appeal identified a range of factors bearing upon the objective seriousness of offences involving the possession and importation of child pornography. Those factors include the nature and content of the pornographic material including the age of the children and the gravity of the sexual activity portrayed, the number of images or items of material possessed by the offender, whether the possession was for sale or further distribution and whether the offender would profit from the offence.
[1] [2005] NSWCCA 370
The Court went on to say that in a case involving the possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised. Furthermore, offending of this nature cannot be characterised as a victimless crime. Each offender takes advantage of the sexual exploitation of children.
In R v Oliver[2] the English Court of Appeal identified two primary factors determinative of the seriousness of a particular offence namely, the nature of the indecent material and the extent of the offender’s involvement with it. In Oliver, the court analysed the seriousness of comparable offences involving the possession of indecent photographs of children, by reference to five different levels of activity. Those levels were identified as:
1.Images depicting erotic posing with no sexual activity;
2. Sexual activity between children, or solo masturbation by a child;
3. Non-penetrative sexual activity between adults and children;
4. Penetrative sexual activity between children and adults;
5. Sadism or bestiality.
[2] [2003] 1 Cr App R 28
I note that the Court in Oliver was concerned with a quite different statutory scheme. The categorisation of the five levels of seriousness was there intended to provide guidelines for sentencing judges with regard to particular penalties prescribed by the statutory scheme. For the purpose of re-sentencing the appellant, I bear in mind that the offence at the relevant time was s 63A of the Criminal Law Consolidation Act 1935 which provided as follows:
63A – Possession of child pornography
(1) A person who-
(a)is in possession of child pornography knowing of its pornographic nature; or
(b)intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography,
is guilty of an offence.
Maximum penalty:
(a)for a first offence – imprisonment for 5 years; or
(b)for a subsequent offence – imprisonment for 7 years.
(2)It is a defence to a charge of an offence against subsection (1) to prove that the material to which the charge relates came into the defendant’s possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it.
(3)In determining whether an offence against subsection (1) is a first or subsequent offence, a court must treat a previous offence involving child pornography against any provision of this Division, or a corresponding previous enactment, as a previous offence.
In the course of re-sentencing the appellant, I have viewed at least some of the 2400 images on the disc tendered by counsel for the respondent at the hearing. I simply record that that material consists of photographs of children who range in apparent age from babies to teenagers, engaging in various forms of sexual activity with other children and adults. The sexual activity involves various forms of anal, vaginal and oral penetration of a number of different children by penis or other object, in some cases obviously involving ejaculation.
There is no evidence that the appellant shared these images with anybody else, apart from downloading them for his own benefit onto his own computer and his work computer, nevertheless the subject matter and the sheer volume of those images places the appellant’s offending in a very serious category indeed.
As other judges in South Australian courts have noted when sentencing other offenders, it is very easy for an offender to view and download images which are readily available on the internet. There is a very clear public interest in deterring such people from accessing that information. It is precisely because the offence is so easy to commit and so difficult to detect that general and specific deterrence must play a very important role when sentencing for this offence.
I bear in mind that every time another person views or downloads this material, they are involved in the further degradation and exploitation of the child, or in this case, the many children the subject of those original images.
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.
The appellant is a 52 year old married man with one 20 year old dependent child. He had no prior convictions. As a result of these offences, his employment with Bartercard was terminated and he is now endeavouring to establish a home maintenance business. His wife will find it extremely difficult to meet the mortgage repayments on their home on her own if he is incarcerated.
Dr Andrea Louis, a Clinical Psychologist responsible for the Sexual Offenders Treatment Program at Owenia House, has provided a positive report as to the appellant’s involvement with that Program since voluntarily referring himself after his arrest on 28 March 2006. On the basis of that report I can conclude that the prospects of rehabilitation for the appellant are reasonably good.
In addition to these factors, the appellant readily admitted his involvement in this offending when the police visited his premises on the day of his arrest. He pleaded guilty at the earliest opportunity and it is obvious from the references tendered that he has a supportive family network which can only enhance his prospects of rehabilitation.
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.
In the end, although for the reasons I have given, the appellant must be re-sentenced afresh, I have come to the conclusion that I should impose the same sentence as the Magistrate. For this reason I do not think it is necessary as a matter of form to set aside the sentence imposed and impose a fresh sentence. It is sufficient simply to dismiss the appeal and I make that order.
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