City of Salisbury v Ahrens Group Pty Ltd

[2007] SASC 254

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v ORRITT

[2007] SASC 254

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)

10 July 2007

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

The appellant pleaded guilty in the Magistrates Court to one count of possessing child pornography for which he was sentenced in the District Court to 10 months imprisonment.  The sentencing Judge ordered that after serving four months imprisonment, the balance of six months be suspended upon the appellant agreeing to enter into a bond to be of good behaviour for a period of six months.  The appellant appealed on the ground that the whole of the term of imprisonment should have been suspended.

HELD:  Mitigating factors in the appellant's circumstances are to be balanced with seriousness of appellant's offending.  Paramount consideration in sentencing for offences involving sexual exploitation of child is the need for general and specific deterrence.  The sentence is appropriate in all the circumstances.  Appeal dismissed.

Criminal Law (Sentencing) Act 1988 (SA) s10, s38(2a); Criminal Law Consolidation Act 1935 (SA) s63A, referred to.

R v ORRITT
[2007] SASC 254

Court of Criminal Appeal:       Duggan, Gray and Kelly JJ

1. DUGGAN J:         I agree that this appeal should be dismissed for the reasons given by Kelly J.

2. GRAY J:               I agree with the reasons of Kelly J for the dismissal of this appeal.

3. KELLY J:             This is an appeal against sentence.

4. The appellant pleaded guilty in the Magistrates Court on 4 July 2006 to one count of possessing child pornography. He was sentenced in the District Court to 10 months imprisonment. The Judge exercised his powers under s38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) and ordered that after serving four months imprisonment, the balance of six months be suspended upon the appellant agreeing to enter into a bond to be of good behaviour for a period of six months.

5. The appellant appeals on the sole ground that the whole of the term of imprisonment should have been suspended.  On 18 June 2007 this Court dismissed the appeal.  Following are my reasons for joining in the order of dismissal.

   Background

6. The offending occurred between 1999 and 2006 when the appellant was living with the mother of three children aged 9, 12 and 16.  On 3 July 2006 a CD belonging to the appellant was found by one of the children.  It contained video footage of one of the children and another young child in various states of undress.  The footage on that CD had been re-recorded to focus on the young children who were exposing their buttocks and genital areas in the direction of the video camera.  There is no suggestion that the appellant was present when the original recording was made.  However, he was responsible for re-recording the images in such a way as to focus on the genital area of the children.

7. The appellant was convicted of one offence contrary to s63A of the Criminal Law Consolidation Act 1935(SA).  The section was amended in May 2006 to provide for a different maximum penalty according to whether the offence is characterised as a basic offence or an aggravated offence.  The appellant’s offending was aggravated by virtue of the fact that at least one of the children depicted in the video images was under the age of 14 and she resided in the same house as the appellant.  The appellant was therefore liable to a maximum penalty of seven years imprisonment.

8. It is well established that an appellate court may only interfere with a sentence imposed in a lower court if there is a demonstrable error of law or fact or if the penalty is so manifestly excessive or manifestly inadequate as to indicate an undisclosed error in the sentencing process.  An appellate court should not interfere with the penalty imposed simply because it might have imposed a different penalty.  The sentence should only be interfered with if the sentencing discretion has miscarried.

9. In this case the sentencing Judge was required to take into account a number of considerations, including the overall circumstances of the offending, the circumstances of the appellant and all of the matters referred to in s10 of the Criminal Law (Sentencing) Act.

10. Section 10(4) of the Criminal Law (Sentencing) Act provides that a primary policy of the criminal law is to protect children from sexual predators by ensuring that paramount consideration is given to the need for deterrence in any sentence for an offence involving sexual exploitation of a child.  This section is applicable to the appellant’s offending in this case.  One of the children the subject of the images was the child of the woman who had invited the appellant to live with her and her family.  The appellant lived with the family for the period between 1999 and 2006.  The video footage had been in the appellant’s possession for some years when discovered in July 2006.

11. As the sentencing Judge correctly pointed out, those circumstances demonstrated in a very real sense a breach of the trust which the child’s mother had placed in the appellant.  In these circumstances the sentencing Judge was required to give paramount consideration to the need for both general and specific deterrence.

12. There is no complaint that the sentence of 10 months is manifestly excessive.  Nor is there any complaint that the sentencing Judge has made any error of law or of fact, or either taken into account any irrelevant consideration or failed to take into account a relevant consideration.  The only complaint relates to the sentencing Judge’s failure to wholly suspend the sentence.

13. While there were strong mitigating factors in the appellant’s circumstances, the sentencing Judge was required to balance these with the intrinsic seriousness of the appellant’s offending.

14. In all of the circumstances, I consider the imposition of an effective immediate custodial sentence of four months to be well within the range available to the sentencing Judge.