Griffin v Police - [2005] SASC 337

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GRIFFIN v POLICE
Judgment of The Honourable Justice White
7 September 2005
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appeal against sentence imposed by Magistrate - appellant pleaded guilty to offence of possession of child pornography - Magistrate entered conviction but upon appellant entering into a bond in the sum of $500 to be of good behaviour for three years released him without penalty - term of bond that appellant come up for sentence if in breach of bond - whether fine rather than bond ought to have been imposed - whether Magistrate erred in recording a conviction - whether length of term of bond was excessive.
Held: no error in Magistrate's exercise of discretion under s 39 of the Criminal Law (Sentencing) Act 1988 to impose bond - recording of a conviction not innapropriate - Magistate erred in requiring entry into a bond for the maximum term of three years - appeal allowed so as to reduce the term of the bond to 18 months.
Summary Offences Act 1953 s 33; Criminal Law Consolidation Act 1935 s 63A; Criminal Law (Sentencing) Act 1988 s 16, s 39, s 40; Classification (Publications, Films and Computer Games) Act 1995 s 7, referred to.
Coyle v Police [2001] SASC 43; (2001) 212 LSJS 369; Flett v SA Police (SC (SA), King AJ, 5 August 1997, Jdgt No S6291), applied.

GRIFFIN v POLICE
[2005] SASC 337
Magistrates Appeal

WHITE J: This is an appeal against a sentence imposed by a Magistrate for the offence of possession of child pornography.[1] The appellant pleaded guilty to the charge. The Magistrate entered a conviction but released the appellant without penalty upon him entering into a bond in the sum of $500 to be of good behaviour for a period of three years. It was a term of the bond that the appellant comply with all the conditions of the bond, one of which was that he was to “come up for sentence if called upon”.
[1]Summary Offences Act 1953, s 33(3) This subsection has now been repealed. Section 63A of the Criminal Law Consolidation Act 1935 creates a corresponding offence.
The maximum penalty for the offence of possession of child pornography which was applicable at the time of the commission of the offence by the appellant was imprisonment for one year or a fine of $5000.
On the appeal, the appellant makes four complaints. First, he submits that he should have been fined rather than subjected to a bond. Secondly, he submits that the Magistrate should not have recorded a conviction. In the alternative, if a bond was appropriate, he submits that the term fixed by the Magistrate of three years was excessive and further, that the Magistrate erred in making it a condition of the bond that he come back before the Court for sentencing in the event of a breach of the bond.
The Circumstances of the Offending
In June 2004, the police carried out an investigation into the suspected distribution of child pornography by purchase over the Internet. On 25 June 2004, two detectives attended at the appellant’s home. They conducted a search and seized a computer hard drive and a number of floppy discs. An analysis of the computer hard drive revealed images of pre-pubescent children engaged in various sexual acts. The police copied a selection of the images onto a compact disc and sent the disc to the Office of Film and Literature. That Office classified the images as “Refused Classification” pursuant to s 7 of the Classification (Publications, Films and Computer Games) Act 1995.
The appellant admitted to having obtained the material approximately four years prior to June 2004. It was not suggested that there had been any further downloading of similar material in the intervening period. Further, it was not suggested that the appellant had himself copied or distributed the material which he had obtained. In addition, at some unspecified but considerable time before June 2004, the appellant had deleted the material from his computer. The police were able to access the material on the hard drive only with the assistance of a forensic computing analyst using specialist skills and equipment.
The Appellant’s Personal Circumstances
The appellant is aged 45, lives alone and subsists on a disability support pension. He is unable to work as a result of a back injury. The Magistrate was informed that he is under the care of a psychiatrist who is treating him for depression, anxiety and obsessive-compulsive behaviour. However, no medical evidence was placed before the Magistrate.
The appellant did have some prior court appearances. On 27 June 1996 he had been convicted in the Magistrates Court at Holden Hill for the offence of driving with an excess of blood alcohol, that offence having been committed on 16 December 1995. On 5 July 1996 the appellant was convicted in the District Court for the offence of manufacturing a controlled substance, that offence having been committed on 3 November 1995. On 27 February 2002, the Magistrates Court at Elizabeth had convicted the appellant for producing a controlled substance and for possessing a controlled substance, those offences having been committed on 9 November 2001.
There had been a previous court appearance on 5 March 1979 for other offences but given the long period of time which had elapsed since then, it was not suggested that they were particularly relevant to the sentencing decision in this case.
The Decision of the Magistrate
Having referred to the circumstances outlined above the Magistrate said:
I make it plain the courts take a very dim view of this type of material. The view is that if it were not for people who access it then the children involved would not be subjected to the acts which they were and therefore only by deterring people from possessing the type of material that you had, that abuse similar to this can be stopped.
Although the Magistrate did not expressly say so, it is apparent that she exercised the discretion vested in her by s 39 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).
Section 39 provides as follows:
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)    to comply with the other conditions (if any) included in the bond; and
(b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)     Where a defendant is discharged under this section—
(a)     no fresh prosecution may be commenced in respect of the offence; and
(b)     the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
The Magistrate must have accepted that there was good reason to sentence the appellant by recording a conviction and then, without imposing any penalty, discharging him upon the condition that he enter into a bond in the specified terms.
Discharge on a Bond Instead of a Fine
The appellant’s first submission was that a fine should have been imposed rather than the Magistrate making an order discharging him on a bond pursuant to s 39. This is a somewhat surprising submission as, ordinarily, a decision to discharge an offender on a bond without imposing a penalty would be regarded as a beneficial exercise of the sentencing discretion. It was submitted, however, that in this case the appellant valued greatly the finality which payment of a fine entailed in comparison with the ongoing obligations of a bond, especially a bond which required the appellant “to come up for sentence if called upon”. The Magistrate was informed that the appellant subsisted on a disability support pension. That submission conveyed implicitly to the Magistrate that the appellant was a person of limited financial means for whom a fine may constitute a particular hardship. It is reasonable to suppose that the Magistrate’s decision not to impose a fine was influenced by that submission. It was submitted that the Magistrate erred in not enquiring, before refraining from sentencing the appellant by way of a fine, as to his ability to pay a fine. A limited income does not necessarily mean, it was submitted, that a person does not have the financial resources by which to pay a fine.
I reject this ground of appeal. The Magistrate considered it appropriate to extend to the appellant the benefit of the ameliorative powers in s 39 instead of imposing what would ordinarily be regarded, for a person in the appellant’s circumstances, as a penalty involving great hardship. The Magistrate was not bound to enquire as to the appellant’s attitude to alternative sentencing options, or as to his ability to cope, or comply, with the requirements of other sentencing options before offering the appellant the benefit of those ameliorative powers.
Even if the appellant did have the capacity to pay a fine, it was still open to the Magistrate to find that “good reason” existed for invoking s 39. No error of principle is shown. If the appellant did not wish to have the benefit of the exercise of the ameliorative powers in s 39, it was open to him to decline to enter into the bond containing the terms imposed by the Magistrate. In that circumstance, the Magistrate would no doubt have considered alternative sentencing options. I appreciate however that the appellant’s acceptance of the terms of the bond at the time of sentencing is not a decisive consideration. In my opinion, it is sufficient to dispose of this ground of appeal by concluding that no error was made by the Magistrate in not enquiring as to the appellant’s ability to pay a fine before she decided to invoke the powers in s 39, or in invoking those powers instead of fining the appellant.
The Recording of a Conviction
It was submitted that the Magistrate should not have recorded a conviction. but should instead have invoked s 16 of the Criminal Law (Sentencing) Act 1988. Section 16 provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)    the fact that the offence was trifling; or
(iii)     any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
This submission cannot succeed. In the first place, the Magistrate was not proposing to deal with the appellant by imposing a fine or a sentence of community service. An occasion for the exercise of the powers in s 16 therefore did not arise. For the reasons already given, the Magistrate’s decision to deal with the appellant otherwise than by imposing a fine has not been shown to be wrong.
Secondly, no submission was made to the Magistrate that the appellant should be dealt with pursuant to s 16. It is difficult in the circumstances of this case to hold that the Magistrate made an error of sentencing principle in failing to invoke a power which the appellant, then represented by counsel, did not even submit should be invoked.[2]
[2] Coyle v Police [2001] SASC 43; (2001) 212 LSJS 369.
It cannot be said in the circumstances of this case that the decision to record a conviction was an unreasonable exercise of the sentencing discretion.
Terms of the Bond
As already noted, the terms of the bond imposed by the Magistrate were that the appellant be of good behaviour for a period of three years and that he should “come up for sentence if called upon”. It can be seen that the Magistrate was intending to incorporate into the bond the term contemplated by s 39(1)(b) and to provide for the consequence contemplated by s 39(2)(b).
The appellant submitted that a bond for a period of three years, especially with the possibility that he might have to appear before the Court for sentence, was unduly severe. It was submitted that if a bond, rather than a fine, was appropriate, then it should have been for a shorter period, or at least not have left open the possibility of him having to appear again for sentence.
A term of three years is the maximum period for which a bond may be imposed.[3] A sentencing court has a considerable discretion in relation to the term of a bond which it fixes. Relevant matters to be taken into account will include the gravity of the offending, the period for which the Court considers it necessary that the offender’s good behaviour should be secured by a bond and, if the bond has been framed so as to provide support to an offender during a period of rehabilitation, the period during which that support may be required. Where a sentence of imprisonment has been suspended upon the appellant entering in a bond, the period of the bond must not be disproportionate to the term of imprisonment imposed.[4]
[3] Criminal Law (Sentencing) Act 1988, s 40.
[4] Flett v SA Police (SC (SA), King AJ, 5 August 1997, Jdgt No S6291).
It is not clear why the Magistrate considered that a bond for the maximum available period of three years was appropriate in this case. That is especially so given the requirement that the appellant reappear for sentence if called upon to do so. Three years is a long time during which the appellant must face the uncertainty that he may yet be sentenced for the offence committed in June 2004. (It is not necessary to determine whether the appellant may be recalled for sentence in any circumstances – as the term of the bond itself suggests may be the case – or only in the event of a breach of the bond by the commission of another offence – as the Magistrate’s sentencing remarks suggest was intended).
The offence for which the appellant was being sentenced is a serious offence. As the Magistrate pointed out, considerations of deterrence (both personal and general) are ordinarily very important in sentences for the offence of possession of child pornography. But there were circumstances in this case which suggested that the appellant had accepted, even before the detection by the police of the material, the wrongfulness of his action and further, that a long period of bond was not necessary to secure his rehabilitation. The appellant was being sentenced for his possession of child pornography on 25 June 2004. As at that date, his possession was of a very limited kind, with the material being accessible on his computer hard drive only with the assistance of specialist skills and equipment. There was no suggestion that the appellant himself had those skills or equipment. The material had been deleted by the appellant some considerable time before 25 June 2004. Whilst the circumstances in which the appellant came into possession of the material were not irrelevant to the sentencing decision, it is to be remembered that it was his possession on 25 June 2004 for which he was being sentenced, rather than the original obtaining of the material. By 25 June 2004, the appellant had voluntarily ceased making use of the material and had acted, so far as he could, to get rid of it. In these circumstances the risk of re-offending by the appellant appears low. It does not appear that a bond for a long period was required to minimise the risk of any re-offending.
I am unable to determine any matter which would, in the circumstances of this case, require the imposition of a bond for the maximum available term of three years. In fixing such a period the Magistrate has, in my opinion, erred. When account is taken of the period which has elapsed since the appellant voluntarily deleted the material from his computer, a bond for a period of 18 months would, in my opinion, have been sufficient.
Conclusion
For the reasons given above, my opinion is that the appeal should be allowed. The sentence of the Magistrate should be set aside. In lieu thereof the following orders are made:
1.The appellant is convicted of the offence of possession of child pornography contrary to s 33(3) of the Summary Offences Act 1953.
2.Upon his entering into a bond in his own recognizance in the sum of $500, the terms of which are that he is to be of good behaviour for a period of 18 months and is to appear before the Magistrates Court for sentence if he fails, by committing any other offence during the term of the bond, to comply with the obligation to be of good behaviour, the appellant is discharged without penalty.
3.The appellant is pay the Court fees of $108, the Victims of Crime Levy of $35 and prosecution costs of $16 as fixed by the Magistrate.
4. Pursuant to s 33(9) of the Summary Offences Act 1953 the hard drive from the appellant’s computer is forfeited to the Crown.