Phillips v Police - [2010] SASC 240

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PHILLIPS v POLICE
[2010] SASC 240
Judgment of The Honourable Justice Vanstone
6 August 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - GENERALLY
Appeal against sentence imposed by a magistrate - appellant pleaded guilty to obtaining access to child pornography - whether magistrate erred in recording a conviction - seriousness of the offence - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA), s 63A(1)(b); Criminal Law (Sentencing) Act 1988 (SA), s 39, referred to.
R v Perre (1986) 41 SASR 105; R v Stevenson & Ors (1984) 35 SASR 237; R v Nemer (2003) 87 SASR 168; R v Padberg [2010] SASC 189, considered.

PHILLIPS v POLICE
[2010] SASC 240
Magistrates Appeal

VANSTONE J: This is an appeal against a penalty imposed by the Magistrates Court. The appellant pleaded guilty to obtaining access to child pornography, contrary to s 63A(1)(b) of the Criminal Law Consolidation Act 1935 (SA).
It was accepted that on 7 February 2009 he had used the internet to search the expression “pedo pics” and had thereby gained access to a child pornography site. There he saw 34 images. He did not download them.
The maximum penalty for this offence is five years’ imprisonment: s 63A(1).
In imposing penalty, the magistrate proceeded pursuant to s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act). The magistrate imposed a conviction but discharged the appellant upon his entering into a bond in the sum of $1,000 to be of good behaviour for a period of two years and to appear before the Court for sentence in the event of failure to comply with the bond.
The only issue on appeal is whether the magistrate erred in recording a conviction.
In submissions before the magistrate Mr Hegarty, who then appeared for the appellant, put that the appellant’s purpose in proceeding with the internet search was merely to determine how easily child pornography could be obtained and viewed. He was interested both from the viewpoint of his work, training workers in the child protection area, and also as a parent of young children who used the internet. A transcript of submissions is not available to me, but it is clear from the affidavit filed by Mr Hegarty in this Court that the magistrate demonstrated a degree of scepticism towards these proffered reasons. This was evidenced by her querying how he knew to use the expression “pedo pics”, and by the observation that internet filters were available to prevent access by children of websites such as this one.
Mr Hegarty made submissions to the magistrate to the effect that the pornography was “not significantly offensive”, although he acknowledged that this was a subjective opinion. Furthermore, he put to the magistrate that the appellant had been drinking at the time of the offence; that since the charge he had lost his employment and has found it difficult to find new employment because of the impending charge; and that he was the sole breadwinner for his wife and family of four.
At the time of the offence the appellant was a man of 34 years without prior convictions. Some character references were provided to the court. His work had been with Baptist Care, but he resigned after being charged. He qualified as a social worker in 1997.
Having regard to the submission concerning the reasons for the offence, it is relevant to examine the circumstances of the offence as they were put to the magistrate by the police prosecutor. The offence came to light via some sort of automatic notification to police. Police then spoke to the appellant via telephone. The appellant admitted to entering the term “pedo pics” and other search terms such as “underage”. The appellant stated that he had consumed some alcohol and was being curious. When interviewed in person, the appellant again admitted to entering the search term “pedo pics” and agreed that it was a step towards gaining access to child pornography. The appellant stated he had viewed some images of children, but had not downloaded any material. He stated that he was unaware that it was an offence to take a step towards accessing child pornography on the internet.
The police allegations do not record any claim by the appellant of the reason later given to the magistrate for the commission of the offence, namely a determination to see how easily child pornography might be accessed.
In her remarks on penalty, the magistrate reiterated the submissions made to her and noted the contrast between the primary reason she had been given for the offending behaviour, as against the submission that the appellant had, at the time, been both drinking and taking anti-depressant medication. It is suggested that the magistrate was wrong in her remark that the appellant’s conduct was “the very sort of activity at which this legislation is aimed”. It is said that if the magistrate accepted the defence submission as to the reason for the offending, which, it is put, she appears to have done, then she would not have made this remark and would not have felt precluded from exercising the discretion contained in s 39 of the Sentencing Act.
In my view, characterisation of the offending was very much a matter for the magistrate. As I remarked, the stated reason for the conduct was not given to police on the two occasions when the appellant was spoken to about the offending. The magistrate’s reference to internet filters was telling in demonstrating her provisional assessment of that reason. The same can be said of her Honour’s query as to knowledge of the term searched. Moreover, the submission that the appellant had been drinking and taking anti-depressant medication tended to undermine the veracity of the stated reason. In any event, if the appellant wished such a submission to be accepted by the magistrate, he was free to give evidence in support of it. The submission was not such a compelling one as would necessarily find favour with any, let alone all, judicial officers. (See R v Perre (1986) 41 SASR 105; R v Stevenson & Ors (1984) 35 SASR 237; R v Nemer (2003) 87 SASR 168.)
However, it is plain from the magistrate’s remarks that the view she took of the seriousness of the offence was not affected by the submission put to her as to the reasons for the conduct. Her Honour remarked that whether the cause was curiosity about how easy access might be, or the fact that the appellant was depressed and drinking, or a combination of these matters, did not affect the fact that this was the very sort of conduct at which the relevant legislation was aimed. In my view that was correct. Accessing child pornography for any reason tends to advance the cause of those profiting from pornography and encourages further exploitation of young victims and the commission of offences against them. I refer to the remarks to this effect of Doyle CJ in R v Padberg [2010] SASC 189 at [17] to [19]. General deterrence must be given a high weighting.
As the magistrate noted, the offending conduct is at the lower end of the scale. The appellant had the advantage of an unblemished record and a good work history. Notwithstanding those matters, I am unable to find that the magistrate erred in recording a conviction in this matter. Nor can I say that I would have proceeded differently.
The recording of a conviction constitutes an important part of the imposition of penalty. It forms part of the deterrent effect of a sentence and marks the community’s condemnation of the offender for his conduct. In addition, the recording of a conviction acts as notification to potential employers and others who may have a valid reason for knowing of the character of the offender. This is a particularly important consideration in this case given the appellant’s vocation. That is not to say there will never be a case where the recording of a conviction is unwarranted.
Accordingly, I dismiss the appeal.