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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Phillips v Police

Details

AGLC: Phillips v Police [2010] SASC 240
Case: [2010] SASC 240
Decision Date: 6 August 2010

CaseChat Overview and Summary

In the case of Phillips v Police, the appellant, Mr. Phillips, appealed against the sentence imposed by a magistrate. Mr. Phillips had pleaded guilty to obtaining access to child pornography. The issue before the court was whether the magistrate had erred in recording a conviction and whether the sentence imposed was appropriate given the gravity of the offence.

The court considered the nature and seriousness of the offence, as well as the principles of sentencing. It was established that offences against decency and morality, particularly those involving child pornography, are treated with significant severity. The court also examined whether the magistrate had exercised the appropriate discretion in recording the conviction and in imposing the sentence. The court noted that while the offence was serious, the sentence imposed reflected the gravity of the crime and the need to deter and rehabilitate the offender.

The court found that the magistrate had not erred in recording a conviction and that the sentence imposed was appropriate. The court held that the sentence was commensurate with the seriousness of the offence and that the magistrate had correctly exercised their discretion. The appeal was dismissed, and the conviction and sentence remained in place. The court emphasised the importance of appropriately addressing such offences to protect vulnerable victims and to maintain societal standards of decency and morality.

Orders