Police v Hore - [2015] SASC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HORE
[2015] SASC 150
Judgment of The Honourable Justice Nicholson
25 September 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - DOUBLE JEOPARDY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
Appeal against sentence. The respondent was charged with three counts of failing to comply with reporting obligations, as a registrable offender, pursuant to section 44(1) of the Child Sex Offenders Registration Act 2006. The respondent was also charged with one count of possession of child pornography knowing of its pornographic nature, contrary to section 63A of the Criminal Law Consolidation Act 1935. The respondent pleaded guilty to the charges and was sentenced by the Magistrate to 15 months imprisonment with a non-parole period of 12 months with the balance, after serving six months, to be suspended upon entering into a bond to be of good behaviour.
The respondent conceded that the partial suspension imposed by the Magistrate constituted an error of law, did not oppose the appellant’s request for an extension of time to file its notice of appeal, and conceded that the appeal had to be allowed and the respondent resentenced.
Held:
1. The time within which the appellant is to file its appeal is extended to 17 July 2015.
2. The appeal is allowed.
3. The Magistrate’s sentence of 10 April 2015 is set aside.
4. The respondent is resentenced to a head sentence of 16 months imprisonment with a non-parole period of ten months, both backdated to commence 10 April 2015.
Child Sex Offenders Registration Act 2006 (SA) s 44; Criminal Law Consolidation Act 1935 (SA) s 63A, s 340, s 352; Criminal Law (Sentencing) Act 1988 (SA) s 10B, s 18A, s 38; Magistrates Court Act 1991 (SA) s 42, referred to.
R v Humby; Police v Humby [2004] SASC 258; R v Oliver [2002] EWCA Crim 2766, [2003] 1 Cr App R 28; R v Abdulla (2011) 109 SASR 258, [2011] SASCFC 20; R v Ossitt [2011] SASCFC 23; R v Harkin (2011) 109 SASR 334, [2011] SASCFC 24; DPP v Sheehy & Ors [2012] SASCFC 24; Police v Patterson [2012] SASC 182; Police v Chilton (2014) 120 SASR 32, [2014] SASCFC 76; R v Green (2011) 244 CLR 462; R v JW (2010) 77 NSWLR 27; R v V, AJ [2012] SASCFC 10; Dinsdale v The Queen (2000) 202 CLR 321, [2000] HCA 54, considered.

POLICE v HORE
[2015] SASC 150
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an appeal by the police against a sentence imposed in the Magistrates Court on 10 April 2015. The notice of appeal was filed on 17 July 2015, some two and a half months after the time for filing such an appeal had expired.[1] As such, the appellant requires an extension of time within which to file the notice of appeal. The respondent does not oppose an extension and, indeed, has conceded that the appeal should be allowed. That concession was properly made for reasons which will become apparent.
[1] See rule 281 of the Supreme Court Civil Rules 2006 (SA).
The respondent was charged, on complaint dated 2 December 2014, with three counts of failing, as a registrable offender, to comply with reporting conditions without reasonable excuse, contrary to section 44(1) of the Child Sex Offenders Registration Act 2006. The maximum penalty for each of these offences is imprisonment for two years or a fine of $10,000. The respondent was also charged, on information dated 9 January 2014, with the offence (in its basic form) of possession of child pornography knowing of its pornographic nature, contrary to section 63A of the Criminal Law Consolidation Act 1935. The maximum penalty for this offence, if a first offence, is a term of imprisonment for five years.
On 24 February 2015, the respondent entered pleas of guilty to all charges and on 10 April 2015, the Magistrate convicted the respondent and, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988, imposed one penalty for all offences. The penalty imposed was 15 months imprisonment with a non-parole period of 12 months with the balance, after serving six months, to be suspended upon entering into a bond to be of good behaviour for two years. The sentence, as passed, was not an available sentencing option according to law.
The Magistrate had a discretion, pursuant to section 38(1) of the Sentencing Act, to wholly suspend the sentence of 15 months imprisonment but chose, quite properly, not to do so. There is also a discretion under section 38(2a) of the Sentencing Act to suspend part of a sentence imposed but only in circumstances where the sentence under consideration is one for more than three months but less than one year. Given that the head sentence imposed by the Magistrate was 15 months imprisonment, his Honour had no power pursuant to section 38(2a) to partially suspend. Accordingly, the sentence is a nullity;[2] it was “beyond power” and the result of “jurisdictional error”.[3] As conceded by the respondent, it is necessary for this Court to resentence the respondent in respect of all the offending the subject of the Magistrates Court proceedings.
[2] R v Humby; Police v Humby [2004] SASC 358 at [27] (Perry J).
[3] R v Humby; Police v Humby at [106]-[107] (Gray J).
The nature of the offending
The respondent has a history of sexual offending which I will outline shortly. As a consequence, he is a “registrable offender” under the Child Sex Offenders Registration Act 2006. Further, the respondent became subject to various reporting obligations in accordance with Part 3 of that Act. He was released from prison on 24 May 2012 to serve a period on parole. This period on parole ended on 26 February 2013 with no adverse issues having arisen. Thereafter, the respondent went to reside in Port Pirie. He started to contact people through Facebook and internet dating sites on his computer. By this means, he came into contact with a young woman who had three small children.
In late 2013, the respondent started to cohabit with the young woman and her young children in Berri. In short, the respondent had committed three offences by way of breaching his reporting obligations. First, he changed his residential address and moved to the address in Berri without notifying the police within 14 days. Second, he used the social media internet sites, including Facebook and an internet based dating service, but failed to report or otherwise notify the police of this. Third, the respondent failed to notify the police that the house he had moved to was also to be occupied by three children aged between 4 and 12 years of age.
Each of these offences represented a serious failure by the respondent to recognise his obligations as a registered child sex offender and demonstrated a failure to appreciate their significance and their importance to the community and to the regime established in order to protect the community. However, and given the respondent’s history of child sex offending, the third offence, the failure to report the presence in the house of three small children, was a particularly serious breach of his reporting obligations.
As far as the offence of possession of child pornography is concerned, the respondent was found knowingly in possession of 481 files (images and videos) containing child pornography. There is little information before the Court as to the character or nature of this material and there was even less information before the Magistrate. Indeed it is quite unclear what, if any, information was before the Magistrate to assist him to understand the factual basis for this offence and its level of seriousness.
During the appeal, a statement by Detective Brevet Sergeant Jason O’Malley was placed before the Court by consent. According to Sergeant O’Malley, he assisted Senior Constable Manners from the Electronic Crime Branch of SAPOL to analyse and categorise the images and videos located on the respondent’s computer. The material was classified according to the nine level scale established by the United Kingdom Sentencing Advisory Panel and adopted in 2002 in the case of R v Oliver.[4] The scale is derived from the COPINE Scale and categorises child pornography according to ascending levels of seriousness from level 1 to level 9.
[4] [2002] EWCA Crim 2766; [2003] 1 Cr App R 28.
Of the 481 files, 372 were categorised as falling within the least serious category (level 1),[5] 87 files fell within the second least serious category (level 2)[6] and 20 files were found to fall within the more serious category (level 4).[7]
[5]    Depictions of children with no sexual activity – nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas.
[6]    Non-penetrative sexual activity between children or solo masturbation by a child.
[7]    Penetrative sexual activity between children or between children and adults – including, but not limited to, intercourse, cunnilingus and fellatio.
As indicated, many of the images fell to be characterised at level 1 such that the offending in this respect was very much at the low end of the scale of seriousness for this offence. However, there was an appreciable quantity of images in both the level 2 and, the significantly more serious, level 4 categories. It is said that the respondent was only in possession of the material for a relatively short period of time, perhaps only a month or so. However, this must be viewed against the background that he had not deleted the material such that it was present and available at the time the police seized and analysed the computer. As such, the limited period of possession is really a reflection of the speed with which the respondent’s offending was detected.
The possession offence is a serious one and significantly more so because the respondent committed the offence whilst a registered sex offender and with a prior record of child sex offences. That is not to say that when sentencing for the possession offence the respondent is to be punished again for his earlier offending. Rather, and provided that any sentence imposed for the possession offence is within the appropriate range for the offence, the scope for leniency within that range, ordinarily, is limited. I say ordinarily because the matter has come before this Court by way of a prosecution appeal and, as will be explained, I am satisfied that a more lenient approach than otherwise might have been taken is appropriate.
The respondent’s personal circumstances and criminal antecedents
The respondent is 37 years old. His parents separated when he was ten after which he and his brother remained in the care of their father. The respondent has had and maintains a good relationship with both his parents who continue to support him. The respondent was diagnosed at an early age with Hirschsprung disease, which includes as part of its symptomology the lack of a large intestine and an abnormally small duodenum. This led to significant and quite serious incontinence problems particularly as a young person which were only alleviated to a degree following surgical intervention in his adolescence. The respondent has also reported being sexually abused when he was between the ages of five and seven by a teenager known to him through a family friend.
The respondent’s schooling was problematic. He was bullied and ostracised and only completed year 10. He is dyslexic and apparently functioned poorly with literacy and numeracy. Notwithstanding this, the respondent has a reasonable work record in semi-skilled environments. According to the author of the pre-sentence report obtained by the Magistrate, and to which I have had regard, the respondent has recently started his own business involving towing and scrap car removal.
As indicated, the respondent does have a history of sexual offending. In 2007, he was convicted, following a trial, of an offence of indecently assaulting a child victim (committed in December 2003) and sentenced to a term of two years with a non-parole period of 15 months. The sentence was suspended upon entry into a bond to be of good behaviour for two years. In 2010, the respondent was convicted, also following a trial, of the offence of aggravated indecent assault (again, a child victim) and sentenced to a term of two years and six months imprisonment with a non-parole period of one year and three months. This sentence was not suspended. The offence had been committed in July 2007 and pre-dated the passing of the sentence for the earlier indecent assault offence. The respondent’s appeal against the conviction was dismissed. The respondent has no other criminal convictions of any consequence.
The respondent attended a sexual behaviour clinic between 23 May 2011 and 21 December 2011 whilst in Mount Gambier prison. He attended all of the group sessions and increased his knowledge about his sexual offending behaviour. However, it has been reported that the facilitators were unclear as to how far the respondent’s knowledge had translated into a deeper understanding of how to modify his behaviour so as to refrain from offending in the future. At the end of the programme, the facilitators observed that the respondent would have an increased risk of engaging in problematic behaviours if he failed to maintain open communication of his negative feelings and failed to refrain from deviant sexual fantasy and behaviour.
According to the author of the pre-sentence report, his recent conduct in accessing the child pornography indicates that he has not been managing his deviant sexual fantasies and arousals and would appear still to be at risk of sexual reoffending. I tend to agree with this conclusion. At the least and on the evidence presently available, I am satisfied that, notwithstanding the respondent’s attendance at the sexual behaviour clinic, his prospects for future rehabilitation, in the sense of refraining from further sexual offending, can only be seen as guarded.
Nevertheless, the author of the report has noted that the respondent has a good history of compliance with orders requiring departmental supervision. The period of parole, between 24 May 2012 to 26 February 2013, was successfully completed. It is recorded in the parole case notes that he presented for all supervision sessions in an open and engaging manner and provided no positive urine or breath test results during that period. The respondent was subject to home detention bail between 17 January 2014 and 2 February 2015 and, again, the departmental records disclose no record of any non-compliance.
Are double jeopardy principles to be applied when it comes to resentencing?
The resentencing in this matter comes about as a consequence of a successful prosecution appeal. Counsel for the respondent has submitted that the Court should be mindful of the principles of double jeopardy when resentencing. The appellant submits that, by virtue of section 340 of the Criminal Law Consolidation Act 1935, these principles have been abrogated, even with respect to a resentencing following an appeal from the Magistrates Court pursuant to section 42 of the Magistrates Court Act 1991.
There is no doubt that section 340 has abrogated the principles of double jeopardy when it comes to resentencing following a successful prosecution appeal pursuant to section 352 of the Criminal Law Consolidation Act, although not with respect to the earlier considerations of whether permission to appeal should be granted or the appeal itself allowed.[8] However, it is not entirely settled, on the present state of the authorities, whether or not section 340 of the Criminal Law Consolidation Act applies in this respect to prosecution sentence appeals from the Magistrates Court, pursuant to section 42 of the Magistrates Court Act 1991.
[8] R v Abdulla (2011) 109 SASR 258; [201] SASCFC 20, R v Ossitt [2011] SASCFC 23, R v Harkin (2011) 109 SASR 334; [2011] SASCFC 24.
DPP v Sheehy & Ors[9] concerned a single Judge appeal against a Magistrates Court sentence. A Judge of this Court expressed the view[10] that the issue of double jeopardy no longer applied at the time of resentencing. The Judge noted the decision of the Full Court in R v Harkin[11] to the effect that the abrogation of double jeopardy principles by section 340 operated in relation to a prosecution appeal only after an appellate court had decided, in accordance with existing principle, to allow the appeal. Harkin concerned a prosecution appeal pursuant to section 352 of the Criminal Law Consolidation Act. However, the Judge held that section 340 also applied with respect to the task of resentencing following the allowing of a prosecution appeal from the Magistrates Court.
[9] [2012] SASC 152.
[10] At [39]-[40].
[11] (2011) 109 SASR 334 at [35]-[37] (Gray and Sulan JJ) and [105] (White J).
In Police v Patterson,[12] in a judgment delivered only six weeks after that in Sheehy, another Judge of this Court took the contrary view and observed:[13]
The recent amendment to s 340, Criminal Law Consolidation Act 1935 restricting reference to double jeopardy considerations only applies to a prosecution appeal under the Criminal Law Consolidation Act 1935 and not to the present appeal under s 42, Magistrates Court Act 1991...
[12] [2012] SASC 182.
[13] At [60].
It would appear that Sheehy was not drawn to the attention of the Judge in Patterson. Neither Judge considered the question at length and neither Judge embarked upon an analysis of the statutory provision in support of their respective conclusions. The matter has been considered again, albeit only in passing, in the Court of Criminal Appeal decision of Police v Chilton.[14] Kourakis CJ (with whose reasons David J agreed) made the following observations.[15]
Notwithstanding my conclusions that the Magistrate’s exercise of his discretion was sound, that the Judge had no basis on which to set aside the sentence of imprisonment and finally that the penalties imposed by the judge were manifestly inadequate, it remains necessary to consider whether the appeal should nonetheless be dismissed because it is a prosecution appeal against sentence. In Cadd this Court held that the principles governing prosecution appeals against sentence to the Court of Criminal Appeal, often referred to as the Everett principle or rule against double jeopardy, applied to prosecution appeals against sentences imposed in the Magistrates Court, even in the absence of a requirement to obtain permission. The residual operation of the rule against double jeopardy was considered by the High Court in the statutory context of New South Wales in R v Green.[16] However, in South Australia the application of the double jeopardy principle in appeals against sentence to the Court of Criminal Appeal has been confined, by legislative intervention, to the question of permission and does not operate to modify the sentence which would otherwise be imposed if permission has been granted and the sentence is set aside for error.[17] In the light of that legislative amendment, the continued application of the double jeopardy principle to Magistrates Courts’ decisions may be seen as anomalous.
[14] (2014) 120 SASR 32; [2014] SASCFC 76.
[15] At [29] (emphasis supplied).
[16] (2011) 244 CLR 462. See also R v JW (2010) 77 NSWLR 27.
[17] R v V, AJ [2012] SASCFC 10 per Gray J [16]-[20].

The Chief Justice has articulated, at least impliedly, a position consistent with that of the Judge in Patterson. However, his Honour also did not provide any reasoning in support. For the purposes of the appeal, I propose to adopt the position espoused in Patterson and implicitly accepted by at least a majority of the Full Court in Chilton but without finally reaching a conclusion on the point.
In Dinsdale v The Queen,[18] Kirby J outlined the rationale underlying the double jeopardy principle insofar as sentence appeals by the prosecution are concerned and the proper approach to be adopted.
For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across "time-honoured concepts" of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a "matter of principle", such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate "tinkering" with sentences.
[18] (2000) 202 CLR 321; [2000] HCA 54 at [62] (citations omitted).
In my view, it is unnecessary for me to finally resolve the question of whether or not section 340 of the Criminal Law Consolidation Act does apply to a prosecution sentence appeal from the Magistrates Court because, in the circumstances of this case, I am satisfied that I should sentence towards the lower end of the available range in any event. The prosecution has challenged only the wrongful partial suspension of the sentence. It does not suggest that the sentence itself is manifestly inadequate and has not submitted that I should impose a higher head sentence. In my view, the head sentence imposed by the Magistrate was already towards the lower end of the range for the offending in question and when consideration is had to the respondent’s personal circumstances, including, in particular, his criminal antecedents. Having said that, I would impose a slightly lower non-parole period.
In my view, there was no sufficient justification for the Magistrate to have imposed a non-parole period of 12 months based on a head sentence of 15 months, particularly given that the respondent had, in addition, spent approximately one month in custody on remand and approximately 13 months on home detention bail (see further below). I expect that the ordering of such a relatively high non-parole period (80 per cent of the head sentence) was influenced by the Magistrate’s (incorrect) decision to suspend the balance of the sentence after the respondent had served six months.
Resentencing
I propose to exercise the discretion available under section 18A to impose the one penalty with respect to all four offences of 16 months imprisonment with a non-parole period of ten months. I should explain how I have arrived at that sentence.
I consider, first, the three breach of reporting obligation offences had they stood alone. After allowing for my finding that the failure to report living with three young children is by far the most serious of the breaches, but also allowing some partial concurrency with respect to the other two offences, and utilising section 18A, I would have started with the one penalty of six months imprisonment for all three offences. Had the possession of child pornography offence stood alone, I would have started with the one penalty of 24 months imprisonment. This would give rise to a total starting point of 30 months.
The parties are agreed that, given the timing of the respondent’s pleas and bearing in mind the prescriptive regime provided for by section 10B of the Criminal Law (Sentencing) Act 1988, the respondent is entitled to a reduction of up to 30 per cent with respect to all four offences. I see no reason not to allow the full 30 per cent. This would reduce the combined starting point to 21 months. I would start with a non-parole period of 15 months.
The respondent commenced to serve the sentence imposed by the Magistrate on 10 April 2015. It is common ground that, prior thereto, he had spent the period between 18 December 2013 and 17 January 2014 in custody, on remand and the period between 17 January 2014 and 2 February 2015 on home detention bail, on remand. I would allow five months credit for those matters. Accordingly, in reliance on section 18A, I impose the one penalty for all four offences of 16 months imprisonment with a non-parole period of ten months.
I am satisfied that there is no good reason to wholly suspend the sentence or, if the discretion were to be available, to partially suspend the sentence. The seriousness of the offending and the need to encourage personal and general deterrence argue strongly against any form of suspension in this case. In these circumstances, rather than giving credit for time served since 10 April 2015 which would reduce the head sentence to less than 12 months and preclude the ordering of a non-parole period, I direct that the head sentence of 16 months imprisonment and the non-parole period of ten months imprisonment be backdated to commence on the day that the respondent was sentenced by the Magistrate and returned to custody, that is, 10 April 2015. I make the following orders.
(i)The time within which the appellant is to file its appeal is extended to 17 July 2015.
(ii)The appeal is allowed.
(iii)The Magistrate’s sentence of 10 April 2015 is set aside.
(iv)The respondent is resentenced to a head sentence of 16 months imprisonment with a non-parole period of ten months, both backdated to commence 10 April 2015.