Police v PAYNE - [2012] SASC 8

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v PAYNE
[2012] SASC 8
Judgment of The Honourable Justice Peek
25 January 2012
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appellant pleaded guitly to 18 counts of indecent filming - sentenced pursuant to s 18A Sentencing Act to 2 years imprisonment reduced to 18 months for an early guilty plea - 7 month non-parole period fixed - 1 month imprisonment served - appellant bailed pending appeal.
Appeal against sentence - whether Magistrate correctly approached suspension and the 'good reason' test pursuant to s 38 Sentencing Act - whether Magistrate considered all militating factors when considering suspension.
Held: Appeal allowed. Magistrate compared the offending to rape and child pornography and used this comparison in determining whether the sentence could be suspended - Magistrate failed to correctly apply s 38 Sentencing Act.
Upon re-sentencing: new sentence of 17 months imprisonment - 6 month non-parole period with the sentence suspended upon the appellant entering into a good behaviour bond for 3 years.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, 38; Summary Offences Act 1953 (SA) s 23AA; Offenders Probation Act 1913 (SA), referred to.
R v Wacyk (1996) 66 SASR 530; R v Famiglietti [2005] SASC 489, applied.
R v Ford (2008) 100 SASR 94; R v Hunter (1984) 36 SASR 101; R v Leach (2003) 85 SASR 139; Bright v Police (2008) 101 SASR 519, discussed.
R v Wiskich [2000] SASC 64, considered.

POLICE v PAYNE
[2012] SASC 8
Magistrates Appeal

Peek J. This is an appeal against sentence pursuant to s 42 Magistrates Court Act 1991 (SA).
The offending
The appellant pleaded guilty to 18 counts of indecent filming contrary to s 23AA(1) Summary Offences Act 1953 (SA).
The appellant owned a unit adjoining his home. He leased the unit to a mother (Ms A) and daughter (Miss B) who commenced to live there. He secretly installed cameras secreted in smoke detectors in the unit, the cameras being linked to a computer hard drive in his home. The subject matter of the charges was footage later recovered from the hard drive and, in particular, 18 recordings depicting Ms A undressed and Ms A and her boyfriend (Mr C) participating in sexual activity. A camera and associated equipment was also found in the separate bedroom of Miss B but no footage had been taken of her.
The learned Magistrate sentenced the appellant pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (‘CLSA’) to a term of two years imprisonment, reduced by 25 percent for an early guilty plea to 18 months imprisonment. The Magistrate fixed a non-parole period of seven months and declined to suspend the sentence. The appellant served one month’s imprisonment before being granted bail pending the outcome of this appeal.
The proceedings before the Magistrate
The appellant was represented by his solicitor who accepted that a period of imprisonment was within the discretion of the Magistrate but submitted that any such sentence should be suspended. In essence, he submitted that there was good reason to suspend the sentence because the appellant:
·was 66 years of age;
·had no previous convictions of any sort;
·apart from this conduct, was of positive good character including a very long record of assisting charitable and not-for-profit organisations as established by impressive documentary evidence;
·had had a good marriage and successfully raised his children;
·had had a long and successful working life until he had retired in 2011; and
·had committed these crimes under the influence of a medical condition of voyeurism for which he had voluntarily undertaken psychological treatment.
The Magistrate’s reasons for sentence
The approach of the Magistrate to suspension of sentence was as follows:
[21]Turning to the question of suspension, Mr Colthorpe says this offence is akin to charges of possess child pornography and that the court has in some instances suspended sentences for people who have large collections of child pornography. I agree that there are some cases where the court has considered suspension appropriate in certain circumstances, but those cases do not involve somebody who has actually filmed the children. Of course child pornography involves the court needing to protect children. That element is not present in the circumstances of this case. I have put a proposition to Mr Colthorpe that these offences are more akin to rape, acknowledging in so saying that they are not as serious as rape. I have suggested that they are more akin to rape because they lead to the same psychological impact upon a victim. I do consider that this offending falls somewhere between the two and I have taken that approach in considering the seriousness of the offence in fixing the head sentence and also in considering issues relating to whether the sentence can be fully suspended. I have arrived at a conclusion that I cannot fully suspend the sentence because the serious nature of the offences and the need for personal and general deterrence require some portion of the sentence to be served. That is why the sentence is not being suspended, but in fixing the non-parole period of 7 months which is less than half of the head sentence, I have balanced the nature of the offences with the fact that you are a first time offender of mature age, that prison will be challenging for you, that you have undergone some rehabilitation, and those issues have been therefore factored in my decision in relation to the non parole period.
(Emphasis added)
I have significant concerns as to whether her Honour has here taken the correct approach to the matter of suspension of sentence.
Her Honour states that the present charge is more akin to a charge of rape rather than a charge in relation to child pornography and that the present charge falls somewhere between the two (on what one assumes is some form of scale of seriousness formulated by her Honour). Her Honour states “I have taken that approach … also in considering issues relating to whether the sentence can be fully suspended” and there appears to be no doubt that “that approach” means an approach based upon the premise that the present charge falls somewhere between a charge in relation to child pornography and a charge of rape on a scale of seriousness.
I refer to the following matters.
First, if one were to compare the present offence to other offences, one should at least note the relative maximum penalties, given that they are something of an indication of relative seriousness as perceived by the legislature. Thus s 63A Criminal Law Consolidation Act 1935 which deals with knowing possession of child pornography has a maximum penalty of five years imprisonment and s 63 which deals with things such as production or filming of child pornography has a maximum penalty of ten years imprisonment while rape (s 48 Criminal Law Consolidation Act 1935) has a maximum penalty of life imprisonment. By comparison, the offence under consideration, that created by s 23AA(1) Summary Offences Act 1953 (SA), has a maximum penalty of only two years imprisonment or a $10,000 fine.
Second, and more fundamentally, the words of the Magistrate have more than a hint of an approach to suspension of sentence by reference to a question of whether the sentence for a particular offence can be suspended having regard to a comparison with other (more serious) offences.
Thus at the beginning of the passage, her Honour recounts a submission by the appellant’s solicitor that some sentences for the offence of possession of child pornography have been suspended, to which her Honour responds: “those cases do not involve somebody who has actually filmed the children.” At the least, this appears to emphasise a question as to whether courts have been prepared to suspend sentences for particular offences as distinct from the correct approach of applying the “good reason test” to the particular set of facts under consideration.
Her Honour then progresses to the rape comparison referred to above and, having predicated a scale where the present offence lies between a charge in relation to child pornography and a charge of rape, she adopts that scale in considering issues relating to whether the sentence can be fully suspended.
I am not confident that her Honour has not adopted an approach which places an impermissible gloss upon s 38 and displays something of “a preconceived view that any particular offence or class of offences may only properly be met by an immediate custodial term of imprisonment”. With respect, I adopt the following words of Perry J in R v Wacyk:[1]
The discretion to suspend a sentence arises under Section 38 of the Criminal Law (Sentencing) Act, 1988 (SA). Pursuant to that section, a sentence may be suspended by the court ‘if it thinks that good reason exists for so doing’. This section speaks for itself. It would be wrong to circumscribe those plain words by reference to any supposed formula or other gloss.
A suspension of sentence may be granted with respect to any offence unless the power to do so in a particular case is expressly taken away by Parliament. The exercise of the discretion miscarries if it is approached with a preconceived view that any particular offence or class of offences may only properly be met by an immediate custodial term of imprisonment.
(Emphasis added)
[1] (1996) 66 SASR 530, 535.
To similar effect, Gray J stated in R v Famiglietti:[2]
[38]The test for suspension established by the legislature is whether, in the discretion of the court, good reason exists to suspend. This is the test to be applied by sentencing judge’s in exercise of the discretion to suspend sentences. To state that, in addition to there being good reason to suspend, a case must also be rare or exceptional before suspension will be justified is to add a gloss to the words of the statute.
[2] [2005] SASC 489, [38].
Finally, it seems to me that her Honour has to some extent blurred the functions of adjudicating on the matter of suspension of sentence, on the one hand, and the fixation of a non-parole period, on the other hand, rather treating the latter function as in some way equivalent to the imposition of a partly suspended sentence. The approach taken by her Honour in the last nine lines of the extract above is of some importance. The recognition there of the strong cumulative force of the mitigating factors in the context of fixing the non-parole period is not, of course, error per se but it does tend to highlight the absence of an equivalent consideration of those mitigating factors in the earlier, and quite distinct, context of suspension of sentence where the appellant was entitled to have those matters recognised and assessed by reference to the test laid down in s 38 CLSA quite irrespective of any decision as to a non-parole period.
Section 38 CLSA relevantly provides:
(1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behavior; and
(b) to comply with the other conditions (if any) of the bond.
In the present case, the correct and required process in relation to the decision under s 38 was to:
1.delineate the factors that could militate in favour of suspension; and
2.consider closely each of those factors; and
3.consider whether the cumulative effect of those factors, in the light of all of the circumstances in the case including those factors militating against suspension, constituted good reason to suspend the sentence.
Although it will not always be necessary to spell out this approach explicitly, in the present case, having regard to the whole of the above passage from her Honour’s reasons, the absence of such a stated approach does have some cumulative significance.
In all the circumstances, I consider that the cumulative effect of all of the above matters is to produce a high degree of concern as to whether her Honour has in fact taken the correct approach to her task and is such as to necessitate the appellant being re-sentenced.
Re-sentencing the appellant
In considering the application of s 38 CLSA, the Court is required to have particular regard to matters militating in favour of suspension. As Wells J observed in R v Palliaer, the suspension power (then to be found within the Offenders Probation Act 1913) is: [3]
… designed, not to guide or assist the trial Judge in imposing head sentences, but to enable him to reflect factors in mitigation personal to an individual offender by an order to suspend an appropriate sentence on conditions that are aimed at rehabilitation, and are specially moulded to meet the probationer’s needs.
[3] (1983-84) 35 SASR 569, 573.
Of course, it must be accepted that the application of the suspension power in s 38 CLSA is to be exercised in the light of all relevant factors which will also include those factors militating against suspension of sentence. Thus in R v Ford Gray J (with whom Doyle CJ concurred) stated: [4]
[52]While “good reason” will usually be derived from circumstances personal to the offender, there is no limitation placed on what may amount to a good reason. There must be something about the personal circumstances of the appellant or the offence that would render it inappropriate to imprison the appellant in the circumstances where imprisonment is the appropriate penalty. It is not a matter of finding something special or exceptional, but rather a matter of weighing all relevant factors. …
[Footnote omitted]
[4] (2008) 100 SASR 94, 107 [52].
Matters which militate against suspension
Matters which militate against suspension here include the following. The offending was premeditated, serious and lasted three months. It only ended when it was discovered by Mr B. The appellant used his skills as an electrical fitter and his position as landlord to install the cameras into the unit. The installation of the cameras and the filming was a very serious invasion of the privacy of all three victims and also, in a certain sense, involved a breach of trust. The offending caused great embarrassment and psychological harm to the victims of an ongoing nature and, in the view of Mr B, contributed to the breakup of his relationship with Ms A.
Matters which militate in favour of suspension
Matters which militate in favour of suspension include the following.
While little can be said as to mitigation of the offending itself, it may legitimately be said that the use of the footage was limited to the possession of the appellant and did not include distribution to friends or, much worse, publication on the internet. Any publication of that sort would have gravely increased the seriousness of the offending.
The appellant is of otherwise good character. He has no other criminal convictions. Five impressive character references were tendered before the Magistrate, deposing to the appellant’s otherwise good character including a very positive record of assisting charitable and not-for-profit organisations for up to 20 years, donating what must amount to a very large number of hours over that time. He has had a stable family life, a good marriage and successfully raised his two daughters. He had a long and successful working life until he had retired in 2011 including 20 years service in the RAAF. It is not suggested that the appellant has previously committed any offences similar to the present offending.
The appellant is 66 years of age. He is not as old as some persons who are sentenced to substantial prison sentences. Nevertheless, it is perhaps an age where the wise words of King CJ in R v Hunter[5] do commence to bite: “A sentencing judge cannot overlook the fact that each year of the sentence represents a substantial proportion of the period of life which is left to him”.
[5] (1984) 36 SASR 101, 103. The appellant there was aged 73.
The appellant had an abnormal mental condition connected with the commission of the offending. Two psychological reports were tendered, those of Dr White and Dr Pisaniello. Dr White’s opinion was that the appellant has a psychosexual condition of voyeurism that is treatable with behavioural therapy. Dr Pisaniello also found that the appellant satisfied the criteria for the condition of voyeurism and focused on treating this condition. The appellant attended six psychological treatment sessions with Dr Pisaniello over the period up to April 2011. He stated that he had ceased any voyeuristic activity in September 2010 and that by April 2011 his daily functioning was not interfered with by any desire to participate in voyeurism. He therefore ended his engagement with Dr Pisaniello in September 2010. On a later occasion on 26 August 2011 he informed Dr Pisaniello that he was continuing to avoid voyeuristic behaviour and that he intended this to be permanent. The appellant’s wife confirmed the appellant’s assertion that he had changed his behaviour.
I treat the medical evidence cautiously and bear in mind the strictures in cases such as R v Wiskich[6] and R v Leach[7] and in particular that “the relevant distinction which should be drawn is between cases where the mental illness does not affect the offender’s knowledge of the nature and gravity of the criminal conduct, and cases, which will generally arise where the mental illness is more serious, where it does affect the offender’s understanding of those matters.”[8] Indeed, I accept the prosecution position that this appellant well knew that his conduct was serious and unlawful and that the existence of his mental condition did not lessen that awareness.
[6] [2000] SASC 64.
[7] (2003) 85 SASR 139.
[8] R v Leach (2003) 85 SASR 139, 144 [33].
However, what can be said in favour of suspension of sentence in this context is that the identification of the link between the offending and the appellant’s mental condition gives rise to the hope that that condition can be treated and, in that event, further such offending rendered unlikely. In that regard, I would bear in mind the desirability of a lengthy supervision by a Community Corrections Officer whose reasonable directions would include a requirement to undergo counselling in relation to his mental state. I consider that while the factual circumstances are different, there are some parallels between the present case and the decision of Gray J in Bright v Police[9] where his Honour stated:
[27]Further, deterrence and protection of the public may be given less weight where there are strong indications that an offender whose offending is related to addiction of some kind can be rehabilitated. In Halewyn, Young CJ, with whom Kaye and Beach JJ concurred, observed:
[T]he fact that the offender is a drug addict does not lead generally to mitigation of the penalty. There are, however, in the present case strong indications that the applicant is a person who might be rescued from the addiction to which he has been subject, and there is, as it happens, available to the court a process which I think will mark the seriousness with which the court regards the offence and yet afford an opportunity for the applicant to be rescued from drug addiction.
Similarly, the voluntary seeking of treatment by a defendant with a mental disorder can be a mitigating factor.
…
[29]In my view, the Magistrate did not take sufficient account of the defendant’s prospects for rehabilitation. The defendant has set about a course of treatment. This evidences her contrition and remorse and her apparent determination to address her addiction.
[30]Where a defendant has pleaded, or been found, guilty of an offence, and in sentencing submissions has submitted that his or her addiction or personality disorder is a relevant factor in sentencing, the sentence imposed by the court cannot be passed on a basis that is inconsistent with the conclusion that the defendant is criminally responsible for the crime. However, as earlier observed, in my view the Magistrate failed to have adequate regard to the fact that the defendant’s progress in overcoming the major cause of her offending – her gambling addiction – has resulted in a substantially reduced need for deterrence when determining an appropriate sentence. The entering into a suspended term of imprisonment, on the entering into a good behaviour bond with appropriate conditions, will allow the defendant to continue her treatment toward recovery from her gambling addiction, while at the same time marking the seriousness of her crime.
[Footnotes omitted]
[9] (2008) 101 SASR 519, 527-528.

Finally, I note that the service of one month’s imprisonment by the appellant is a matter of some importance here in that the appellant has already undergone not insignificant punishment which may have a strong reinforcing effect on his stated intention not to return to voyeuristic behaviour. While the service of this period of imprisonment was obviously not a matter that could be taken into account by the Magistrate, it is now able to be taken into account on re-sentencing. This, of course, is something of a fortuitous occurrence, dependent upon the period that it took to lodge an appeal and arrange bail; however, that does not lessen the importance of the matter in the present case.
Some years ago now, a good deal was written here and in the United Kingdom about the “clanging of the gates” principle, the idea that, for certain offences and certain offenders, a short and sharp prison sentence which brings home the prison experience may be sufficient to positively deter from future offending. Now is not the occasion to enter into such a discussion but the fact is that while the service of one month’s imprisonment by a person with a criminal record involving a number of custodial prison sentences might be of rather small moment, the fact that a first offender of the age of 66 has served a month’s imprisonment (with the resultant permanent status that has now been imposed upon him) is a matter of some weight to be borne in mind when re-sentencing.
Conclusion as to suspension of sentence
I consider that the cumulative force of the matters militating in favour of suspension, even when considered in the light of the matters militating against suspension, constitute good reason to suspend the sentence of imprisonment. In light of considerations referred to above, I will impose a bond of a longer duration that might otherwise have been the case.
Both counsel for the appellant and respondent regarded the length of the period of imprisonment as appropriate and made no submissions about it. I do not disagree with it and in the circumstances of this case it is appropriate that I impose that sentence. To that end, I will impose a new sentence of 17 months imprisonment having regard to the fact that the appellant has served one month.
Orders
1.     The appeal is allowed and the sentence and orders of the Magistrate            are set aside.
2.     The appellant is convicted of counts 1 to 18 and sentenced to a period                 of 17 months imprisonment. I fix a non-parole period of six months.
3.     The sentence is suspended upon the appellant entering into a bond to          be of good behaviour for a period of three years; to be under the   supervision of a Community Corrections Officer; and to obey his or                her lawful directions including, but not limited to, the undertaking of                 psychiatric or psychological counselling.