R v Bolbot - [2013] SASCFC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BOLBOT
[2013] SASCFC 110
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Blue and The Honourable Justice Stanley)
18 October 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES
The appellant pleaded guilty to two counts of producing child pornography and one count of aggravated possessing child pornography. He also pleaded guilty to failing to comply with his bail agreement and operating a restricted access computer system. He was sentenced to three years' imprisonment, with a non-parole period of 15 months' imprisonment. He appeals against sentence on the grounds that the non-parole period was manifestly excessive, and that the sentencing Judge erred in failing to suspend the sentence of imprisonment.
Held (The Court):
(1) No error of principle has been demonstrated. The sentence and non-parole period were well within the range for ofending of this nature at [35].
(2) There was no error in declining to suspend the sentence. The Judge had regard to all relevant matters. No error has been demonstrated in her decision not to suspend the sentence at [33]-[34].
Criminal Law (Sentencing) Act 1988 (SA) s 19(2)(c), s 18A, referred to.
R v Padberg (2010) 107 SASR 386; R v Hill [2011] SASCFC 109; R v Ryan [2012] SASCFC 136; R v Riddle [2012] SASCFC 82, considered.

R v BOLBOT
[2013] SASCFC 110
Court of Criminal Appeal: Sulan, Blue and Stanley JJ

THE COURT: The defendant and appellant, Steven John Bolbot, pleaded guilty in the District Court to two counts of producing child pornography and one count of aggravated possessing child pornography. He also pleaded guilty to failing to comply with his bail agreement and operating a restricted access computer system. He was sentenced to three years’ imprisonment, with a non‑parole period of 15 months. He now appeals against sentence on the grounds that the non-parole period was manifestly excessive, and that the sentencing Judge erred in failing to suspend the sentence of imprisonment.
The offending
On 1 March 2008 the defendant was on an internet chat room and engaged in a role-play conversation with another person. During the course of the chat room discussion, that person assumed the role of a child aged two to eight years old. The defendant and the other person were involved in a sexually explicit conversation, which described the appellant performing an act of fellatio on the child. This conduct is the first count of producing child pornography.
The second count of producing child pornography relates to an occasion on 4 February 2012 when the defendant communicated, via an internet chat room, with another person. That person assumed the identity of a two year old girl and a similar conversation ensued, with the defendant graphically describing engaging in fellatio with the child.
The defendant accepted that he engaged in 2,280 chat room discussions of a similar nature over a period of approximately four years between 2008 and 2012. The record of those discussions encompasses descriptions of children as young as two years engaged in penetrative sexual activity with adults. During argument, counsel for the Crown made submissions which suggested that chat room discussions between two persons were generally accessible by other users of the chat room. After judgment was reserved, the defendant’s counsel made a written submission, having obtained more detailed instructions. We accept her submission that chat room discussions between individuals are only accessible by the individuals who were the parties to the discussions.
The sentencing Judge accepted that the chat room discussions were between adults posing as young children. Nevertheless, that conduct is producing child pornography.
On 7 February 2012 police searched the defendant’s home. The defendant admitted possessing child exploitation material. He admitted that some of the images found depicted females of about 12 or 13 years of age, with some under the age of 10.
There were 246 still images of child pornography on the defendant’s computer. Of those, 149 depicted children under the age of 14. Most of the images were at the lower level of sexual depiction of young persons, although some were much more serious, depicting penetrative sexual contact with children. The defendant’s plea to aggravated possession of child pornography is for conduct where he knew the victims were under the age of 14. In sentencing the appellant, the Judge had regard to uncharged offences involving images of children aged between 14 and 17 years. The Judge accepted that none of the material found on the defendant’s computer was possessed for further distribution. The defendant did not expect to profit from his offending.
The defendant was arrested and released on bail. A condition of his bail agreement was that he not access the internet except for work purposes. While on bail, he set up an internet connection for his sister. Between 8 February 2012 and 7 March 2012, unbeknown to his sister, the appellant used that connection to access adult chat websites, in breach of his bail. That conduct also comprised the offence of operating a restricted access computer system.
Personal circumstances
At the time of sentencing, the defendant was 38 years of age. He is the elder of three children and comes from a close family which continues to support him. His father died when the appellant was 32 years of age. His mother and sister continue to support him.
The defendant completed secondary education and was a good student. His life at school was unhappy, and he suffered bullying from other students. He completed two years of a university degree before leaving university and commencing employment with an internet provider. He lost his job with that provider when these charges came to light. He has obtained casual employment delivering pizzas.
The defendant has few interests outside computers. He is a socially isolated man, whose few friends are also interested in computers. He has not had any significant relationships. When he told his friends of these charges, they deserted him.
The defendant pleaded guilty to the charges at the earliest opportunity.
It was accepted that the defendant is remorseful. He has some insight into his behaviours and realises that his conduct supports those who exploit young children.
After he had been charged, the defendant referred himself to Owenia House. Due to resourcing issues, his application for treatment was rejected pending the finalisation of the charges. He also engaged a psychologist who treated him from February 2012 until sentencing on 26 June 2013. A letter from the psychologist speaks of the defendant’s commitment to counselling and his strong motivation to seek treatment at Owenia House. The psychologist considers that he has suffered depression since his arrest and conviction. The psychologist’s opinion is that with appropriate treatment the defendant has good prospects of rehabilitating and functioning positively in society.
The Judge had regard to a report of Dr Jack White, a forensic psychologist. Dr White concludes that the defendant’s profile is not consistent with that of a paedophile offender. He considers that the defendant should be referred to a psychologist to assist him to deal with his social anxieties and isolation. The defendant has consulted a psychologist since February 2012, as observed above.
Sentence
The sentencing Judge described the offences of producing child pornography as “toward the lower end of the scale”. The Judge said that, nevertheless, the offending was very serious. The Judge observed that the defendant did not possess the material for further distribution to other people, and that he did not expect to profit from his offending. In particular, the Judge had regard to the defendant having referred himself to Owenia House after he was charged. The Judge made specific reference to the defendant having put into place Dr White’s recommendation that he consult a psychologist.
The Judge said that she had seen the images and that the degradation and exploitation of the children was obvious and very disturbing. She noted that the defendant’s conduct encouraged a market for this material. The Judge said his offending was particularly serious because he was acting upon his fantasies in the chat rooms. His conduct in the chat rooms suggested his sexual interest in children relates to the very young, toddlers and children under the age of eight, sometimes as young as two.
The Judge considered that personal circumstances are of less significance when considering this type of offending. She said:
I take into account all of your personal circumstances in this matter. However, child pornography is an international problem and its prevalence and the ready availability of this material on the internet demands general deterrence be the main consideration in sentencing you. That means that your personal circumstances are secondary to the need to send a message to the community that this sort of behaviour is abhorrent and will not be tolerated. It is by no means a victimless crime. The victims are the children who are exploited in order to produce these images. The people who exploit children by involving them in the production of child pornography are encouraged to do so by the fact there is a market for it, the market created by people such as you. I have viewed these images and the degradation and exploitation of these children is obvious and very disturbing. You have participated in this market and you are partly responsibility for the harm that is caused to these children.
For the two counts of producing child pornography and one count of aggravated possessing child pornography, the Judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act). The Judge fixed a head sentence of four years’ imprisonment, reduced to three years’ imprisonment taking into account the defendant’s guilty pleas. She set a non‑parole period of 15 months’ imprisonment.
The Judge considered whether good reason existed to suspend the sentence. She said:
As I have said, the offences of child exploitation are serious. The fact that you have possession of child pornography and were acting upon your fantasies in communicating with others and producing child pornography in combination is very serious. I accept that you are contrite and you are undergoing a therapy in relation to your psychological problems that have contributed to your offending. In addition to this you breached your bail very shortly after entering into it. In the circumstances I cannot find that there is good reason to suspend the term of imprisonment I have imposed.
As to the offences of failing to comply with the bail agreement and accessing a restricted access computer, the defendant was convicted without further penalty.
The defendant’s submissions
The defendant’s primary contention is that the Judge erred in declining to suspend the sentence. He submits that there are unique factors in this case to which the Judge gave inadequate weight, and which justify the imposition of a suspended sentence. These factors include the full admissions made to police, the defendant’s cooperation rendered to police in helping access the material, his guilty pleas, the fact that he had voluntarily sought assistance from a general practitioner and then a psychologist, his commitment to rehabilitation, his lack of relevant prior convictions, the fact his “difficulties” had not previously been identified or treated, his work ethic prior to and following his arrest, the impact of shame and embarrassment, the fact the offending was not occasioned by entrenched criminogenic factors like drug or alcohol abuse, and his development of anxiety and depression since detection.
The defendant contends that, in determining whether to suspend the sentence, the Judge appears to have only considered discrete issues when all factors were relevant.
The defendant further submits that the Judge, in considering whether to suspend the sentence, placed too much weight on the fact he had breached his bail shortly after entering into it. He submits that that matter should not have been instrumental to the determination, especially given that the Judge did not consider the breach sufficiently serious to warrant any penalty above conviction, and given the breach involved accessing a dating website rather than child pornography.
The defendant contends that, if by “psychological problems that have contributed to the offending”, the Judge was referring to the appellant’s anxiety and depression, then she was mistaken as these arose post detection and thus could not have contributed to the offending. He submits that this is significant because, if the Judge considered the offending to be the result of a psychological illness or condition, this would impact on his prospects for rehabilitation. The Judge had previously noted that the appellant was diagnosed with depression in March 2012. We consider that there is nothing to indicate that the later remark is a reference to this condition, rather than a reference to his psychological problems regarding social interaction. Further, read in context, the remark appears to be a factor in mitigation, indicating that the defendant has commenced rehabilitation to address the matters which contributed to the offending.
The defendant accepts that the head sentence is within the range for the offending but contends that, having regard to the defendant’s background and personal circumstances, the non-parole period is manifestly excessive.
Discussion
Offending of this type will, in most cases, result in a custodial sentence. General deterrence is of heightened significance when considering this type of crime.[1] Further, s 10(2)(c) of the Sentencing Act provides that, in the case of an offence involving the sexual exploitation of a child, the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence is a factor to which the court must give proper effect.
[1] R v Padberg (2010) 107 SASR 386; R v Hill [2011] SASCFC 109; R v Ryan ([2012] SASCFC 136; R v Riddle [2012] SASCFC 82.
Child pornography is not a victimless crime. It causes enormous damage to child victims, and that damage has long-term effects. Those who promote this offending do so for profit and those who view these images and access the various sites which display these images provide the demand for this offensive material.
It is extremely difficult to detect and apprehend those who are involved in the production of this material, and one way in which the court can reduce the prevalence of the material is to deter those who view it and access the various sites on which it is available.
Further factors to which the court will have regard are the number of images, the nature and content of those images, the age of the children, and the period over which the offending has taken place.
This was what may be described as an almost stereotype of case for this type of offending. It is not unusual for those who come before the courts for this type of offending to be first offenders. They suffer from social isolation and, sadly, they view these images and become involved in chat room sites as a substitution for social interaction with others. Very often, when their conduct is discovered, they suffer the indignity of having their family and friends become aware of their conduct, which results in their suffering from depression and other psychological problems.
This offending is serious offending. The creation and dissemination of child pornography material is a serious social evil, and those who participate in it must understand that their conduct will result in severe penalty.
Although it can never be said that a suspended sentence will under no circumstances be appropriate, offending of this kind is regarded as so serious that offenders, even first offenders who have pleaded guilty, can expect that a custodial sentence will be imposed.
The approach of the sentencing Judge was correct. No error of principle has been demonstrated. The sentence and non-parole period were well within the range for offending of this nature. The Judge had regard to all relevant matters. No error has been demonstrated in her decision not to suspend the sentence.
The appeal is dismissed.