R v Bonilla - [2020] SADC 149

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BONILLA
[2020] SADC 149
Reasons for Decision of Her Honour Judge McIntyre
26 October 2020
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
The Defendant pleaded guilty to three counts of aggravated producing child exploitation material. He is therefore a serious repeat offender.
Held:
1. The Defendant’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence; and
2. It is in all of the circumstances not appropriate to sentence the Defendant as a serious repeat offender.
Sentencing Act 2017 s71(2)(b)(ii), s96(3)(b)(a); Criminal Law Consolidation Act 1935 s54,54(2), referred to.
R v Skinner (2016) 126 SASR 120; R v Bagguley [2015] SADC 137; R v Douglass [2019] SASCFC 67, considered.

R v BONILLA
[2020] SADC 149

Mr Bonilla pleaded guilty to three counts of aggravated producing child exploitation material. The maximum penalty for each of these offences is imprisonment for 12 years. The issue is whether he ought to be sentenced as a serious repeat offender. For the reasons that follow, I conclude that Mr Bonilla’s personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence. I further conclude that it is in all of the circumstances not appropriate to sentence him as a serious repeat offender
Circumstances of the offending
The offending occurred in 2018. Mr Bonilla was then living with his wife and her three children (his step-children). The children are the victims of the three offences. Mr Bonilla used his smart phone on four separate occasions to covertly record his step-children as follows:
·On 7 April 2018, Mr Bonilla recorded his then 14-year-old step-daughter in her underwear as she dressed and redressed in her bedroom and naked in the bathroom. He also recorded his then 13-year-old step-son naked in the shower.
·On 8 August 2018, Mr Bonilla recorded both his then 13-year-old step-sons naked in the shower and his step-daughter, by then 15 years of age, in her underwear standing in the bathroom.
·On 9 September 2018, Mr Bonilla covertly filmed his naked 15-year-old step-daughter drying herself in the bathroom.
The offending came to light when Mr Bonilla and his wife sought assistance in relation to his mental health. They understood that the psychologist was a mandatory reporter and would be obliged to report these matters to the police. Following that report, the police attended at Mr Bonilla’s home on 21 September 2018 and seized several electronic items from Mr Bonilla’s home for analysis. The material to which I have referred was located on a Samsung smart phone and on an Apple iPhone which Mr Bonilla told police belonged to him. There was no other child exploitation material located on these or other devices. It does not appear that this material was shared or catalogued by Mr Bonilla.
Legislation
It was conceded, during sentencing submissions,…

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 R v Bonilla

Details

AGLC: R v Bonilla [2020] SADC 149
Case: [2020] SADC 149
Decision Date: 26 October 2020

CaseChat Overview and Summary

The case of R v Bonilla involved a defendant who pleaded guilty to three counts of aggravated producing child exploitation material. The court was required to determine whether Mr Bonilla's personal circumstances were so exceptional as to outweigh the paramount consideration of protecting the safety of the community and personal and general deterrence. Additionally, the court had to consider whether it was appropriate to sentence Mr Bonilla as a serious repeat offender.

The court accepted the evidence of Professor Wittert, an endocrinologist, that Mr Bonilla had a pharmacologically induced impulse control disorder due to the side effects of Cabergoline, a medication prescribed to treat his low testosterone and elevated prolactin levels. The court found that this impulse control disorder caused Mr Bonilla to engage in behaviour that he would not ordinarily engage in, and that he had acted under an irresistible impulse when committing the offences. The court concluded that Mr Bonilla's personal circumstances were exceptional, as they were out of the ordinary course or unusual, and that sentencing him as a serious repeat offender was not appropriate in all of the circumstances.

The court ultimately decided that the exceptional circumstances of Mr Bonilla's case outweighed the paramount consideration of protecting the safety of the community and personal and general deterrence. The court also found that it was not appropriate to sentence Mr Bonilla as a serious repeat offender, as he had ceased taking the medication that caused his impulse control disorder and had sought medical and psychological assistance to deal with the issue.

The final orders of the court were not provided in the text.

Orders