R v CHUNZA - [2018] SASCFC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CHUNZA
[2018] SASCFC 74
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Bampton and The Honourable Justice Parker)
13 July 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
Application by the Director of Public Prosecutions for permission to appeal against sentence.
The respondent pleaded guilty to three counts of aggravated possession of child pornography, three counts of possession of child pornography, one count of aggravated possession of child exploitation material (‘CEM’) and one count of possession of CEM contrary to s 63A(1) Criminal Law Consolidation Act 1935 (SA).
He was sentenced to imprisonment for three years with a non-parole period of 18 months. That sentence was wholly suspended upon entry into a bond with strict conditions.
The Director contends that the Judge erred in suspending the sentence of imprisonment.
Held per Parker J (Kourakis CJ and Bampton J agreeing), refusing permission to appeal:
1. Offences of this kind will usually require a custodial sentence and will usually call for a period of imprisonment to be served. However, a wholly suspended sentence may sometimes be appropriate and each case must be considered on its own facts, per R v Padberg (2010) 107 SASR 386 at [21]-[22], Doyle CJ.
2. The respondent’s circumstances are sufficiently compelling and unusual to indicate that the Judge did not err in exercising his discretion to suspend the sentence of imprisonment.
Criminal Law Consolidation Act 1935 (SA), s 63A(1); Criminal Law (Sentencing) Act 1988 (SA), s 38(1), referred to.
R v Padberg (2010) 107 SASR 386; R v McGaffin [2010] SASCFC 22; R v Hill (2011) 110 SASR 588; R v Lutze (2014) 121 SASR 144; R v Dinsdale (2000) 202 CLR 321; Everett v The Queen (1994) 181 CLR 295, considered.

R v CHUNZA
[2018] SASCFC 74
Court of Criminal Appeal: Kourakis CJ, Bampton and Parker JJ

KOURAKIS CJ: I would refuse permission to appeal for the reasons given by Parker J.
The appellant’s diligence in overcoming the adversity of his most traumatic childhood provided an adequate basis on which to adopt the exceptional course of suspending his sentence of imprisonment.
BAMPTON J: I agree with the reasons of Parker J and would refuse permission to appeal.
PARKER J: This is an application by the Director of Public Prosecutions (‘Director’) for permission to appeal against a sentence imposed by the District Court.
The respondent was charged with three counts of aggravated possession of child pornography and three counts of possession of child pornography.[1] Those offences were detected on 30 May 2014. While on bail for those offences, the respondent was charged on 15 October 2016 with one further count of aggravated possession of child exploitation material (‘CEM’)…

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 CHUNZA

Details

AGLC: R v Chunza [2018] SASCFC 74
Case: [2018] SASCFC 74
Decision Date: 13 July 2018

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against a District Court judge's decision to suspend the sentence imposed on the respondent, Mr. Chunza, for offences involving the possession of child exploitation material (CEM). The dispute centred on whether the judge had erred in exercising their discretion to suspend the sentence, given the serious nature of CEM offences. The appeal was heard by Kourakis CJ, Bampton and Parker JJ of the Supreme Court of South Australia.

The primary legal issue before the Full Court was whether the sentencing judge had made an error in exercising their discretion to suspend the respondent's sentence of imprisonment for possessing child pornography. The Director argued that the judge's decision was not justified, particularly in light of the gravity of CEM offences and the need for general deterrence. The Court was required to consider the principles applicable to sentencing for such offences and the criteria for granting permission to appeal against a sentence on behalf of the Crown.

The Court affirmed that possession of CEM is not a victimless crime, as it perpetuates a global market for such material and contributes to the abuse of children. The principle of general deterrence is therefore given high weighting in sentencing, and the public must be warned of severe punishment for such offences. However, the Court also acknowledged that a suspended sentence can be appropriate in certain circumstances, and each case must be considered on its own facts. Applying the "rare and exceptional case" test for prosecution appeals against sentence, the Court found that the sentencing judge had not erred in their exercise of discretion. The respondent's continued willingness to participate in a CEM program, despite denying the offences, and his low risk of reoffending were factors considered relevant.

Consequently, the Court refused the Director's application for permission to appeal. The decision was based on the finding that the case was one of those rare and exceptional instances where immediate imprisonment was not warranted, and the sentencing judge had not made an error in suspending the sentence.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, I would refuse permission to appeal.Background On 16 May 2014, a mobile phone was found by a member of the public and surrendered to police. The police discovered CEM stored in the phone. The respondent was identified as the owner. On 30 May 2014, the police attended the respondent’s home and conducted a search. Numerous devices were seized and analysed. The police found further items of CEM stored on those devices. The respondent was charged with four counts of possessing child pornography, two of which were aggravated.[4] The respondent pleaded not guilty to those charges at his arraignment in the District Court on 16 March 2015.[4] The charges were aggravated because the materials depicted children under the age of 14 years. On 21 January 2016, the Director filed an ex-officio Information for ten counts of possessing child pornography, five of which were aggravated.[5] This Information replaced the previous Information and was filed as a result of the discovery of additional CEM during further analysis of the seized devices. The respondent pleaded guilty to six counts of possessing child pornography, three of which were aggravated at his arraignment in the District Court on 21 March 2016.[6] The prosecutor accepted those six guilty pleas in satisfaction of both Informations. [5] Again, the charges were aggravated because the materials depicted children under the age of 14 years.[6] These will be referred to as the ‘earlier offences’ or the ‘earlier offending’. Sentencing submissions were heard by the Judge in the period between May 2016 and September 2016. His Honour listed the matter for sentence on 2 November 2016. In the meantime, on 15 October 2016, the police attended the respondent’s home and seized three USB devices from his bedroom. Those devices contained items of CEM. The Judge was advised of the further offending and sentencing was adjourned. The respondent was charged on a new Information with one count of possessing CEM and one count of aggravated possessing CEM.[7] The respondent pleaded guilty to those charges at his arraignment in the District Court on 10 May 2017.[8][7] The charge was aggravated because the materials depicted children under the age of 14 years.[8] These will be referred to as the ‘later offences’ or the ‘later offending’.The charges The CEM seized from the respondent by the police were classified according to the following “Oliver scale” model:[9] ·Level One – Depictions of children with no sexual activity or nudity, such as images showing underwear nakedness, sexually suggestive posing, or with emphasis on genital areas.·Level Two – Non-penetrative sexual activity between children, or solo-masturbation by a child.·Level Three – Non-penetrative sexual activity between children and adults, such as mutual masturbation or other non-penetrative sexual activity.·Level Four – Penetrative sexual activity between children or between children and adults, including intercourse, cunnilingus and fellatio.·Level Five – Sadism, bestiality or humiliation, such as urination, defecation, vomit or bondage.·Level Six – Animated cartoon, comics and drawings depicting children engaged in sexual poses or activity. [9] This model was adopted by the Court of Appeal of England and Wales in R v Oliver [2003] 1 Cr App R 28.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I stress that my conclusion that the Judge did not err should not be understood as indicating any lessening of the sentencing standards for serious CEM offences established by this Court in Padberg and repeated on many occasions. However, as Doyle CJ observed in Padberg, and other members of this Court have repeated in subsequent cases, a wholly suspended sentence can sometimes be appropriate and each case has to be considered on its own facts. This is one of those rare cases where immediate imprisonment is not called for.Conclusion Given my finding that the Judge did not err and having regard to the “rare and exceptional case” test applied to prosecution appeals, I would refuse permission to appeal. [36][36] Everett v The Queen (1994) 181 CLR 295 at 299, Brennan, Deane, Dawson and Gaudron JJ.

Ratio Decidendi

Legal Principle Established

The respondent’s ultimate contention is that the decision to suspend the sentence was a discretionary matter for the Judge. His Honour did not err in exercising that discretion. This is not a “rare and exceptional” case of the kind which would justify a grant of permission to appeal to the Director. ConsiderationReceipt of further DCS report After hearing submissions, the Court sought a further report from DCS to determine the respondent’s response to supervision and any progress with the proposed referral to Owenia House for participation in the CEM program. A report was provided to the Court dated 21 June 2018. That report noted the respondent has continued with his university studies and reports to his community corrections supervisor when required. While he has continued to deny committing the subject offences, he remains willing to attend the Owenia House program. He has been assessed as being suitable and found to be at a low risk of reoffending. It is expected that the CEM program will commence in August or September 2018, although a precise date has not been fixed.Sentencing principles for CEM related offences Possession of CEM is not a victimless crime.[19] The production of such material involves the abuse of children who are incapable of protecting themselves. People who view this material for personal gratification perpetuate a global market for CEM and encourage those involved to actively recruit and exploit children for the purpose of filming and disseminating the resulting materials. They participate in an abhorrent supply chain and must share responsibility for the abuse of the children depicted. When sentencing, the principle of general deterrence must be given a high weighting.[20] The public must be warned that if they are found in possession of CEM they will be severely punished.[21][19] See for example, R v Jones (1999) 108 A Crim R 50 at [9], Kennedy J; R v C [2004] QCA 469 at [26], Williams J; R v Gent (2005) 162 A Crim R 29 at [100], Johnson J; Director of Public Prosecutions v D’Alessandro (2010) 26 VR 477 at [19], Harper JA; R v McGaffin [2010] SASCFC 22 at [18], Gray J; R v Jones [2011] QCA 147 at [35], Daubney J.[20] R v Padberg (2010) 107 SASR 386 at [21], Doyle CJ.[21] Ibid. The paramountcy of deterrence has also been recognised by Parliament. At the time the respondent was sentenced, s 10(2)(c) of the Criminal Law (Sentencing) Act 1988 (SA) provided that, in determining the sentence for an offence involving the sexual exploitation of a child, the court must have regard to the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence. A directly cognate provision does not appear in the Sentencing Act 2017 (SA). However, general and specific deterrence are recognised at paragraph (d) of the secondary sentencing purposes referred to in s 4(1). I consider that the failure to include a provision to like effect as the former s 10(2)(c) does not lessen the importance of general and specific deterrence when sentencing for offences involving the sexual exploitation of a child, including CEM offences.The discretion to suspend a sentence of imprisonment