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

1. KOURAKIS CJ:      I would refuse permission to appeal for the reasons given by Parker J.

2. 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.

3. BAMPTON J:        I agree with the reasons of Parker J and would refuse permission to appeal.

4. 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.

5. 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’) and one further count of possession of CEM.[2]  He pleaded guilty to all charged counts and was sentenced to imprisonment for three years with a non-parole period of 18 months.  That sentence was wholly suspended upon entry into a good behaviour bond in the sum of $2,000 for a period of two years.  It was a condition of the bond that he only access the internet for purposes of work or study.  He was also ordered to perform 120 hours community service within six months.

   [1]    Criminal Law Consolidation Act 1935 (SA), s 63A(1).

   [2] Section 63A of the Criminal Law Consolidation Act was amended by s 9 of the Statutes Amendment (Attorney-General's Portfolio) Act 2014 so as to replace the phrase “child pornography” with “child exploitation material” with effect from 1 April 2015.  For the purposes of this judgment I will refer to child exploitation material as ‘CEM’.

6. The maximum penalties for the offences of possessing CEM and aggravated possessing CEM are five years and seven years respectively.[3]

   [3]    Criminal Law Consolidation Act 1935 (SA), s 63A.

7. The Director contends that the Judge erred in suspending the sentence of imprisonment.  The Director does not contend that the head sentence and non-parole period were inadequate.

8. The application for permission and the proposed appeal raises two questions.  First, whether there has been an error of the kind that calls for a grant of permission to appeal to the Director and secondly, whether the sentence is so manifestly inadequate that the appeal should be allowed.

9. For the reasons that follow, I would refuse permission to appeal.

   Background

10. 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.

11. 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’.

12. 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.

13. 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

14. 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.

15. With respect to the earlier offending:[10]

    [10]   I have adopted the numbering of the counts as they appear on the Informations.

    ·Count 7 related to 197 images depicting children under the age of 14 on a laptop computer categorised as follows:

    -155 x level one images;

    -2 x level two images;

    -4 x level three images;

    -31 x level four images;

    -5 x level five images;

    ·Count 8 related to 64 images depicting children over the age of 14 on a laptop computer all categorised as level one images;

    ·Count 11 related to 490 images depicting children under the age of 14, on a hard drive categorised as follows:

    -423 x level one images;

    -67 x level four images;

    ·Count 12 related to 179 images depicting children over the age of 14 on a hard drive categorised as follows:

    -157 x level one images;

    -10 x level two images;

    -2 x level three images;

    -6 x level five images;

    -4 x level six images;

    ·Count 13 related to 205 images depicting children under the age of 14 on five USB storage devices categorised as follows:

    -168 x level one images;

    -5 x level three images;

    -29 x level four images;

    -3 x level five images; and

    ·Count 14 related to 35 images depicting children over the age of 14, on five USB storage devices all categorised as level one images.

16. With respect to the later offending:

    ·Count 1 related to 185 images and 30 videos depicting children over the age of 14 on three USB storage devices categorised as follows:

    -153 x level one images;

    -4 x level two images;

    -7 x level three images;

    -9 x level four images;

    -6 x CETS1 images;[11]

    [11]   No explanation was given by the prosecutor about the different categorisation system adopted for these counts.  However, I understand the CETS scale is comparable to the Oliver scale in any event.

    -1 x CETS2 image;

    -5 x CETS4 images;

    -9 x level one videos;

    -8 x level two videos;

    -2 x level three videos;

    -9 x level four videos;

    -1 x level five video;

    -1 x CETS4 video;

    ·Count 2 related to 462 images and 117 videos depicting children under the age of 14 on three USB storage devices categorised as follows:

    -366 x level one images;

    -11 x level two images;

    -8 x level three images;

    -28 x level four images;

    -2 x level five images;

    -1 x level six image;

    -36 x “other” images;[12]

    -9 x CETS1 images;

    -1 x CETS2 image;

    -16 x level one videos;

    -14 x level two videos;

    -12 x level three videos; and

    -75 x level four videos.

    [12]   These images depicted children under the age of 14 but were not classified as CEM.

17. In relation to the earlier offending, the respondent says that he had child pornography on his computer because an acquaintance gave him a SD card[13] which the respondent presumed contained some ring tones.  The SD card also contained CEM.  This was said to have sparked his curiosity and he later downloaded further pictures from the internet, some of which were later found on his various devices, including his phone, laptop, hard drive and USBs.  The respondent says he has not shared any of the material, nor has he paid for it.

    [13]   A Security Digital Card, i.e. a type of memory card.

18. A community corrections officer reported that the respondent denied the later offending.  No further explanation for the later offending was provided to the Judge.  During submissions, the Prosecutor noted that meta data from the respondent’s computer confirmed that the respondent had accessed the materials after he was arrested and bailed for the earlier offending, notwithstanding his attendance in Court for sentencing submissions.

    The respondent’s personal circumstances

19. The respondent was born in the Democratic Republic of Congo in December 1988.  At the time of sentencing he was 28 years old.  The respondent grew up in the Congo in a large family.  His father was a prominent chief police officer and had two wives and fifteen children.  The respondent is the seventh born child.

20. The respondent was forced to flee the Congo because of the Second Congo War.  His father was killed and his family were fearful for their lives.  In the course of fleeing, the respondent was separated from the rest of his family.  He obtained refuge in Tanzania.

21. The respondent lived in refugee camps and an orphanage in Tanzania.  He did not know whether his family were dead or alive.  At the age of 12, the respondent was granted refugee status in Australia and brought to Adelaide.  He was housed in various foster homes until he turned 18.  He obtained citizenship in 2007.  In 2012, he discovered that his mother was alive in the Congo with two of his younger brothers and one sister.  He discovered that three of his siblings had died - one died fighting in the war and the other two were murdered during a robbery.  The whereabouts of his other siblings remains unknown.

22. When the respondent first arrived in Adelaide he could only speak Swahili, French and Lingala.  He proved to be a fast learner, attended high school and completed year 12.  He completed a number of courses including a Certificate II in bricklaying, Certificate IV in English proficiency, Certificate III in business management and administration, a diploma in building construction and a certificate in logistics and transportation work.  Since finishing school he has also worked casually at a potato farm, a chicken factory and as a taekwondo instructor.

23. In 2016, the respondent began a Bachelor of Aviation at the University of South Australia with a view to becoming a commercial aviation pilot.  These convictions are likely to preclude the respondent from ever working as a pilot.[14]

    [14]   Subclauses 11.055(4)(e) and (i) of the Civil Aviation Safety Regulations 1988 (Cth) respectively provide that the Civil Aviation Safety Authority may consider “the applicant’s history, if any, of serious behavioural problems” and “any other matter relating to the fitness of the applicant to hold the authorisation” when determining whether to grant the relevant authorisation to work as a pilot.  These clauses were brought to the Judge’s attention.

24. The respondent is currently single and is in good physical health with no drug, alcohol or gambling issues.  He has no prior convictions.

    Materials before the Judge

25. Various materials were provided to the Judge at different stages in the proceedings.

    Psychological reports

26. Dr Jack White, a forensic psychologist, concluded in a report dated 12 July 2016 that the respondent did not satisfy the criteria for a paedophilic disorder.  Dr White noted that the respondent did not report any sexual interest in a prepubescent child or children.  The respondent did not report that he had acted on any sexual urges or that sexual urges or fantasies have caused him distress or interpersonal difficulty.  There was no evidence of any contact involvement of the respondent with children.

27. While the respondent did not satisfy the criteria for a paedophilia disorder, Dr White concluded that he satisfied several DSM-5 diagnoses being Post Traumatic Stress Disorder (‘PTSD’), Adjustment Disorder with Depressed Mood and Mixed (Paranoid/Borderline) Personality Disorder.  Dr White also reported that the respondent had limited trust in other people.  Although he was quite distressed and acutely aware of his need for help, his low energy level, tension and withdrawal made it difficult for him to engage in treatment.

28. In relation to the offending, Dr White opined that it is likely that the respondent’s offending was “more related to him obtaining materials by chance that were unfamiliar to him from his cultural perspective, and which he sought to look at and “research” from a novelty perspective.”  Dr White concluded that the respondent was at minimal risk of reoffending but that he ought to be reviewed by staff at Owenia House to determine whether there were any appropriate programs that could assist him.

29. Dr White provided an addendum report dated 7 September 2016.  The addendum report was provided after the Director requested a further opinion from Dr White based upon the assumption that the respondent had a sexual interest in the CEM found in his possession.  Dr White noted that at the time of the previous assessment he was not specifically aware of the extent of the material held by the respondent.  He noted that the majority (or 85.6%) of images were category 1 images and 10.9% of the images were category 4 images.

30. In Dr White’s opinion, the additional information did not indicate any new or other diagnosis.  Were a diagnosis of “paedophilic disorder” to be considered, it would require the following diagnostic criteria to be satisfied:

    A.[O]ver a period of at least six months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviours involving sexual activity with a prepubescent child or children (generally aged 13 years or younger).

    B.The individual has acted on these sexual and urges [sic], or the sexual urges or fantasies cause marked distress or interpersonal difficulty.

    C.The individual is at least 16 years and that these [sic] five years older that the child or children in criteria A. 

31. In Dr White’s opinion there was insufficient evidence to establish that these criteria were met.  Dr White also made the following commentary on the literature surrounding child exploitation material on the internet: [15]

    In a recent meta-analysis study by Babchisin et al (2015) it was estimated that approximately three quarters of men and half of women have intentionally viewed pornography over the internet. Of these, they estimated 13% of adults would have viewed child pornography material. Based on conservative Australian population figures, this would indicate that approximately 8.8 million Australian Adults [sic] will have viewed child pornorgraphy [sic] at some stage. It is conservatively estimated that around 10% of internet pornography users can be identified as being clinically addicted, which in an Australian context, would equate to 880,000 addicts or around 5% of the Australian adult population.

    (Footnotes omitted)

    [15]   There is an obvious arithmetical error in Dr White’s calculations.  Dr White has apparently taken the adult population of Australia to be about 17.6 million. That is approximately correct.  The estimate that three quarters of men and half of women have intentionally viewed internet pornography suggests that about 11 million Australians had done so.  If 13% of these 11 million viewers looked at CEM, that would amount to 1.43 million viewers rather than the 8.8 million suggested by Dr White. Leaving aside the arithmetical error, I do not know whether the research referred to by Dr White is reliable.  While I very much doubt the contention that the number of viewers of CEM in Australia is 1.43 million, the figure of 8.8 million is plainly wrong.  Even if Dr White’s sources are correct, frequency does not diminish the serious criminality involved.

32. Later in his addendum report, Dr White offered a further opinion about the literature surrounding child exploitation material on the internet as applied to the respondent:

    … [R]esearch involving child pornography as a sub-group of “pornography” is gaining more attention because there is an increase in the number of people who have reported “pornography addiction problems”.

    A conservative estimate, from an Australian perspective, would indicate that around 5% of the total Australian adult population have a “pornography addiction”, and within this group a large proportion have accessed child pornography. To pathologise this problem as being reflective of a predilection to paedophilia is a dangerous inference.

    In the majority of case it would appear that adults accessing “legal pornography” also access “illegal pornography” – i.e. child pornography.

    In my opinion this was the case in Mr Chunza’s offending.

1. It is important to note that both of Dr White’s reports were prepared prior to the discovery of the respondent’s later offending in October 2016.  No further psychological report was sought or provided after the later offending.[16]

   [16]   Whilst the respondent attended some sessions with a forensic psychologist, Mr Elmer, no formal report was ever provided.

   Information with respect to rehabilitation options

2. The Rehabilitation Programs Branch of the Department for Correctional Services (‘DCS’) informed the respondent’s solicitor of the various sexual offender rehabilitation programs offered by DCS.  Subsequently, the DCS advised the Judge that the respondent was precluded from the DCS Sexual Behaviour Clinics as his offences are non-contact sexual offences.  As an alternative, if a non-custodial sentence were to be imposed, a CEM program offered at Owenia House may be suitable.  The DCS recommended that the respondent should be supervised by Community Corrections for a minimum of 12 months to enable the initial referral and assessment to be conducted so as to determine the appropriate treatment program.  That could be followed by monitoring of the respondent’s attendance and progress.

3. On 4 July 2017 the Forensic Mental Health Service at James Nash House advised that the respondent would only be accepted for treatment at Owenia House following sentencing.  Upon referral he would be assessed.  If found suitable the respondent could not be accepted into a program until a vacancy occurs.

   Home Detention Order Suitability Report

4. A home detention order suitability report was provided to the Judge.  The report writer noted that the respondent had been reluctant to discuss his offending.  He had informed the writer that he did not wish to contradict what he said to his lawyer, despite having already pleaded guilty to the offences.  He denied the offending, explaining that, with respect to the earlier offending, he had been sharing his flat for a period of time with an associate and that it was the associate who had downloaded the material onto a SD card and then subsequently the electronic devices.  The respondent also denied the later offending, stating that he did not download the images.

5. The report writer noted that respondent’s criminogenic needs are “cognitive distortions and criminal/anti-social attitudes”.  However, due to the respondent’s level of denial or minimisation it is difficult to gauge specific criminogenic needs.  The writer noted the respondent struggled to be honest and open.  The respondent reported that he struggles with trust generally and in particular in relation to professional people.  The writer noted that these trust issues may be due to his experiences of trauma as a child and also cultural issues.  The writer noted that the respondent’s trust issues may pose some barriers in terms of undertaking future treatment and or counselling.  Nevertheless, the respondent agreed to attend an assessment at Owenia House for the purpose of possible referral to a “Sex Offender Treatment” program.  That referral was organised by the writer.

6. In terms of non-criminogenic needs, the respondent reported he had stable housing and studies full time at University.  Additionally, the respondent attends a Christian church three times per week.  He reported no mental health issues and does not take any medication.

7. The report writer considered that the respondent’s residence was suitable for home detention with electronic monitoring and he was suitable for home detention.  However, in a somewhat contradictory statement, the writer noted that DCS has significant concerns about his suitability for home detention given that the subject offending had occurred at his home.

8. At the request of counsel, the Judge adjourned the sentencing proceedings to enable the respondent to seek more specialised professional help.  His Honour requested a further progress report which was received on 13 October 2017.  The report writer noted that the respondent had attended supervision appointments as required and had been referred to a forensic psychologist, Mr Robert Elmer, for treatment.  As at the date of the progress report the respondent had attended two sessions.  However, because he was on bail, he could not be assessed at Owenia House to determine his suitability for a sex offender treatment program.

9. The report writer reiterated that the respondent struggles with trust and being open about his personal issues and legal matters.  She further noted that the respondent experienced feelings of stress and anxiety caused by these charges and uncertainty about his future.  To that end, the writer suggested that the respondent could make further positive progress if the matter were concluded.  Furthermore, a supervised order would allow the respondent time to engage in long-term psychological treatment and his possible inclusion in the Owenia House programs.

   Letter of Apology

10. The Judge was also provided with a letter of apology from the respondent.  While the respondent apologised for his actions, he appeared to demonstrate a lack of insight into the serious nature of the offending and did not acknowledge the victims of CEM.  For example, he stated in the letter “[i]t was not my intention to create such an awkward and embarrassing situation for myself”.

    The sentencing remarks

11. The Judge held in relation to counts 7 and 8 of the earlier offending, that the respondent’s pleas entitled him to a sentencing discount of up to 10%.[17]  In relation to counts 11, 12, 13 and 14 of the earlier offending and counts 1 and 2 of the later offending, the respondent’s early pleas entitled him to a sentencing discount of up to 30%.

    [17]   I have adopted the numbering of the counts as they appear in the Informations.

12. The Judge noted that some of the children depicted in the images were infants. Some material involved children between the ages of three and 10 years old performing various sexual acts on adults, and sexual acts, including penetration, being performed upon them.

13. The Judge referred to the respondent’s explanation for the earlier offending and observed that the images were repeated across multiple devices because the respondent backed up his files on his hard drive and used the USBs to transfer files.  It was common ground that there was repetition of many of the images across multiple devices.

14. The Judge also referred in detail to the respondent’s history, and in particular, his traumatic childhood.  His Honour noted that the offences are likely to prevent the respondent from obtaining a pilot’s licence.

15. The Judge stated he had difficulty accepting the suggestion that the respondent had no interest in images showing sexual activity, given the accumulation and nature of the images, some of which depicted very young children subjected to serious forms of sexual abuse.  This difficulty was compounded by the later offending in 2016.  In his Honour’s view, that offending negated the opinions expressed by Dr White about the respondent’s sexual interest in children and the question of whether he satisfies the criteria for a diagnosis of paedophilic disorder.

16. The Judge noted that counsel had confirmed that the respondent’s progress with the forensic psychologist, Mr Elmer, had been limited.  Mr Elmer had apparently expressed the opinion that given the limited progress made, he did not feel it would be of assistance for the respondent to continue sessions with him.  He also agreed with Dr White’s assessment that the respondent suffered from undiagnosed PTSD.  He said that issue needed to be addressed, quite apart from, and in addition to, the issues related to the present offending.

17. The Judge noted the importance of general and personal deterrence in sentencing for offending of this kind.  His Honour also observed that commission of further similar offences while on bail required personal deterrence to assume greater weight.

18. In relation to counts 7 and 8 of the earlier offending, the Judge indicated that but for the guilty plea, he would have sentenced the respondent to a single penalty of imprisonment for one year and three months.  Instead, the sentence would be one of one year and two months.

19. In relation to counts 11, 12, 13 and 14 of the earlier offending, the Judge indicated a starting point of imprisonment for one year and nine months but reduced that to one year and three months on account of the guilty plea.  The sentences for counts 7 and 8 and counts 11, 12, 13 and 14 were to be served concurrently.

20. In relation to counts 1 and 2 of the later offending, the Judge indicated starting point of imprisonment two years and six months but reduced that to one year and nine months in recognition of the guilty plea.  That sentence was to be served cumulatively on the sentences imposed for the earlier offending.  Thus, the total head sentence was imprisonment for three years.  A non-parole period of 18 months was fixed.

21. The Judge noted that the seriousness of the respondent’s offending including the nature and the quantity of the material, the age of the children involved, the gravity of the sexual activity involved and the fact that the later offending was committed whilst on bail militated against suspension.  However, his Honour also took into account the respondent’s lack of criminal record, the traumatic circumstances of his upbringing, his history of employment and his further studies.

22. The Judge observed that the respondent clearly requires intensive sexual offender rehabilitation, in particular by way of specialised treatment through Owenia House and psychiatric treatment for his other mental health issues.  His Honour noted that treatment for offending of this nature is not currently available in the prison system. After balancing those factors, his Honour concluded that suspension was appropriate as the interests of the community would be better served by the respondent undergoing rehabilitation, rather than serving an immediate custodial sentence.

23. As a condition of the suspension, the Judge required that the respondent enter into a good behaviour bond in the sum of $2,000 for two years, during which time he was to be under the supervision of a community corrections officer and to obey the directions of that officer as to any sexual offender treatment and psychological or psychiatric assessment.  The respondent was also prohibited from using a computer, smart phone, or any other means of access to the internet except for the purposes of formal study or paid employment.  He was also required to complete 120 hours of community service within the first six months of his bond.

    Ground of appeal

24. The only ground of appeal is that the Judge erred in suspending the sentence of imprisonment.

    The applicant’s submissions

    Permission to appeal

25. The Director submits that the suspension of the sentence has resulted in a manifestly inadequate sentence which does not properly serve the purpose of punishment.  There are strong public policy reasons which demand that permission to appeal be granted, notwithstanding the public interest in ensuring the respondent is not twice vexed.  The Director further contends that permission should be granted in order to maintain adequate standards of punishment for offences of possessing CEM.

26. The Director submits there was no good reason to suspend the sentence.  The offending was not isolated and it involved a significant amount of material.  The later offending was aggravated by the fact it was committed whilst the respondent was on bail.  Furthermore, the Director submits the respondent’s apology was “hollow”.

27. The Director further contends that the respondent’s prospects of rehabilitation were “extremely dubious”.  Despite the sentencing process being adjourned to “allow a process of rehabilitation to be undertaken”, the Director submits that no progress was made.  The Director also submits this is not a case where the respondent’s personal circumstances could justify suspension.

28. Lastly, the Director acknowledges that double jeopardy principles are relevant to the question of permission.  However, it is submitted that this case lacks significant features of the type which have previously been held, in combination, to result in an unjust result if a Crown appeal were to be allowed.

    The appeal

29. The Director submits that the appeal should be allowed despite the Court’s discretion to dismiss the appeal if permission is granted.  The factors relevant to the exercise of the discretion are the same double jeopardy considerations relevant to the grant of permission.  To that end, the Director contends that the decision to suspend was so unreasonable so as to justify intervention by this Court.  The need to maintain adequate standards of punishment and to correct a sentence that is disproportionate to the seriousness of the offence outweighs all double jeopardy factors which militate against allowing the appeal.

    The respondent’s submissions

    Sentencing standards for matters involving child exploitation material

30. The respondent notes that the sentencing standards for matters involving child exploitation material were determined by this Court in R v Padberg.[18]  The respondent contends that the offending in Padberg is distinguishable from the present case.  The sentencing standards decided in Padberg do not preclude a wholly suspended sentence.  Moreover, the existence of some materials in the most serious categories does not, of itself, necessitate an immediate custodial sentence.

    [18] (2010) 107 SASR 386.

31. Counsel for the respondent submits that the respondent’s personal circumstances place him in a different category to other similar offenders.  Despite his traumatic childhood and unaddressed PTSD, the respondent has succeeded in learning English, obtaining gainful employment and embarking on tertiary education.  His adversities fall outside the realm of most offenders and permit the Court to extend leniency to him, particularly as a first offender.

32. The lack of progress with rehabilitation must be considered in the context of the respondent’s PTSD, which limits his ability to engage in the counselling process.  Treatment for his PTSD is likely to only be available to him in the community and would permit him to benefit from more focussed sexual offending rehabilitation in the future.  It is therefore inaccurate for the Director to contend that the respondent’s rehabilitative prospects were “extremely dubious”.

33. Counsel for the respondent confirmed that the respondent had completed all 120 hours of community service and was continuing his university course in civil aviation.  The Court was also informed that the respondent’s community corrections officer had requested an appointment with Owenia House for the respondent to complete a program there and was still awaiting a response.  However, the respondent had not yet sought any psychological assistance for his PTSD.

    Double jeopardy

34. The respondent notes that in order to succeed in its application, the Director must establish that this is a rare and exceptional case, the circumstances of which justify jeopardising the respondent’s liberty for a second time.

35. 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.

    Consideration

    Receipt of further DCS report

36. 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

37. 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.

38. 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

39. Whether a sentence of imprisonment imposed for CEM offences should be suspended has been considered by this Court on many occasions. The leading authority is R v Padberg.[22]

    R v Padberg

    [22] (2010) 107 SASR 386.

40. The defendant in Padberg pleaded guilty to one Commonwealth offence of using a carriage service to access child pornography and one State offence of possession of child pornography.[23]

    [23]   Criminal Code (Cth), s 474.19(1)(a)(i); Criminal Law Consolidation Act 1935 (SA), s 63A(1)(a).

41. Over a two-year period the defendant had downloaded images and videos from the internet depicting CEM.  A sample of 798 images and 287 videos were analysed and classified according to the COPINE scale,[24] although the total amount of material was substantially more than that analysed.  The sample included material classified in all categories.  The majority of the sample images were classified as category one, i.e. depicting erotic poses of children with no sexual activity.  The majority of the sample videos were classified as category four, i.e. images depicting penetrative sexual activity between children and adults.  The material depicted girls and boys ranging in age from about nine months to about 14 years.  Having viewed some of the material the sentencing Judge described it as “shocking and abhorrent” and involving “perverted and criminal conduct of the most serious kind”.

    [24]   Combating Paedophile Information Networks In Europe

42. When sentenced the defendant was aged 26 years.  His background was described as “unexceptional” although he had been diagnosed with anxiety disorder and depression before the offending was detected.  He cooperated with police, made full admissions and pleaded guilty at the earliest stage.  He did not seek to distribute or profit from the material, nor had he paid for it.  Psychological evidence suggested that while he may have sexually deviant tendencies, he was in the early stages of paedophilic disorder and was amenable to rehabilitation.  He did not suffer from “entrenched denial” and had family support.  His anxiety disorder was also being treated.

1. The defendant was sentenced to imprisonment for 16 months on the Commonwealth offence with an order for immediate release under recognisance.  He was sentenced to imprisonment for 12 months with a non-parole period of six months for the State offence.  That sentence was suspended.  Both the Commonwealth and State Directors appealed against sentence on the grounds that the orders for immediate release and suspension resulted in a manifestly inadequate sentence.

2. When considering the appeal Doyle CJ observed:[25]

   It is clear that there is an international market in child pornography, as well as a market within Australia. Those who are part of the market for this material share the responsibility for what is done to the children depicted. The creation and dissemination of child pornography material is a serious social evil, and those who acquire and use such material must be held accountable for the part that they play in the persistence of this social evil. When sentencing offenders, general deterrence must be given a high weighting. The prevalence of child pornography material, and its availability through the internet, mean that potential users of such material must be warned that, if detected, they will be punished most severely.

   Offences of this kind will usually require a custodial sentence and will usually call for a period of imprisonment to be served. I mean offences of the kind charged, committed over a significant period of time, involving a substantial amount of pornographic material and involving child pornography of the most serious kind. I am not referring to offences of this kind when payment is made by the offender for the material, nor when the offender has distributed the material to others, either freely or in return for payment. If those matters are present, they are likely to raise the offending to another level of seriousness. For offending of the present kind a period of imprisonment to be served will ordinarily be appropriate even though the offender has pleaded guilty and has no previous convictions. That is not to say that a wholly suspended sentence can never be appropriate in such cases. Each case has to be considered on its own facts.

   [25]   R v Padberg (2010) 107 SASR 386 at [21]-[22].

3. Doyle CJ noted there was no process error in the Judge’s reasons.  Nevertheless, his Honour concluded that a wholly suspended sentence was not warranted and the need for deterrence outweighed the personal factors which supported suspension.  However, Doyle CJ was not prepared to intervene merely because error was demonstrated:[26]

   But on an appeal against sentence by the Director of Public Prosecutions, the court does not intervene merely because error is demonstrated. There are two particular reasons why the court should not intervene in the present case. First, although I consider, with respect, that the Judge erred, the error was in the exercise of a discretion which is a wide one, and the result is one that could be supported by reference to some of the decided cases. As well, the court is reluctant to imprison a first offender who was set at liberty by a sentencing Judge, even though error has occurred.

   For those reasons I consider that in the present case it suffices to grant permission to appeal, but to dismiss the appeal.

   [26] Ibid at [34]-[35].

4. In dissent, Kourakis J (as he then was) held that the error by the Judge called for appellate intervention.  His Honour would have allowed the appeal and made orders which effectively required the defendant to serve at least five months imprisonment.  In doing so, Kourakis J considered that a policy of deterrence must be the paramount consideration and in this case it outweighed all considerations personal to the defendant.  Kourakis J echoed many of the observations made by Doyle CJ and in particular commented:[27]

   The abuse of children in that way, wherever in the world it occurs, cannot be tolerated. The global distribution network provided by the internet is likely to have increased the abuse of children worldwide. I accept that in a sense the enormous volume of material accessed by the respondent loses some of its significance as a measure of the depravity of his conduct because of the quantity of material available which can be accessed and the ease with which it can be downloaded through the internet. On the other hand, the enormity of the material downloaded by the respondent, and the even greater morass of material available through the internet, is an indication of the extent of the global abuse of children to which I have referred.

   Everyone who accesses child pornography gives a reason for, and in that sense encourages, the continued abuse of young children. The authorities to which the Chief Justice has referred emphasise the paramount importance of deterrence. The application of that legal policy should not be delayed. Unfortunately many offenders against these statutory provisions will present with pathetic personal circumstances. If leniency is extended to all, or many, of the offenders with similar personal characteristics, it will not be possible to implement a policy of deterrence as the paramount consideration. It is for that reason that many authorities recognise the relatively reduced scope to extend leniency on the basis of an offender’s personal circumstances. In the face of the paramount importance of deterrence, few offences committed by accessing and possessing images in the most serious two categories are ever likely to be committed in circumstances which warrant a complete suspension of the term of imprisonment which must, almost invariably, be imposed.

   [27] Ibid at [41]-[42].

5. In several cases subsequent to Padberg involving possession or downloading of CEM this Court has found that the circumstances of the offender were exceptional and thereby warranted suspension of the sentence of imprisonment.

   R v McGaffin

6. In R v McGaffin the number of images was relatively small (i.e. 71) but the content was particularly abhorrent. [28]  The defendant was aged 22 years and had become addicted to CEM as a result of inadvertently coming across such material when aged 12 years.  After the offences were detected he had readily and promptly engaged in psychological treatment which was considered to be successful.  The sentencing Judge proceeded without recording a conviction and released the defendant on a three year good behaviour bond.

   [28] [2010] SASCFC 22.

7. White J, with whom Doyle CJ agreed, considered that CEM offences usually require a sentence of imprisonment but there may be occasional rare cases that provide an exception.[29]  The majority found that the Judge did not err in failing to impose a sentence of imprisonment.  However, they found the Judge erred by failing to record a conviction.  Gray J agreed with White J and Doyle CJ in holding that the Judge had erred by failing to record a conviction.  However, Gray J considered that a sentence of imprisonment ought to have been imposed.

   R v Hill

   [29] Ibid at [64]-[66].

8. In R v Hill the defendant appealed against a decision not to suspend the sentence imposed for aggravated possession of child pornography.[30]  He had stored 11,811 images that included material at the lesser and higher end of seriousness on the COPINE scale.  He was aged 21 years, lived with his parents and shared the primary care responsibilities for his disabled father (that being the subject of fresh evidence).  Psychological reports indicated his willingness to participate in sexual offender treatment.  He had already been imprisoned for three months when the appeal was decided.

   [30] (2011) 110 SASR 588.

9. Sulan J (with whom Gray and Stanley JJ agreed) applied Padberg and McGaffin and held that, whilst a custodial sentence is almost an inevitable result of this type of offending, the circumstances of the defendant’s case were rare and exceptional.  A key consideration was the hardship caused by imprisonment caused to the defendant’s family due to loss of his services as a carer.  Other factors included his youth, his awareness of the wrongfulness of his actions and his openness to rehabilitation.  Sulan J also questioned the utility of an immediate custodial sentence where a person requires psychological treatment.  The appeal was allowed.  The sentence was suspended and an adjustment made for time served in custody.

   Manifest inadequcy

10. The preceding authorities indicate that, in the absence of compelling personal circumstances or other special features, an immediate custodial sentence is ordinarily required for CEM offences.  The difference in opinion between the majority and Kourakis J in Padberg and the majority and Gray J in McGaffin point to the practical difficulty in applying that principle.  That is largely because reasonable minds may differ as to the weight to be given to personal circumstances and the paramountcy of deterrence in a particular case.  Of course, as Doyle CJ noted in Padberg, each case must turn on its own facts.[31]

    [31]   R v Padberg (2010) 107 SASR 386 at [22].

11. The Director has not suggested any process error by the Judge.  Indeed, the only relevant question before the Judge was whether there was “good reason” to suspend the prison sentence.[32]  The Director contends that the need to maintain adequate standards of punishment and the seriousness of the offending indicate that suspension was outside the range of permissible dispositions, even after taking into account the respondent’s personal circumstances.  In other words, an outcome error has occurred as the decision to suspend the sentence demonstrates manifest inadequacy.[33]

    [32]   Criminal Law (Sentencing) Act 1988 (SA), s 38(1).

    [33]   R v Dinsdale (2000) 202 CLR 321 at [6], Gleeson CJ and Hayne J; R v Lutze (2014) 121 SASR 144 at [49], Vanstone and Parker JJ.

12. The respondent’s offending involved a large number of images. The earlier offending involved 1,170 images. Of these images, 892 depicted children under the age of 14 years.  The later offending related to 611 images and 147 videos. Of those, 426 images and 117 videos depicted children under the age of 14 years.  The majority of images and videos were categorised as category one.  However, a not insubstantial number were classified as categories four and five - the most serious categories.  Some of the material involved children between the ages of three and ten years performing sexual acts with adults, including penetration.  Against that I also note that there were multiple copies of the same images contained in several devices.  To that extent the total number of images is overstated, although that does little to diminish the criminality involved.

13. Whilst the respondent did not share the material or derive any commercial benefit from it, the substantial volume of material, the nature of the sexual activity portrayed and the youth of the children depicted indicates that the offending was objectively very serious.  Furthermore, the respondent’s later offending is aggravated by the fact that it occurred whilst he was on bail for offending of the same kind.[34]  In this respect, specific deterrence assumed particular significance.  Moreover, limited weight must be given to prior good character when sentencing for offending of this type because such offences are frequently committed by persons of otherwise good character.[35]

    [34]   R v Perdikoyiannis, Condo and Peabody [2011] SASCFC 82 at [90], White J, citing R v Gray [1977] VR 225 at 229, McInerney and Crockett JJ.

    [35]   R v Gent (2005) 162 A Crim R 29 at [64]-[65], Johnson J; R vMcGaffin [2010] SASCFC 22 at [18], Gray J.

14. The Judge noted that the psychological reports prepared by Dr White provided him with little assistance.  At least in part, that is because Dr White was not asked to express a further opinion after the later offending came to notice.  However, like the Judge, because of the volume of material (while recognising there was duplication) and the further offending while on bail, I cannot accept Dr White’s opinion that because of the cultural unfamiliarity of the images the respondent was conducting “research” and saw the images and videos as a novelty after finding them by chance.

15. Notwithstanding my conclusion on that issue, Dr White’s view that the respondent suffers from a lack of trust and has difficulty in engaging with others is consistent with the views expressed in the DCS reports, particularly as to his difficulty in engaging with professional people.  Dr White also reported that the respondent’s low energy level, tension and withdrawal make it difficult for him to engage in treatment even though he is quite distressed and aware of his need for help.  I have no reason to doubt those findings.

16. While the extreme hardship and violent trauma suffered by the respondent in his childhood and youth, and his loss of any family support from an early age, are not obviously linked to the present offending, it is apparent from Dr White’s first report that these factors explain the difficulties referred to in the preceding paragraph.  Notwithstanding these difficulties, Dr White reported that the respondent has adapted well to Australia and has focused on improving his skills and education.

17. The respondent’s offending is clearly quite serious, and in the absence of compelling special circumstances, would plainly require an immediate custodial sentence.  I consider that the respondent’s circumstances are sufficiently compelling and unusual to indicate that the Judge did not err by suspending his sentence of imprisonment.  The respondent experienced a very high level of deprivation as an unaccompanied child refugee but has managed to learn English, undertake various vocational training courses, find employment and gain entry to university.  He plainly has a clear and immediate need for psychological or psychiatric treatment to deal with his PTSD and other difficulties.  The opportunity for him to receive that treatment in prison is likely to be very limited.  He also has a clear and pressing need to undertake the CEM program at Owenia House.  That program will be available to him in the near future but only if he is not serving a custodial sentence.

18. I consider that his Honour did not err in concluding that the interests of the community are better served by the respondent undergoing rehabilitation, including sexual offender treatment and psychological and psychiatric treatment, rather than immediately serving a term of imprisonment with the result that he would have little or no access to the necessary treatment.

19. If the respondent receives the appropriate treatment, his achievements to date against overwhelming odds suggest that there is room for optimism that he can substantially overcome the ongoing effects of past trauma, cease offending, complete his studies and become a productive member of society, even if his chosen career as a pilot is no longer open to him.  Immediate imprisonment is very likely to frustrate that rehabilitative process and be counter-productive.  Importantly, in that context, the Owenia House assessment indicates that the respondent is at a low risk of reoffending.  I also note that he has complied fully with community corrections requirements over the past six or seven months and promptly completed his community service obligation.

20. I expect that the community corrections staff assigned to supervise the respondent will be particularly diligent in ensuring that he complies with their directions about undergoing appropriate treatment, whether at Owenia House or elsewhere.

21. 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

22. 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.