R v Clarke (No 2)

Case [2008] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CLARKE (No 2)

[2008] SASC 173

Judgment of The Court of Criminal Appeal

(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice David)

1 July 2008

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE

Appeal against sentence – appellant charged with producing child pornography (section 63(a) Criminal Law Consolidation Act 1935 (SA)) and inciting a child to commit an indecent act (section 63B(1)(a) Criminal Law Consolidation Act) – trial by judge alone – appellant claimed defence that she honestly and reasonably believed that the victims were aged 17 years at the time of the offending (Proudman v Dayman defence) – trial judge found on balance of probabilities that appellant honestly and reasonably believed that the victims were aged 17 years, but held that charges were “absolute liability” offences, such that Proudman v Dayman defence did not apply – finding upheld by Court of Criminal Appeal – appellant found guilty and convicted on both charges – suspended sentence imposed (12-month head sentence; 8-month non-parole period) and two-year good behaviour bond entered into – appellant appealed sentence on ground that sentence was “manifestly excessive” – whether trial judge failed to give adequate weight to the honest and reasonable belief of appellant.

Held, allowing the appeal, setting aside the sentence imposed by the District Court and re-sentencing the appellant:  sentence imposed was manifestly excessive – appellant’s honest and reasonable belief as to the age of the victims reduced the culpability of the offending and was a significant mitigatory factor in sentencing – trial judge failed to give adequate weight to appellant’s honest and reasonable belief – convictions should be recorded on both charges and appellant should be released on two-year good behaviour bond.

Child Sex Offenders Registration Act 2006 (SA) s 6(3), s 6(8), s 11, s 34, s 60(1) and s 65; Criminal Law (Sentencing Act) 1988 (SA) s 10(4a) and s 18A; Criminal Law Consolidation Act 1935 (SA) s 63(a) and s 63IB(1)(a), referred to.
CMT v The Queen (2007) 171 A Crim R 371; Dinsdale v R (2000) 202 CLR 321; Gammon Ltd v Attorney-General of Hong Kong (1985) AC 1; Harrow London Borough Council v Shah [1991] 3 All ER 302; He Kaw The v The Queen (1985) 157 CLR 523; Hickling v Laneyrie (1991) 21 NSWLR 730; House v R (1936) 55 CLR 499; Lim Chik Ain v The Queen [1963] AC 160; Markarian v R (2005) 228 CLR 357; Proudman v Dayman (1941) 67 CLR 536; R v Clarke [2007] SADC 128; R v Clarke [2008] SASC 100; R v Karaiskakis (1956) 74 WN (NSW) 457; Riggall v The State of Western Australia [2008] WASCA 69; Sweet v Parsely [1970] AC 132; Vanderbergh v Police (2005) 44 MVR 1,…

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R v Clarke (No 2) [2008] SASC 173
Case
[2008] SASC 173
Decision Date

CaseChat Overview and Summary

In the case of R v Clarke (No 2), the appellant appealed against the sentence imposed by the District Court, which convicted her of producing child pornography and inciting a child to commit an indecent act. The trial judge found that the appellant honestly and reasonably believed the victims were 17 years old, but the offences were absolute liability offences, so the defence did not apply. The appellant appealed the sentence, arguing it was manifestly excessive due to the trial judge’s inadequate consideration of her honest belief. The Court of Criminal Appeal allowed the appeal, finding the sentence was manifestly excessive and the judge failed to give adequate weight to the appellant’s honest belief. The convictions were upheld, and the appellant was re-sentenced to a two-year good behaviour bond.

The legal issues in this case centred on whether the trial judge appropriately considered the appellant’s honest and reasonable belief that the victims were 17 years old as a mitigating factor in sentencing. The Court had to determine if the sentence was manifestly excessive due to the trial judge’s failure to adequately weigh this belief and whether the imposition of absolute liability offences meant the defence did not apply. The appeal also considered the impact of the Child Sex Offenders Registration Act 2006 (SA) on the appellant's sentence, though the court ruled that these consequences could not be taken into account when determining the sentence.

The Court of Criminal Appeal concluded that the sentence imposed on the appellant was indeed manifestly excessive. The appellant’s honest and reasonable belief about the victims' ages was a significant mitigating factor that the trial judge did not adequately consider. The court found that the appellant’s criminal culpability was low because of this belief, and there was no real risk of reoffending. Consequently, the convictions were upheld, and the appellant was re-sentenced to a two-year good behaviour bond. The Court emphasized that the appellant’s unblemished record, her age at the time, and the influence of alcohol were also mitigating factors. The Court allowed the appeal, set aside the original sentence, and ordered the appellant’s release on a two-year good behaviour bond.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J (dissent) DAVID J
The appellant’s co-offenders were sentenced in respect of the above crimes as well as several other serious offences committed on the same occasion against the two victims. Both were sentenced to terms of immediate imprisonment. It is relevant to observe in respect of the two crimes of which the appellant was convicted that the co-offenders received a head sentence of only an additional three months to that imposed on the appellant. The co-offenders were both aware that their victims were aged 14 years. Their conduct involved a serious level of criminal culpability. They had the intent to engage in criminal conduct involving minors. Their position and knowledge stood in sharp contrast to that of the appellant.Conclusion I have reached the conclusion that in all the circumstances, the sentence imposed on the appellant was manifestly excessive. In my view, the Judge failed to give adequate weight to the earlier referred to honest and reasonable belief of the appellant and to the fact that she had been positively misled about the ages of the victims. This Court should set aside the sentence imposed. This Court should re-sentence the appellant. When re-sentencing, it should be emphasised that there are substantial mitigatory factors present in this case. The appellant had an unblemished record, was aged 21 years at the time, was at an emotionally low ebb and was affected by alcohol. As the Judge concluded, there was no real risk of any further offending. The appellant’s criminal culpability was low having regard to her honest and reasonable belief. The appellant should be convicted on both counts and released on a two-year good behaviour bond. I would allow the appeal and set aside the sentence imposed by the District Court. I would re-sentence the appellant. I would record convictions on both counts and release the appellant on a two-year good behaviour bond. WHITE J: The appellant was sentenced, with two others, for the offences of producing child pornography, contrary to s 63(a) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and of inciting a child to commit an indecent act, contrary to s 63B(i)(a) of the CLCA. The judge sentenced the appellant to imprisonment for 12 months with a non-parole period of eight months. That sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of two years. The circumstances of the offences are set out in the reasons of Gray J. The judge found,[13] and this Court confirmed,[14] that both offences are offences of absolute liability. Accordingly, although the judge was satisfied on the balance of probabilities that the appellant did honestly and reasonably believe that both victims were aged 17 (and therefore were not children), that belief did not provide a defence to the charges. However, when it came to sentencing, the judge said that he did take into account, in the appellant’s favour, her belief that the two victims were aged 17. [13] R v Clarke [2007] SADC 128.[14] R v Clarke [2008] SASC 100.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

This does not mean that deterrence need have the same significance in the determination of an appropriate sentence as it would when there had been no honest and reasonable mistake about the victim’s age. When a sentencing court is satisfied that an offender is respectful of the law, and has attempted to comply with it, it is plain that there is less need for the sentence to reflect considerations of deterrence.[25][25] Riggall v The State of Western Australia [2008] WASCA 69 at [45], [50]-[51].Child Sex Offenders Registration Act 2006 The appellant’s submissions emphasised the consequences of the sentence imposed by the judge arising under the Child Sex Offenders Registration Act 2006 (SA) (CSORA). The sentence has the effect that the appellant is a “registrable offender” (s 6(3) and s 6(8)) whose name must be entered on the Register of Child Sex Offenders (s 60(1)). The appellant is required to comply with the reporting obligations contained in s 11 of that Act and is subject to those obligations for a period of eight years (s 34). She is prohibited from participating in child-related work (s 65). Having regard to the judge’s findings about the appellant’s honest and reasonable belief, there may be a question as to whether this regimé is necessary in her case. It may be appropriate for a sentencing court to be given power to exempt an offender from the obligations arising under the CSORA in an appropriate case. However, the consequences for the appellant arising under the CSORA were not matters to which the judge could have regard in determining sentence. Section 10(4a) of the Criminal Law (Sentencing) Act 1988 (SA) specifically precludes a sentencing court having regard to the consequences which may arise under the CSORA. Accordingly, the judge did not err in declining to take those consequences into account. I accept, however, that even without regard to the consequences arising under the CSORA, the recording of convictions for the offences of producing child pornography and of inciting a child to commit an indecent act, constitutes, by itself, a significant punishment. That punishment arises from the community’s condemnation of these offences and from its disapproval of those who commit them. Knowledge of the appellant’s convictions is likely to produce adverse consequences for her for the remainder of her life.Conclusion For these additional reasons, I agree with the orders proposed by Gray J for the disposition of this appeal. I am able to do so in particular because of the finding by the judge that the appellant’s belief about the ages of the two victims was honest and reasonable. I agree that the appeal should be allowed for the reasons given by Gray J. I also agree with the orders he proposes.