R v Clarke (No 2)

[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, considered.

R v CLARKE (No 2)
[2008] SASC 173

Court of Criminal Appeal         Gray, White and David JJ

GRAY J.

1. This is an appeal against sentence. 

   Introduction

2. The appellant, Rebecca Jane Clarke, was convicted of the offences of producing child pornography contrary to section 63(a) of the Criminal Law Consolidation Act 1935 (SA)[1] and of inciting a child to commit an indecent act contrary to section 63B(1)(a) of the Criminal Law Consolidation Act,[2] following a trial by judge alone.[3] 

   [1] Section 63(a) of the Criminal Law Consolidation Act 1935 (SA) provides that a person who “produces, or takes any step in the production of, child pornography knowing of its pornographic nature” is a guilty of an offence. The maximum penalty for this offence is imprisonment for 10 years, or 12 years where the offence is aggravated.

   [2] Section 63B(1)(a) of Criminal Law Consolidation Act 1935 (SA) provides that a person who “incites or procures the commission by a child of an indecent act” is guilty of an offence. The maximum penalty for this offence is imprisonment for 10 years, or 12 years where the offence is aggravated.

   [3]    R v Clarke [2007] SADC 128.

3. The Judge sentenced the appellant, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), to the one term of imprisonment of 12 months with a non-parole period of eight months. The sentence was suspended on the appellant agreeing to enter into a two-year good behaviour bond. The maximum penalty for each offence was a term of imprisonment for 10 years. Parliament did not fix any minimum punishment for either offence.

4. The appellant, with two others, filmed two 14-year-old girls engaged in acts of indecency, including an act of real or simulated cunnilingus.  As a result, the three were jointly charged with the offences of producing child pornography and inciting a child to commit an indecent act.  The two co-accused pleaded guilty to these two charges, as well as to other serious offending arising from the same incident.  Both admitted that they were aware that both girls were under 17 years of age. 

5. The appellant acknowledged that the film had been produced and that she was aware of its pornographic nature.  She accepted that she, with her co-accused, incited the two girls to commit the indecent act.  Her defence was that she had been led to believe the two girls were aged 17 years and that she formed that belief and held that belief honestly and reasonably.  This is a variation of the defence of honest and reasonable mistake of fact, also known as the Proudman v Dayman[4] defence.[5]

   [4]    Proudman v Dayman (1941) 67 CLR 536.

   [5]    For a discussion of the general operation of the Proudman v Dayman (1941) 67 CLR 536 defence see Vanderbergh v Police (2005) 44 MVR 1 at [28]-[34].

6. The Judge took the view that the defendant’s belief about the ages of the girls was not relevant to the appellant’s guilt or innocence to the charges.  He considered the offences to be offences of absolute liability.  He reasoned that both offences were proven:[6]

   I have already recorded verdicts of guilty of both offences.  I should add that, owing to [the appellant’s] admissions, I am satisfied beyond reasonable doubt that all elements of the offences have been proved.  In the circumstances of this case, it is not necessary for me to set out the particular directions which I have given myself.

   [6]    R v Clarke [2007] SADC 128 at [26].

7. In earlier proceedings in this Court the appellant challenged the convictions and the Judge’s conclusion that the offences were absolute offences.  This Court in Clarke[7] dismissed the appeal.  Doyle CJ reasoned:

   With some hesitation, I conclude that the District Court Judge rightly decided that the fact that [the appellant] honestly and reasonably believed the girls in question were 17 years of age was no defence to either charge under consideration.  I am influenced by the statutory language, the tendency in the CLCA to impose absolute liability (subject to strictly limited defences) in relation to the age element of offences in this and other related divisions of the CLCA, and by the fact that while my conclusion will mean that the provisions will operate harshly in relation to people such as [the appellant], the enforcement of the statutory scheme will be advanced by imposition of absolute liability.  The case now before the Court illustrates that the statutory scheme has the potential to produce harsh consequences.

   Bleby J reached a similar conclusion:[8]

   I do not overlook the fact that these offences are serious criminal offences and may, in some circumstances, attract very substantial penalties.  Nevertheless, I am persuaded that the Proudman v Dayman defence does not apply to these offences.  My principal reasons for so deciding relate to the object and purpose of the legislation – an object and purpose which would be significantly impeded if the defence were to apply.  I also place great reliance upon what I regard as the compelling wording and structure of the sections themselves as discussed by the Chief Justice.  I consider that my conclusion is supported by the significance of the subject matter of Div 11A and by the fact that this construction will promote rather than detract from observance of the relevant sections in this Division.  Accordingly, I would dismiss the appeal.

   [7]    R v Clarke [2008] SASC 100 at [59].

   [8]    R v Clarke [2008] SASC 100 at [105].

8. The trial Judge summarised the unchallenged background to the offending:

   [The appellant] and Ms Malyschko were friends.   They spent a Friday evening late in September 2005 drinking at clubs in Hindley Street.  At about 11p.m., Mr Osis arrived in his car to collect them.  With him were two girls who were then 14 years and 10 months and 14 years and 9 months old.  Osis and Ms Malyschko had known the girls for a few weeks but  Ms Clarke had not met them before.  The five of them drove to the flat which Osis and Ms Malyschko shared at Glenelg North.  There, there was music, drinking and dancing.  The dancing became overtly sexual.  Osis used a video camera to film it.  The camera also recorded what was being said.  After a while, all four females removed some of their clothing and there were various sexual acts which included the two young girls’ engaging in an act of actual or simulated cunnilingus.  That act is the indecent act the subject of the incitement charge and the film of the event is the pornographic material the subject of the other charge.

9. With respect to the matters advanced in defence of the charges, the Judge went so far as to find on the balance of probabilities that the appellant had an honest and reasonable belief that the girls were both aged 17 years:

   I am not going to deal with every piece of evidence.  I have considered them all and, as I have said, I have seen the film.  The girls could easily be taken to be 17.  I accept [the appellant’s] evidence that Ms Malyschko told her the girls were 17 and I found her explanations plausible.  I am not satisfied that the prosecution has proved [the appellant] knew the girls were under 16.  Nor am I satisfied that the prosecution has proved that she did not honestly believe on reasonable grounds that they were 17.  Indeed, I am satisfied on the balance of probabilities that [the appellant] honestly and reasonably believed that the girls were 17.  But her belief does not provide a defence because proof of knowledge of the girls’ ages is not required and the defence of honest and reasonable mistake of fact is not available.

10. When sentencing, the Judge noted that the appellant had no prior criminal record.  He then summarised the appellant’s antecedents:

    You … are nearly 24 and were 21 at the time you committed your two offences.  You grew up in a country town in New South Wales where you were brought up by your mother.  You completed Year 12 and left home at 18.  Eventually you came here to South Australia where your father and half-siblings were then living.  You obtained work here.  At your workplace you met and apparently fell in love with a much older man who was in a steady relationship with another woman and was the father of her children.  Despite your relationship with him, I gather he refused to leave his de facto partner.  Your relationship with him caused you much sadness and a great deal of anxiety.  You began drinking to excess and later you required treatment for alcoholism.  You met Ms Malyschko at your place at work.  She was sympathetic to your situation and it seems she was very supportive of you.  The two of you became friends.  The offences for which you have been found guilty were committed on the first occasion that you visited Ms Malyschko’s flat.  Subsequently you went there on three or four other occasions.  You did not ever see S there again.  On one of the occasions you saw M but on that occasion there were no sexual activities.

    I accept that you were at a very low emotional ebb at the time of your offending.  Had you not been drinking, I do not doubt that you would not have behaved in the way that you did.  I accepted your evidence at the trial that you believed the girls were 17 and I shall take that belief into account in fixing an appropriate sentence.  You are now in a steady relationship with your partner, living outside South Australia.  You seem to have got your life well back on the right track.  You are now 36 weeks pregnant, but I make it plain that I ignore the fact of your pregnancy when I sentence you.  You are doing some part-time study.  I have no reason to believe that you will offend in this way again, but, as I have said, your offending is serious.

    The Judge gave credit to the appellant for her acknowledgement of the facts and treated her as though she had pleaded guilty:

    I shall give you credit as if for pleas of guilty.  It is true that you did not plead guilty, but your defence raised an important point of law and you were entitled to take that point.  Although you pleaded not guilty and there was a trial, the trial was run as expeditiously as possible.

    The Judge continued:

    Had I not allowed you such credit, I would have sentenced you to imprisonment for 15 months on each of counts 3 and 4 and ordered that those sentences be served concurrently.  The sentence of the court is that you be imprisoned for 12 months and I fix a non-parole period of eight months.  Your counsel has asked me to suspend your sentence.  While I have accepted that you honestly believed the girls were 17, I do not regard that fact as being a basis for suspension in itself.  It is a fact, one fact, which I take into account.  Owing to your prior good record, the fact that these offences were out of character, that they were, in your case, isolated offences committed at a time when you were at a very low ebb in life, and because I think you have good prospects for rehabilitation, I have decided that there are good grounds to suspend the sentence, and I suspend the sentence upon your entering into a bond to be of good behaviour for two years.

    The Appeal

11. On appeal, counsel for the appellant submitted that in all the circumstances the sentence imposed was manifestly excessive.  It was submitted that the Judge had given inadequate weight to his findings that the appellant acted in the honest and reasonable belief that the girls were 17 years of age and that she had been misinformed about the girls’ ages by one of her co-offenders.  Had this been factually correct, no offence would have been committed.  It was argued that deterrence had no part to play in the sentencing process because there was no criminal intent on the part of the appellant.  It was further emphasised that the appellant was a first offender who had suffered significant punishment as a result of the publicity surrounding the trial and from her placement on the paedophile register. 

12. Counsel for the appellant further contended that there were a number of sentencing alternatives to which the Judge failed to have proper regard.  Attention was drawn to CMT[9] and to the observations of Howie J, when considering similar interstate legislation:

    The Crown submits that the fact of a person honestly mistaking the age of the child without any fault on his or her part can be taken into account on sentence even to the extent that, where there is no moral blame on the part of the offender, the charge could be dismissed without conviction: see R v Karaiskakis (1956) 74 WN (NSW) 457. But the offence is still an objectively serious one with a potential penalty of imprisonment for 10 years. The appellant points to the stigma and consequences that could follow a conviction regardless of the penalty imposed.

    It was contended that no convictions should be recorded and the appellant released without penalty.

    [9]    CMT v The Queen (2007) 171 A Crim R 371 at [138].

13. Counsel for the Director submitted that the sentencing Judge had appropriately balanced all relevant considerations and that the sentence imposed was well within the Judge’s sentencing discretion.[10]  However, counsel acknowledged that the appellant’s offending was at the lower end of the scale of seriousness.  In particular, and importantly, it was acknowledged that on the Judge’s findings the appellant had acted with the honest and reasonable belief that the victims were 17 years of age.  It was further accepted that a co-offender had misled the appellant about the victims’ ages. 

    [10]   House v R (1936) 55 CLR 499; Dinsdale v R (2000) 202 CLR 321; Markarian v R (2005) 228 CLR 357.

14. The conduct of the appellant continued for some time.  Although the Judge found she was mistaken as to the age of the two girls, they were in fact only 14 years.  The appellant did not directly question them as to their age, despite her awareness of the filming and the indecent behaviour.  Having regard to the nature of the offending, it would be inappropriate to proceed without recording convictions.

15. In my view, counsel for the Director was correct to concede that the offending was at the lower end of the scale of seriousness.  It is significant that the appellant’s state of mind was that she was producing pornography and inciting an indecent act involving two 17 year olds.  It is also an important factor that the appellant had only met the two victims that night, that they appeared to be over 17 years of age, that she was told that they were over 17 years of age and that her own conduct occurred while she was affected by alcohol and in a low emotional state.  As earlier observed, had the two victims been 17 years of age, no offence would have been committed. 

16. I agree with the earlier referred to observation in CMT.[11]  An honest and reasonable mistake as to the age of the two girls is a significant mitigatory factor.  This is particularly so given the findings of the Judge.  As Doyle CJ observed in Clarke,[12] the legislation can produce harsh results.  In an appropriate case relevant mitigatory circumstances may allow a court to ameliorate that harshness when sentencing. 

    [11]   CMT v The Queen (2007) 171 A Crim R 371.

    [12]   R v Clarke [2008] SASC 100 at [59].

17. 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

18. 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. 

19. 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.

1. 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.

2. 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.

3. The circumstances of the offences are set out in the reasons of Gray J. 

4. 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.

5. On the appellant’s evidence, which was accepted by the judge, that belief arose from information provided by one of her co-offenders.  That evidence was to the following effect.  On a Friday night in late September 2005, the appellant was drinking with her co-offender Malyschko at nightclubs in Hindley Street in the city of Adelaide.  Ms Malyschko was a work colleague whom she had known for approximately one month.  At about 11.00 pm they were picked up by the co-offender Osis.  He had the two victims with him in his car.  Ms Malyschko proposed that they should all go to the unit which she shared with Mr Osis at Glenelg North.  The appellant wished to go to nightclubs where they could dance.  Ms Malyschko said:  “We can’t, because these girls are only 17 and they won’t be allowed in the clubs”.  The appellant had not met the victims before.  Ms Malyschko’s statement that the victims were 17 was said in their hearing and was not contradicted by them.  The appellant accepted what she was told and agreed to go to the Glenelg North unit.  At that unit, her belief about the victims’ ages was reinforced by the make-up which they were wearing and by the very fact that they were out late at night drinking with adults.  The offences occurred in the early hours of the following morning. 

6. The appellant was cross-examined about these events and her belief but, as noted, the judge accepted that she did believe that the victims were aged 17.  The judge observed the two victims on the video and considered that they could easily have been taken to be 17.  The judge considered the appellant’s belief in this respect to be reasonable. 

7. The principal submission of the appellant on appeal was that the sentence imposed by the judge was manifestly excessive.  I agree, generally for the reasons given by Gray J, that that submission should be upheld.  I wish, however, to address two particular submissions of the appellant.

   The Significance of Honest and Reasonable Mistake of Fact on Deterrence in Sentencing

8. The appellant submitted that the principles of deterrence had no application to her sentence given the judge’s acceptance that she had, honestly and reasonably, believed the two victims to be 17 years old.  Counsel’s submission was that if the victims had in fact been aged 17 years, as the appellant believed them to be, no offence would have been committed.  How, it was asked, could the principle of deterrence have any application in such circumstances?

9. It was common ground that the appellant’s honest and reasonable belief about the ages of the two victims did reduce the culpability of her offending.  Her position was quite different from that of Ms Malyschko and Mr Osis, both of whom did know the actual ages of the victims.  The fact that the appellant had not known that she was committing an offence, and had not intended to commit an offence, was a very material consideration in sentencing.  It is probably not necessary to cite authority for that proposition, but the observations of Brennan J in He Kaw Teh v The Queen;[15] of Street CJ in R v Karaiskakis;[16] of Mitchell J in Harrow London Borough Council v Shah;[17] and of Clarke and Handley JJA in Hickling v Laneyrie[18] bear it out.

   [15] (1985) 157 CLR 523 at 567-8, 583.

   [16] (1956) 74 WN (NSW) 457 at 458.

   [17] [1999] 3 All ER 302 at 308.

   [18] (1991) 21 NSWLR 730 at 742.

10. It was appropriate for the appellant to be sentenced on the basis that if the facts were as she believed them to be, no offence would have been committed.  In other words, while her honest and reasonable mistake of fact may not have been relevant in the determination of her guilt of the offences, it was relevant to the determination of her sentence.  That did not mean (as the submissions of the appellant’s counsel implied) that she could be sentenced as though no offence, or no serious offence, had been committed at all. 

11. However, the reduced culpability of an offender who holds an honest and reasonable belief about facts which, if true, would mean that no offence has been committed does not mean that there is no scope for considerations of deterrence in the fixation of a sentence.  It will often be the case that persons who have acted honestly and reasonably could have done more to avoid committing the offence in question.  In these circumstances, the deterrent effect of a sentence will operate as an inducement to the particular defendant, and to the community generally, to take those extra steps.

12. Members of the community must be aware that the offences in question are to be viewed seriously.  Those who are minded to produce, possess or disseminate child pornography must know that it can be punished severely.  In this way, children are to be protected from the exploitation, degradation and humiliation which child pornography involves.  The sentences imposed upon defendants who participate in the production of child pornography, even when doing so under an honest and reasonable mistake, should operate to warn all members of the community of the need for vigilance in this area.  Those minded to engage in the production of pornography, especially involving young people, must appreciate the need to ensure that they do not involve children.

13. The point was made by Doyle CJ, with whom David J agreed, on the appellant’s appeal against conviction:

    The evil of child pornography is not confined to the exploitation of very young children.  Punishing persons like Ms Clarke will demonstrate the need for those who deal with pornographic material to take great care that persons under the age of 16 years are not involved.  It is feasible to take precautions.  It cannot be said that there is no point in imposing absolute liability, because those likely to be subject to that liability are unable to protect themselves by taking appropriate precautions.   I do not deny that there will be children who succeed in deceiving others as to their age.  Nor do I minimise the difficulty in obtaining appropriate proof in some circumstances.  However, there are sensible arguments connected with the enforcement of the statutory regime that support the imposition of absolute liability in relation to the age of the person involved.[19]

    To similar effect Bleby J, in the same case, said:

    As I have already observed, absolute liability for these offences will not punish accidental behaviour.  The behaviour in each case can be avoided.  Further steps than merely relying on what the offender was told or observed can be taken in order to verify a person’s age.  If the offender chooses not to take those steps, it will be in the knowledge of the possibility that the person is in fact under the age of 16.  The imposition of absolute liability for these offences would encourage greater vigilance to prevent the commission of the prohibited acts, and would therefore assist in enforcing the provisions of Div 11A.  It would not, as was argued by the appellant, create a class of what were described as “luckless victims”.[20]

    [19]   R v Clarke [2008] SASC 100 at [49].

    [20] Ibid at [103].

14. These passages indicate that each member of the Full Court took into account, in determining that the two offences were offences of absolute liability, that precautions could be taken to avoid “the possibility of the occurrence of the external elements of the offence”.[21]   This, in turn, was consistent with the approach taken by Lord Evershed in Lim Chin Aik v The Queen:

    But it is not enough in their Lordships’ opinion merely to label the statute as one dealing with a grave social evil and from that to infer that strict liability was intended.  It is pertinent also to inquire whether putting the defendant under strict liability will assist in the enforcement of the regulations.  That means that there must be something he can do, directly or indirectly, by supervision or inspection, by improvement of his business methods or by exhorting those whom he may be expected to influence or control, which will promote the observance of the regulations.  Unless this is so, there is no reason in penalising him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.[22]

    One of the purposes said to be served by the imposition of strict liability is that it encourages “greater vigilance to prevent the commission of the prohibited act”.[23] 

    [21]   He Kaw Tehv The Queen (1985) 157 CLR 523 per Brennan J at 567.

    [22] [1963] AC 160 at 174. See also Sweet v Parsley [1970] AC 132 at 163.

    [23]   Gammon Ltd v Attorney-General of Hong Kong (1985) AC 1 at 14.

15. The availability of action to avoid the commission of the offence provides scope for the sentence to have a deterrent effect in the present circumstances, both on the appellant herself and on members of the community generally.  The appellant could have inquired about the ages of the victims from the victims themselves, perhaps in the absence of Ms Malyschko and Mr Osis.  She could have made further inquiries of Ms Malyschko and Mr Osis.  She could have refrained from participating in the conduct comprising the offences until assured, absolutely, about the victims’ ages.  The appellant did not belong to that class of person described by Brennan J in He Kaw Teh to whom the penalties of the criminal law could not provide a deterrent, namely, a person who was unable to choose whether to engage in the conduct or not, a person who does not know the nature of the conduct which he or she may choose to engage in, or a person who could not foresee the results which may follow from that conduct.[24]

    [24]   He Kaw Teh v The Queen (1985) 157 CLR 523 at 567.

16. In my opinion therefore, the appellant’s submission to the effect that the principles of deterrence were of no application in the determination of her sentence should be rejected.

17. 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

18. 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).

19. 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.

20. 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.

21. 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

22. 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.

23. DAVID J.               I agree that the appeal should be allowed for the reasons given by Gray J. I also agree with the orders he proposes.