R v DUROVKA

[2015] SASCFC 140

Supreme Court of South Australia

(Court of Criminal Appeal)

R v DUROVKA

[2015] SASCFC 140

Judgment of The Court of Criminal Appeal

(The Honourable Acting Chief Justice Gray, The Honourable Justice Vanstone and The Honourable Auxilliary Justice David)

18 September 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - GENERAL PRINCIPLES

The appellant pleaded guilty in the Magistrates Court to three child pornography offences:  aggravated possessing child pornography;  aggravated obtaining access to child pornography;  and obtaining access to child pornography.  The offences were aggravated by the fact that the material depicted children under 14 years of age.  The maximum penalties for the offences were seven years' imprisonment in respect of the first and second offences, and five years' imprisonment in respect of the third offence.

The appellant was sentenced to 16 months' imprisonment, reduced to 11 months for an early guilty plea.  The appellant was to serve three months of that term, with the remaining eight months suspended upon entering into a good behaviour bond for two years.

The appellant appeals against that sentencing, contending that the Judge's discretion miscarried and that the whole of the sentence should have been suspended.

The appellant sought to adduce fresh evidence in the form of a psychological report dealing with the difficulty of incarceration on the appellant due to diagnosed Asperger's syndrome.

Held, dismissing the appeal (David AJ, Gray ACJ and Vanstone J agreeing):

1.  The application to adduce fresh evidence is dismissed.

2.  Although the offending was classified as falling in the low to mid range, many of the images were of children under 14 years of age.  General deterrence was therefore important, and the sentence arrived at achieved a balance between general deterrence and a merciful approach in light of the appellant's Asperger's syndrome.  There was no error evident in the exercise of the discretion to partially suspend the sentence.

Criminal Law Consolidation Act 1935 (SA) s 63A(1)(a), s 63A(1)(b), s 359C; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38, s 38(2a), s 38(2c); Summary Offences Act 1953 (SA) s 7, referred to.
R v C (2004) 89 SASR 270, applied.

R v DUROVKA
[2015] SASCFC 140

Court of Criminal Appeal:       Gray ACJ, Vanstone J and David AJ

GRAY ACJ.

1. I would dismiss the appeal.  I do not wish to add to the reasons of David AJ.

2. VANSTONE J:     I would dismiss the appeal.  I agree with the reasons of David AJ.

3. DAVID AJ:           This is an appeal against sentence.

4. The appellant pleaded guilty in the Magistrates Court to three pornography offences. They were:

   ·Aggravated Possessing Child Pornography. (Section 63A(1)(a) of the Criminal Law Consolidation Act, 1935) (SA) (the Act).

   ·Aggravated Obtaining Access to Child Pornography. (Section 63A(1)(b) of the Act).

   ·Obtaining Access to Child Pornography. (Section 63A(1)(b) of the Act).

5. The maximum penalty for the first two offences is seven years imprisonment and for the third offence is five years imprisonment. The circumstances of aggravation for the first two offences are that the material which was the subject of the charges depicted children under the age of 14 years.

6. A judge of the District Court utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) imposed one term of imprisonment of 11 months, reduced from 16 months to give a benefit for the appellant’s early pleas of guilty. Further, the Judge ordered that the appellant serve three months of that term and the remaining eight months was to be suspended upon the appellant entering into a bond to be of good behaviour for a period of two years pursuant to s 38(2a) of the Sentencing Act.

7. The appellant now appeals against that sentence and argues that the sentencing Judge’s discretion miscarried and that the whole of the sentence should have been suspended.

   A preliminary issue

8. Before commencing her argument Ms Fuller, counsel for the appellant, made an application pursuant to s 359C of the Act that this Court receive further evidence on the appeal. That evidence was a psychological report (dated 11 August 2015) from a psychologist, Mr Luke Broomhall (the August report). An earlier report from Mr Broomhall, dated 2 April 2015, had been tendered at the sentencing submissions and was before this Court (the April report). The report which was the subject of the fresh evidence application was obtained only after permission to appeal in this matter had been granted. The object of the report was to canvas the appellant’s progress whilst in custody. According to Ms Fuller, the August report would have affected the exercise of the sentencing Judge’s discretion whether to partially or fully suspend the sentence.

9. In R v C,[1] Doyle CJ said in reference to the basis for introducing fresh evidence on appeal:

   That survey of the case law indicates that usually evidence of events occurring after sentence is passed is incapable of demonstrating an error by the sentencing judge that would enliven the power to set aside a sentence as erroneous, in exercise of the power conferred by s 353(4) of the CLCA. However, such evidence may establish that a matter that the sentencing court treated as material is now to be seen in a new light, or has a new significance, as a result of events occurring after sentence that were not anticipated and, usually, could not reasonably have been anticipated. In such cases, because the evidence of matters occurring after the passing of sentence will throw new and significant light on a matter relied on by the sentencing court, the evidence will be admitted and can be acted on: ...

   [1] (2004) SASR 270 at [32].

10. Ms Fuller argues that the April report of Mr Broomhall opines that the appellant would have difficulty coping with incarceration due to his diagnosed Asperger’s syndrome.  I will return to that matter later. In that report he said:[2]

    I would be particularly concerned about deterioration in Mr Durovka’s mental health should he be incarcerated related to the current charges. Further, his Autism Spectrum Disorder makes him a particularly vulnerable individual within a prison environment to a much greater degree than any “normal” individual who enters the prison system for the first time. In my opinion the successful reduction in Mr Durovka’s risk of similar future offending behaviour can be best undertaken with him residing in the community with rehabilitation intervention, as noted above, as well as continuing his current employment, which is seen as a protective factor against future offending behaviour.

    (Emphasis added)

    [2]    Appeal Book at 84 lines 32-39.

11. In the August report sought to be tendered before this Court Mr Broomhall said at page 3 line 27:

    In my opinion, Dr Durovka’s current presentation (anxious, fearful, distressed) masked more serious concerns regarding his Psychological state, which will impact his future rehabilitation. He is so focused on ‘survival’ that he has not yet processed the impact of his incarceration, the loss of his employment, independent living status and loss of income. These will likely become more prominent once he is released from incarceration and he will likely decompensate Psychologically once he is released. Monitoring from his treating Psychologist and GP will be important. As noted, the impact of his current treatment from other inmates in combination with his Asperger’s will likely undermine his trust in others and willingness to engage in meaningful social relationships. This may even impact his willingness to open up in therapy with Owenia House to understand his sexual motivations. These aspects impact on his risk of reoffending and add a layer of complexity to what was already a relatively challenging prospect in a rehabilitation setting. I would expect that there would be a direct causal effect between the duration of his exposure to his current situation and the length of time and resources necessary to re-build his social skills and confidence.

    (Emphasis added)

12. Ms Fuller argues that the information comes within the principles set out in R v C above and that the matter of rehabilitation when the appellant is released from custody and the effect that incarceration will have on that rehabilitation is now to be seen in a new light.

13. I disagree. In my view the August report adds very little to the April report which itself talks about the reduction of future offending behaviour being more likely with the appellant residing in the community. I would dismiss the application to introduce fresh evidence. However, I hasten to add that even if the application to introduce fresh evidence had been successful, that would not have affected my ultimate conclusion.

    The offending

14. As a result of information received, police attended at the address of the appellant and seized a laptop and digital hardware. As a result of a forensic analysis conducted upon the laptop 118 files, which met the definition of child pornography, were discovered. They were temporary internet files that had been accessed and viewed between 29 April and 2 May 2012 and had not been deleted.

15. The images were classified using the National Child Exploitation Category Standard. These standards are intended to categorise the images from Levels 1 to 5 by reference to the activity depicted. Level 1 is the least serious category and Level 5 is the most serious. I set out the various categories:

    Category 1 – sexually suggestive posing with no sexual activity;

    Category 2 – non-penetrative sexual activity between children or solo masturbation by a child;

    Category 3 – non-penetrative sexual activity between adult(s) and child(ren);

    Category 4 – penetrative sexual activity between children or adult(s) and child(ren);

    Category 5 – sadism, humiliation or bestiality.

16. Of the 118 images located on the laptop, 94 fell into the category of aggravated child pornography because they depicted children under the age of 14 years. Of that 94, 91 were classified at Level 1, one was classified at Level 3 and two were classified at Level 4.

17. There were 24 images depicting children between the ages of 14 and 17 years. Twelve of those images were classified at Level 1, one at Level 2, three at Level 3 and eight at Level 4.

18. The images that were at Level 4 (namely 10) depicted penetrative sexual activity between children and adults. It was likely that the appellant had been viewing that material for about six weeks.

    Appellant’s personal circumstances

19. At the time of sentencing the appellant was aged 31. He had been found guilty of a previous offence in the Adelaide Magistrates Court on 13 June 2006 for behaving in an offensive manner. He was released on a bond of $100 for 18 months. The offending which was the basis of that charge was the appellant taking a photo with a mobile telephone up the skirt of an 11 year old girl. During that hearing a report from a psychologist, Richard J Balfour, was tendered in evidence and also presented to the sentencing Judge in the present matter. From that report and the April report which was tendered at sentence, it is clear that the appellant has, and has had, serious psychological issues. He has been diagnosed with Asperger’s Disorder (Autism Spectrum Disorder) as a teenager.[3]

    Asperger’s Disorder involves marked impairment to social functioning, difficult developing peer relationships and issues with non-verbal behaviours to facilitate social interaction. Expressive language deficits and repetitive patterns of behaviour and interests are also part of the clinical picture.

    [3]    Appeal Book at 80 line 20, report of Mr Broomhall.

20. According to Mr Broomhall, the appellant is experiencing anxiety and depression. He is, however, able to manage his own finances and has an employment history which of course has been made difficult by his disorder. He has had difficulty forming any type of sexual relationship.

21. Since his original court appearance in the Magistrates Court, the appellant has sought the assistance of a psychologist.

    Appeal

22. The sole ground of appeal is that the learned sentencing Judge erred in declining to suspend the entire sentence instead of partially suspending the sentence. Ms Fuller argues that there are four errors made by the sentencing Judge which clearly affected that Judge’s discretion not to fully suspend the term of imprisonment. They are, in short:

    1.the sentencing Judge erred in the characterisation the Judge made of the appellant’s prior offending;

    2.the sentencing Judge gave insufficient weight to the fact that the appellant could not properly implement the terms of the original bond made in the Magistrates Court;

    3.the sentencing Judge did not explain why good reason did not exist to suspend the whole of the sentence as distinct from part of the sentence;

    4.the sentencing Judge did not have regard to s 38(2)(c) of the Sentencing Act in the exercise of the discretion whether to wholly suspend the term of imprisonment or not.

23. As to the first submission, the appellant now argues that the sentencing Judge erred in describing the previous offending as displaying a sexual interest in children.  In her sentencing remarks, she said:

    I now turn to the question of suspension. These offences are serious. Suspension of the whole of the sentence in a case like this is unusual. It would be particularly unusual when a person has a prior offence for offending that displays a sexual interest in children. Balanced against that, however, is the disorder that you have had for your entire life and was diagnosed at the age of 16 in addition to your lower intellectual functioning and depression. Bearing in mind these features and the fact that you pleaded guilty at an early stage and expressed remorse in relation to your offending and sought the assistance of a psychologist in relation to your functioning, I consider that there is good reason to partially suspend the sentence that I have imposed.

    Ms Fuller argues that the previous offending was an offence against s 7 of the Summary Offences Act 1953 (SA) and was dealt with on a lenient basis and should not have been categorised as the sentencing Judge did. I reject that submission. The facts of the previous offending clearly showed a sexual interest in children and the Judge was correct to say so.

24. As to the second submission, Ms Fuller argues that insufficient weight was given to the fact that the appellant was unable to implement the terms of the original bond. During the course of sentencing submissions in the District Court, the sentencing Judge ordered a Progress Report from the Department of Correctional Services. That report indicates that the appellant had entered under a supervised bond, obviously as a result of the sentence in the Magistrates Court, with the Edwardstown Community Corrections on 13 June 2006 and completed this on 12 December 2007. There were no breaches. The report also says an assessment for the Victim’s Awareness Program was terminated in July 2007 and said further that:[4]

    ... after discussion between Intervention Officer and c/manager of some individual work done by previous case manager and taking into consideration that this client would require a highly modified VA program, the fact that the client had shown great remorse and was aware of the impact his behaviour may have had on his victims.

    Michael was assessed as unsuitable for ongoing psychological intervention by JNH (James Nash House) and referred to EDCCC (Edwardstown Community Corrections Centre) psychological services. Due to long waiting list and assessment: low risk, bond expired before available appointment.

    It was also recorded that:

    He remained offence free during period of bond. Suitable candidate for further supervision.

    [4]    Appeal Book at 87-88.

25. Ms Fuller argues that the failure, whatever it was, for the appellant to have further supervision is to be seen in the light of Mr Balfour’s opinion in his report tendered in the Magistrates Court, namely:[5]

    ... If he does have paedophilia, then it is in the early stages of the disorder when it is most amenable to treatment. If the court are significantly concerned about this issue, then I believe he should be assessed by a SOTAP psychologist.

    [5]    Appeal Book at 73.

26. Ms Fuller argued the fact that this was never followed up is a factor that the sentencing Judge did not fully take into account.

27. The sentencing Judge dealt with that failure of the system to implement the rehabilitation program. She said in her sentencing remarks:[6]

    Your counsel made extensive submissions on your behalf. The main thrust of her submissions to me was that you have not yet had the opportunity to attend and participate in a rehabilitation program that is specifically tailored to people with your condition and your offending. She submitted that, despite the fact that you have been placed on a supervised bond in the past, you had slipped through the cracks in relation to the nature of the supervision that you had received. This she said is a significant feature in relation to your rehabilitation. Miss Fuller submitted to me that your teenage and adult life had been shaped by your Asperger’s syndrome and that you were diagnosed with at the age of about 16 in conjunction with you having a lower IQ than most people. It has been this combination of features, she said, that has left you struggling academically and socially.

    ...

    As I said, she made submissions to me that you slipped through the cracks in relation to the supervision in 2006. It was suggested that that was because you had not received the psychological help that you had been let down by the system. That may so, however at the time you did have the benefit of your own psychologist and could have continued to see him. There is no doubt in my mind that more could have done in relation to you but nevertheless you need to take responsibility for your own actions in offending now.[7]

    [6]    Appeal Book at 148.

    [7]    Appeal Book at 149.

28. I can find no error in her approach to that topic.

29. I deal with Ms Fuller’s third and fourth submissions together because they attack the way the sentencing Judge approached the question of suspension. The sentencing Judge in dealing with that question said:[8]

    I now turn to the question of suspension. These offences are serious. Suspension of the whole of the sentence in a case like this is unusual. It would be particularly unusual when a person has a prior offence for offending that displays a sexual interest in children. Balanced against that, however, is the disorder that you have had for your entire life and was diagnosed at the age of 16 in addition to your lower intellectual functioning and depression. Bearing in mind these features and the fact that you pleaded guilty at an early stage and expressed remorse in relation to your offending and sought the assistance of a psychologist in relation to your functioning, I consider that there is good reason to partially suspend the sentence that I have imposed.

    [8]    Appeal Book at 150.

30. I can find no error in her reasoning. She had clear sentencing options set out in s 38 of the Sentencing Act and because she has not mentioned each aspect of that section – and s 38(2c) in particular – in her reasons cannot in the present case be an indication that she has ignored all the options open to her provided by that section.

    Conclusion

1. Although the sentencing Judge categorised the offending generally as falling into the low to mid range, nevertheless a vast majority of the images are those of children under the age of 14. The sentencing Judge quite properly directed herself that for this type of offending general deterrence is of paramount importance but, bearing in mind the appellant’s personal circumstances and his Asperger’s disorder, in my view she crafted a sentence that catered for general deterrence and at the same time was merciful. I can find no error in the exercise of her discretion to partially suspend the sentence. I would dismiss the appeal