R v Gridley

[2013] SASCFC 29

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v GRIDLEY

[2013] SASCFC 29

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Nicholson)

19 April 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - GENERALLY

Appellant pleaded guilty at first arraignment to five offences - three relating to child pornography, one count of procuring a child to commit an indecent act and one count of making a communication for a prurient purpose - principal offending concerned communications made to a child of 14 or 15 years in Victoria via video and text on the internet - investigations into the communications led police to appellant who made further admissions regarding possessing and disseminating child pornography - issue arose at sentencing whether appellant had made an apology to the victim of the internet communications - indications made by sentencing judge that the matter was to be decided in favour of the appellant in the absence of rebutting evidence from prosecution - judge sentenced on the basis that the apology was not proved.

Appellant argued that he was misled at sentencing by the judge's remarks concerning the apology and did not lead evidence in support of the apology as a consequence - error in sentencing process was committed when the judge refused to take into account apology - head sentence and non-parole period otherwise manifestly excessive when taking into account appellant's young age, objective seriousness of the offending, the appellant's assistance to police, lack of prior convictions, attempts to rehabilitate himself and matters personal to the appellant.

Held:  the appellant's counsel was misled by the judge's intimation that the matter of the apology would be resolved in the appellant's favour - however, not every error in the sentencing process gives rise to a setting aside of the sentence - a very substantial discount of the head sentence was already given to the appellant on account of contrition and assistance to police - error could not have vitiated the sentencing process - appellant's arguments about the head sentence being excessive are not made good.

In fixing non-parole period, judge chose a proportion of two-thirds of the head sentence - taking into account the appellant's young age, previous good character and steps he had taken towards rehabilitation, ratio was severe to the point of indicating error - non-parole period of one half of the head sentence to be imposed.

Criminal Law Consolidation Act 1935 s 18A, s 63, s 63A, s 63B, 353, referred to.
House v The King (1936) 55 CLR 499, discussed.
R v Padberg (2010) 107 SASR 386; R v Perre (1986) 41 SASR 105; R v Weaver (1973) 6 SASR 265, considered.

R v GRIDLEY
[2013] SASCFC 29

Court of Criminal Appeal:  Vanstone, Blue and Nicholson JJ

Appeal against sentence

1. VANSTONE J:     The appellant pleaded guilty at first arraignment in the District Court to the following offences:

   Count 1Production of Child Pornography, contrary to s 63 Criminal Law Consolidation Act 1935 (CLCA);

   Count 2Dissemination of Child Pornography, contrary to s 63 CLCA;

   Count 3Possessing Child Pornography, contrary to s 63A(1)(a) CLCA;

   Count 4Procuring a Child to Commit an Indecent Act, contrary to s 63B(1)(a) CLCA; and

   Count 5Making a Communication for a Prurient Purpose, contrary to s 63B(3)(b) CLCA.

   The maximum penalty for each offence is 10 years imprisonment, except for count 3 where the maximum penalty is five years imprisonment.

2. At the time of the offending the appellant was 21 years old. He had no criminal history. The judge proceeded pursuant to s 18A of the Criminal Law (Sentencing) Act 1988.  He took a starting point of four years imprisonment.  Having regard to the appellant’s guilty pleas, cooperation with police and three days spent in custody, that was reduced to two years and six months.  A non-parole period of 20 months was set.  The judge declined to suspend the sentence.

3. The appellant argues that the sentence is manifestly excessive and that the judge erred in failing to suspend the term of imprisonment.  He further argues that the sentencing process was affected by error.

   Background

4. The commission of offences the subject of counts 1 and 3 was discovered only during investigation of counts 2, 4 and 5.  In describing the conduct it is convenient to commence with those latter counts.

5. In about late 2010 or early 2011, the appellant came into internet contact with the complainant in counts 2, 4 and 5 (to whom I shall refer as V) via a particular website.  At the time of her first contact with the appellant, V was aged 14 or 15 years and lived in Victoria.  The pleas were entered on the basis that the appellant was reckless as to her age.  V suffers from Asperger’s Syndrome and used the website under the initial guidance of her mother.  The website is a type of “social network” where users create illustrations and other types of artwork and share them amongst other users.  The appellant and V had a common interest in drawing and viewing a genre of artwork referred to as “anime”.

6. Between January and August 2011, the appellant and V had ongoing contact via the internet chat medium “MSN Messenger”.  During this period the appellant engaged in conversations which became increasingly sexually explicit.  In one conversation the appellant and V engaged in “cyber sex” via textual communication.  The appellant asked V to have internet sex again and asked V to perform various sexual acts and to exhibit herself to him via the webcam.  These interchanges are the basis of count 5, making a communication for a prurient purpose.

7. At one point the appellant persuaded V to perform various sexual acts over a webcam.  At the same time the appellant masturbated and made this apparent to V.  This conduct of procuring an indecent act is charged as count 4.

8. During this series of conversations, the appellant sent to V two videos depicting close-ups of a 12 year old relative masturbating and urinating.  That conduct is represented by count 2.  The videos were extracted from V’s computer but were not found by police on the appellant’s computer or mobile phone and he admitted “getting rid of them”.

9. V reported the appellant’s conduct after she attended a seminar about internet predators at her school in July 2011.

10. When police interviewed the appellant on 2 September 2011, he co-operated in locating material on his computer pertaining to his child pornography offending.  Count 3 encompasses 771 child pornography files, including three videos depicting actual child pornography.  Two hundred and three of the files contained images of actual child pornography, while 532 of the files were anime images of child pornography of varying levels of explicitness.  There were more than 170 category 1 images and 37 category 4 images.

11. Police also located on the appellant’s computer two drafts of a story entitled “Sugar Craving”.  This story concerned a sexual relationship between a 13 year old girl and her (adult) school counsellor.  According to the judge, the reader was “spared…no detail in terms of the sexual activities of the two people featured in the story”.  This story formed the basis of count 1.

12. In sentencing, the judge made reference to the appellant’s co-operation with police and assistance in locating persons with whom he had associated online who were involved in disseminating child pornography.  The judge also referred to a psychological report of Ms Barklay, in which she rejected the appellant’s claim that he had “little to no sexual interest in children or teenagers”.  The judge made reference to the policy of the law “to protect children from sexual predators”, and to the principle established in R v Padberg (2010) 107 SASR 386 that offences of this kind will usually call for a period of imprisonment to be served. The judge said the offending was too serious to allow for suspension of the sentence.

    Arguments on Appeal

13. I deal first with the suggested error in the sentencing process.

14. As part of the plea in mitigation of sentence, it was put to the judge that the appellant’s contrition was illustrated by the fact that he had apologised to V via the internet.  It was suggested that the apology needed to be weighed, along with the pleas of guilty and assistance to police.  However, counsel appearing for the Director of Public Prosecutions indicated to the judge that it was not accepted by the prosecution that such an apology had been made, although no evidence in support of that position was to be called.  The judge’s response to that advice was that he did not know how to resolve the conflict except in favour of the accused.

15. There the matter rested.  However, when it came to sentence, the judge did not accept that there had been an apology, observing that it was a matter of dispute and that there was no record of it.  He went on to say, in effect, that he was not prepared to have regard to the apology.

16. Counsel for the appellant, Ms S David, argued that the appellant was misled by the judge’s intimation that the matter would be resolved in the appellant’s favour and, because of that intimation, counsel did not call the appellant to give evidence in support of the submission.  Affidavit material has been placed before this Court to substantiate both the fact that the apology was made and that the appellant’s instructions at the time of sentencing submissions were that he was prepared to give evidence.  Ms David referred to the statement of principle by King CJ in R v Perre (1986) 41 SASR 105 at 106 and put that the appellant falls within the exceptions to that principle.

17. In Perre King CJ said as follows:

    It is for counsel to decide whether or not to call evidence.  If counsel relies upon submissions from the bar table, it is not part of the ordinary role of the judge to indicate that he is not prepared to act upon those submissions so that counsel may decide whether to call evidence.  A judge may do so, but he is not bound to do so.  He may, and generally will, simply consider the depositions and the submissions and make his decision as to the basis of sentence.  There will, of course, be exceptions.  If counsel for the defence were to indicate that he refrains from calling evidence because he has reached agreement with the prosecution as to the basis upon which sentence should be imposed, the judge would be bound, generally speaking, to indicate that he is unwilling, if such be the case, to proceed upon the agreed basis, and to give counsel the opportunity of calling evidence.  There may be other circumstances in which the defence can validly claim to have been misled.

    The respondent does not contest that the appellant was prepared to give that evidence and was dissuaded by the judge’s intimation.  Therefore, I consider it is appropriate to proceed on the basis that, but for the judge’s intimation, evidence of the apology would have been given and – not being contradicted – would have been accepted.

18. The more difficult question is what, if any, difference such an acceptance would have made to the disposition of the matter.  It may be observed from what I have already said that a substantial discount was given for the pleas of guilty and contrition;  a discount of the order of three-eighths or 37.5 per cent.  Inasmuch as the assistance to police was not suggested to have led to any investigation by police – let alone the charging of any person with an offence – the assistance was not, to my mind, of much significance.

19. Ms David made a further argument relating to the judge’s treatment of the topic of contrition.  She put that the judge was inclined to depreciate the force of the contrition by reference to statements made by the appellant to the authors of the two psychological reports, which amounted to the appellant minimising his conduct.  Ms David argued that, even if the appellant had tended to minimise the seriousness of his actions, that did not detract from the contrition demonstrated by his frankness to police and to the psychologists and his early pleas of guilty.  What the judge said in this regard was:

    I will treat this matter on the basis that your contrition is represented by your pleas of guilty and your cooperation with the police, and you will receive the appropriate amount of discount in those circumstances.  I do not think that the evidence justifies the conclusion that you are contrite to any greater extent than that, particularly having regard to the comments of the psychologist.

20. Ms David also made a number of submissions of a more general nature going to the length of the head sentence and non-parole period and the failure to suspend.  First, counsel argued that the objective seriousness of the offending was mitigated by the fact that the vast majority of the images did not depict actual children.  Further, the seriousness of the offending was mitigated by the fact that the appellant was then 21 years old and believed he was communicating with a 16 year old, whereas she was actually 14 or 15 at the time.  This, Ms David submitted, was removed from a situation where a much older person preys on and grooms a young child to commit sexual acts.

21. Ms David drew the Court’s attention to the appellant’s efforts to rehabilitate himself after his arrest, including attending a number of counselling sessions through his employer, and consulting a clinical psychologist, who had referred him to group therapy.  Through these sessions, the appellant had begun to find new friendship groups and become less reliant on his online social circle.  Imprisonment would prevent the appellant from seeing his clinical psychologist and attending group therapy to minimise his risk of re-offending.  Ms David submitted that the judge must have given all these factors insufficient weight.

22. Ms David also made reference to the appellant’s youth and lack of any offending history as factors in his favour which were not given sufficient emphasis by the judge.  Ms David relied on the policy consideration that rehabilitation should comprise a prominent factor in fixing a sentence for first-time offenders:  R v Weaver (1973) 6 SASR 265 at 267 per Bray CJ, Mitchell and Sangster JJ. The apology was also significant in terms of rehabilitation.

23. Ms David submitted that the appellant’s inevitable loss of employment as a consequence of the recording of a conviction would serve as a significant punishment for his offending.  In these circumstances, Ms David argued that personal deterrence required less emphasis than usual.

    Analysis

24. The power of this Court to interfere on an appeal against sentence is given in s 353(4) of the Criminal Law Consolidation Act 1935.  It is as follows:

    353—Determination of appeals in ordinary cases

    …

    (4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—

    (a)if it thinks that a different sentence should have been passed—

    (i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or

    (ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or

    (b)in any other case—dismiss the appeal.

25. The way in which such a power is to be exercised was discussed in House v The King (1936) 55 CLR 499 at 504-505 per Dixon J, Evatt J and McTiernan J. Their Honours said as follows:

    But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

26. It can be seen from the above that the appeal court is primarily concerned with the question whether a different sentence should have been passed.  It may be that the sentence imposed is outside the range of sentences available for the conduct under consideration and that the sentence therefore bespeaks error.  Perhaps most appeals against sentence involve an argument that the judge must have proceeded on an incorrect basis because, acting on the correct basis, he or she could not have reached the sentence imposed.  However, in other cases the appellant will identify an error which has occurred in the sentencing process and will argue that, because of that error, the process miscarried and the sentence should be reviewed.

27. However, it is not every error in the sentencing process which will give rise to a setting aside of the sentence and imposition of the sentence which should have been passed. Some errors will be quite insignificant and it will be plain that they could have had no impact on the process or the final disposition of the matter. At the other end of the spectrum, some errors will be such as to erode the integrity of the process and call for a review of the sentence and the substitution of a different sentence. Where any particular identified error falls within that spectrum will be a matter of judgment for the Court of Criminal Appeal. However, the terms of s 353(4) of the CLCA indicate that the formation of the view that a different sentence should have been passed is the touchstone for the quashing of the sentence under consideration.

28. Returning to the present appeal, it may be readily accepted that the judge’s intimation misled counsel and the appellant.  This is one of the situations clearly comprehended by the statement of principle of King CJ in Perry’s case set out earlier.  However, when it is recalled that a very substantial discount from the head sentence was given to the appellant on account of contrition and assistance to police, it is not apparent to me that the error could have vitiated the sentencing process.  The assistance given was, in my view, of a very limited nature and not such as to call for much credit.  The pleas of guilty were of course important in terms of the appellant’s readiness to facilitate the course of justice, as was his frankness to police at the time of arrest.  However, even had the fact of an apology been accepted, he could hardly have expected more than the very generous discount given by the judge.  Indeed, even if the apology had taken a more substantial form – such as an apology made in court or by way of letter written to V and published in court – my view would be the same.  The appellant was fortunate in receiving a discount of three-eighths of the head sentence.  The same observations dispose of Ms David’s argument that the judge underestimated the level of the appellant’s contrition.

1. Accordingly, I do not consider that the error established is such as to lead to a re-sentencing.

2. As is plain from what I have earlier set out, Ms David made some powerful points about the appellant’s previous good record, the price he has paid for his offending and the scope for rehabilitation.  In addition she underlined that many of the pornographic images possessed were anime and not such as to have involved the exploitation of young persons.  Nonetheless, it is the combination of the five offences to which the appellant pleaded guilty and their disparate nature which give rise to grave concern about the appellant.  V has been encouraged to take part in lewd and degrading episodes and that has occurred when she was of a young age.  The victim impact statement demonstrates the marked impact that this offending has had on V.  I do not consider that Ms David’s arguments about the head sentence being excessive are made good.  As I have said, I do not think the appellant could have expected a greater discount on account of the contrition he showed, or the assistance he gave.

3. However, I am persuaded that in one aspect the sentence imposed was in error.  In fixing the non-parole period the judge chose a proportion of two-thirds.  Bearing in mind that the appellant came to the court as a man of good character and that he had taken important steps towards rehabilitation, and emphasising that the appellant was only 21 years of age when the offences were committed, I consider that the ratio of two-thirds was severe to the point of indicating error.  A man of the appellant’s age might have expected greater leniency in terms of the non-parole period, bearing in mind that he had previously had no contact with the criminal justice system and that he is young enough to address the psychological problems which plainly underlie his conduct and to put this episode behind him.  In my view a non-parole period of one half of the head sentence would be sufficient to mark the punitive, protective and rehabilitative ends of punishment and would allow a slightly longer period on parole to assist with the process of rejoining the community.

4. In my opinion none of the arguments going to suspension of the sentence is made good.  The offending remains very serious, particularly having regard to its wide-ranging nature and the fact that it continued over many months.  I consider the decision of the judge that there was not good reason to suspend the sentence was open to him.

   Conclusion

5. For the reasons above I would allow the appeal and set aside the sentence.

6. I would reimpose the same sentence of imprisonment, namely one sentence of two years and six months, but with a non-parole period of one year and three months and I would order that the sentence be taken to have commenced on 18 December 2012.

7. BLUE J:   I agree.

8. NICHOLSON J:   I agree