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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gridley

Details

AGLC: R v Gridley [2013] SASCFC 29
Case: [2013] SASCFC 29
Decision Date: 19 April 2013

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, who had pleaded guilty to five offences, including three relating to child pornography, procuring a child to commit an indecent act, and making a communication for a prurient purpose. The principal offending involved internet communications with a 14 or 15-year-old child in Victoria. The sentencing judge had indicated that the appellant's apology to the victim would be decided in his favour in the absence of rebuttal evidence from the prosecution, but ultimately sentenced on the basis that the apology was not proved. The appeal was heard by Vanstone, Blue, and Nicholson JJ.

The legal issues before the court were whether the sentencing judge erred by refusing to take into account the appellant's apology, and whether the head sentence and non-parole period were manifestly excessive. The appellant argued that he was misled by the judge's remarks regarding the apology and consequently did not present evidence to support it. He also contended that the sentence was too severe given his young age, the objective seriousness of the offending, his assistance to police, lack of prior convictions, rehabilitation efforts, and personal circumstances.

The Full Court held that while the appellant's counsel was indeed misled by the judge's intimation concerning the apology, not every error in the sentencing process warrants setting aside the sentence. The court found that a substantial discount had already been applied to the head sentence for contrition and assistance to police, and this error did not vitiate the overall sentencing process. Consequently, the arguments regarding the head sentence being excessive were not upheld. However, the court found that the proportion of the head sentence allocated to the non-parole period was severe to the point of indicating error, particularly considering the appellant's youth, good character, and rehabilitation steps.

The court allowed the appeal, setting aside the original sentence. It reimposed the same head sentence of two years and six months imprisonment but varied the non-parole period to one year and three months, ordering that the sentence commence from 18 December 2012.

Orders

Orders of the court

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.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 For the reasons above I would allow the appeal and set aside the sentence. 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. BLUE J: I agree. NICHOLSON J: I agree

Ratio Decidendi

Legal Principle Established

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