R v Hayes - [2012] SASCFC 96

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HAYES
[2012] SASCFC 96
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Anderson)
14 August 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - OBSCENE, INDECENT OR OBJECTIONABLE PUBLICATIONS OR REPRESENTATIONS - PUBLICATION, DISTRIBUTION, DELIVERY, ETC
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty to the offences of aggravated possession of child pornography contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA) and using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth) - the judge ordered that the two terms of imprisonment be served concurrently - total term of imprisonment of 18 months was imposed - a non-parole period of 12 months was imposed for the State offence and an order that the appellant be released after 12 months upon entering into a recognizance in the sum of $500 to be of good behaviour for a period of 12 months for the Commonwealth offence - the appellant appealed against both the State and Commonwealth non-parole periods - whether the length of the non-parole periods were manifestly excessive - whether the judge gave insufficient discount for the State offence when taking into account the guilty plea and other mitigating circumstances - whether delay gave rise to mitigatory circumstances.
Held: Anderson J, Gray and Sulan JJ agreeing - the length of the non-parole periods are not manifestly excessive - no error was demonstrated - within the judge's discretion - appeal against sentence dismissed.
Observations by Gray J, Sulan J and Anderson J regarding circumstances of delay.
Held: The delay in this matter did not give rise to any circumstances of mitigation.
Criminal Law Consolidation Act 1935 (SA) s 63A(1); Criminal Code Act 1995 (Cth) s 474.19(1)(a)(i); Criminal Law (Sentencing) Act 1988 (SA) s 10(4), referred to.
R v Law; Ex parte Attorney-General [1996] 2 Qd R 63; R v Riddle [2012] SASCFC 82; R v Padberg [2010] SASC 189; Director of Public Prosecutions (Tas) v Latham [2009] TASSC 101, discussed.
R v McGaffin (2010) 206 A Crim R 188; R v Ohmer [2011] SASCFC 44; R v Hill (2011) 110 SASR 588; R v O'Connor [2012] SASCFC 15; Director of Public Prosecutions (Commonwealth) v Ison [2010] VSCA 286; R v Todd [1982] 2 NSWLR 517; R v Suckling (1983) 33 SASR 133; R v Whyte (2004) 7 VR 397; R v Leggett [2000] WASCA 327; Thorn v Western Australia [2008] WASCA 36; R v Lekaj (1997) 92 A Crim R 325; Cameron v The Queen (2002) 59 CLR 339; R v Driver (2011) 111 SASR 245; R v Oliver [2003] 1 Crim App Report 28, considered.

R v HAYES
[2012] SASCFC 96
Court of Criminal Appeal Gray, Sulan and Anderson JJ
GRAY J.

This is an appeal against sentence.
The defendant and appellant, Martyn James Hayes, was convicted on his plea of guilty to the Commonwealth offence of using a carriage service to access child pornography contrary to section 474.19(1)(a)(i) of the Criminal Code (Cth) and to the State offence of aggravated possession of child pornography contrary to section 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced in the District Court to a term of imprisonment of 18 months in respect of the Commonwealth offence and to a term of imprisonment of 15 months in respect of the State offence. The sentencing Judge ordered that the two terms of imprisonment be served concurrently. In respect of the sentence imposed for the Commonwealth offence, an order was made that the defendant be released on recognizance after serving 12 months of imprisonment. In respect of the State offence, a non-parole period of 12 months was fixed.
The defendant faced a maximum penalty in respect of the Commonwealth offence of 10 years imprisonment, and seven years imprisonment in respect of the State offence.
It was the contention of the defendant on the appeal that the period of recognizance and the non-parole period were manifestly excessive. It was said that there was a disparity between the two periods, indicative of error on the part of the sentencing Judge. There was also a complaint made in respect of the reduction on account of the pleas of guilty.
The circumstance of the offending and the personal antecedents of the defendant are recorded in the reasons of Anderson J. I adopt his Honour’s summary and only refer to those matters where necessary for an understanding of my reasons. I agree with Anderson J that the appeal should be dismissed.
This Court has addressed appeals concerning sentences imposed on those convicted of the offences of child pornography in a number of recent decisions. The Court in Padberg,[1] McGaffin,[2] Ohmer,[3] Hill,[4] O’Connor[5] and Riddle[6] has recognised the seriousness of the offending and has indicated that offenders, particularly in the case of aggravated offences, can expect imposition of an immediate custodial sentence. However, on occasions, particular circumstances have arisen which have led to mercifully short non-parole periods and suspended sentences. The Victorian Court of Appeal in Ison[7] reviewed many decisions in intermediate courts throughout Australia, including South Australian decisions, and made comments to a similar effect.
[1]    R v Padberg (2010) 107 SASR 386.
[2]    R v McGaffin (2010) 206 A Crim R 188.
[3]    R v Ohmer [2011] SASCFC 44.
[4]    R v Hill (2011) 110 SASR 588.
[5]    R v O’Connor [2012] SASCFC 15.
[6]    R v Riddle [2012] SASCFC 82.
[7]    Director of Public Prosecutions (Commonwealth) v Ison [2010] VSCA 286.
The defendant’s offending in these proceedings was serious. He not only downloaded images, but he transmitted images to third parties and further, indicated his interest in child pornography and bestiality through the internet. I agree with the reasons of Anderson J but wish to comment on the submission advanced by the defendant that there had been significant delay that in the circumstances should operate as a factor of mitigation. In my view this submission should be rejected for the reasons that follow.
Delays may occur in the criminal justice system for a number of reasons. Delay may give rise to circumstances of mitigation. For example, if a defendant has successfully undergone rehabilitation during a period of delay, that fact would generally be treated as mitigatory.[8] If, however, a defendant has caused the delay, for example by leaving the jurisdiction, it is unlikely that matters occurring during the period of delay will be treated as mitigatory.[9]
[8] R v Todd [1982] 2 NSWLR 517, 519-520 (Street CJ, with whom Moffitt P and Nagle CJ at CL agreed). These remarks have been approved in a number of subsequent decisions; see for example, R v Suckling (1983) 33 SASR 133, 136 (Legoe J, with whom Wells & White JJ agreed).
[9] R v Whyte (2004) 7 VR 397, [24]-[26].
In Law; Ex parte Attorney-General,[10] it was held that delay will not be a mitigating factor unless it causes unfairness to the offender.[11] There, two “obvious” circumstances were discussed in which it would be appropriate for delay to be mitigatory:[12]
The first is where there is delay between the date of apprehension of the offender, or first indication to him by some person in authority that he is likely to be prosecuted, and the date of sentence, in consequence of which the offender may have had his liberty curtailed or his reputation called in question or, at least, left in a state of uncertainty caused by a failure to prosecute his case more quickly. Duncan (1982) 9 A Crim R 354 is an example of that. There the offender was advised, when he was declared bankrupt in 1979, that his conduct constituted the offence for which he was eventually convicted and sentenced in 1982. So too are Crawley (1981) 5 A Crim R 451 at 458, Jones and Harris (1989) 41 A Crim R 1 at 19 and Kane [1974] VR 750 at 767. The rationale for mitigation in these cases is analogous to that for which, in jurisdictions where a right to a speedy trial is constitutionally or legislatively guaranteed, proceedings may be stayed because of such delay. See for example Barker v Wing 407 US 514; US v Marion 404 US 307; Mills v R (1986) 26 CCC (3d) 481. See also Jago v District Court (NSW) (1989) 168 CLR 23. R v Braham (1994) 73 A Crim R 353, by contrast, is an example of a case in which the offender, because initially a nolle prosequi had been entered against him, probably thought during the subsequent period of delay until his further arrest, that "he had escaped the clutches of the law" and in which in consequence, it was held that the delay should not mitigate the sentence: at 365-6. See also 356. See also R v Glennon [1993] 1 VR 97.
The second is where the time between commission of the offence and sentence is sufficient to enable the Court to see that the offender has become rehabilitated or that the rehabilitation process has made good progress. That factor was referred to by Street CJ in Todd [1982] 2 NSWLR 517 at 519, 520 in a passage cited with approval by the High Court in Mill (1988) 166 CLR 59 at 64. See also Bell (1981) 5 A Crim R 347 at 351; Quinlivan (Crt of Crim App Vic No 291 of 1994). Duncan is also an example of this.
[10] R v Law; Ex parte Attorney-General [1996] 2 Qd R 63.
[11] R v Law; Ex parte Attorney-General [1996] 2 Qd R 63, 66 cited with approval in R v Leggett [2000] WASCA 327, [34]-[35]; Thorn v Western Australia [2008] WASCA 36, [37]; R v Lekaj (1997) 92 A Crim R 325.
[12] R v Law; Ex parte Attorney-General [1996] 2 Qd R 63, 66.
It was submitted that there had been delay by the prosecution in the within proceedings and that matters of mitigation arose.
The defendant was first apprehended in June 2008. The defendant declined to assist the police inquiries at the time of his arrest. Initially proceedings were commenced in the Magistrates Court in September 2008. However, the prosecuting authorities were delayed in their examination of the material seized from the defendant, including a computer. Apparently lack of resources available to the Commonwealth led to a delay in the accessing of images and material on the defendant’s computer. In January 2009, the proceedings were dismissed for a want of prosecution. Following the dismissal, the defendant left South Australia to reside in Queensland. However, on a return to South Australia to attend to business matters, he was arrested and further charged. Ultimately, pleas of guilty were entered to both the Commonwealth and the State offences.
Prior to this move, the defendant had completed a voluntary sex offender rehabilitation course. A second course was recommended. It was necessary for the defendant to complete the second course to receive an appropriate accreditation. However, shortly before moving to Queensland, the defendant withdrew from the rehabilitation program and has not subsequently attended the second course. It was said that the second course was directly relevant to his type of offending and, as a consequence, to his rehabilitation.
Before this Court the defendant acknowledged that he was aware that at the time of his initial arrest, he had been accessing child pornography and was aware that “all would be revealed” when the investigators accessed the material contained within his computer.
The inference can be drawn that the defendant stood back and let matters take their course and when the opportunity arose, took steps to have the initial proceedings dismissed, withdrew from the sexual offenders rehabilitation program and moved to reside in northern Queensland. In these circumstances, I am not prepared to draw the conclusion that the delay between his initial arrest and sentence was undue or caused him any particular hardship. I see no basis on which it could be argued that the delay that occurred was mitigatory.
It is also my view that, having regard to the foregoing, the reduction for the pleas of guilty, contrition and remorse were well within the sentencing discretion of the sentencing Judge.
It is to be accepted that there is an apparent illogicality in the period of 12 months recognizance against a head sentence of 18 months and a non-parole period of 12 months against a head sentence of 15 months. However there was a need for the non-parole period and the recognizance period to be for the same term and this provides the explanation for the orders made by the sentencing Judge. The end result is that the defendant is to serve 12 months in custody against a maximum term to be served of 18 months. I consider this to be an appropriate sentence in these circumstances. I would dismiss the appeal.
SULAN J: I would dismiss the appeal. I agree with Anderson J and I also agree with the observations of Gray J as to the issue of delay.
I add these general remarks. It is accepted that a plea of guilty will result in a reduction of a sentence which would otherwise be the appropriate sentence for the offence and the offender. The rationale behind this approach has been characterised as facilitating the course of justice as well as an acceptance of responsibility for the offending and an indication of remorse and contrition.[13]
[13] Cameron v The Queen (2002) 59 CLR 339 [65]; see also R v Driver (2011) 111 SASR 245 [41].
On the other hand, undue delay in presenting a person before the court may, in certain circumstances, be mitigatory. A defendant who, through no fault on their part, has suffered delay may enter into arrangements, change their lifestyle, change their family situation and suffer prejudice as a consequence of delay over which the person has no control.
However, the process of disposing of cases in a timely way is a two-way process. On the one hand, there is no obligation on the defendant to cooperate. A defendant can ‘sit on their hands’ and wait for the process to take its course. In those circumstances, the defendant may not rely on changed circumstances resulting from delay as a factor in mitigation of penalty. If the process to bring a matter to court takes time, it is only in exceptional circumstances where it can be demonstrated that the prosecuting authorities were unreasonably tardy that a defendant could use delay as a reason for a reduced sentence. Certain investigations take a long time. There may be considerable delay in the matter finally coming before the court. If a defendant knows that they have committed offences and can assist the prosecution by taking a proactive stance in having the matter disposed of, for example, by advising the prosecution that they will plead guilty, agreeing the basis of the plea and agreeing facts, then credit should be given for such cooperation. If the defendant informs the magistrate when the matter is listed that they will plead in answer to the charge, without the requirement that all the committal statements be filed and served, then the defendant is entitled to a reduction of the sentence.
I agree with the observations in this case that the appellant chose to wait until the investigation was complete, and until inevitably he was required to answer the charge. In the circumstances, he was not entitled to any further consideration in respect of the length of time it took for the matter to be finalised.
ANDERSON J.
Introduction
The appellant pleaded guilty to the offences of aggravated possession of child pornography, contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA) and using a carriage service to access child pornography, contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth). The offence of possessing child pornography was aggravated by the appellant’s knowledge that the victims were under 14 years of age. He was charged on 4 June 2008.
He pleaded guilty to those offences in the Magistrates Court on 20 January 2012 and was sentenced in the District Court on 11 May 2012. The judge sentenced him to imprisonment for the offence of aggravated possession of child pornography for 15 months which was reduced from 18 months for the plea of guilty. The judge further sentenced the appellant for 2 years for the offence of using a carriage service to access child pornography which was reduced to 18 months because of the guilty plea.
The judge ordered that the two terms of imprisonment be served concurrently given they constituted the same course of conduct. A total term of 18 months imprisonment was imposed. The judge fixed a non-parole period of 12 months for the State offence and for the Commonwealth offence imposed an order that the appellant be released after 12 months upon entering into a recognizance in the sum of $500 to be of good behaviour for a period of 12 months.
The maximum penalty for the offence of aggravated possession of child pornography is imprisonment for 7 years and for the offence of using a carriage service to access child pornography imprisonment for 10 years.
The issue in the appeal against sentence is whether the non-parole period and the period of recognizance are manifestly excessive and in relation to the state offence whether the reduction of 3 months from the head sentence for the plea of guilty was manifestly inadequate.
Background
The appellant is 42 years of age with no previous convictions. The circumstances that gave rise to these two charges arose from the same set of facts. On 4 June 2008 the appellant was arrested following the Federal Police attending the appellant’s premises, searching the house and conducting inquiries of the appellant. The appellant declined to answer questions without legal advice.
Following investigations it was discovered that the appellant had been accessing child pornography from November 2007 to June 2008. There was a total of more than 200,000 images and videos. Just over 5,000 of those 200,000 images and videos were child pornography material. All images and videos involved children under the age of 16 years.
He had also uploaded six child pornography images to a United States-based website which was detected by the Online Child Exploitation Team through the appellant’s Internet Protocol address. The US-based website links billions of personal photos, graphics, slideshows and videos, to hundreds of thousands of websites. It also provides users with the means to share their personal digital media by e-mail, instant messaging and mobile devices.
The six images uploaded to the website by the appellant depicted pre-pubescent females, each of which is identified as displaying and/or touching their genitalia. These six images were assessed as child pornography as defined under the Commonwealth Criminal Code Act 1995.
The images and movies taken from the appellant’s computer were classified according to their levels of seriousness in accordance with a five-level scale which was established in the United Kingdom and adopted by the Court of Appeal in R v Oliver [2003] 1 Crim App Report 28. It is known as the COPINE Scale (Combating Paedophile Information Networks in Europe).
The images and videos found in the appellant’s possession cover activities which fit into each category of the COPINE Scale. Of the still images there were approximately 61% in the first two categories of the scale. There were, however, 1,122 level-three images which depict non-penetrative sexual activity between adults and children. In addition there were 705 level-four images which depict penetrative sexual activity between children and adults and there were 97 level-five images depicting sadism, bestiality or abuse involving children between two years and 15 or 16 years.

There were 34 movie files located. Again most were in level-one and level-three categories of the Scale.
As can be seen, the offending was serious. The judge saw some of the material and said, “… I confirm that it is pornography involving children which is of the worst kind. It’s vile material. I regard this as a serious example of these offences within the range of seriousness which comes before the court”.
Arguments on Appeal
The appellant concedes that the respective head sentences are within an appropriate range for this type of offending. Likewise it is conceded that the sentences should not have been suspended.
Mr Wickens for the appellant argued that the sentencing judge erred in applying different percentage discounts for the two sentences. He said that a 17% discount for the State offence is manifestly inadequate compared with a two-thirds discount for the Commonwealth offence. He complains that that lack of continuity in the setting of non-parole periods for the two offences is suggestive that the sentencing discretion has been miscarried.
Mr Wickens submitted that the appellant was very cooperative with the police when they attended his premises and provided them with all the devices that had the material on them. His right to silence was exercised after providing assistance to the police.
He also pointed to a number of mitigating factors that he said the sentencing judge failed to attach significance to when setting the non-parole period, namely, his lack of criminal history, assistance to police, guilty pleas, his mental state, treatment prior to incarceration and his good prospects of rehabilitation.
Mr Wickens argued that the sentencing judge did not give enough weight to the fact that the appellant had voluntarily attended Owenia House. He said that the appellant was not aware at the time of his offending that children were being abused in the making of this material and he only recognised this fact once he attended Owenia House. I find this argument hard to comprehend and it seems from reading the sentencing submissions that the sentencing judge also found this difficult to understand.
The appellant voluntarily attended Owenia House for approximately one year. Mr Wickens submitted that although the appellant found it distressing to undertake a course with “hands-on” offenders, he had a “watershed” moment, realising that his offending was contributing to the abuse and exploitation of children. These submissions were apparently based on Mr Hayes’ instructions to his lawyers. There is nothing in the appeal papers to support that submission.
Mr Wickens argued that the sentencing judge erred in understanding the appellant’s recognition of the significance of his offending and suggested that the judge made inappropriate inferences from the reports of Dr White and Mr Minniti.
Dr White’s report dated 4 November 2011 said:
Mr Hayes stated that he had attended a sex offender rehabilitation program in 2008/09 as a voluntary client, but that he withdrew from that program when they insisted on treating him the same way that they treated “hands-on” offenders.
and Mr Minniti’s report dated 8 April 2012 said:
During this time he voluntarily attended for treatment with the sexual offenders treatment program at Owenia House which he found rather distressing more than helpful due to him being treated in a “one size fits all” approach which included perpetrators of sex offences whom he found presented differently to his situation.
The sentencing judge said:
… your participation at Owenia House did open your eyes to the fact that children were being abused when this child pornography was being created, you still do not accept and did not accept that you were involved in child abuse yourself. To that extent I think you still fail to acknowledge how serious the possession of child pornography is. I cannot envisage, having seen the material that you had in your possession, that you would not have been aware that children were being abused when this material was being created.
There was no evidence before the sentencing judge to support the appellant’s submission that he appreciated the severity of his offending. The judge, as he was entitled to do, plainly rejected the submission. Both reports by Dr White and Mr Minniti do not state that the appellant had this realisation. Mr Wickens’ submission is solely based on the appellant’s instructions. His Honour made an inference which was perfectly acceptable given the material he was provided with.
The sexual offender program that the appellant undertook apparently changed towards the end of the appellant’s voluntary participation. As I understand it, the programs separated into two different courses: one for child pornography offenders and the other for hands-on predatory offenders. In order for the appellant to graduate from the sexual offenders rehabilitation course he had to undertake another year at Owenia House in the stream that was specifically designed for his type of offending. The appellant decided not to continue with treatment and withdrew from the program.
Mr Wickens submitted that the appellant withdrew from the program for two reasons, the first being that the appellant’s previous year that he had undertaken at Owenia House was invalid and in order to graduate he had to complete another year, and secondly the appellant had decided to move to Queensland due to health reasons.
In my view the sentencing judge did not wrongly characterise the appellant’s lack of understanding of his offending. The new program at Owenia House was recommended to the appellant and he decided not to continue. Further, it was open to him to participate in a similar rehabilitation program in Queensland yet he chose not to. He told both Dr White and Mr Minniti that he found the Owenia House program distressing and unhelpful yet he gave instructions to his counsel that it was only from undertaking this program that he realised that his offending involved the abuse of children. He failed to tell Dr White and Mr Minniti this.
As I have said Mr Wickens submitted that this realisation was a significant “watershed” moment for the appellant. I find it odd that this significant “moment” was not mentioned to either the psychiatrist or psychologist.
The sentencing judge was left with the reports and the appellant’s instructions being inconsistent. The reports were tendered with no objections. If the appellant had concerns that the reports failed to accurately explain why he found the Owenia program distressing and unhelpful, clarification in the form of evidence should have been requested by the appellant.
Significant delay
Mr Wickens argued that consideration should be given to the significant delay between the appellant being arrested on 4 June 2008 and his sentence on 11 May 2012.
The delay has been explained by the prosecution as being attributed to the Australian Federal Police examination and assembling of the material. Mr White for the Director of Public Prosecutions submitted that given the limited resources available and other priorities of the Australian Federal Police, unfortunately accelerating matters can be difficult.
Although it is acknowledged there was significant delay, the appellant exercised his right to remain silent and did not enter a guilty plea until 20 January 2012. The appellant was entitled to remain silent and cannot be blamed for the delay. However, in my view, he cannot benefit from it either.
Defendants in the position of the appellant should be encouraged to informally advise the prosecution and the court of their position in relation to the charge at the earliest possible opportunity. This is even more important when defendants know that they will plead guilty. This would obviate further delay and ensure that matters are processed through the court system quicker. It would save a great amount of time and expense.
In any event it is clear that the sentencing judge took the delay into account as he acknowledged it in his considerations. He said:
I take into account that the delay in the prosecution of these proceedings was not your fault.
The appellant knew there would be delay and he acknowledged his guilt from day one. Mr Wickens agreed that the appellant could have made a statement, rather than waiting nearly four years to plead guilty.
In my view, the appellant could have accelerated matters and pleaded guilty as soon as the charge was made. As stated above, courts look on early guilty pleas favourably when imposing non-parole periods and head sentences.
Although the appellant is entitled to his right to remain silent and was not the cause of the delay, I am of the view that the sentencing judge appropriately considered it and no error has been demonstrated.
Mr White argued that these offences are serious and that both the head sentences and non-parole periods were appropriate. He said that the maximum penalties for this type of offending indicates the seriousness with which parliament considers that offenders should be punished.
He emphasised the primary policy of the criminal law in protecting vulnerable children from sexual predators and sexual exploitation which is set out in s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA).
The Commonwealth offending occurred over a significant period of time and Mr White emphasised the significant number of child pornography files that were located in the appellant’s possession.
Mr White submitted that the sentencing judge correctly considered and took into account all the relevant circumstances of the appellant and applied appropriate discounts because of them. Mr White indicated that in light of the structures possible for a Commonwealth and State sentence, this was the most beneficial order that the appellant could have received. He submitted that it had not been shown that the judge made any error in his sentencing approach.
The appellant’s personal circumstances
The appellant is 42 years of age. Apart from these two offences he has no previous convictions. He has been unemployed since 2003 and has received a disability pension since 2005 due to a back injury which forced him to stop working. The appellant was diagnosed with depression at the time of the offending and also suffers from a number of psychiatric conditions, including a bi-polar condition and suicidal ideations. He is supported by his wife who speaks highly of him and assists in managing his medication. The appellant is genuinely remorseful for his offending and has been classified as a low risk re-offender.
Sentencing principles applicable to child pornography
The sentencing principles were recently reviewed by the Full Court in R v Riddle [2012] SASCFC 82. The remarks of Doyle CJ in R v Padberg [2010] SASC 189 were adopted. Doyle CJ said:
[20]It is clear that there is an international market in child pornography, as well as a market within Australia. Those who are part of the market for this material share the responsibility for what is done to the children depicted. The creation and dissemination of child pornography material is a serious social evil, and those who acquire and use such material must be held accountable for the part that they play in the persistence of this social evil.
…
[22]Offences of this kind will usually require a custodial sentence and will usually call for a period of imprisonment to be served. I mean offences of the kind charged, committed over a significant period of time, involving a substantial amount of pornographic material and involving child pornography of the most serious kind. …
[23]It is the objective seriousness of this kind of offending, its prevalence, and the need for deterrence that justify what I have said. …
I agree with these statements.
Doyle CJ at [27] referred to Director of Public Prosecutions (Tas) v Latham [2009] TASSC 101 where Porter J identified relevant factors that should be borne in mind when sentencing for these kinds of offences. Porter J identified five main considerations bearing upon the objective seriousness of the offending. He said:
[34]In R v Oliver [2003] 1 Cr App R 28 and also R v Gent (2005) 162 A Crim R 29, there is discussion as to the factors which bear upon the objective seriousness of possession and distribution of child pornography. Those factors include:
·       the nature and content of the images, including the age of the children and the gravity of the activity portrayed – in particular, the degree of obvious physical harm or fear or distress in the victim;
·       the number of images or items of material;
·       whether mere possession is for the purpose of further distribution, and whether there will be any profit or benefit from the activity of the offender. Actual profit or benefit will aggravate the offence, whilst absence of such profit or benefit is not mitigatory.
·       the level of personal interest in the material, as perhaps evidenced by the way in which any collection is organised on a computer;
·       whether the possession or distribution involves a risk of accidental discovery by innocent computer users.
Doyle CJ said that he agreed with the summary. I also agree.
This offending is serious and this type of offending has become more prevalent, and numerous warnings have been given by the Court of Criminal Appeal as to the likely severity of sentences. Doyle CJ in R v Padberg said at [21]:
[21]When sentencing offenders, general deterrence must be given a high weighting. The prevalence of child pornography material, and its availability through the internet, mean that potential users of such material must be warned that, if detected, they will be punished most severely.
In Riddle I referred to those comments at [28]. Nyland J in R v Riddle said at [2]:
[2]Regrettably, as mentioned by Anderson J in his reasons, offences relating to child pornography are becoming more prevalent. Those who commit such crimes must therefore expect to receive severe penalties.
Conclusion
As discussed in R v Riddle, it is difficult to compare head sentences and non-parole periods with other cases involving this type of offending. Each case must be decided on its own facts and the fixing of penalties is not a mathematical exercise. This matter is another example.
This case involved a large number of downloads. The appellant was not satisfied to only use the material for his own “short term pleasure” as he described it, but he went a step further and uploaded material to a US-based website which was described by the Australian Federal Police in their summary of facts as follows:
[The US-based website] … has been identified as having in excess of forty million users, linking billions of personal photos, graphics, slideshows and video, to hundreds of thousands of websites. … further provides users with the means to share their personal digital media by email, instant messaging and mobile devices.
Children are unable to protect themselves from exploitation. They suffer substantial harm both in the short term and long term and are entitled to be protected by the law and the courts from this prevalent international market of child pornography. They are victims enduring ongoing exploitation and those committing crimes against these defenceless victims must expect to receive severe penalties.
As indicated the judge said this case was a serious example of these offences within the range of seriousness coming before the court. I agree with the judge.
In my view the judge has not failed to take into account any relevant matter or that he has wrongly taken irrelevant matters into account.
In my view, although the discounts given for the pleas of guilty are quite different they are not shown to be in error. Both are within the sentencing judge’s broad discretion. Specifically the discount for the State offence was within that discretion.
I would dismiss the appeal.