R v Hill
[2011] SASCFC 109
•14 October 2011
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HILL
[2011] SASCFC 109
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Stanley)
14 October 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER
Appeal against sentence - defendant pleaded guilty to aggravated possession of child pornography - sentenced to 16 months' imprisonment with a non-parole period of six months.
Whether sentencing Judge erred in not suspending sentence - whether a custodial sentence is appropriate for this type of offending - whether fresh evidence relating to defendant's father sheds new light on material before sentencing Judge.
Held: Appeal allowed - defendant's youth and domestic situation given inadequate consideration by the sentencing Judge.
Defendant resentenced to 13 months' imprisonment with a non-parole period of three months - sentence suspended.
Criminal Law Consolidation Act 1935 (SA) s 63A(1)(a), s 353, s 359; Criminal Law (Sentencing) Act 1988 (SA) s 10(4), s 10(1)(n), referred to.
R v Smith (1987) 44 SASR 587, applied.
R v Padberg (2010) 107 SASR 386; R v McGaffin [2010] SASCFC 22; R v Oliver [2003] 1 Cr App R 28; R v Gent (2005) 162 A Crim R 29; Everett v The Queen (1994) 181 CLR 295; R v Wirth (1976) 14 SASR 291; R v Adami (1989) 51 SASR 229; Neill v Police [1999] SASC 270; R v Penno [2004] SASC 354; R v Carpentieri (2001) 81 SASR 154; Bates v Police (1997) 70 SASR 66, considered.
R v HILL
[2011] SASCFC 109Court of Criminal Appeal: Gray, Sulan and Stanley JJ
GRAY J: I would allow the appeal. I agree with the orders proposed by Sulan J and with his reasons. I do not wish to add to those reasons.
SULAN J: This is an appeal against sentence. The defendant, Joshua Abe Roger Hill, pleaded guilty to aggravated possession of child pornography.[1] The offence was aggravated because at the time of the offence, the defendant knew the victims to be under the age of 14. On 14 July 2011 he was sentenced to 16 months’ imprisonment with a non-parole period of six months. The defendant contends that the sentencing Judge erred in not suspending the sentence. The maximum penalty is seven years imprisonment.
[1] Criminal Law Consolidation Act 1935 (SA) s 63A(1)(a).
Background
The charges arose after the seizure by police of various computer equipment found at the defendant’s family home. The equipment seized containing the relevant images are as follows:
·Laptop computer containing 19 images;
·Desktop computer with three hard drives; the first containing 3,806 relevant images, the second containing 17 pictures files, and the third containing 1,015 images;
·Internal hard disc drive containing 60 images which had been deleted;
·Second desktop computer with two hard drives; the first containing 6,837 relevant files which had been accessed and deleted; and
·Memory card containing 57 picture files which had been accessed and deleted.
The equipment contained a total of 11,811 images of child pornography. Notably, there were more than 500,000 other images of young children in non‑sexual poses on these computers. The sentencing Judge commented that these were obviously in the defendant’s possession for prurient reasons.
The images included those at the lesser and higher end of seriousness on the COPINE scale. At the lesser end, images included sexual posing by pubescent girls and boys and sexual posing by infant girls. At the higher end of seriousness, images included acts of fellatio being performed on adult males by girls of four or five years of age, actual intercourse between young boys and intercourse between very young girls and adult males. Further, there were children of both sexes involved in bondage and young girls involved in bestiality.
The sentence
The sentencing Judge considered that the nature of the material found placed the offending in the upper range of seriousness for this type of offence. He noted that the defendant had sought to delete some of the images, but there were others not deleted which were of a most serious kind. He accepted that the defendant was neither trading nor distributing the images.
The Judge considered the personal circumstances of the defendant. He took into account that the defendant assists his mother to support his father, who is severely disabled. He noted that the defendant is only 21 years of age, with no previous convictions. He considered a starting point of two years’ imprisonment to be appropriate for the offending. He gave the defendant credit for his plea of guilty, his cooperation with police, and his contrition, reducing the sentence to 16 months.
Dr Raeside, a forensic psychologist, examined the defendant. He reported that the defendant’s history suggests paedophilia in terms of his primary sexual attraction being to young male and female children. Although he has never committed any sexual act with a child, Dr Raeside expressed a concern that his ongoing use of pornography and underlying paedophilia may continue to increase the risk that he might eventually act on his attraction. Dr Raeside was of the opinion that the defendant should undertake a sexual offender treatment and assessment program to reduce the risk that he might offend in the future. Dr Raeside considered it important that the defendant receive counselling and treatment for his psychological condition.
The Judge fixed a shorter than usual non-parole period of six months to enable the defendant to undertake appropriate rehabilitation programs. He considered whether to suspend the sentence. The Judge said:
With your health and personality type, I accept that imprisonment will weigh more heavily upon you than upon the average person. You are still young, at only 21. You have no previous convictions.
The circumstances of this case are very similar to a case called Padberg heard in the Supreme Court last year. Mr Padberg was also a young man with health problems. It is not clear how many images he had, but the number was described as ‘substantial’. I will assume it was similar to the number of pornographic images in your possession.
His Honour the Chief Justice said that, ordinarily, the sentences in these circumstances should be imprisonment to be served; that is, not suspended. That is so even where the offender is young and has no prior convictions. All three justices in that case said the sentence should not have been suspended, particularly because, as here, there were images which fell into the most serious categories of child pornography.
I consider that a sentence of two years fits the seriousness of this offending. This is more than Padberg’s sentence, but this offence was aggravated whereas Padberg’s was not.
I reduce the sentence to 16 months having regard to your plea of guilty, your cooperation with the police and your contrition.
I fix a shorter than usual non-parole period of six months because I consider it urgent that you receive counselling and/or treatment for your psychological condition, having regard to the comments in Mr Raeside’s report, and that a substantial non-parole period will provide a greater chance you will not re-offend.
Another factor which I take into account is the fact that you provide support to your family to an exceptional degree. I consider it will be inconsistent with the need for general and personal deterrence for this sort of behaviour for the sentence to be suspended, so the sentence and the non-parole period will commence today.
The appeal
The defendant appeals against the decision not to suspend the sentence. Counsel for the defendant submits that the sentencing Judge erred in failing to adequately consider matters personal to the defendant which enliven the discretion to suspend. He says that further regard should have been given to the defendant’s age. He is now 21 years of age and was 20 at the time of arrest. In the psychiatric report of Dr Raeside, it is noted that the defendant’s interest in children of a similar age commenced possibly at the age of 11 with his exposure to child pornography beginning at age 14. Counsel contends that the material which constitutes this charge is material that had been in the defendant’s possession since the age of 16, with further material accumulating over a four-year period. He contends that his age upon arrest of 20, and age over the period of offending, is readily distinguishable from the appellant in R v Padberg,[2] who was 26 years of age, and thereby of greater maturity.
[2] (2010) 107 SASR 386.
It is submitted that the defendant’s offending, which occurred solely in his bedroom, his limited sexual contact with others, and his present living arrangements with his parents, are illustrative of a further lack of maturity. Counsel submits that though general deterrence is one factor, the sentence must be tempered in this context, having sufficient regard to the genesis of his addiction.
The defendant additionally contends that further weight should have been afforded to the care provided by him to his father, who is seriously disabled. The defendant resides with his parents and younger brother and sister. His father was involved in a motorbike accident before the defendant’s birth, and has since been confined to a wheelchair; he is unable to eat or drink absent assistance. The defendant devotes considerable time and effort to caring for his father. He could be described as a joint primary carer together with his mother.
Finally, it is submitted that the sentencing Judge erred in his application of Padberg, and failed to consider the authority of R v McGaffin.[3]
[3] [2010] SASCFC 22.
Counsel for the Director of Public Prosecutions, submits that the sentencing Judge took into account all matters personal to the defendant. She contends that the Judge was correct in determining that the seriousness of the offending warranted a custodial sentence.
Legal principles
In R v Oliver[4] and R v Gent,[5] the following factors were considered to bear upon the objective seriousness of the possession and distribution of child pornography. They 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.
[4] [2003] 1 Cr App R 28.
[5] (2005) 162 A Crim R 29.
In McGaffin, Gray J, after drawing on authorities from both overseas and interstate, outlined the following principles relevant to the sentencing of an offender for a child pornography offence:[6]
[6] R v McGaffin [2010] SASCFC 22 at 18.
·General deterrence is of heightened significance;
·Child pornography is not a “victimless crime” and the damage caused to the child victims is recognised;
·Those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it;
·A range of factors may bear upon the objective seriousness of the offence, including:
- The nature and content of the pornographic material – including the gravity of the sexual activity portrayed;
- The age of the children;
- The volume of material;
- Whether the offender derives any commercial benefit and whether the possession or importation is for the purpose of sale or further distribution;
- The sophistication, skill and planning involved;
- The duration of possession;
- The possibility of inadvertent access by others;
·Limited weight is given to an offender’s prior good character;
·Subjective factors such as age, prior criminal history and prospects of rehabilitation are of importance.
Further, regard must be had to s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA) which provides that a primary policy of the criminal law is to protect children from sexual predators by ensuring that a paramount consideration in sentencing is given to general deterrence.
Whether to suspend a sentence of imprisonment was considered by this Court in both Padberg and McGaffin.
The defendant in Padberg pleaded guilty to one count of using a carriage service to access child pornography and one count of possessing child pornography. The defendant faced a maximum penalty of 10 years’ imprisonment for the Commonwealth offence, and a maximum penalty of five years’ imprisonment for the State offence. The defendant was sentenced to a term of imprisonment of 16 months, with a recognisance release order in relation to the Commonwealth offence, and a suspended sentence of imprisonment in respect of the State offence. Both Directors appealed, challenging the orders for immediate release and suspension.
The defendant was found to possess a computer and associated equipment with images depicting child pornography which had been downloaded from the internet over a two-year period. The sample material analysed comprised 798 child pornography images and 287 child pornography video files, though the total amount of material was substantially more than the material analysed. The images spanned a range of categories on the COPINE scale and included material depicting perverted behaviour and criminal conduct of the most serious kind.
The defendant did not seek to distribute or profit from any of the material, nor did he pay for it. He cooperated with the police, made full admissions and entered an early guilty plea. He was 26 years of age. He had been diagnosed with anxiety disorders and depression before the offending was detected. After detection, he displayed symptoms of acute stress reaction and depression.
Doyle CJ observed:[7]
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.
When sentencing offenders, general deterrence must be given a high weighting. The prevalence of child pornography material, and its availability through the internet, means that potential users of such material must be warned that, if detected, they will be punished most severely.
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. I am not referring to offences of this kind when payment is made by the offender for the material, nor when the offender has distributed the material to others, either freely or in return for payment. If those matters are present, they are likely to raise the offending to another level of seriousness. For offending of the present kind a period of imprisonment to be served will ordinarily be appropriate even though the offender has pleaded guilty and has no previous convictions. That is not to say that a wholly suspended sentence can never be appropriate in such cases. Each case has to be considered on its own facts. (Emphasis mine).
[7] R v Padberg (2010) 107 SASR 386 at 20-22.
Kourakis J would have allowed the appeal and would have imposed a 12 month sentence with a non-parole period of five months for the State offence. He would have ordered release under the Commonwealth Act after five months’ imprisonment. He considered the offence transcended borders, it took advantage of defenceless children, it was voluminous, it was easy to disseminate, difficult to detect and required strong deterrent sentences.
McGaffin was also an appeal by the Director of Public Prosecutions. The defendant had pleaded guilty to the offences of aggravated possessing child pornography and possessing child pornography, carrying maximum penalties of imprisonment for seven years and five years respectively. Both offences occurred over a relatively short span of time, between 23 June 2007 and 24 September 2007. Although the defendant pleaded guilty to possession of child pornography throughout a three month period, the conduct relied upon by the prosecution for the offences related to a shorter period, namely 8 August 2007 to 23 September 2007. An analysis of the defendant’s computer found 71 images of child exploitation. The District Court Judge proceeded without recording a conviction and released the defendant on a three year good behaviour bond on each count.
There were some unusual features of the case including the defendant’s youth and immaturity at the time of the offending. The defendant had first started looking at images of child pornography from age 13, resulting in some form of addiction for him. Within a week of police attendance, his parents had arranged for him to be assessed by a psychologist in relation to his interest in child pornography. He commenced a two and a half year period of psychological treatment, concluding shortly before he was sentenced. The report from the psychologist indicated that he had developed an obsessive interest in pornography in his early adolescence, that the interest had filled emotional and psychological needs at the time, and that the obsession had become entrenched. The psychologist considered the defendant to be highly motivated to address his preoccupation, and found that his course of treatment had been successful.
White J, with whom the Chief Justice agreed, considered that the sentencing judge’s sentence was very merciful, and that as the Chief Justice in Padberg indicated, offences of this kind would usually require a sentence of imprisonment to be imposed, with part of that sentence being served in custody. Nevertheless, White J considered that the case required a balancing of the need for condign punishment with the mitigatory effects of the respondent’s youth and immaturity. He remarked:[8]
A review of many of the decisions at appellate level in this State and elsewhere suggests that the commission of the offence of possession of child pornography by persons as young as 20 years may be atypical. The appellant in Puhakka v The Queen who was also 20 years old is an exception. I also note that the offences considered in R v Daw and R v Salsone; ex parte Attorney-General (Qld) were each committed by 21 year olds. I mention this because it indicates that the sentencing principles reflected in the reasons of the Chief Justice in Padberg, and in the comparable interstate decisions, were developed in relation to the sentencing of mature adult offenders. In general, the courts have not had to consider the application of those principles in relation to offences committed by youthful offenders.
The youth of an offender who has attained the statutory age of majority is usually regarded as a mitigatory factor in sentencing. This may be because courts recognise that the young and immature are more prone to ill-considered or rash decisions; or because they consider young offenders may not have appreciated fully the nature, seriousness and consequences of the criminality involved in their conduct; or because they recognise the potential for young offenders to be redeemed and rehabilitated; or because they consider that the effect of incarceration in an adult prison is likely to impair, rather than improve, the offender’s prospects of a successful rehabilitation.
[8] R v McGaffin [2010] SASCFC 22 at 68-69.
The majority of the Court found that the sentencing judge did not err by not imposing a custodial sentence. However, it was noted that this was a rare and exceptional case due to four considerations, which allowed the sentencing Judge to decline to impose a custodial sentence. The factors included the defendant’s youth and immaturity, his innocent and inadvertent exposure to child pornography as a 12-year-old, the immediate psychological treatment entered into, and the support of his close-knit, cohesive and law abiding family.
Gray J dissented. He concluded that the sentences imposed were manifestly inadequate. He was of the view that the offending was too serious to uphold the approach of the sentencing Judge. He concluded that a conviction should have been recorded and a sentence of two years’ imprisonment, with a non-parole period of eight months, should have been imposed. He allowed a deduction of eight months’ imprisonment for the plea of guilty. He did, however, consider that a suspension of the sentence was appropriate, given Mr McGaffin’s family support, contrition and remorse, and his successful rehabilitation.
I observe that both Padberg and McGaffin were prosecution appeals. The principles governing prosecution appeals require that leave to the Director to appeal should be granted “only in exceptional cases”.[9]
[9] Everett v The Queen (1994) 181 CLR 295.
The difference in approach by the majority in McGaffin and by Gray J in McGaffin and Kourakis J in Padberg demonstrate the difficulty in the practical application of the principles. Doyle CJ in Padberg concluded that a suspended sentence was not warranted, and that general deterrence outweighed personal factors in that case. Nevertheless, he declined to interfere with the sentence, because the Judge’s discretion to suspend a sentence is very broad and, secondly, he was reluctant to imprison a first offender who had been set at liberty by the sentencing Judge.
An analysis of the reasons in Padberg and McGaffin lead to the conclusion that all judges considered a custodial sentence for this type of offending was generally required, but there may be circumstances personal to an offender which would justify suspension of the sentence. It follows that it is not possible, nor in accordance with sentencing principles, to provide other than general guidance to sentencing courts which are required to consider this type of offending. In McGaffin, White J considered the defendant’s youth as well as his family support, and that he had embarked upon a successful program of rehabilitation to justify the imposition of a bond.
Fresh evidence - hardship
The defendant sought to adduce fresh evidence in relation to the deterioration in health of the defendant’s father since his son’s incarceration. The fresh evidence sought to be relied upon is an affidavit of Karen Hill, dated 29 September 2011, the defendant’s mother, a letter from White’s Road Medical Centre, dated 9 March 2011, a medical report from Professor Donald Simpson, dated 5 October 1993, and a report of Anne Morgan, occupational therapist, dated 14 December 1993.
Pursuant to section 353 of the Criminal Law Consolidation Act 1935 (SA), this Court has the power to set aside a sentence on appeal and to re-sentence the offender. In the exercise of its powers under section 353(4), the court has power to admit evidence on the hearing of an appeal. This power is contained in section 359 of the Act, which relevantly provides:
For the purposes of this Act, the Full Court may, if it thinks it necessary or expedient in the interests of justice –
(a)...
(b)order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in the manner provided by rules of court before any judge of the Supreme Court or before any officer of the Supreme Court or justice of the peace or other person appointed by the Full Court for the purpose, and allow the admission of any depositions so taken as evidence before the Full Court; and
(c)receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness and, if the appellant consents, of the husband or wife of the appellant in cases where the evidence of the husband or wife could not have been given at the trial except with such consent; and
(d)...
(e)...
(f)exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters; and...
The purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of sentence but were not known to the sentencing judge, or to explain facts which were before the sentencing judge so as to put them in a new light.[10] The appellant in Smith was diagnosed as having antibodies of the AIDS virus. Information as to his medical condition was before the sentencing Judge. An application was made to allow evidence to be admitted on the appeal from a medical expert on the subject of AIDS. King CJ allowed the receipt of the fresh evidence. He said:[11]
While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant’s condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence.
[10] R v Smith (1987) 44 SASR 587.
[11] Ibid at 588.
The affidavit of Ms Hill confirms the information provided to the sentencing Judge. However, it provides additional information. The sentencing Judge was not aware that imprisonment has placed additional strain upon the family. The Judge was told that, because of concerns about Mr Hill’s wellbeing, the family had not informed him about the defendant being before the Court. When the defendant was imprisoned and Mr Hill was informed, he became depressed and it was necessary to increase his medication for his depression. After the defendant was sentenced, Mr Hill required surgery to his small bowel. Since his release from hospital, this has placed additional strain upon Ms Hill and their 14-year-old daughter, as Mr Hill is more dependent upon them. The defendant’s absence has had a significant effect upon his father. The reports of Dr Simpson and Ms Morgan confirm that Mr Hill suffers from some multiple permanent disabilities.
I consider the evidence throws further light on Mr Hill’s condition. I accept he has a severe disability which has been exacerbated by the incarceration of the defendant.
Having admitted such evidence, I am obliged to consider the impact on the defendant’s family, particularly his father, of a sentence of imprisonment. I am required to do so by section 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA). Section 10(1)(n) provides:
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
...
(n) the probable effect any sentence under consideration would have on dependants of the defendant;
The common law principle, encapsulated by section 10(1)(n) was described by Wells J in R v Wirth:[12]
When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence?
...
Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court ... It seems to me that courts would often do less than their clear duty – especially, where the element of retribution, deterrenct [sic], or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it has been often remarked that the strength of our law likes in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so.
[12] (1976) 14 SASR 291 at 295-296.
In R v Adami,[13] the court held that a court may take effect on dependents into account to ameliorate a penalty only in exceptional cases.[14] In Neill v Police,[15] Doyle CJ considered the position in Adami. He said:[16]
A sentence of imprisonment will usually affect the family of the offender. In the ordinary case that is not a matter that will provide a basis to reduce a sentence. But there are cases when the effect is so great that the court can rely on it to reduce the sentence that is otherwise appropriate. The court does so out of consideration of the welfare of the family, and society’s interest in their welfare, and not merely as an act of mercy to the offender. Even then the court must still give weight to the other relevant factors. The process of sentencing does not become one in which the impact on the offender’s family controls the outcome, or even is a dominating factor. The true position is that the interests of the offender’s family may be given effect to by reducing an otherwise appropriate sentence.
[13] (1989) 51 SASR 229 at 232.
[14] Ibid at 233.
[15] [1999] SASC 270.
[16] Ibid at 24.
In R v Penno,[17] Gray J, after considering the remarks of Wells J above, said:
As some degree of hardship will invariably be suffered by dependants of a defendant upon imprisonment, hardship to those dependants will not generally be taken into account in a defendant’s favour except in extreme or extraordinary circumstances. In other words, the hardship must be of such a serious character as to call for a merciful approach to sentencing.
[17] [2004] SASC 354 at 46. See also R v Carpentieri (2001) 81 SASR 164, Bates v Police (1997) 70 SASR 66.
The weight to be afforded to a submission in respect of the hardship suffered by a dependant of a defendant will depend on the facts and circumstances of each case. However, it is only in the exceptional case that this hardship will have sufficient weight to override other considerations relevant to sentencing.
In the present case, medical evidence and a further affidavit has been put before this Court. This material was not before the sentencing Judge. The further evidence discloses a significant hardship suffered by the defendant’s family, by reason of the support that was given by him to his ailing father prior to his incarceration. The defendant’s mother is a nurse at the Lyell McEwin Hospital. The family is financially reliant upon her retaining her employment. She works two days a week, during which time the defendant would ordinarily assume the position of primary caregiver to his father. Since his incarceration, his 14 year old sister has had to assume some of these responsibilities which the defendant would otherwise have attended to. This has placed additional strain on the family, and has had a particularly acute effect on the defendant’s father’s mental health.
The hardship identified is one that goes beyond the economic or emotional hardship to be expected when one is imprisoned. An approach to sentencing that weighs the interests of the defendant’s family with other matters, such as the gravity of the offending, is warranted.
Conclusion
The sentencing Judge imposed a very low non-parole period because he considered that it was urgent that the defendant receive counselling and treatment for his psychological condition. He also considered a long period of release on parole will provide a greater chance that the defendant will not re-offend. The Judge had a wide discretion. He considered that the seriousness of the offending called for an immediate custodial sentence on the one hand, but with a very low non-parole period on the other. The utility of imposing an immediate custodial sentence upon a person who requires immediate concentrated psychological treatment is questionable. That, amongst other factors such as the defendant’s youth and his domestic situation, were given inadequate consideration by the Judge.
Offending of this kind must be discouraged. I consider a custodial sentence is almost an inevitable result of this type of offending. The report of Dr Raeside is a stark reminder that persons viewing images of this type may well escalate their activity to actual paedophilia. Even if this is not the case, the offending involves the exploitation of young children. Such conduct must be condemned. Those who engage in it must realise that they will receive little sympathy for their conduct. Nevertheless, each case turns upon its own facts and circumstances. There may be times where, in the case of a first offender, the need for rehabilitation and treatment weighs more heavily in favour of a non-custodial sentence.
There are circumstances peculiar to this defendant which can characterise this case as a rare and exceptional one. The defendant’s interest in the material started early; he was conditioned to viewing this material from a very young age. The report of Dr Raeside suggests a form of addiction to the material complicated by his primary sexual attraction to children. He does note, however, that the defendant indicates an awareness of the wrongfulness of his actions and openness to rehabilitation. Dr Raeside recommends participation in the Sexual Offender Treatment and Assessment Program. Such rehabilitation and treatment is undoubtedly more easily facilitated outside gaol. Moreover, Dr Raeside considers that the defendant is likely to do particularly poorly in custody given the nature of the charges, his sexual attraction and lack of other criminogenic factors. The deteriorating health of the defendant’s father, and the support the defendant gives to both his father and his family are factors which, added to the other matters, justify suspension of the sentence. The defendant has spent three months in custody. That in itself should have had a salutary effect upon him. He will be subject to a lengthy period of a bond, when he will be subject to the treatment and supervision which he requires.
There exists extenuating circumstances which justify the Court’s intervention in this case. I would allow the appeal. Taking into account the time already spent in custody (three months), the defendant is re-sentenced to a term of imprisonment of 13 months’ imprisonment with a non-parole period of 3 months. The sentence is suspended upon the defendant entering into a good behaviour bond in the amount of $500 for three years and, during that time, that he be under the supervision of a community corrections officer and undertake such treatment as decided by the community corrections officer
STANLEY J: I have had the advantage of reading in draft the reasons of Sulan J. For the reasons given by his Honour, I would allow the appeal. I agree with the orders proposed.
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