R v Hill

Case [2011] SASCFC 109

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 109

Court of Criminal Appeal:      Gray, Sulan and Stanley JJ

  1. 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.

  2. 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

  3. 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;

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R v Hill [2011] SASCFC 109
Case
[2011] SASCFC 109
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal against sentence brought by the defendant, who had pleaded guilty to aggravated possession of child pornography and was sentenced to 16 months' imprisonment with a non-parole period of six months. The appeal court comprised Justices Gray, Sulan, and Stanley.

The legal issues before the court were whether the sentencing judge had erred in not suspending the sentence, whether a custodial sentence was appropriate for this type of offending, and whether fresh evidence relating to the defendant's father shed new light on the material before the sentencing judge. The court considered the general principles of sentencing for child pornography offences, including the need for general deterrence and the usual requirement for a custodial sentence, while acknowledging that each case must be considered on its own facts.

The court reasoned that while offences of this nature generally warrant imprisonment, there can be exceptional circumstances justifying a non-custodial sentence, particularly for first offenders where rehabilitation and treatment needs are significant. The court admitted fresh evidence concerning the defendant's psychological condition and his father's deteriorating health, noting that such evidence could be considered if it explained the full extent of facts existing at the time of sentencing. The court found that the sentencing judge had given inadequate consideration to the defendant's youth, domestic situation, and the urgent need for psychological treatment, which is more easily facilitated outside of custody. The court also noted the defendant's early exposure to the material, his potential addiction, and his awareness of the wrongfulness of his actions, coupled with his father's illness and the defendant's family support role, as factors justifying suspension.

The court concluded that the defendant's circumstances were rare and exceptional, warranting a departure from the usual custodial sentence. The defendant had already served three months in custody, which was considered to have had a salutary effect. The court ordered that the sentence be suspended, with the defendant to be subject to a lengthy bond period involving the required treatment and supervision.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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