R v HOGAN - [2015] SASCFC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v HOGAN
[2015] SASCFC 102
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
29 July 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
The appellant pleaded guilty to one count of aggravated possession of child pornography contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA) and one count of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth). The appellant was a Jesuit priest and rector of a college. He had amassed a substantial collection of child pornography over many years, including magazines, books, printed images, video tapes and downloaded images. Most of the images were rated at the lowest level of seriousness, but some of the magazines contained images in the most serious categories. The appellant pleaded guilty at an early stage, voluntarily entered into a supervision regime with the leaders of the Jesuit community and had a low risk of re-offending. For the first offence he was sentenced to imprisonment for one year and nine months (after a 25% discount for an early guilty plea) with a non-parole period of 10 months. For the second offence he was sentenced to one year and nine months imprisonment, to be released upon serving one month and upon entering into a $100 recognisance to be of good behaviour. The two sentences were partly concurrent with a combined head sentence of two years and six months imprisonment. The appellant applied for permission to appeal against the sentences on the ground that the sentencing judge erred in declining to suspend the sentence, imposing a sentence that was manifestly excessive, not making the sentences wholly concurrent, imposing the same head sentence for the two offences and not allowing the maximum discount for the early guilty plea.
Held (per Parker J, Kourakis CJ and Nicholson J concurring) (allowing the appeal):
(1) General deterrence is a paramount consideration for offences of this kind. Only limited weight can be given to the appellant's prior good character. Offences committed over a significant period of time, involving a substantial amount of pornographic material and involving child pornography of the most serious kind should attract a term of imprisonment. The term of imprisonment of two years and four months was not manifestly excessive. [62]-[64]
R v Padberg [2010] 107 SASR 386, followed.
Director of Public Prosecutions v D'Alessandro [2010] VSCA 60, followed.
(2) Given the timing of the appellant's guilty plea to the State offence and having regard to his co-operation with police, he should have received the maximum discount of 30% or close to…

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.

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Details

AGLC: R v Hogan [2015] SASCFC 102
Case: [2015] SASCFC 102
Decision Date: 29 July 2015

CaseChat Overview and Summary

The appellant, a Jesuit priest and college rector, pleaded guilty to aggravated possession of child pornography under South Australian law and using a carriage service to access child pornography under Commonwealth law. He had amassed a significant collection of such material over many years, with some of the content falling into the most serious categories. The appellant sought leave to appeal against the sentences imposed, arguing that the sentencing judge erred in refusing to suspend the sentences, imposing manifestly excessive sentences, failing to make the sentences wholly concurrent, imposing identical head sentences for both offences, and not providing the maximum discount for his early guilty plea. The appeal was heard by Kourakis CJ, Nicholson and Parker JJ.

The central legal issues before the Full Court were whether the sentencing judge had erred in exercising their discretion regarding the discount for the early guilty plea for the state offence, and whether the overall sentences imposed for both the state and Commonwealth offences were appropriate, particularly in relation to concurrency and the potential for suspension. The court was required to consider the principles established in *R v Padberg* concerning the sentencing of similar offences.

The court acknowledged that s 10C(2)(b) of the *Criminal Law (Sentencing) Act 1988* (SA) conferred a discretion to discount the sentence for the state offence by up to 30%, and that a 25% discount was not plainly insufficient. However, the court also considered the period of imprisonment already served by the appellant. Applying the principles from *R v Padberg*, which emphasised that custodial sentences are usually required for such offences, the court varied the sentences. The Commonwealth sentence was reduced to one month and three weeks imprisonment, with immediate release ordered. The state sentence was reduced to one year and three months and three weeks imprisonment, to be suspended upon the appellant entering into a recognisance to be of good behaviour for 18 months. Both sentences were ordered to be served concurrently.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I would also reduce both the Commonwealth sentence and the State sentence in recognition of the period of imprisonment that the appellant has served since 20 March 2015.Conclusion I would impose a sentence of two years and four months in respect of the State offence. In recognition of the early guilty plea entered by the appellant I would reduce the period of imprisonment to one year and eight months. I would further reduce that sentence in recognition of the period of imprisonment of four months and nine days that the appellant has served since 20 March 2015. Thus, I would reduce the period of imprisonment to one year and three months and three weeks. I would set a non-parole period of six months. I would sentence the appellant to six months imprisonment in respect of the Commonwealth offence, reduced from eight months on account of the plea. However, I would also reduce that sentence in recognition of the period of imprisonment that he has served since 20 March 2015. Thus, the head sentence should be varied to one month and three weeks imprisonment. The Commonwealth and State sentences should be served concurrently. In relation to the Commonwealth sentence, I would order the release of the appellant immediately. As the head sentence for the Commonwealth offence would not exceed six months, and as no useful purpose would be served by a very short recognisance period,[6] I would exercise the discretion under s 19AC(3) of the Crimes Act 1914 not to require a recognisance order. With respect to the State sentence, I would also order the immediate release of the appellant by way of suspended sentence upon him entering into a bond to be of good behaviour for a period of eighteen months.[6] Section 19AF(1) of the Crimes Act 1914 provides that a recognisance period must not exceed the period of the head sentence.

Ratio Decidendi

Legal Principle Established

Section 10C(2)(b) of the Criminal Law (Sentencing) Act 1988 conferred a discretion upon the sentencing judge to discount the appellant’s sentence for the State offence by up to 30%. The respondent submitted that it was open to the sentencing judge to grant a discount of less than 30% and the discount of 25% was not plainly insufficient. Even if the discount for the State offence was insufficient, that did not affect the validity or appropriateness of the sentence for the Commonwealth offence, which involved an independent exercise of the sentencing discretion.Consideration The parties accept that the principles expressed by this Court in R v Padberg[1] must be applied in the present case.[1] [2010] SASC 189; 107 SASR 386. In Padberg the appellant had pleaded guilty to one Commonwealth and one State offence that were identical to those to which the appellant has pleaded. At the relevant time, the maximum penalty for the Commonwealth offence was imprisonment for ten years and for the State offence five years. The penalties have since increased to fifteen years and seven years respectively. In Padberg the respondent had downloaded a very large volume of images and video material from the internet over a two year period. Only a sample was analysed. That comprised 798 child pornography images and 287 child pornography video files. The material depicted girls and boys ranging in age from about nine months to about fourteen years. The bulk of the images were CETS category 1, but the sample included material in all categories.[2] The largest single category of video material was category 4, although there were images in all categories. The respondent had not distributed any of the material or sought to profit from it and had not paid for it. He had co-operated with the police, made full admissions and entered an early guilty plea. [2] It was classified under the COPINE scale which differs only marginally from the CETS scale applied in the present matter. But for the early guilty plea and co-operation the sentencing judge would have imposed a sentence of 24 months for the Commonwealth offence and 18 months for the State offence. In recognition of his co-operation and early guilty plea the sentence was reduced to imprisonment for sixteen months for the Commonwealth offence and twelve months for the State offence. The two sentences operated concurrently with a non-parole period of six months fixed in respect of the second offence. A recognisance release order was made in relation to the Commonwealth offence and the sentence for the State offence was suspended. The Commonwealth and State Directors of Public Prosecutions jointly appealed against the sentences. Doyle CJ (with whom White J agreed) held that:[3]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.[3] Ibid at [22].