R v LACEY

[2013] SASCFC 146

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LACEY

[2013] SASCFC 146

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)

19 December 2013

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence - appellant pleaded guilty in the District Court to one count of possessing child pornography - appellant sentenced to a term of imprisonment of two years and six months with a non-parole period of 15 months - appeal on ground that the sentence imposed was manifestly excessive and the sentencing judge erred in not exercising his discretion to suspend - consideration of appellant's personal circumstances and of the seriousness of the offence.

Held:  appeal dismissed - sentence within available range.

Criminal Law (Sentencing) Act 1988 (SA) s 10(2)(c), referred to.
Chisholm v The Queen (1985) 122 LSJS 230, applied.

R v LACEY
[2013] SASCFC 146

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Stanley JJ

1. KOURAKIS CJ:   I would dismiss the appeal for the reasons given by Vanstone J. 

2. VANSTONE J:     The appellant pleaded guilty within four weeks of his first appearance in court to one count of aggravated possession of child pornography, contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935. The offence was aggravated because all the material the subject of the charge depicted children under the age of 14 years.  The maximum penalty for the offence is seven years imprisonment.  

3. At the time of the offending the appellant was 28 years old.  He had no criminal history.  It can be deduced that the judge took a starting point of four years and two months imprisonment.  Having regard to the appellant’s plea of guilty and cooperation with police, the sentence was fixed at two years and six months.  A non-parole period of 15 months was set.  The judge declined to suspend the sentence.

4. The appellant argues that the sentence and non parole period are manifestly excessive and that the judge erred in failing to suspend the term of imprisonment.

   Background

5. This offence was detected as a result of the appellant accessing a Russian-based pornography website.  That led police to the appellant.  A search of his computer hard drive revealed that, on a number of occasions during the period between 30 November 2012 and 15 April 2013, the appellant had downloaded child pornography.  The single count alleged possession during that span of time.

6. The material consisted of 50 video files and six image files.  The images spanned the first five categories of the COPINE scale although the greater part of it was at the less serious levels 1 or 2.  The videos included one of a pre-pubescent girl being penetrated and another video of a girl aged approximately nine years performing fellatio on an adult male before he urinated into her mouth.  The appellant admitted that he masturbated while viewing the images.

7. In sentencing, the judge made reference to the appellant’s co-operation with police, the lack of prior convictions and the early plea of guilty. He referred to a psychological report of Mr Broomhall who expressed the view that the appellant did not meet the diagnostic criteria for paedophilia. The judge observed that the appellant’s childhood was extremely difficult and traumatic and that the appellant has suffered from depression and anxiety for many years. Being the victim of an armed robbery at his workplace in 2012 had exacerbated his depression. The judge acknowledged s 10(2)(c) of the Criminal Law (Sentencing) Act 1988 requiring the court to give proper effect to the “need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence”.  He observed that prison sentences for this type of offence were rarely suspended.

8. The judge determined that notwithstanding the appellant’s personal circumstances – which he described as “tragic” – good reason to suspend was not made out.

   Arguments on Appeal

9. Counsel for the appellant, Mr English, could not point to any error of principle or fact made by the judge.  Rather he put that the sentence itself was indicative of error.

10. Mr English submitted that the head sentence and non-parole period were manifestly excessive.  First, he argued that the notional starting point of four years and two months against the seven year maximum indicated that the judge regarded the appellant’s offending as being at “the worst level”.  Mr English submitted that the seriousness of the offending was mitigated by the fact that only a small part of the material was in the more serious three COPINE categories and the amount of material in the appellant’s possession was small when compared with other cases.

11. Mr English argued that although the judge acknowledged those of the appellant’s personal circumstances which called for mercy, he had not accorded them sufficient weight.

12. The appellant had serious mental health issues.  These were in the process of being addressed.  Mr English took the Court to the report of Dr Broomhall who described at some length the challenging and traumatic circumstances which attended the appellant’s early life.  Dr Broomhall described a history of sexual abuse perpetrated by a close relative of the appellant when he was aged five to eight years.  During his childhood his parents’ marriage was tempestuous and at age 12 years his mother took the appellant and suddenly left the family home, leaving Queensland and moving to Adelaide.  That left the appellant’s brother and father in Queensland.  Later his father and brother moved to South Australia and relations with the appellant recommenced.  Mr Lacey’s father suffered from an acute mental disorder including extreme paranoia.  When the appellant was in his late teenage years his father suffered a series of strokes.  Altogether, his parents, and particularly his mother, were somewhat distant from the appellant.

13. According to Dr Broomhall the appellant’s childhood had left him in a depressed state over many years.  At the time of his arrest the appellant met the diagnostic criteria for Persistent Depressive Disorder.  That is a disorder which continues for at least two years.  The appellant had a long history of self-harm and maladaptive coping mechanisms, including drug taking and use of adult pornography.  Dr Broomhall saw the occurrence of the armed robbery in 2012 as rekindling elements of the symptoms of what Dr Broomhall saw as a longstanding post traumatic stress disorder.

14. Dr Broomhall also explained the appellant’s account of what led to his use of child pornography.  He said that originally the appellant used only adult pornography, but over time that led to his accessing forums discussing wider sexual interests.  The appellant told Dr Broomhall he was interested in understanding why someone would perpetrate sexual abuse and that led to interactions in chat rooms and downloading of child pornography for trading purposes with a view to “knowing his enemy”.  Ultimately he found the material sexually stimulating and recognised that he had become a perpetrator.  The judge found that the offending was a product of the appellant’s “abnormal and disturbed mind”.

15. Mr English made a number of submissions going to the failure to suspend.  He referred to the appellant’s co-operation with police, the early plea of guilty, contrition and a lack of prior convictions.  He pointed to the dire consequences for the appellant of having to serve a sentence, including the interruption to the therapeutic process already underway and showing some progress and to the necessary loss of his employment.

16. In terms of the risk of re-offending Mr English put that the appellant had been at a particularly low ebb at the time of the offending.  That he was not diagnosed as a paedophile gave real hope for his rehabilitation.  As to that, Mr Broomhall considered that without therapeutic intervention, the appellant was in the moderate to high range of risk.  He said:

    While accessing this combination of therapeutic interaction will reduce Mr Lacey’s risk of similar future behaviour, assessing his level of risk will be dependent upon his engagement with these therapeutic services and would be better assessed at a future point in time with information regarding his engagement compliance and progress in therapy.

    Analysis

17. There is no doubt that, serious though the offence was, there was much to engender a great deal of empathy for the appellant and his circumstances.  I shall not reiterate the varied circumstances which left the appellant a depressed and vulnerable young man.  It is clear from his remarks that the judge was thoroughly conversant with the appellant’s circumstances.

18. Against that had to be weighed the seriousness of the offence and the fact that the charge spanned a significant period of time during which the appellant was downloading and using the material.  It is a sad fact that the child victims of sexual abuse often seem to become abusers.  However, like other vulnerable individuals, whatever temptation those persons experience needs to be resisted, so that the cycle is not perpetuated.

19. I am reminded of the words of King CJ dealing with an appeal against sentence for multiple offences of larceny by a servant in Chisholm v The Queen (1985) 122 LSJS 230 at 231 to 232:

    I do not think that it is difficult to accept Mr Morris’ submission that these factors [which included sexual abuse as a child] rendered this appellant more susceptible to the temptation to steal than another person might have been, a person with a different personality makeup and history.  To say that, however, diminishes to only a relatively minor degree the criminal responsibility, the moral and criminal responsibility which the appellant must bear.  All human beings are subject to temptations of some kind.  Many experience temptations of dishonesty.  It may be that those temptations stem in a particular case from a love of money or the things which money can buy, but it may also be, and it appears it was in the case of the present appellant, that they stem, at least in part, from feelings of aggression, or from a desire to compensate in some way for lack of self-esteem or to overcome feelings of depression, by impressing other people with the sort of lifestyle which ready and available money can provide.

    The appellant’s personality and background explain to a considerable extent why she committed the crimes which she did, but they diminish her responsibility for those crimes to only a small extent.  If this had been an isolated offence resulting from succumbing to a temptation suddenly presented to her, everything which Mr Morris put to us would have carried very great weight.

20. It is true that the apparent starting point for the head sentence in this case was more than half the maximum penalty.  However, the maximum penalty applies to offences involving possession of very small amounts of material on one occasion only.  Offences which involve more material, including extremely depraved material showing the abuse of very young children, over longer periods of time, will necessarily attract head sentences at a much higher level.

21. In my opinion the head sentence imposed was within the area of discretion reserved to the judge and the non-parole period constituted a moderate and appropriate proportion of the head sentence.

22. Turning to the matter of suspension, it is true that perhaps some judges would have suspended the sentence of imprisonment.  That would have enabled the treatment which the appellant had undertaken since the time of his arrest to be continued.  Against that was the very guarded expression of Dr Broomhall in respect of the risk of re-offending.  Notwithstanding that there were arguments in favour of suspension, again, I consider that the judge was entitled to take the view that good reason could not be found.

23. For these reasons the appeal must fail.

    Conclusion

24. I would dismiss the appeal.

25. STANLEY J:        I would dismiss the appeal.  I agree with the reasons of Vanstone J.