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

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

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.

Continue reading R v LACEY

Details

AGLC: R v Lacey [2013] SASCFC 146
Case: [2013] SASCFC 146
Decision Date: 19 December 2013

CaseChat Overview and Summary

In R v LACEY, the Court of Appeal of South Australia considered an appeal against a sentence imposed in the District Court. The appellant had pleaded guilty to one count of possessing child pornography and was sentenced to two years and six months imprisonment with a non-parole period of 15 months. The appeal was brought on the grounds that the sentence was manifestly excessive and that the sentencing judge erred in not exercising his discretion to suspend the term of imprisonment.

The central legal issues before the Court of Appeal were whether the sentence imposed was demonstrably too severe, constituting an error of principle, and whether the sentencing judge had failed to give adequate weight to the appellant's personal circumstances when considering the suspension of the sentence, particularly in light of the statutory requirement to give paramount consideration to the need to protect children.

The Court of Appeal dismissed the appeal, finding that the sentence imposed was within the available range for the offence. The judges noted that while the sentencing judge had acknowledged the appellant's difficult personal circumstances, including a traumatic childhood, depression, anxiety, and a prior victimisation, these factors did not outweigh the seriousness of the offence and the need for general and personal deterrence. The court found that the sentencing judge had properly considered all relevant factors, including the nature of the material possessed, the appellant's cooperation, early plea, and lack of prior convictions, and had correctly concluded that there was no good reason to suspend the sentence. The appeal was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons the appeal must fail.Conclusion I would dismiss the appeal. STANLEY J: I would dismiss the appeal. I agree with the reasons of Vanstone J.

Ratio Decidendi

Legal Principle Established

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