R v McGaffin

[2010] SASCFC 22

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MCGAFFIN

[2010] SASCFC 22

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)

17 August 2010

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

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - AGE OF OFFENDER - YOUNG OFFENDER

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

Appeal against sentence by Director of Public Prosecutions - respondent pleaded guilty to offences of possessing child pornography - discharged upon entering into bonds to be of good behaviour, without convictions being recorded - respondent a young first offender who had taken active steps towards rehabilitation.

Whether a sentence of imprisonment should have been imposed - whether convictions should have been recorded.

Held:  Judge erred in failing to record convictions, having regard in particular to the seriousness of the offences, the requirement for general deterrence, and the purposes of the recording of convictions.

By Majority: District Court Judge did not err by not imposing a custodial sentence.

Per Gray J:  District Court Judge also erred in failing to impose a custodial sentence.

Criminal Law Consolidation Act 1935 (SA) s 5AA, s 63A; Criminal Code (Cth) s 474.19; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, s 39, referred to.
R v Padberg [2010] SASC 189, applied.
Douglas v The Queen; Albone v The Queen (1995) 56 FCR 465; Cobiac v Liddy (1968) 119 CLR 257; Puhakka v The Queen [2009] NSWCCA 290; R v Daw [2006] QCA 386; R v Salsone; ex parte Attorney-General (Qld) [2008] QCA 220; R v Carroll (1989) 154 LSJS 359; R v Mills (1998) 4 VR 235; R v Proom [2003] SASC 88; (2003) 85 SASR 120; R v Lambert [2009] SASC 307; R v Breise (1997) 92 A Crim R 75; R v Nemer [2003] SASC 375; (2003) SASR 168; R v Oliver [2003] 1 Cr App R 28; R v Gent (2005) 162 A Crim R 29; R v Toomer [2001] 2 Cr App R 8; DPP (Cth) v D'Alessandro [2010] VSCA 60; Assheton v The Queen (2002) 132 A Crim R 237; R v Cook; Ex Parte A-G (Qld) [2004] QCA 469; Saddler v The Queen [2009] NSWCCA 83; R v Jongsma (2004) A Crim R 386; Western Australia v Cunningham (2008) 190 A Crim R 439; R v Colbourn [2009] TASSC 108; R v Mara [2009] QCA 208; DPP v Latham [2009] TASSC 101; Baldwin v Police [2007] SASC 214; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; R v Inge (1999) 199 CLR 295; R v Kane [2003] SASC 237; R v Yousef [2005] SASC 203; W v Marsh (1983) 35 SASR 333, considered.

R v MCGAFFIN
[2010] SASCFC 22

Court of Criminal Appeal:  Doyle CJ, Gray and White JJ

1. DOYLE CJ:          I agree with the orders proposed by White J and with his reasons.  There is nothing that I wish to add.

   GRAY J:

   Introduction

2. The Director of Public Prosecutions has applied for permission to appeal against sentence.

3. Daniel Craig McGaffin, the defendant and respondent, pleaded guilty in the District Court to the offences of aggravated possessing child pornography, and possessing child pornography.  Both offences occurred between 23 June 2007 and 24 September 2007.  At that time, the maximum penalty for the offence of aggravated possession was imprisonment for seven years, and for possession, was imprisonment for five years.[1]  On each count, the District Court Judge proceeded without recording a conviction and released the defendant on a three year good behaviour bond.  The defendant is liable to appear for conviction and sentence in the event that he disobeys any of the conditions of those bonds.

   [1] Section 63A of the Criminal Law Consolidation Act 1935 (SA) outlines the offences for possession of child pornography, relevantly providing:

   (1)A person who—

   (a)     is in possession of child pornography knowing of its pornographic nature; or

   (b)intending to obtain access to child pornography, obtains access to child pornography or takes a step towards obtaining access to child pornography,

   is guilty of an offence.

   Maximum penalty:

   (a)     for a first offence—

   (i)      if it is a basic offence—imprisonment for 5 years;

   (ii)     if it is an aggravated offence—imprisonment for 7 years;

   (b)     for a subsequent offence—

   (i)      if it is a basic offence—imprisonment for 7 years;

   (ii)     if it is an aggravated offence—imprisonment for 10 years.

   (2)It is a defence to a charge of an offence against subsection (1) to prove that the material to which the charge relates came into the defendant's possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it.

   …

4. The Director’s submission was that the sentences were manifestly inadequate.  There was no suggestion of demonstrable error of sentencing principle.  The defendant submitted that although merciful, the sentences were within the sentencing discretion of the District Court Judge.

   The Sentencing Court

5. The Judge when sentencing outlined the manner in which the defendant’s offending began and developed since the age of 11 years:

   You are now 22, almost 23. When you were 11 you unwittingly accessed some child pornography on the home computer. In her intelligent and thoughtful letter to the court, your mother explained how that came about. You had downloaded some material to answer an innocent query raised by some children at a birthday party. When the adults saw what you had accessed, your parents explained to you how inappropriate that material was. You later became curious about that sort of material and accessed it again and again without your family’s knowledge.

   You were shy and withdrawn at primary school and you became more so as you became a teenager. While still a child, you had become addicted to watching pornography, including child pornography.

   In the very helpful psychological report I have received from Mr Allan Jenkins, he explains how you had retreated into the fantasy offered by pornography so as to remove yourself from the real world. Over years your addiction led to your watching pornography for several hours a day. You continued to watch the material after you became an adult. It was not until the intervention of the police when you were 20 that anyone discovered what you had been doing. From when you were 17 you had suffered a number of medical conditions and you had been somewhat housebound. That added to your retreat into the world of pornography.

6. The Judge outlined the nature of the defendant’s offending as follows:

   …. As soon as you viewed the pornographic images you would delete them. You made no attempt to show them to anyone else. Of course if you had done that, you would have faced further and more serious charges. Images that you had deleted were nevertheless able to be retrieved by the police.

   At the request of the prosecution I have viewed still photograph copies of the images the subject of your charges. I have re-read the statement of the investigating police officer who set out a chart summarising what is depicted in the pictures. The chart is accurate. The prosecutor’s brief account of the material in court is both accurate and fair. The materials include pictures of very young children subjected to very serious sexual abuse by men. One cannot help but be overwhelmed by the sadness of seeing children so abused. While I do not pause to further describe the material, I am very conscious of the seriousness of your offending. It provides a market for material which necessarily involves such terrible abuse of children.

   The materials I have received indicate that you are now fully aware of that as well. You had begun to become aware of the consequences of your offending before ever you were charged.

7. The Judge drew attention to the steps taken by the defendant to seek counselling following the initial police attendance at his house, attending six or seven counselling sessions with a psychologist in the ensuing six months.  The Judge also referred to the frankness and honesty demonstrated by the defendant during his interview with the police in relation to the offending, in addition to the remorse expressed by the defendant and his acknowledgement of the wrongfulness of his behaviour.  Although the defendant’s plea of guilty was entered late, the Judge considered that the plea reflected the defendant’s remorse about his offending and that credit for that plea was warranted in the circumstances.  The Judge did not accept that the late plea represented a failure on the defendant’s part to accept responsibility for his actions.

8. Information with respect to the defendant’s background was put before the Court by way of, inter alia, letters from the defendant, his family members, employers, a schoolteacher, and a doctor, in addition to a report from a psychologist. 

9. The Judge noted a number of matters arising from that material.  In relation to the defendant’s upbringing and character the Judge referred to the descriptions of him by his schoolteacher, employers and family members:

   I touch on only a very few matters from all those sources, but I have considered them all. As I have said, you are part of a close family. You were always a reserved child. In high school you became even more reserved and were bullied. Notwithstanding that, you took part in sport, you played in the school band and you were in the cadets. Your teacher speaks highly of you as a student. He particularly notes that as a school project you constructed a buggy for use by wheelchair-bound people. The teacher was not referring especially to the skill that you used in the production of the buggy, but was emphasising the thoughtfulness that led you to construct something to be used by disadvantaged people.

   In high school and university you always worked part-time. Your employers thought well of you. Your cousin, the mother of your four nephews and nieces, says that she and her husband are quite happy to trust you in the company of their young children despite knowing of your offending. Your parents, your sister and your aunt all speak of your being mature and responsible in the family setting, although reserved and lacking confidence outside it. Each of them refers to an increase in confidence since this offending has come to light and since you have been receiving counselling.

   With respect to the psychological report, the Judge noted:

   I turn to the psychological report. Mr Jenkins says he saw you first in September 2007 and continued to see you until April of this year, over two and a half years. He said that you have always told him how ashamed you are of your behaviour and how you felt self loathing. He said that you have been surprisingly frank and open with him. He described your honesty as atypical of men with your problem. He said that you had become ethical in respect of all pornography, but especially in relation to child pornography. He refers to the help that you have received from your family. He refers to the changes that he has seen in you over the two and a half years and says that you have really changed your life. He thinks that you are at a low risk of reoffending. In the light of all the materials I have read, I accept that opinion.

   The Judge referred to the defendant’s letter and the matters thereby disclosed, and observed:

   I have also had regard to your letter. You say when you started looking at pornography you were looking at people your own age and you were curious. You said that you became obsessed with watching pornography. The pornography that you watched was not exclusively child pornography but it did include child pornography. You described yourself as living a double life. You and others speak of the changes that have occurred since the police began their investigations. You have described the police intervention as the best thing that has happened to you. You have completed a Bachelor of Science degree and are working on a graduate Diploma in Environmental Management. You have a girlfriend. You have referred to healthy activities that you now engage in. What you say is supported by all the other material that I have read.

10. When assessing the principles that govern sentencing for child pornography offences, the Judge made the following remarks:

    … The prosecutor submits that the offending is so serious that I should impose a sentence of imprisonment. I do not understand the prosecutor to say that I should not suspend any sentence of imprisonment. Your counsel submits that good reason exists for my discharging you without a conviction on condition that you enter a bond pursuant to s.39 of the Criminal Law (Sentencing) Act. An imprisonment sentence is a sentence of last resort. You have no prior convictions, but that fact has to be understood against your long-term offending. I should impose a sentence of imprisonment if any other sentence would be inappropriate. I should also do so if a sentence of imprisonment was necessary to give proper effect to the policy considerations of the criminal law. One of the primary policies of the criminal law is to protect children from sexual predators. Paramount consideration should be given to the need for deterrence. I do not recite all of the relevant considerations in s.10 of the Criminal Law (Sentencing) Act but I have had regard to them.

    In offending of this sort it would be rare to find an appropriate sentence other than imprisonment, albeit that it might be suspended. The seriousness of these offences and the need for deterrence are among the considerations that would often lead to a prison sentence. However, I think that your situation is a rare one. Effectively you began this offending when you yourself were a child. At that time you can have had little or no understanding of the exploitation of children that pornography involves. For reasons that are personal to you, you became addicted to this behaviour while still very young. You were addicted by the time you could have had any real appreciation of the wrongfulness of your offending. I do not overlook that the offending continued after you should have had that appreciation, but by then you were addicted. As soon as you were apprehended you did everything that you could to free yourself of the addiction. All the material before me suggests that you have successfully completed that recovery.

    The law permits me to take into account how it is that you became addicted to this sort of behaviour. A case drawn to my attention by your counsel deals with a drug offender becoming addicted as a child.[2] The sort of reasoning by that court can be applied to you and I do apply it. I bear in mind that I am sentencing you for two offences: one is the basic form of the offence and the other is the aggravated form of the offence because it involves children under 14. Notwithstanding that one offence carries a higher sentence, I think the sentencing principles that I have mentioned should be applied in the same way to each offence. I think there is good reason to discharge you upon entering into bonds to be of good behaviour and to appear before a court for sentence if you breach the bonds. There will have to be two bonds, one for each offence.

    [2]    Douglas v R, Albone v R (1995) 56 FCR 465.

11. With respect to the question of whether to record a conviction the Judge further observed:

    There remains the question of whether I should record a conviction. Again, it would be rare not to record a conviction. However, there are reasons why a conviction might not be recorded in your case. Your qualifications, and those you are presently studying for, will fit you for work which will require a variety of clearances. Not all jobs do require police clearances, but the sorts of jobs that you might otherwise be eligible for might well require them. You might be seeking government work and you might seek work with employers who contract with government. Your qualifications might entitle you, or require, you to work and study overseas. You may have to attend conferences overseas. In his letter, your father explains that he is familiar with the clearances that are necessary in companies associated with the armed forces.

    In the past you have visited your extended family in New Zealand. As an Australian citizen, you are entitled to visit New Zealand without the need for a visa. However, you have at times contemplated working and studying in New Zealand and for that purpose, I am told, you would have to apply for a visa to go to New Zealand. Of course you have to apply for a visa to visit many other countries.

12. Ultimately, the Judge considered it appropriate in the circumstances to refrain from recording a conviction and to impose two bonds of good behaviour.

    The Approach to Sentencing

13. Courts in all jurisdictions have grappled with the particular approach to sentencing to be undertaken in child pornography cases and have emphasised the importance of particular factors in such cases. 

14. In Oliver[3] the English Court of Appeal identified two primary factors determinative of the seriousness of pornography offences; namely, the nature of the indecent material and the extent of the offender’s involvement.  The Court analysed the seriousness of comparable offences involving the possession of indecent photographs of children, by reference to different levels of activity: images depicting erotic posing with no sexual activity; sexual activity between children, or solo masturbation by a child; non-penetrative sexual activity between adults and children; penetrative sexual activity between children and adults; and sadism or bestiality.

    [3]    R v Oliver [2003] 1 Cr App R 28.

15. In Gent,[4] the New South Wales Court of Criminal Appeal identified a range of factors bearing upon the objective seriousness of offences involving the possession and importation of child pornography.  Those factors were said to include the nature and content of the pornographic material including the age of the children and the gravity of the sexual activity portrayed, the number of images or items of material possessed by the offender, whether the possession was for sale or further distribution, and whether the offender would profit from the offence.  With respect to the volume of material, Johnson J commented:[5]

    …In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised.

    In relation to the weight to be attached to evidence of prior good character, Johnson J further remarked:[6]

    There is a foundation for the approach that less weight should be attached to evidence of prior good character on sentence for offences of importing child pornography. It appears that such offences are committed frequently by persons of otherwise good character. General deterrence has been referred to as the “paramount consideration” on sentence for this class of offence. …

    [Reference omitted]

    [4]    R v Gent (2005) 162 A Crim R 29.

    [5]    R v Gent (2005) 162 A Crim R 29 at [99]; see Professor Kate Warner, ‘Sentencing for Child Pornography’ (2010) Australian Law Journal 384 at 386.

    [6]    R v Gent (2005) 162 A Crim R 29 at [64] (Johnson J, McClellan CJ at CL, Adams J concurring). A contrary view has been taken by the English Court of Appeal in R v Toomer [2001] 2 Cr App R (S) 8, where, as noted by Professor Warner, ‘Sentencing for Child Pornography’ (2010) Australian Law Journal 384 at 39:

    … it was suggested that otherwise exemplary character should be given particular weight in child pornography offences because of the salutary effect of a conviction on such offenders.

1. In D’Alessandro,[7] Harper JA of the Victorian Court of Appeal collected a number of the relevant authorities and principles and commented:

   … It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions.  First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that 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. Fourthly, that those who make up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender’s prior good character. Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty. They include:

   (a)     the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;

   (b)     the number of images or items of material possessed by the offender;

   (c)     whether the possession or importation is for the purpose of sale or further distribution;

   (d)     whether the offender will profit from the offence.

   [Footnotes omitted]

   [7]    DPP (Cth) v D’Alessandro [2010] VSCA 60 at [21] (Harper JA).

2. Professor Warner, in a recently published article on sentencing for child pornography,[8] has reviewed many Australian and overseas authorities.  In the course of her article, Professor Warner commented on the importance of general deterrence and specifically referred to the following passage from Assheton:[9]

   …The offence is of a nature that, in the context of sentencing, general deterrence must be the paramount consideration given the prevalence and availability of child pornography, particularly on the internet.

   [8]    Professor Kate Warner, ‘Sentencing for Child Pornography’ (2010) Australian Law Journal 384.

   [9]    Assheton v The Queen (2002) 132 A Crim R 237 at [35].

3. A review of the relevant authorities identifies a number of matters of general application.  Drawing on authorities from overseas and interstate, including those discussed above, in addition to Professor Warner’s article, the following principles may be identified:

   ·General deterrence is of heightened significance;[10]

   [10]   Assheton v The Queen (2002) 132 A Crim R 237 at [35]-[36] (Malcolm CJ, Murray and Steytler JJ agreeing).

   ·Child pornography is not a “victimless crime” and the damage caused to child victims is recognised;[11]

   [11]   R v Jones (1999) 108 A Crim R 50 at 52.

   ·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;[12]

   [12]   See generally the comments made in R v Cook; Ex parte A-G (Qld) [2004] QCA 469 at [21] (McMurdo P), at [26] (Williams JA) as cited in DPP (Cth) v D’Alessandro [2010] VSCA 60 at [21] (Harper JA).

   ·A range of factors may bear upon the objective seriousness of the offence, including:[13]

   [13]   See eg R v Gent (2005) 162 A Crim R 29.at [99] (Johnson J, McClennan CJ at CL and Adams J concurring); see application of Gent in context of possession in Saddler v The Queen [2009] NSWCCA 83 at [21] (Buddin J).

   -       the nature and content of the pornographic material – including the gravity of the sexual activity portrayed;[14]

   -       the age of the children;[15]

   -       the volume of material;[16]

   -       whether the offender derives any commercial benefit and whether the possession or importation is for the purpose of sale or further distribution; [17]

   -       the sophistication, skill and planning involved;[18]

   -       the duration of possession;[19]

   -       the possibility of inadvertent access by others;[20]

   ·Limited weight is given to an offender’s prior good character;[21]

   ·Subjective factors such as age, prior criminal history and prospects of rehabilitation are of importance.[22]

   The above principles are relevant when considering the sentencing of an offender for a child pornography offence.  Their general application is apparent in the recent South Australian decisions of Baldwin[23] and Padberg.[24]

   [14]   See the Oliver scale with respect to classifying pornographic material: R v Oliver [2003] 1 Cr App R 28 (463) and discussion of classifications in Professor Kate Warner, ‘Sentencing for Child Pornography’ (2010) Australian Law Journal 384 at 386.

   [15]   See R v Oliver [2003] 1 Cr App R 28 (463) at 469 where the Court accepted that het age of the child may be aggravating if it is relevant to the harm inflicted.

   [16]   R v Jongsma (2004) A Crim R 386 at [36]; R v Oliver [2003] 1 Cr App R 28 (463) at 469. For further discussion of issues in assessing volume see R v Gent (2005) 162 A Crim R 29 at 49; Western Australia v Cunningham (2008) 190 A Crim R 439 at [8]; R v Colbourn [2009] TASSC 108 at [15]-[16].

   [17]   R v Oliver [2003] 1 Cr App R 28 9463) at [11].

   [18]   R v Mara [2009] QCA 208 at [37]; Saddler v The Queen [2009] NSWCCA 83 at [22] (Buddin J) quoting R v Oliver [2003] 1 Cr App R 28 (463) at [20] (Rose LJ).

   [19]   R v Jongsma (2004) 150 A Crim R 386 at [28], [36].

   [20]   DPP v Latham [2009] TASSC 101 at [34].

   [21]   R v Gent (2005) 162 A Crim R 29 at [65] (Johnson J, McClennan CJ at CL and Adams J concurring).

   [22]   Puhakka v The Queen [2009] NSWCCA 290 at [15].

   [23]   Baldwin v Police [2007] SASC 214.

   [24]   R v Padberg [2010] SASC 189.

4. In Baldwin[25] a Judge of this Court dismissed an appeal against an immediate custodial sentence of 16 months with a non-parole period of five months.  Pleas of guilty had been entered before a Magistrate to two counts of possessing child pornography.  At that time, the maximum penalty for each offence was imprisonment for five years.A police search on home and workplace computers of the defendant revealed more than 2400 still images of children engaging in various sexual activities with adults and other children.  The Judge made the following comment in regard to the content of the material:[26]

   … [The] material consists of photographs of children who range in apparent age from babies to teenagers, engaging in various forms of sexual activity with other children and adults.  The sexual activity involves various forms of anal, vaginal and oral penetration of a number of different children by penis or other object, in some cases obviously involving ejaculation.

   The Judge considered that notwithstanding error of sentencing approach by the Magistrate, the sentence imposed was the appropriate sentence and as a consequence, dismissed the appeal.  In the course of her reasons, the Judge observed:[27]

   As other judges in South Australian courts have noted when sentencing other offenders, it is very easy for an offender to view and download images which are readily available on the internet.  There is a very clear public interest in deterring such people from accessing that information.  It is precisely because the offence is so easy to commit and so difficult to detect that general and specific deterrence must play a very important role when sentencing for this offence.

   I bear in mind that every time another person views or downloads this material, they are involved in the further degradation and exploitation of the child, or in this case, the many children the subject of those original images.

   Section 10(4) of the Criminal Law (Sentencing) Act 1988 provides that a primary policy of the criminal law is to protect children from sexual predators by ensuring that in any sentence for an offence involving sexual exploitation of a child paramount consideration is given to the need for deterrence.

   [25]   Baldwin v Police [2007] SASC 214.

   [26]   Baldwin v Police [2007] SASC 214 at [14] (Kelly J).

   [27]   Baldwin v Police [2007] SASC 214 at [16]-[18] (Kelly J).

5. The defendant in that case was 52 years of age, a first offender, married with a child, and had voluntarily engaged in treatment.  He had good prospects for successful rehabilitation.  Notwithstanding these matters, the Judge concluded:[28]

   All of these factors were reflected in the moderate head sentence and merciful non-parole period imposed by the Magistrate.  As I have already remarked, the circumstances of the appellant’s offending in this case are serious, particularly in the light of the contents of the material, the ages of the various children and the nature of the sexual activity depicted.  I do not consider that the mitigating factors, even in combination, provide good reason to suspend the term of imprisonment warranted by this offending.

   [28]   Baldwin v Police [2007] SASC 214 at [23] (Kelly J).

6. An application for permission to appeal to this Court from that decision was refused.[29]  The Court reached the conclusion that it was not reasonably arguable that the sentencing discretion of the Judge had miscarried.

   [29]   Baldwin v Police [2007] SASC 415 (Duggan, Bleby & Layton JJ).

7. Most recently in Padberg[30] this Court further considered the approach to be taken to sentencing for offences of possessing child pornography.  The defendant pleaded guilty to both State and Commonwealth offences.  He faced a maximum penalty for the Commonwealth offence of 10 years imprisonment and for the State offence five years imprisonment.  A District Court Judge imposed a term of imprisonment of 16 months but made a recognisance release order in relation to the Commonwealth offence.  The Judge imposed a suspended sentence of imprisonment in respect to the State offence.  Both Directors appealed, challenging the orders for immediate release and suspension. 

   [30]   R v Padberg [2010] SASC 189.

8. In Padberg the police had seized the defendant’s computer and associated equipment.  An examination disclosed images depicting child pornography downloaded over a two year period from May 2007 to May 2009.  The images depicted abusive and disgraceful behaviour and involved perverted and criminal conduct of the most serious kind.  When sentenced, the defendant was 26 years of age.  He had suffered from an anxiety disorder and depression that had been diagnosed before his offending was detected, and after his offending was detected, he displayed symptoms of acute stress reaction and depression.  A psychological report suggested that he would respond well to a supervised, structured, rehabilitation program.  The defendant cooperated with the police, made full admissions and entered an early guilty plea.  There was no suggestion that he distributed any of the material or sought to profit.  Doyle CJ concluded:[31]

   Nevertheless, I consider that a wholly suspended sentence was not warranted.  I am influenced by the period of time over which the offending occurred, the quantity of material, and the circumstance that the most serious kinds of child pornography were involved.  I consider that the need for deterrence outweighed the personal factors which, I agree, tended to support the decision that the Judge made.  I consider that the Judge erred in this respect.

   [31]   R v Padberg [2010] SASC 189 at [33].

9. In the course of his reasons, the Chief Justice made the following general observations with a view to providing guidance to judges sentencing for crimes of child pornography:[32]

   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, mean 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.

   It is the objective seriousness of this kind of offending, its prevalence, and the need for deterrence that justify what I have said.  Because the first offence is an offence against Commonwealth law I have considered sentences imposed in other Australian jurisdictions.  The Court was referred to a number of cases in which the offender was sentenced for the first offence and for the local equivalent of the second offence.

   …

   There are two final comments that I would make.  First, as is evident from what I have said, it will be difficult to justify a wholly suspended sentence in the case of offending like the present offending.  Second, and more significantly, it may be that consideration should be given to increasing the standard of sentencing for offending of this kind.  My review of the cases indicates that there is an established market or trade in child pornography emanating from other countries, and accessible through the internet.  If sentences at the present level, coupled with the risk of detection, are not sufficient to diminish this trade, it may be appropriate for courts to increase the level of sentencing.  That is a matter that can only be decided in an appropriate case, brought by the Director.  As Commonwealth offences are involved the Court considering any such case will have to consider sentencing patterns in other jurisdictions.

   [32]   R v Padberg [2010] SASC 189 at [20]-[23], [36], at [38] (White J concurring).

10. Kourakis J would have granted permission to appeal.  With respect to the State offence, he would have set aside the suspension of the sentence of 12 months imprisonment and he would have fixed a non-parole period of five months.  With respect to the Commonwealth offence, he would have set aside the order of immediate release made on the sentence of 16 months imprisonment and instead would have ordered release after a period of five months.  As a consequence, the release date under both sentences would be the same.  Kourakis J agreed with the essence of the observations of the Chief Justice concerning offences of child pornography, and in particular observed:[33]

    The abuse of children in that way, wherever in the world it occurs, cannot be tolerated.  The global distribution network provided by the internet is likely to have increased the abuse of children worldwide.  I accept that in a sense the enormous volume of material accessed by the respondent loses some of its significance as a measure of the depravity of his conduct because of the quantity of material available which can be accessed and the ease with which it can be downloaded through the internet.  On the other hand, the enormity of the material downloaded by the respondent, and the even greater morass of material available through the internet, is an indication of the extent of the global abuse of children to which I have referred.

    Everyone who accesses child pornography gives a reason for, and in that sense encourages, the continued abuse of young children.  The authorities to which the Chief Justice has referred emphasise the paramount importance of deterrence.  The application of that legal policy should not be delayed.  Unfortunately many offenders against these statutory provisions will present with pathetic personal circumstances.  If leniency is extended to all, or many, of the offenders with similar personal characteristics, it will not be possible to implement a policy of deterrence as the paramount consideration.  It is for that reason that many authorities recognise the relatively reduced scope to extend leniency on the basis of an offender’s personal circumstances.  In the face of the paramount importance of deterrence, few offences committed by accessing and possessing images in the most serious two categories are ever likely to be committed in circumstances which warrant a complete suspension of the term of imprisonment which must, almost invariably, be imposed.

    [33]   R v Padberg [2010] SASC 189 at [41]-[42].

    The Director’s Application

11. The approach to be taken with respect to prosecution appeals is well established.  In Nemer, Doyle CJ summarised those principles as follows:[34]

    The Director's right to seek leave to appeal against sentence, and the court's power to interfere, are found in s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA). Similar provisions exist in other States.

    The High Court has determined that the court should grant leave to the Director to appeal against sentence "only in the rare and exceptional case": Everett v The Queen (1994) 181 CLR 295.

    The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would "shock the public conscience": see R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; Everett (at 300). Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.

    [34]   R v Nemer (2003) 87 SASR 168 at [22]-[24].

12. In Osenkowski,[35] King CJ observed that the proper role for prosecution appeals is to enable courts to establish and maintain adequate standards of punishment for crime; to correct the idiosyncratic views of individual judicial officers as to particular crimes or types of crime; and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[36] 

    [35]   R v Osenkowski (1982) 30 SASR 212.

    [36]   R v Osenkowski (1982) 30 SASR 212 at 212-213.

1. The High Court in Everett[37] determined that the court should grant leave to the prosecution to appeal against sentence “only in the rare and exceptional case”.[38]  The majority in that decision explained that the basis for the “rare and exceptional” test lies with the principle of double jeopardy, observing:[39]

   An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.

   [Footnote omitted]

   Earlier, in Malvaso,[40] Deane and McHugh JJ noted that the prosecution appeal against sentence:[41]

   … [R]epresents a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to the deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy…

   [References omitted]

   [37]   Everett v The Queen (1994) 181 CLR 295.

   [38]   Everett v The Queen (1994) 181 CLR 295 at 299 (Brennan, Deane, Dawson & Gaudron JJ).

   [39]   Everett v The Queen (1994) 181 CLR 295 at 299 (Brennan, Deane, Dawson & Gaudron JJ).

   [40]   Malvaso v The Queen (1989) 168 CLR 227.

   [41]   Malvaso v The Queen (1989) 168 CLR 227 at 234.

2. In the present proceeding, the Director contended that the sentences were manifestly inadequate.  It was said that they were so inadequate as to shock the public conscience.  It was further contended that they were so inadequate as to undermine the confidence of the public in the due administration of justice and further, operated to undermine the recent observations made by this Court of the approach to be taken when sentencing with respect to child pornography offences.  The Director did not suggest that there was any error in sentencing approach or the application of sentencing principle on the part of the District Court Judge.  Manifest inadequacy was the sole ground of complaint. 

3. The defendant submitted that having regard to the principles that govern prosecution appeals,[42] permission to appeal should be refused.  It was contended that the circumstances of the offending were atypical.  In this respect, it was emphasised that the defendant, a youthful first offender,[43] had undergone voluntary counselling and had been rehabilitated.[44]  It was accepted that the sentences imposed were merciful, but it was said that in the circumstances, the Judge had acted within his sentencing discretion. 

   [42]   Everett v The Queen (1994) 181 CLR 295 at 299-300; R v Osenkowski (1982) 30 SASR 212 at 213; R v Nemer (2003) 87 SASR 168 at [28]; R v Payne (2004) 89 SASR 49 at [86].

   [43]   R v Inge (1999) 199 CLR 295.

   [44]   R v Kane [2003] SASC 237 at [16].

4. The significance and importance of the recording of a conviction was the subject of the observations of this Court in Yousef,[45] where Sulan and Layton JJ observed:

   … A conviction does not merely record a finding that the person committed the crime charged:  it condemns him for that crime; it is a communicative act, communicating censure to the convicted person.  The recording of a conviction  acts as a general deterrent to those who may be inclined to offend in a similar way.

   There is an important public interest in convictions being recorded to express community disapproval of a defendant’s conduct.  A court will be more inclined not to record a conviction where the offending has had no direct effect on a victim, and where the breach is not deliberate and blatant.

   [Footnotes omitted]

   [45]   R v Yousef (2005) 155 A Crim R 134 at [60]-[61].

5. In Lambert,[46] Sulan J further observed:

   … the question of whether to record a conviction is one of considerable importance.  The Court observed that there are persons and organisations, including prospective employers, companies such as credit providers, and government departments such as immigration authorities, which have a legitimate interest in knowing the truth about the character of persons who deal with them.  Furthermore, if a court concludes that, in the circumstances of a particular case no conviction is to be recorded against an offender, that fact is of significance to any person or organisation which may have a legitimate interest in the background and character of that offender.

   [Footnote omitted]

   [46]   R v Lambert [2009] SASC 307 at [21]; see also R v Briese (1997) 92 A Crim R 75 at 79-81.

6. In the present proceeding, in addition to noting the general importance of recording a conviction, it is to be noted that the observations of this Court in Baldwin and Padberg, and of other intermediate Courts throughout Australia, suggest that a custodial term can be expected for this type of offending. 

7. The defendant began accessing child pornography when he was a child aged about 12 years, and he became addicted while at that impressionable age.  The defendant continued to access child pornography when he became an adult. 

8. The images downloaded by the defendant were of a particularly reprehensible nature including: the anal penetration of a naked child under five years of age; the vaginal penetration of a naked female under 10 years of age; and, a female under the age of 10 performing fellatio whilst a male adult performed cunnilingus on the child.  These and other images were of the vilest nature.[47]  The gravity of the sexual images, the age of the children, and the number of images, make this offending particularly serious. 

   [47]   The following are descriptions provided in the statement of a Detective Brevet Sergeant of Police, of ten of the images found on the defendant’s computer, deemed to be aggravated in nature due to the age of the children depicted:

   penis penetrating anus of naked child under 5 years of age; naked male adult engaged in penis/vagina intercourse with naked child under 14 years of age; naked male adult penis penetrating vagina of naked female under the age of ten years; female child under age of ten years holding open her vagina; female under the age of ten years performing fellatio on male adult; female under the age of ten years performing fellatio on male; female under the age of ten years performing fellatio on male adult; male adult ejaculating into mouth of female under the age of ten years; naked female under ten years of age performing fellatio on naked male adult whilst male performing cunnilingus on female; naked male adult engaged in penis/vagina sex with naked child under the age of ten years.

   The following are descriptions provided in the statement of a Detective Brevet Sergeant of Police, of ten of the images found on the defendant’s computer, deemed to be non-aggravated in nature due to the age of the children depicted:

   naked female laying on back with semen on her stomach; naked female engaged in penis/vagina sex with naked male male [sic]; naked female inserting finger into her vagina; naked female engaged in penis/vagina sex with male adult; naked female lying on bed; naked female engaged in penis/vagina sex with naked male; male and female masturbating naked male; naked male and female engaged in penis/vagina sex; two naked females standing in kitchen; naked male and female engaged in penis/vagina sex.

9. The defendant pleaded guilty and undertook voluntary and successful treatment.  He is a young man with his life ahead of him.  He has a supportive family.  Although the defendant’s offending was confined to two counts occurring over a three month period, the material before the sentencing Judge disclosed that this offending occurred as part of an ongoing course of conduct over some seven to eight years.  As noted above, the mitigatory effect of evidence of good character has been considered to be of less relevance in cases involving child pornography offences, as prior good character and a lack of previous convictions is often a feature common to the perpetrators of those offences.  The defendant’s personal antecedents are more fully set out in the earlier extracted remarks of the sentencing Judge.

10. I have reached the conclusion that the sentences imposed in the present case were manifestly inadequate, such as to shock the public conscience, to have the tendency to undermine the confidence of the public in the administration of justice and to undermine the observations made in this Court in regard to the proper approach to sentencing for child pornography.  The offending in my view, was too serious to allow the upholding of the merciful approach of the District Court Judge. 

11. In my view, the defendant’s offending required the recording of convictions and the imposing of terms of imprisonment. Although I speak of terms of imprisonment, this would be the appropriate case for the utilisation of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and the imposing of one sentence with respect to the entire course of criminal conduct encompassed by the two counts.

12. I would convict the defendant of both offences and impose the one term of imprisonment of two years pursuant to section 18A of the Sentencing Act with a non-parole period of nine months.  I have made a reduction of eight months on account of the pleas of guilty.

13. The further question arises as to whether that custodial term should be suspended.  The mitigating factors discussed above would allow a sentencing Judge to reach the conclusion that any sentence of imprisonment should be suspended.  I refer in particular to the defendant’s youth, his ongoing and strong family support, his contrition and remorse, his successful rehabilitation, and his exposure to pornography from a young age.  A suspension of the custodial term is appropriate.  This is particularly so in the case of a Director’s appeal in circumstances where the defendant had not been sentenced at first instance to a term of imprisonment.[48]

    [48]   See for example the remarks in Everett v The Queen (1994) 181 CLR 295 at 299, and those in Malvaso v The Queen (1989) 168 CLR 227 at 234 (Deane & McHugh JJ).

14. I would grant the Director permission to appeal, allow the appeal, set aside the orders of the District Court Judge, convict the defendant with respect to both counts and impose the one term of imprisonment with respect to both counts of two years imprisonment.  I would fix a non-parole period of nine months.  I would suspend the sentence of imprisonment on the defendant entering into a three year supervised good behaviour bond. 

15. WHITE J:             The respondent pleaded guilty to two offences of possession of child pornography.[49]  One of the offences was an aggravated offence because the material included images of children under the age of 14 years.[50]

    [49]   Criminal Law Consolidation Act 1935 (SA) s 63A(1)(a).

    [50]   Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(e).

16. A District Court Judge discharged the respondent, without recording convictions, upon him entering into bonds in the sum of $500 to be of good behaviour for a period of three years.  It was a condition of each bond that the respondent appear for sentence for the two offences in the event of any breach.

17. The Director of Public Prosecutions now seeks permission to appeal against those sentences, contending that they fail to reflect adequately the seriousness of the offences; are so disproportionate to the seriousness of the conduct as to shock the public conscience; and fail to reflect adequately the need for general and personal deterrence.

18. The offence of possession of child pornography is a particularly serious offence.  In the recent decision of R v Padberg[51] Doyle CJ, with whose reasons I agreed, said:

    The production of child pornography involves the exploitation and potential corruption of children, some of a very young age.  These children are unable to protect themselves, and they will suffer substantial harm, in the short term and long term.  The children depicted are the victims of serious offending, resulting in the production of the pornographic material …

    …

    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, mean 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.

    It is the objective seriousness of this kind of offending, its prevalence, and the need for deterrence that justify what I have said. …[52]

    [51] [2010] SASC 189.

    [52] Ibid at [18], [20]-[23].

19. Although those remarks were made in a case which included the offence of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth), they are just as pertinent in the present case. It is not necessary to review in these reasons the authorities to which the Chief Justice referred in Padberg.

20. This Court’s decision in Padberg was delivered after the present respondent was sentenced, but the remarks of the Chief Justice are sufficient to indicate the merciful nature of the Judge’s sentence.  However, there are some unusual features in this case, in particular the respondent’s youth and immaturity at the time of the offending.

    Circumstances of the Offending

21. The two offences to which the respondent pleaded guilty concerned the possession of child pornography in the three month period commencing on 23 June 2007 and concluding on 24 September 2007.  The police obtained information that an internet service registered in the respondent’s mother’s name had been used to search the term “Pedo Pics” on 24 June 2007.  On 23 September 2007, police attended at the home at which the respondent lived with his parents and seized the computers in that home. 

22. Later analysis of a laptop computer revealed 71 images of child exploitation material dated 8 August 2007 located in the “D” drive, one image dated 6 September 2007 labelled as a temporary internet file, and four deleted images which had been downloaded on 17 September 2007.  56 of the 71 images downloaded on 7 August 2007 were of children under the age of 14 years.  It was the possession of those images which constituted the aggravated offence.  As the sentencing Judge noted, many of those images were of very young children being subjected to sexual abuse by men.  15 of the 71 images were of children who appeared to be under the age of 16 years.  It was the possession of those images which constituted the second offence.[53]  Of the 71 images, 15 were of children engaged in erotic postures or modelling, 13 involved some form of sexual activity between children, including masturbation, and 43 involved sexual activity between adults and children.

    [53]   It was not suggested that the charging of the respondent with two separate offences in these circumstances was inappropriate.

23. Although the respondent pleaded guilty to possession of child pornography throughout a three month period, the conduct relied upon by the prosecution for the offences related to the period 8 August 2007 to 23 September 2007.

24. The respondent was first interviewed by the police on 26 March 2008.  In the course of his interview he made a number of frank admissions, including that he was the sole user of the laptop computer.  The respondent acknowledged that on 24 June 2007 he had entered the term “Pedo Pics” into an internet search engine.  He said that he had first started looking at images of child pornography from the age of 13 (other information suggested that it may have been from age 12) and that doing so had become a form of addiction for him.  The respondent agreed that he had accessed and downloaded the images found by the police on the laptop computer but also said that it had been his usual practice to delete the images after he had viewed them.  He also agreed that it had been necessary for him to download the images in order to be able to view them.  The respondent told the police that he had been shamed and disgusted by his own conduct and was actually thankful that he had been detected.

25. The police reported the respondent and he was eventually charged, appearing in court for the first time on 4 November 2008.

26. Within a week or so of the police attendance on 24 September 2007, the respondent’s parents arranged for him to be assessed by a psychologist (Mr Jenkins) in relation to his interest in child pornography.  This was some six months before he was interviewed by the police.  The respondent then commenced a two and a half year period of psychological treatment, concluding in April 2010 shortly before he was sentenced.

27. A report from Mr Jenkins was provided to the Judge as part of the sentencing submissions.  That report indicated that the respondent had, from the age of 12, developed an obsessive interest in pornography, including child pornography.  Mr Jenkins described the development of that obsession in the following passage:

    [The respondent] developed this pattern of obsessive internet use over a period of seven years.  He began accessing internet images as a shy, introverted and lonely 12 year old boy.  [The respondent] felt increasingly self conscious, fearful and unacceptable to others, as a child in his later primary years.  This developed into a fearful self-loathing when he entered high school.  At this time [the respondent] was subjected to bullying.  He felt frightened of relating to others and “invisible” in social situations.  He began a process of retreating into the fantasy offered by pornography; “It took me out of the real world”.  [The respondent] described an attraction to images of children around eight to nine years old; an age at which he himself had felt more comfortable and acceptable.  [The respondent] described the increasing escalation of “high feelings” when he accessed these images and a sense of how they “would take me back to when I was younger”; “they made me feel I was that age”.

    [The respondent’s] description of such an escalating pattern of preoccupation and internet access is quite characteristic for young people who become increasingly overwhelmed and entrapped in self-destructive patterns of pornography use.  Such a pattern typically does not end until a crisis arises, such as police intervention or criminal action.  [The respondent’s] extreme social anxiety and self-loathing led to a social withdrawal into fantasy pre-occupations which are indeed typical circumstances which when unchecked result in the kinds of escalation that he experienced.  There was no evidence of other factors contributing to the problem such as previous abuse, inappropriate behaviour or psychological disorder.

28. Mr Jenkins considered that the respondent had been highly motivated to address his preoccupation with pornography and that his course of treatment had been successful.  His report included the following conclusions:

    [The respondent] now takes a highly ethical position on pornography of all kinds, especially in relation to sexual abuse of children.  He has developed an ethical understanding of the nature and effects of pornography and has been able to understand and intervene effectively in the development of the pattern of obsessive preoccupation.  [The respondent] has experienced challenges in dealing with urges to use pornography, particularly at the time when he became depressed following being charged by the police.  However, he has persisted and developed a capacity to resist the influence of such urges so that he is now able to use a computer without succumbing to any temptation to access pornographic images of any kind.

    …

    [The respondent] now is able to deal with feelings of boredom or disappointment without experiencing significant temptation or urge to use pornography.  He has in fact recognised that being investigated and charged by the police, whilst highly distressing and frightening, has in fact been ”a life saver” in arresting the pattern of behaviour which was destroying his life and contributing to an industry which exploits children.

    [The respondent] completed his therapeutic intervention program in April of this year, having attained all relevant goals.  He has developed necessary confidence and social and recreational interests in his life and has faced relevant issues associated with internet pornography use, to the extent where he is able to manage his life in ethical and productive ways.  His level of goal attainment is consistent with a low risk of re‑offending.

    The Judge accepted Mr Jenkins’ opinions, and it was not suggested that it was inappropriate for him to have done so.  The report indicated a number of matters which were important in the sentencing of the respondent:  that he had developed an obsessive interest in pornography in his early adolescence; that the interest had filled emotional and psychological needs at that time; that the obsession had become entrenched; that it was typical for a major event such as police intervention to be necessary in order for the obsession to be addressed; and that the respondent’s interest in pornography had now been addressed so that it could be said with some confidence that he had been rehabilitated.

    The Decision of the Sentencing Judge

1. In addition to the report of Mr Jenkins and the submissions of counsel, the Judge received a letter from the respondent himself.  This letter demonstrated that the respondent had considerable insight into his offending, its causes and effects and supported the conclusion that the respondent had been rehabilitated.  The Judge also received letters from the respondent’s parents, sister, aunt and cousin, as well as references from his employers and a former teacher.  All spoke well of him.

2. The Judge accepted the respondent’s mother’s explanation of him having been accidentally, and innocently, exposed to child pornography at the age of eleven years when searching the musical group “Spice Girls”, and accepted that it was that experience which had provoked his interest, and later his preoccupation, with child pornography.  The Judge accepted that the respondent came from a close, cohesive, law abiding family.  That conclusion was well justified on the materials before him.

3. At the time of sentencing, the respondent had completed a Bachelor of Science Degree and was studying for a post-graduate diploma in Environmental Management and Policy.  His aim is to gain employment in the area of environmental protection.

4. The prosecutor sought the imposition of a sentence of imprisonment, although the Judge understood that to leave open the possibility of suspension.  On the other hand, counsel for the respondent sought a discharge without conviction upon the respondent entering into appropriate bonds.  In discussing these competing submissions, the Judge noted that one of the primary policies of the criminal law was to protect children from sexual predators and that a paramount consideration when sentencing for offences of this kind was the need for deterrence.

5. The Judge considered, appropriately, that it would be rare in a case of the present kind for a sentence of imprisonment not to be imposed.  He considered that this was one of those rare cases.  He explained his reasons for that conclusion in the following passages:

   In offending of this sort it would be rare to find an appropriate sentence other than imprisonment, albeit that it might be suspended.  The seriousness of these offences and the need for deterrence are among the considerations that would often lead to a prison sentence.  However, I think that your situation is a rare one.  Effectively you began this offending when you yourself were a child.  At that time you can have had little or no understanding of the exploitation of children that pornography involves.  For reasons that are personal to you, you became addicted to this behaviour while still very young.  You were addicted by the time you could have had any real appreciation of the wrongfulness of your offending.  I do not overlook that the offending continued after you should have had that appreciation, but by then you were addicted.  As soon as you were apprehended you did everything that you could to free yourself of the addiction.  All the material before me suggests that you have successfully completed that recovery.

   The law permits me to take into account how it is that you became addicted to this sort of behaviour.  A case drawn to my attention by your counsel deals with a drug offender becoming addicted as a child.[54]  The sort of reasoning by that court can be applied to you and I do apply it.  I bear in mind that I am sentencing you for two offences:  one is the basic form of the offence and the other is the aggravated form of the offence because it involves children under 14.  Notwithstanding that one offence carries a higher sentence, I think the sentencing principles that I have mentioned should be applied in the same way to each offence.  I think there is good reason to discharge you upon entering into bonds to be of good behaviour and to appear before a court for sentence if you breach the bonds.  There will have to be two bonds, one for each offence.  [Emphasis added]

   [54]   Douglas v The Queen, Albone v The Queen (1995) 56 FCR 465.

6. It can be seen that the features upon which the Judge relied included the fact that the respondent was himself a child when he began accessing the material, that he had developed a form of addiction at a time when he could not, by reason of his age, have had a complete appreciation of the wrongfulness of his conduct, that he had been highly motivated to free himself from the addiction, and that he had been successfully rehabilitated.

7. The Judge also noted that it would be rare not to record a conviction.  However, he thought it appropriate to proceed in that way in the respondent’s case.  The Judge noted that the respondent’s career ambitions were of a kind which could well involve working for the Government or a Government agency and that the recording of convictions would probably mean that he could not be employed in that way.  In addition, the Judge had material concerning the effect of convictions on the respondent’s ability to visit some countries, noting that such travel may be required as part of his future employment.  The Judge concluded that the respondent “may be prejudiced in employment and study if a merciful approach is not taken”.  He then concluded, “as unusual as it is for offences as serious as these”, that it was appropriate to refrain from recording convictions.

8. On the appeal, the Director accepted that the Judge had not made any error of fact or of principle in his sentencing approach.  It was the outcome only which the Director submitted was in error.  He submitted that the Judge should have imposed an immediate custodial sentence, and should have recorded convictions.

   Should a Custodial Sentence Have Been Imposed?

9. There is no doubt that the Judge’s sentence was very merciful.  As the passages quoted above from the reasons of the Chief Justice in Padberg indicate, offences of the present kind usually require that a sentence of imprisonment be imposed, and will usually require that part of that sentence be served in custody.  Those in the community who are minded to access or possess child pornography must know that they are participating in a serious social evil and that the law will hold them accountable for that participation.  Considerations of general and personal deterrence must be prominent considerations in the sentencing decision.  This means that previous good character, even an otherwise exemplary life over many years, will usually not preclude the imposition of an immediate custodial sentence.

10. However, that does not mean that there may not be the occasional rare case in which it is appropriate for a court to extend mercy.  As was pointed out by Windeyer J in Cobiac v Liddy:[55]

    The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. …  This is not because mercy, in Portia’s sense, should season justice.  It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.[56]

    [55] (1968) 119 CLR 257.

    [56] Ibid at 269.

11. While the community interest in a firm denunciation of the respondent’s conduct and in the imposition of a sentence of sufficient deterrent effect had to be given a prominent weighting, other considerations were also important in this case.  The respondent’s youth and the circumstances in which he came to commit the offences were significant matters.  The present case required a balancing of the need for condign punishment with the mitigatory effects of the respondent’s youth and immaturity.

12. The respondent had only just turned 20 at the time of his offending.  The report of Mr Jenkins and the letters from his family members suggest that he was an immature 20 year old.

13. 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[57] who was also 20 years old is an exception.  I also note that the offences considered in R v Daw[58] and R v Salsone; ex parte Attorney-General (Qld)[59] 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.

    [57] [2009] NSWCCA 290.

    [58] [2006] QCA 386.

    [59] [2008] QCA 220.

14. 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.  Thus, in R v Carroll,[60] King CJ spoke of the courts being “inclined to mercy in the case of young people facing prison for the first time”.[61]  In R v Mills[62] Batt JA endorsed the following propositions concerning the sentencing of youth offenders:

    (i)Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

    (ii)In the case of a youthful offender rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focussing on rehabilitation is to be preferred.  (Rehabilitation benefits the community as well as the offender).

    (iii)A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality.  The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. …[63]

    [60] Ibid at 360.

    [61] (1989) 154 LSJS 359.

    [62] (1998) 4 VR 235.

    [63] Ibid at 241.

15. Comparison of the circumstances of one case with another is of limited utility.  That is particularly so in relation to sentences imposed by interstate courts as it is difficult for this Court to be fully conversant with the relevant sentencing regimes.  However, I note that in R v Daw[64] the Court of Appeal in Queensland considered that a “probation order” of two years without any recording of a conviction was appropriate for a 21 year old offender who was convicted of the possession of 58 images of child pornography downloaded from a website.  In the later case of R v Salsone,[65] the Court of Appeal in Queensland set aside a custodial sentence imposed upon a 21 year old for one offence of distributing child exploitation material and one count of possessing child exploitation material and substituted a suspended sentence of imprisonment on one count, a sentence of two years probation on the other and recorded convictions on both counts.  In Puhakka v The Queen[66] the Court of Criminal Appeal in New South Wales reduced the sentences imposed upon a 20 year old for, in effect, three offences of possession of child pornography but nevertheless required the appellant to serve a period in custody.  These decisions seem to reflect, in relation to youthful offenders, a modification of the usual approach of the courts when sentencing for the offences of possession or distribution of child pornography.

    [64] [2006] QCA 386.

    [65] [2008] QCA 220.

    [66] [2009] NSWCCA 290.

16. In the present case, there are four considerations which indicate to my mind that the sentencing Judge was entitled to treat this case as one of the rare cases in which a custodial sentence was not required.  All arise from considerations personal to the respondent.  The first is his youth and immaturity at the time of the offending (coupled with an otherwise clean record).

17. The second is the circumstances in which the respondent came to commit the offences.  As noted earlier, the respondent was accidentally and innocently exposed to child pornography as an 11 year old.  That gave rise to him developing, during his formative years, “an escalating pattern of pre-occupation” with pornography with the consequence that he became “increasingly overwhelmed and entrapped in self-destructive patterns of pornography use”.  In his sentencing remarks, the Judge described the respondent having developed an addiction, but I note that that was not a word used by Mr Jenkins.  It does not seem that the respondent had an addiction in the form of a physiological or psychological dependence on child pornography; only that he had become habituated to it from his exposure during his formative years when he had only a limited appreciation of its wrongfulness. 

18. The Judge referred to the decision of the Supreme Court of the Australian Capital Territory in Douglas v The Queen[67] in which von Doussa, Higgins and R D Nicholson JJ held that the age at which drug addicted offenders became addicted and the degree of judgment open to them at that age was relevant to an evaluation of their moral culpability.[68]  He applied that reasoning by analogy in the present case.  In my opinion, there are limitations on the use of this reasoning in the present case.  As already noted, the respondent was not in any relevant sense an addict, and even addicts must accept responsibility for their own conduct.[69]  Further, the view of personal autonomy and personal responsibility, upon which much of the law proceeds, means that there comes a time when those who have been exposed to adverse influences in their childhood or youth should be taken to accept responsibility for their own conduct as an adult. 

    [67] (1995) 56 FCR 465.

    [68] Ibid at 470.

    [69]   R v Proom [2003] SASC 88; (2003) 85 SASR 120.

19. However, the reasoning in Douglas is pertinent to some extent.  Mr Jenkins said that the self-destructive pattern of pornography use in which the respondent was entrapped “typically does not end until a crisis arises, such as police intervention or criminal action”.  It is appropriate to accept therefore that because of his youth, there were limitations on the respondent’s ability to address his preoccupation.  The circumstances in which the respondent developed his interest in child pornography and the difficulty for him, absent some external intervention, in addressing his obsession do, to some extent, reduce the moral culpability of his conduct.

20. The third matter is that immediately after the police seizure of computers, the respondent, with the help of his family, actively addressed his problem by participating in a prolonged course of psychological treatment.  He has successfully completed that course and there are now grounds for reasonable confidence that he has been successfully rehabilitated.  In this sense, the respondent has been redeemed or recovered from his wrongdoing and it would be inappropriate for the Court to impose a sentence which would detract from that recovery.

21. Finally, the fact that the respondent has the support of a close-knit, cohesive and law abiding family is an important consideration.

22. The Judge recognised that it would be exceptional not to impose a custodial sentence.  In my opinion, consideration of the four matters which I have mentioned means that it has not been established that the Judge was wrong in reaching the assessment that this case was exceptional.  I would refuse to grant permission to the Director to appeal against the Judge’s decision not to impose a custodial sentence.

    Should Convictions have been Recorded?

23. The Judge exercised the power vested in him by s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) which permits a sentencing court, if it thinks there is “good reason” for doing so, to discharge a defendant, with or without recording a conviction, upon the defendant entering into a bond. Section 39 provides:

    (1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—

    (a)     to be of good behaviour; and

    (ab)   to comply with the other conditions (if any) included in the bond; and

    (b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.

    (1a)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).

    (2)     Where a defendant is discharged under this section—

    (a)     no fresh prosecution may be commenced in respect of the offence; and

    (b)     the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.

24. The Judge recognised that it would be rare not impose convictions for the offences of possession of child pornography.  He accepted that his approach was merciful.  The particular matters upon which the Judge relied (in addition to his assessment more generally of the respondent and his offending) in deciding not to record convictions were these:  in many occupations a criminal record is by itself a bar to employment; in other cases, while not a bar, it makes the obtaining of employment more difficult; Government departments and authorities are major employers of those in the area of environmental management and hydrology in which the respondent’s career interests lie, and a conviction is a bar to employment in such departments and authorities; and travel to some countries which could reasonably be anticipated to be a part of the respondent’s future employment may be barred by convictions.

25. Considerations of these kinds are not unique to the respondent.  They would apply to many offenders who come before the courts.

26. The recording of a conviction serves many purposes. First and foremost, it is the formal record of the adjudication of the offender’s guilt, and thus comprises a formal and public declaration that the person engaged in the charged criminal conduct. As such it forms part of the community’s denunciation and censure of the conduct and the community is entitled to expect, as the words of s 39 of the CLSA indicate that, unless there is good reason not to do so, convictions will be recorded. Secondly, the prospect that a conviction will be recorded forms part of the deterrent effect of a sentence. This is because the recording of a conviction can have a significant deleterious effect on an offender, and can act as a form of continual punishment.[70]

    [70]   R v Lambert [2009] SASC 307 at [22].

27. As was pointed out by Sulan J in R v Lambert,[71] after referring to the Queensland Court of Appeal decision in R v Breise,[72] there are many employers and organisations in the community who refer to criminal records, whether to satisfy themselves of the absence of such a record, or as to the nature and extent of the record in a particular case.  A requirement for a so-called “Police Check” is now commonplace, in particular for those who work with children, or who are involved in community activities involving children.  As I understand it, a “Police Check” involves a certification by the police of a person’s criminal record.

    [71] [2009] SASC 307 at [19]-[20].

    [72] (1997) 92 A Crim R 75 at 79-81.

1. In general, the more serious the offence the less likely it is that a court will be able to find good reason not to record a conviction.

2. In the present case, I consider that it was an error for the Judge not to have recorded convictions.  The very seriousness of the respondent’s offending required, in my opinion, the public declaration of his wrongdoing which convictions represent.  Giving effect to the requirement for general deterrence also required convictions.  Further still, although it may have adverse consequences for the respondent, those who deal with him are entitled to know, if they wish to be informed, of this feature of his past.  It will be for them to consider whether it constitutes a blemish on his character, or something more serious.  In this respect the Judge’s sentencing remarks and the reasons of this Court will be pertinent.

3. I have some sympathy for the respondent, bearing in mind his youth and the potential effects of the recording of convictions on his future career.  However, for the reasons just given, I consider that the Judge did err in not recording convictions.

4. Despite the well known restraints exercised by this Court on a prosecution appeal[73] I would grant the Director permission to appeal.  I would allow the appeal and would set aside the sentence imposed by the District Court.

   [73]   R v Nemer [2003] SASC 375 at [24]-[27]; (2003) SASR 168 at 172-3.

5. However, in re-sentencing the respondent I would take the same approach as did the District Court Judge, subject to the recording of convictions.

6. This being an appeal by the prosecution against sentence, and as I have found that the District Court Judged did not err other than in his failure to record convictions, it is appropriate to take the same approach as did the District Court Judge, although I am not bound to do so.  Considerations of mercy also play a part here.  I acknowledge the force of the matters advanced by Gray J in his reasons, but for the reasons which I have given I consider that the more merciful course is appropriate.

7. Having allowed the appeal, I would record a conviction on each count, but subject to that order that the respondent be discharged upon entering into a bond in relation to each offence, each in the sum of $500 and each for a period of two years and nine months.  These terms take account of the three month period during which the respondent has already been subject to the bonds entered into before the Judge.  It should be a condition of each bond that the respondent be of good behaviour during the period of the bond and that he appear before a court for sentence for the two offences in the event of any breach of the conditions of the bond.