R v O'Connor - [2012] SASCFC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v O'CONNOR
[2012] SASCFC 15
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Stanley)
1 March 2012
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 - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
DPP (Cth) application for permission to appeal against sentence – respondent pleaded guilty in the District Court of South Australia to the offences of using a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth), and aggravated having in his possession child pornography knowing of its pornographic nature, contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA) – in May 2010, police went to the respondent’s home, seized his computer and found 14,657 images and 116 videos or multimedia files containing child pornography – most of the child pornography fell into the first category of the COPINE (Oliver) Scale, but the material included material falling into each category – this was the respondent’s second offence of this nature – it took some time before the respondent was sentenced as the Judge allowed him the benefit of completing a course of treatment relating to his sexual offending – two reports were tendered in support of the respondent in relation to his treatment – the trial Judge placed significant weight on the respondent’s self motivated rehabilitation – for the Commonwealth offence, the Judge sentenced the respondent to 19 months’ imprisonment, reduced from two years’ imprisonment on account of the early guilty plea, and ordered that he be released immediately upon entering into a recognizance in the amount of $500 to be of good behaviour for two years with conditions – for the State offence, the Judge sentenced the respondent to 15 months’ imprisonment, reduced from 20 months on account of the early guilty plea, with a non-parole period of five months, and suspended the term of imprisonment on the condition that the respondent be of good behaviour, and including conditions the same as those included in the recognizance – the Judge ordered the sentences to be served concurrently.
The issues on appeal were (1) whether the direction that the respondent be released on recognizance and whether the order suspending the sentence of imprisonment were a proper exercise of the power vested in the Judge; (2) whether a grant of permission to appeal was called for to advance one of the purposes for which the power to entertain and decide an appeal against sentence by the DPP has been conferred on the Court; and (3) whether the appeal should be allowed taking into account the residual discretion to dismiss the appeal.
Held: (1) the Judge erred in making the orders that he did – however, the principles applicable to a DPP appeal against sentence required consideration; (2) the sentence failed to reflect an appropriate standard of punishment; and (3) the respondent would suffer hardship being imprisoned now after all that has happened.
Application for permission to appeal against sentence granted – appeal dismissed.
Criminal Code Act 1995 (Cth) s 474.19(1)(a)(i); Crimes Act 1914 (Cth) s 20(1); Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(2); s 63A(1)(a), s 340; Criminal Law (Sentencing) Act 1998 (SA) s 19B, s 38(1), referred to.
R v Padberg (2010) 107 SASR 386; R v Verrall [2012] SASCFC 10, discussed.
R v McGaffin (2010) 206 A Crim R 188; R v Hill (2011) 110 SASR 588; R v Nemer (2003) 87 SASR 168; Green v The Queen (2011) 86 ALJR 36; R v JW (2010) 77 NSWLR 7; R v Abdulla (2011) 109 SASR 258; R v Harkin (2011) 109 SASR 34, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"appeal", "Crown appeal", "sentencing", "child pornography"

R v O'CONNOR
[2012] SASCFC 15
Court of Criminal Appeal: Doyle CJ, Gray and Stanley JJ

DOYLE CJ: Mr O’Connor pleaded guilty in the District Court to two offences. The first offence was using a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth). The second offence was that of having in his possession child pornography knowing of its pornographic nature, contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The latter offence was an aggravated offence, because the victims of the offence were under the age of 14 years: s 5AA(1)(e) of the CLCA.
The maximum penalty for the first offence was 15 years’ imprisonment. The maximum penalty for the second offence was imprisonment for ten years, it being an aggravated offence and a “subsequent offence”.
On 24 November 2010 Mr O’Connor had pleaded guilty to both offences in the Magistrates Court. He was committed for sentence, and appeared before the District Court in January 2011. The case was adjourned so that reports could be obtained on treatment that Mr O’Connor had undertaken on his own initiative soon after being arrested. Subsequently his counsel applied for a further adjournment to give him an opportunity to complete a course of treatment at Owenia House, a centre that provides treatment for sexual offenders. He was receiving treatment at the time when his counsel applied for the adjournment. In exercise of the power conferred by s 19B of the Criminal Law (Sentencing) Act 1998 (SA), the Judge adjourned the proceedings, and later adjourned them again to 27 October 2011. On that occasion the Judge had the benefit of two detailed reports on Mr O’Connor’s treatment at Owenia House. The course of treatment had been completed.
The Judge sentenced Mr O’Connor on 27 October 2011. For the Commonwealth offence he imposed a sentence of 18 months’ imprisonment, reduced from two years’ imprisonment on account of the early guilty plea. For the State offence he imposed a penalty of imprisonment for 15 months, reduced from 20 months on account of the early guilty plea. He directed that the sentences be served concurrently.
In relation to the State offence the Judge fixed a non-parole period of five months. In relation to the Commonwealth offence, the Judge ordered that Mr O’Connor be released immediately upon entering into a recognizance in the amount of $500 to be of good behaviour for two years. The Judge included conditions directed to ensuring that Mr O’Connor complied with any further directions for treatment that might be given by a Community Corrections Officer. In relation to the State offence, the Judge made an order suspending the term of imprisonment on condition that he enter into a bond to be of good behaviour, and including conditions the same as those included in the recognizance.
The Director of Public Prosecutions (Cth) has applied for permission to appeal against the sentence. The Director makes no complaint about the head sentences, the non-parole period or the order for concurrence. The Director challenges the decision to release Mr O’Connor forthwith. He also challenges the order suspending the sentence of imprisonment for the State offence.
Circumstances of offending
In May 2010 police went to Mr O’Connor’s home, and there seized certain computer equipment. Stored on the computer were 14,657 still images containing child pornography material, and 116 multimedia files or video files containing child pornography. The files had been created between February 2010 and May 2010. A sample of the still images and all of the video files were examined and classified according to the COPINE Scale or the Oliver Scale. These scales provide five categories for child pornography, category one being the material least offensive and category five the material most offensive. About three quarters of the material fell within category one, but the material included material falling within each category. Category four comprises images depicting penetrative sexual activity between children and adults, and category five comprises images depicting sadism or bestiality. The Judge summarised the material as follows:
The material depicted numerous different children between the ages of approximately three months and 15 years. The large number of images, the very young age of some of the children concerned, the number of children involved, the systematic nature of the collection and the abhorrent and deviant nature of the imagery all contribute to this being a very serious example of this type of offending.
I viewed a representative sample of material in the presence of your counsel, prosecuting counsel, and an officer from the Australian Federal Police. It is not my practice to describe the nature of such material in detail in sentencing remarks such as these. However, the imagery that fell within categories four and five was, as one would expect, particularly deviant and involved conduct likely to have caused severe and/or psychological trauma and long-term damage to the victims.
All of the material found in your possession was shocking and abhorrent. It shows abusive and disgraceful conduct perpetrated on very young victims. Its creation involved perverted and criminal conduct of the most serious kind.
Mr O’Connor’s circumstances
Mr O’Connor was 45 years of age. He was separated from his wife. He had two adult children, one of whom lived with him. The Judge said that he had a “good work ethic”, but had ceased work in about 2005, and was in receipt of a disability pension, according to Mr O’Connor the disability being depression. He had suffered from depression in the past. He also had a history of abuse of drugs and alcohol, although my impression is that he had maintained steady employment for most of the time after he left school.
Dr White, a psychologist, provided a report that was tendered. He described Mr O’Connor as “emotionally unstable, introverted and lacking assertiveness”. Mr O’Connor told Dr White that his substance abuse made him disinhibited, and it was in that context that he began to view child pornography material. The Judge also had the assistance of two thorough reports from Ms Bruggemann, a psychologist at Owenia House, who was responsible for Mr O’Connor’s treatment. Drawing on these reports the Judge said that Mr O’Connor had abstained from illicit drugs and alcohol, and had made “significant progress towards rehabilitation”. He had developed insight into his behaviour, and no longer had a sexual interest in children. Ms Bruggemann reported that he had “appropriately completed group based sexual offender treatment”, and this had “reduced his level of risk of re-offending”. If he remained in the community, he should attend for “individual follow-up to maintain the changes that he has made so far …” and for monitoring.
The Judge did not have much information about a previous conviction in 2004 for possessing child pornography. The maximum penalty for the offence was, at that time, a fine of $5,000 or imprisonment for one year. When sentenced in the Magistrates Court for that earlier offence, he was a first offender. The earlier offence resulted from police acting on information gained from internet monitoring. Police had attended at his home and seized his computer. The material found included pictures depicting persons suspected of being under the age of 16 years, engaging in sexual activity. The Judge inferred from the fact that Mr O’Connor was fined only $1,000 that the conduct was significantly less serious than the conduct involved in the charges now under consideration. That may be, but the previous offence is a serious offence.
The Judge’s reasons
The Judge referred to the seriousness of the offences in question. He noted that decisions of this Court have made it clear that such offending will almost always result in a term of imprisonment to be served. He noted that the purpose of the legislation was to protect children, and that general deterrence was of paramount consideration. There was also a need for personal deterrence, particularly in view of Mr O’Connor’s previous offence.
Having pronounced the sentence outlined above, the Judge considered whether the period of imprisonment should be served. He noted that there were “strong personal considerations” in favour of Mr O’Connor, referring to him suffering from depression and his problems of substance abuse. His attempts at rehabilitation were significant. He noted that the seriousness of this kind of offence, and the need for general deterrence, will usually overwhelm personal considerations that might support an order that would result in the sentence of imprisonment not being served. The Judge said that if the previous offence had been “of a more serious nature or been more heavily punished” he would have had “less sympathy” for Mr O’Connor’s position. The same applied had it been the case, which it was not, that Mr O’Connor had accessed child pornography between 2004 and the latest offences. The Judge concluded:
Ultimately, a matter that carries significant weight for me is the fact that you have got so far with your sex offender rehabilitation and your drug and alcohol rehabilitation, that to deprive you of ongoing contact with Owenia House while you were to be incarcerated and at such a crucial time could put your desire and your capacity to continue your rehabilitation at significant risk. This would not be in the community’s interest.
I do take into account the significant progress you have made in engaging in sexual offender treatment rehabilitation. While you continue to abstain from drugs and alcohol, maintain psychological counselling and support, I am of the view that you have good prospects of avoiding reoffending.
In connection with this part of the Judge’s reasons I note that Ms Bruggemann, in her later report, encouraged further follow up, but did not state that the progress made so far would be at risk were Mr O’Connor to serve a term of imprisonment.
There is no error apparent in the Judge’s approach. The issue is whether the direction that Mr O’Connor be released, and the order suspending the sentence of imprisonment, were a proper exercise of the power vested in the Judge. In relation to the Commonwealth offence, the power of the Court is to order release “if it thinks fit”: s 20(1) of the Crimes Act 1914 (Cth). In the case of the State offence, the power could be exercised if “the Court … thinks that good reason exists for doing so …”: s 38(1) of the Criminal Law (Sentencing) Act 1988 (SA).
Approach to sentencing
In R v Padberg [2010] SASC 189; (2010) 107 SASR 386 this Court undertook a review of sentences for offending of the kind in question. In the course of my reasons I said:
[20]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.
[21]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.
[22]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.
White J agreed with my reasons at [38], and there is nothing inconsistent with what I said in reasons of Kourakis J at [39]-[48]. In R v McGaffin [2010] SASCFC 22; (2010) 206 A Crim R 188; this Court adopted these observations: Doyle CJ at [1]; Gray J at [22]-[25] and White J at [45]-[46]. They were again adopted by this Court in R v Hill [2011] SASCFC 109; (2011) 110 SASR 588; Gray J at [1]; Sulan J at [22]-[23] and [31]; Stanley J at [48].
Consideration of appeal
Subject to one matter, I consider that the offences required a sentence of imprisonment to be served. This is offending of a serious kind. Deterrence, both individual and general, had to play a very significant part in sentencing. Not only is this a serious kind of offence, these particular instances were serious within that category. The creation of the material involved the committing of criminal acts against children, and the likelihood of serious harm to the children. The conduct of those who produce and view this material can only be described as depraved. Each of the five categories on the COPINE Scale was involved. The previous conviction was a significant factor. I accept that the offence was less serious than the present offences. But Mr O’Connor had had the clearest of warnings (through being charged) that such offences would be treated seriously.
The matter that supported the Judge’s decision was that Mr O’Connor had undertaken treatment soon after being charged, and had completed that treatment. Dr Bruggemann’s report was that he had reduced the level of risk of reoffending, and that follow up was encouraged. While that is encouraging, it does not amount to an opinion that there is no risk of further offending. Nor, as I have already commented, is there is a basis for concluding that imprisonment would undo the effect of the treatment that Mr O’Connor had received.
In my opinion the Judge erred in making the orders that he did. The powers that he exercised were broad, but the importance of deterrence and the seriousness of the offending, coupled with the prior conviction, made it inappropriate to permit Mr O’Connor to escape imprisonment. The very low non‑parole period that the Judge set adequately reflected Mr O’Connor’s personal circumstances.
However, this is an application by the Director for permission to appeal. The principles that govern an application by the Director for permission to appeal against sentence are well settled. I refer to R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [22]-[27]. Since that time, s 340 of the CLCA has been enacted. It came into effect on 3 August 2008. Section 340 provides:
340—Appeal against sentence
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a)impose the sentence that should have been imposed in the first instance; and
(b)order that the sentence—
(i) will be taken to have come into effect on a date before the date of the order; or
(ii) will take effect on a date on or after the date of the order.
The impact of s 340 of the CLCA was recently summarised by Gray J in R v Verrall [2011] SASCFC 10 at [21]-[22]. Gray J there referred to recent observations by French CJ, Crennan and Kiefel JJ in Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36. In their reasons their Honours summarised the conclusions of the Court of Criminal Appeal of the Supreme Court of New South Wales in R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7. It was not argued before the High Court that that case was wrongly decided. Be that as it may, in Green, their Honours said:
[26]… Spigelman CJ, with whom the other members of the court relevantly agreed, concluded that the section removed from consideration by the Court of Criminal Appeal the distress and anxiety to which respondents to a Crown appeal are presumed to be subject if they have to undergo sentencing for a second time. It prevents an appellate court from basing on such distress and anxiety a decision not to intervene or to impose a sentence less than that which it otherwise believes to be appropriate. Moreover the court cannot, it was said, have regard to the frequency of Crown appeals as a sentencing principle. On that view, s 68A is relevant to the exercise and scope of the residual discretion, in s 5D of the Criminal Appeal Act, to dismiss a Crown appeal against sentence notwithstanding that the sentence is shown to have been erroneous. It is not necessary for this court to review the correctness of the construction of s 68A in JW. On any view of its operation it does not extinguish the residual discretion.
Footnotes omitted
A little later their Honours said at [43]:
[43]Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.

In recent decisions in this State this Court has treated those observations relating to the “residual discretion” as applicable to s 340 of the CLCA. See R v Abdulla [2011] SASCFC 20; (2011) 109 SASR 258; and R v Harkin [2011] SASCFC 24; (2011) 109 SASR 334. No criticism was made of those decisions in the present case. In his reasons in Verrall, Gray J summarised the position as follows:
[18]The principle of doubt jeopardy has historically been taken into account by an appeal court in all stages of the appeal process in relation to an appeal against sentence by the Director. That is, double jeopardy has been taken into account when assessing whether permission to appeal should be granted; whether an appeal should be allowed; and, when considering the sentence to be imposed if that imposed at first instance is quashed, and the court is resentencing the offender. It was of most significance where a suspended sentence was imposed and the appeal was against the decision to suspend.
….
[20]While the rule of law known as double jeopardy remains relevant to the granting of permission to appeal, if permission to appeal is granted, section 340 precludes the court from having regard to double jeopardy when re-sentencing. The section removes from consideration any rule of law enabling a court to impose, when re-sentencing, a sentence other than the sentence which the court thinks ought to have been imposed in the first instance. It removes the court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence. Section 340 applies to any appeal instituted after 3 August 2008.
[22] …
It is to be recalled that this residual discretion only arises when the Court is re-sentencing, as double jeopardy remains a relevant consideration when the court is considering the question of a grant of permission to appeal.
Error on the part of the Judge having been identified, the first question is whether the Court should grant permission to appeal. It is not sufficient that error is identified. The Court must consider whether a grant of permission to appeal is called for to advance one of the purposes for which the power to entertain and decide an appeal against sentence by the Director has been conferred on this Court. In the present case, the sentence fails to reflect an appropriate standard of punishment, to the extent that it resulted in Mr O’Connor being released. Intervention can avoid that standard being eroded. As well, the sentence is one that would shake public confidence in the courts, having regard to the seriousness of the offending, and the previous offence. Also relevant to the question of permission to appeal is the circumstance that Mr O’Connor has been set free by the order of the Court, after undertaking and completing appropriate treatment. Almost a year has passed since his counsel applied for an adjournment of the proceedings. That is to be taken into account, although it is to be borne in mind that this was an adjournment at Mr O’Connor’s request, and opposed by the Director. During this time Mr O’Connor has had the possibility of imprisonment hanging over his head, that possibility being continued by the Director’s application for permission to appeal. These are relevant matters. But I consider that the maintenance of appropriate standards of punishment is sufficiently important to warrant grant of permission to appeal in the present case, despite circumstances based on double jeopardy, even though I acknowledge the force of the argument to the contrary.
If permission to appeal is granted, the next issue is whether the appeal should be allowed. The “residual discretion” to dismiss the appeal must be considered. The factors relevant are those already referred to. The scope of that discretion is well illustrated by the following point made by French CJ, Crennan and Kiefel JJ in Green at [43]:
[43]The guidance afforded to sentencing Judges by allowing the appeal should not come at too high a cost in terms of justice to individuals.
I am persuaded that the appeal should be dismissed, because of the hardship to Mr O’Connor in being imprisoned now, after all that has occurred. Apart from that, I would have allowed the appeal, and set aside the order suspending the sentence of imprisonment, and releasing him on recognizance.
Accordingly, I would grant permission to appeal but dismiss the appeal.
GRAY J: I would grant permission to appeal but dismiss the appeal. I agree with the reasons of Doyle CJ.
STANLEY J: I would grant permission to appeal but dismiss the appeal. I agree with the reasons of the Chief Justice.