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…
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CaseChat Overview and Summary
The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentences imposed by the trial judge were manifestly inadequate, thereby justifying the grant of leave to appeal. This required the court to consider the principles applicable to sentencing for child pornography offences, particularly in light of the prevalence of such material, the need for general deterrence, and the seriousness of the offending, including the respondent's prior conviction for a similar offence. The court also had to assess the weight to be given to the respondent's rehabilitation efforts in the context of the overall sentencing considerations.
The Full Court reasoned that offences involving child pornography, especially when committed over a significant period, involving a substantial amount of material, and including the most serious categories, generally warrant a custodial sentence that is actually served. The court emphasised the importance of general deterrence in combating the serious social evil of child pornography and noted that offenders must be held accountable for their role in perpetuating this harm. The court found that the respondent's prior conviction for a similar offence, despite being less serious than the current charges, provided a clear warning that such conduct would be treated with gravity. Consequently, the court concluded that the sentences imposed, which allowed for immediate release and a suspended term of imprisonment, were manifestly inadequate given the seriousness of the offending and the need for deterrence.
Leave to appeal was granted, and the court determined that the sentences imposed were inadequate. The court ordered that the sentences be served cumulatively, with a significantly longer period of imprisonment to be served before the respondent would be eligible for parole.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.