R v Ohmer - [2011] SASCFC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v OHMER
[2011] SASCFC 44
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Kelly)
18 May 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence – appellant pleaded guilty to one count of aggravated production of child pornography and one count of aggravated possession of child pornography – where appellant filmed change rooms at swimming centre where male children were changing – appellant resisted police – appellant in possession of seven CDs containing approximately 200,000 images of child pornography – appellant sentenced to four years imprisonment with non-parole period 18 months – sentencing Judge declined to suspend the sentence – appellant was the carer for his father who suffered from ill health – whether sentencing Judge gave proper weight to medical and psychiatric reports – whether sentencing Judge erred in declining to suspend the sentence – whether non-parole period manifestly excessive.
Held: (Kelly J, Doyle CJ and White J concurring): Appeal dismissed – offences of possession and production of child pornography particularly serious – although appellant had no prior convictions he had a longstanding interest in child pornography – sentencing Judge took into account the circumstances of the appellant’s father and did not err in finding that those circumstances should not be the dominant sentencing factor – father’s circumstances not exceptional – sentencing Judge gave full weight to sentencing and psychiatric reports – sentencing Judge did not err in failing to suspend the term of imprisonment – non-parole period not manifestly excessive.
Criminal Law (Sentencing) Act 1988 (SA) s 10(4) and s 18A, referred to.
R v Padberg (2010) 107 SASR 386; Neill v Police [1999] SASC 270, discussed.
R v McGaffin [2010] SASCFC 22; R v Oliver [2003] 1 Cr App R 28, considered.

R v OHMER
[2011] SASCFC 44
Court of Criminal Appeal: Doyle CJ, White and Kelly JJ

DOYLE CJ: I would dismiss the appeal against sentence. I agree with the reasons of Kelly J.
WHITE J. I agree that the appeal should be dismissed. I agree with the reasons of Kelly J.
KELLY J: The appellant pleaded guilty to one count of aggravated production of child pornography and one count of aggravated possession of child pornography. The circumstance of aggravation in each case was the fact that the appellant knew the victims to be under the age of 14 years. The maximum penalty applicable for the offence of aggravated possession of child pornography is seven years imprisonment. For the offence of aggravated production of child pornography the maximum penalty is 12 years imprisonment.
On 6 December 2010 a District Court Judge, utilising the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 (SA), sentenced the appellant to four years imprisonment and set a non‑parole period of 18 months. The Judge declined to suspend the term of imprisonment.
The appellant now appeals on the ground that the Judge erred in declining to suspend the term of imprisonment or, in the alternative, that the non‑parole period imposed by the Judge is manifestly excessive. In support of those grounds the appellant complains that the Judge erred in her findings regarding the needs of the appellant’s father for daily care and support arising out of his ill health. There are two further complaints that the Judge failed to give adequate weight to the hardship of an immediate term of imprisonment upon the appellant’s father and to the appellant’s prospects of rehabilitation. Particular complaint was made that the sentencing Judge did not give adequate weight to a psychiatrist’s opinion that the risk of the appellant reoffending was low.
Before discussing those complaints I summarise the facts relevant to this appeal.
On 25 November 2009 police arrested the appellant at the Elizabeth Aquadome Swimming Centre. He was in possession of a bag with a hole cut in to the corner, inside of which was a digital camera with the lens aligned with the hole in the bag. The memory card from the camera contained footage of the male change room in the Aquadome.
At the time of his arrest, as the police were searching the bag with the camera in it, the appellant snatched the camera from their hands and threw it in a swimming pool. The appellant also resisted police when they attempted to further search his bag and ultimately he had to be subdued with OC spray. The appellant also pleaded guilty to two summary offences arising out of that incident, namely the offences of hinder police and resist police.
Police then attended the appellant’s residence. There they located 24 files of footage taken from the Aquadome Swimming Centre at Elizabeth which included footage of male children under the age of 14 in various stages of nudity. Those files were the subject of the charge of aggravated production of child pornography. The police also located seven CDs containing approximately 200,000 images and movies of naked and posed children and children engaging in sexual acts. Approximately one half of the images were of children under the age of 14 years. Those CDs and the 24 files of footage taken from the Aquadome were included in the charge of aggravated possession of child pornography. In an interview with a psychiatrist who presented a report to the court for the purpose of sentencing, the appellant admitted that he had engaged in the secret recording of children a number of times. He also admitted to the psychiatrist, Dr Branson, a longstanding interest in child pornography and a sexual fetish for wearing diapers associated with sexual activity and masturbation. At the time of his arrest there were nappies in the bag he was carrying.
The appellant is a 31 year old man with no prior convictions. At the time of his arrest the appellant was employed in the defence industry working with computers. As a result of the offending he lost his employment. The appellant and his father, a retired judge, moved to Australia from Germany in 2004. The appellant was the sole carer of his father who suffers from post‑polio syndrome. The move to Australia was prompted by advice that a warmer climate would be beneficial to the appellant’s father’s medical condition. Both the appellant and his father resided in Brisbane from 2004 to 2007 after which the appellant travelled to Adelaide to commence employment in the defence industry. The appellant’s father followed the appellant to Adelaide about a year later in 2008 because he felt he needed the appellant’s care due to his deteriorating medical condition. At the time of sentencing the appellant’s father was 63 years old.
During sentencing submissions the appellant’s father gave evidence concerning his medical condition and financial circumstances. In addition to oral evidence there was a letter provided from the appellant’s father explaining in some detail the day‑to‑day assistance that the appellant gave to him. That assistance included shopping, cleaning, helping to lift items, providing massages to relieve pain, help using speech recognition programs on the computer, administrative paperwork and assistance with washing his clothing. There was also a report from a physician named Dr Quadros dated 13 September 2010 in which the physician expressed the view that the appellant’s father was unable to live on his own without any support. The report concluded with a statement that the physician intended to review the appellant’s father’s condition in 12 months time to monitor whether or not there has been any further deterioration in his condition. The appellant’s father said he had only two living relatives besides his son, and they were two older cousins in Germany.
There was a great deal of evidence before the sentencing Judge concerning the appellant’s father’s financial circumstances. There was also an affidavit from the appellant’s father dated 14 February 2011 which was tendered without objection on the hearing of this appeal. Counsel for the appellant asked the Court to receive the affidavit on the basis that it sheds new light on material that was already before the sentencing Judge. It was said that the contents of the affidavit make it explicit that the cost of a full time carer for the appellant’s father would exceed the disposable income available to the appellant’s father. In summary, the assistance for medical expenses available to the appellant’s father in Australia is far less than it would be if he was still residing in Germany. Evidence before the Court was that 70 per cent of the father’s medical expenses would have been covered in Germany, where as in Australia under the private visitors cover available to him, he is not eligible for cover for disability or ongoing care. The evidence established that the appellant’s father will suffer particular hardship whilst the appellant is incarcerated. That hardship includes financial hardship. However, there was evidence before the Court that the appellant’s father is the owner of property in Germany and the owner of property in Queensland, and at the time of sentencing submissions he had approximately $50,000 cash in the bank. Nevertheless there is no doubt that the appellant’s father will suffer hardship as a result of the appellant’s incarceration.
Discussion
The offences of possession and production of child pornography are particularly serious. Two recent decisions of this Court[1] make that very clear. In R v Padberg[2] Doyle CJ (with whom White J 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. …
[Citations omitted]
[1] R v Padberg (2010) 107 SASR 386 and R v McGaffin [2010] SASCFC 22.
[2] R v Padberg (2010) 107 SASR 386 at [18] – [23].
It must be borne in mind that every time another person views or downloads images or movies containing child pornography, that person is involved in the further degradation and exploitation of the children the subject of the original images.
Parliament has made it clear in enacting s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA) 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.
The appellant’s offending was serious. The sentencing Judge described the nature of the images by reference to a scale adopted by the UK Court of Appeal in R v Oliver.[3] That scale consists of five categories in ascending order of gravity.[4] The sentencing Judge considered that most of the images were in the first four categories, although there were some images in category five. She accepted that the majority of images were in category one although there were numerous images in categories two, three and four as well. The appellant conceded that he had engaged in the same conduct on a number of previous occasions in order to satisfy his sexual interests. The appellant also acknowledged that he had engaged in accessing and downloading child pornography for at least the last 10 years and had brought some child pornography with him to Australia when he migrated here in 2004. Thus, although the appellant had no prior convictions, he was not entitled to the same leniency as a person without any background of previous similar conduct.
[3] R v Oliver [2003] 1 Cr App R 28.
[4] The UK Sentencing Advisory Panel (SAP) gave advice to the UK Court of Appeal in R v Oliver [2003] 1 Cr App R 28 on the definition of child pornography, which reduced the COPINE (Combating Paedophile Information Networks in Europe) classifications to create five categories of child pornography for law enforcement purposes. The COPINE classification consists of 10 categories. That scale is often confused with the Oliver scale which contains only five categories. The Oliver scale has also been subsequently modified in the United Kingdom.
The circumstances of the appellant’s father was an important factor to take into account when sentencing the appellant. Doyle CJ encapsulated the principle applicable in Neill v Police:[5]
The magistrate was obliged to consider the impact on Mr Neill's family of a sentence of imprisonment. He was required to do that by s10(n) of the Sentencing Act. In R v Adami (1989) 51 SASR 229 the court held, applying principles that the court has long applied, that the effect of a sentence on the offender's family will be used to reduce the sentence only in exceptional cases. That has to be so. A sentence of imprisonment will usually affect the family of the offender. In the ordinary case that is not a matter that will provide a basis to reduce a sentence. But there are cases when the effect is so great that the court can rely on it to reduce the sentence that is otherwise appropriate. The court does so out of consideration of the welfare of the family, and society's interest in their welfare, and not merely as an act of mercy to the offender. Even then the court must still give weight to the other relevant factors. The process of sentencing does not become one in which the impact on the offender's family controls the outcome, or even is a dominating factor. The true position is that the interests of the offender's family may be given effect to by reducing an otherwise appropriate sentence.
[5] Neill v Police [1999] SASC 270 at [24].
Here the sentencing Judge summarised all of the relevant circumstances of the offending and the relevant personal circumstances of the appellant which included of course the circumstances of the appellant’s father. With regard to the appellant’s father the sentencing Judge said:
I note the considerable body of material and evidence from your father as to his ill health and the alleged need for you to assist him with his day-to-day care. Regrettably hardship to family and others close to offenders is a consequence, albeit an often unintended consequence, in serious criminal offending. Having regard to all the circumstances, I note that whilst Mr Ohmer senior may understandably desire the support and care of you, his son, in my view the circumstances in this case are not so exceptional to warrant suspension of a period of imprisonment that I must impose. I am referring to this particular aspect of the submissions.
I bear in mind that Mr Ohmer senior has also suffered financially as a result of the offending and because of his perceived need to support you, his son. But I am of the view that he has the means to continue to obtain the support and care that he needs as required, although I acknowledge that will cause great difficulty for him.
In my view on the basis of all of the material before the sentencing Judge that view was open to her. As I have previously noted there was a good deal of material about the appellant’s father’s circumstances placed before the sentencing Judge, both orally and in written form. The affidavit tendered on this appeal does not substantially alter the picture which was before the sentencing Judge.
Counsel for the appellant complained that the use of the word “alleged” when referring to the appellant’s father’s evidence that he needed his son to assist him with his day‑to‑day care, revealed an error. It was said that the sentencing Judge in effect rejected the evidence placed before her of the appellant’s father’s needs, or at the very least, thereby gave insufficient weight to the effect a sentence of imprisonment would have on the appellant’s dependent father. I cannot agree. The sentencing Judge specifically acknowledged that the sentence would cause great difficulty for the appellant’s father, however she formed the view based on all of the material before her that despite that difficulty the appellant’s father did have the means to obtain the necessary support. No doubt she was referring to the fact that although the cash flow may be limited during the appellant’s incarceration, he was not a man without means to obtain cash as he owned two properties. As I have said, I consider that view was open to the sentencing Judge on the basis of all of the material before her.
Moreover the appellant was arrested on 25 November 2009. He pleaded guilty on 16 August 2010 and was ultimately remanded in custody on 29 November 2010. He had over a year in which he must have known that the likelihood of an immediate custodial sentence was high. Nothing was put either to the sentencing Judge or to this Court on appeal about any planning either the appellant or the appellant’s father undertook during that period in anticipation of sentencing. It is plain from the sentencing remarks that the Judge regarded the circumstances of the appellant’s father as a relevant sentencing factor, but ultimately determined that it could not and should not be the dominant sentencing factor. She was not in error in so finding.
A further complaint was made that the sentencing Judge did not accept fully the opinion of Dr Branson, or at the very least, did not give full weight to Dr Branson’s opinion that the risk of reoffending was low. Counsel for the appellant pointed to the sentencing Judge’s remarks when she said:
Dr Branson is of the opinion that, from a medical point of view, continued rehabilitation, particularly the program at Owenia House is highly desirable. He also says that the risk of your reoffending is very small. I am not quite sure that that opinion is based on any particular objective material other than your now obvious engagement with rehabilitation and Dr Branson’s impression based on his experience and your enthusiasm about engaging in that rehabilitation. I think that at best it can be said that offending is significantly reduced if you engage in prolonged treatment at Owenia House.

There were two reports from the psychiatrist Dr Branson supplemented by oral evidence during sentencing submissions. In addition to that there was a report from a psychologist based at Owenia House (formerly the Sexual Offenders Treatment and Assessment Program). Although during his assessments in the month of June 2010 the appellant acknowledged that he continued to masturbate and have thoughts of children, nevertheless, the psychologist Ms Bruggemann expressed the view that he was an appropriate candidate for treatment at Owenia House. She considered that if he remained in the community his treatment would likely take between one and two years. If incarcerated the treatment would not commence until the appellant was released back into the community. Both Dr Branson and Ms Bruggemann referred to the appellant’s longstanding interest in and use of child pornography. Her Honour referred to the opinions of these witnesses in sentencing. She said:
Importantly, I have regard to the efforts that you have made with respect to rehabilitation and that it appears that you are making progress in that regard. I also note that this treatment is not presently available to you within the prison environment as the current treatment presently available in custody relates to those who actually physically abuse children. It is submitted to me that one of the reasons why I should exercise my discretion to suspend any period of imprisonment is to ensure that you continue to obtain the treatment that you have commenced in about the middle of this year at Owenia House. I have regard to all of the submissions in that regard.
Her Honour then concluded by saying:
I have given careful consideration to all of the submissions and matters put to me, including your rehabilitation, contrition and the welfare of your father in respect to suspension, and in the end I cannot agree that this is a case where there is good reason to suspend the term of imprisonment. The seriousness of your conduct, the need for the community to mark its condemnation of your conduct, the need to deter others and also to deter yourself all call for serious punishment, and whilst giving full weight to your personal circumstances, efforts at rehabilitation and the care of your father, I cannot agree that good reasons exist to suspend the period of imprisonment. Having said that, I fix a lower than usual nonparole period in the hope and expectation that you will continue with rehabilitation once you are released on parole and that the period that you spend in custody will not unduly hamper the continuation of your rehabilitation.
It can be seen that the sentencing Judge did give full weight to the medical and psychiatric opinions before her. In light of the material in those reports it might be said that the sentencing Judge’s conclusion was also quite realistic. The appellant is a man who, on his own admission, has suffered from a longstanding obsession with and interest in child pornography. Even seven months after his arrest he was still continuing to masturbate and have thoughts of children. The reports all tended to the conclusion that the appellant does indeed require prolonged treatment to ensure that his rehabilitation progresses upon release. To that end, it was open to the sentencing Judge to impose a lower non‑parole period to ensure that the treatment recommended by the psychologist at Owenia House could effectively take place during the period that the appellant would be released on parole.
No error in the approach taken by the Judge has been demonstrated. The head sentence is within a range appropriate for the seriousness of the offending. The hardship to the appellant’s father caused by an immediate term of imprisonment could not control the outcome of the sentencing process. There were other ways for the appellant’s father to find the care needed during his son’s absence. The circumstances were not exceptional.
The sentencing Judge was entitled to take the view that a lower than usual non‑parole period was appropriate to reflect the positive progress being made by the appellant with regard to his rehabilitation. The non‑parole period ultimately imposed by the Judge represented about 37.5 per cent of the head sentence. It could not be described as manifestly excessive.
For these reasons I would dismiss this appeal.