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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ohmer

Details

AGLC: R v Ohmer [2011] SASCFC 44
Case: [2011] SASCFC 44
Decision Date: 18 May 2011

CaseChat Overview and Summary

The appeal concerned a sentence imposed on the appellant, who had pleaded guilty to aggravated production and aggravated possession of child pornography. The offences involved filming male children in change rooms at a swimming centre and the possession of approximately 200,000 images of child pornography on seven CDs. The appellant also resisted police. He was sentenced to four years imprisonment with a non-parole period of 18 months, and the sentencing judge declined to suspend the sentence. The appeal was heard by Kelly J, Doyle CJ, and White J.

The central legal issues before the appellate court were whether the sentencing judge had given proper weight to the medical and psychiatric reports concerning the appellant, whether the judge erred in declining to suspend the sentence, and whether the non-parole period was manifestly excessive. The appellant also raised the fact that he was the carer for his father, who suffered from ill health, as a factor that should have been given greater consideration.

The appellate court dismissed the appeal, finding that the offences of possession and production of child pornography are particularly serious. While acknowledging the appellant had no prior convictions, the court noted his longstanding interest in child pornography. The judges were satisfied that the sentencing judge had taken into account the circumstances of the appellant's father and had not erred in concluding that these circumstances should not be the dominant sentencing factor, as they were not exceptional. The court found that the sentencing judge had given full weight to the relevant reports and had not erred in failing to suspend the term of imprisonment. Consequently, the non-parole period was deemed not to be manifestly excessive.

Orders