R v Padberg

Case [2010] SASC 189

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v PADBERG

[2010] SASC 189

Judgment of The Court of Criminal Appeal

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

30 June 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - GENERALLY

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

Application for permission to appeal against sentence by Director of Public Prosecutions – respondent pleaded guilty to accessing child pornography and possessing child pornography – respondent sentenced to 16 months’ imprisonment for first offence and 12 months’ imprisonment with non-parole period of six months for second offence – recognisance release order in relation to first offence – sentence suspended in respect of second offence – whether Judge should have made recognisance order – whether Judge should have suspended sentence – Judge erred – need for general deterrence out-weighted personal factors – but error in exercise of wide discretion – result could have been supported by authorities – application for permission to appeal allowed – appeal dismissed.

Criminal Code Act 1995 (Cth) s 474.19(1)(a)(i); Criminal Law Consolidation Act 1935 (SA) s 63A(1)(a), s 353(4)(a), referred to.
R v Gordon [2009] QCA 209; R v Sykes [2009] QCA 267; DPP v Latham [2009] TASSC 101; DPP (Cth) v D'Alessandro [2010] VSCA 60, discussed.
Stephen Allan Jones (1999) 108 A Crim R 50; Baldwin v Police [2007] SASC 214; James v The Queen [2009] NSWCCA 62; Mouscas v R [2008] NSWCCA 181; R v Grehan [2010] QCA 42; R v Talbot [2009] TASSC 107; R v Colbourn [2009] TASSC 108; R v Fulop [2009] VSCA 296; R v Horstmann [2010] SASC 103, considered.

R v PADBERG
[2010] SASC 189

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

  1. DOYLE CJ:          The Director of Public Prosecutions (Cth) and the Director of Public Prosecutions (State) have applied for permission to appeal against a sentence imposed by the District Court.

  2. Mr Padberg pleaded guilty in the District Court to one count of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth) (the first offence). He pleaded guilty also to one count of possessing child pornography contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (the second offence).

  3. At the relevant time, the maximum penalty for the first offence was imprisonment for 10 years.  It is now 15 years.  The maximum penalty for the second offence is imprisonment for five years.

  4. For the first offence the District Court Judge sentenced Mr Padberg to imprisonment for 16 months.  But for his cooperation and early guilty plea he would have imprisoned him for 24 months.  In relation to the second offence the Judge sentenced Mr Padberg to imprisonment for 12 months, reduced from…

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AGLC
R v Padberg [2010] SASC 189
Case
[2010] SASC 189
Decision Date

CaseChat Overview and Summary

The case of R v Padberg involved an appeal by the Director of Public Prosecutions against the sentence imposed on Mr Padberg, who had pleaded guilty to charges of accessing and possessing child pornography. Mr Padberg was sentenced to 16 months’ imprisonment for the first offence and 12 months’ imprisonment with a non-parole period of six months for the second offence. The sentence for the second offence was suspended, and a recognisance release order was made in relation to the first offence. The central legal issues before the court were whether the Judge should have made a recognisance order in relation to the first offence and whether the Judge should have suspended the sentence for the second offence. The court had to consider the principle of general deterrence in sentencing, particularly in cases involving child pornography, and balance this with the personal circumstances of the offender.

The court determined that the Judge had erred in exercising his wide sentencing discretion. Although the error in this case could have been supported by existing authorities, the court held that the need for general deterrence outweighed the personal factors presented by Mr Padberg. The court emphasised the serious nature of child pornography offences, the substantial amount of pornographic material involved, and the importance of deterrence to address the international market for such material. The court concluded that, while the error in this instance could have been supported by authorities, it warranted the grant of permission to appeal. However, given the established principles of deterrence and the seriousness of the offences, the appeal was ultimately dismissed.

The court granted permission to appeal but dismissed the appeal, highlighting the importance of deterrence in sentencing for child pornography offences. The court acknowledged that the error in this case could have been supported by existing authorities but determined that the need for general deterrence outweighed the personal factors presented by the offender. The court emphasised the paramount importance of deterrence in addressing the international market for child pornography and the substantial harm caused to the victims. The court's decision underscores the necessity of severe punishment for such serious offences to effectively deter potential offenders.

Orders

Orders of the court

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Background

Background to the litigation

The application and the proposed appeal raise the question of whether the sentence is manifestly inadequate, and whether there has been an error of the kind that calls for a grant of permission to appeal to the Directors.Facts In May 2009 police seized a computer and associated equipment from Mr Padberg. They found images depicting child pornography. The images had been downloaded from the internet over a two year period, from May 2007 to May 2009. A sample only of the material was analysed. The material comprised images and videos. The sample material was classified according to the COPINE scale (Combating Paedophile Information Networks in Europe). That scale comprises five categories:Category 1 - images depicting erotic posing of children with no sexual activityCategory 2 - images depicting sexual activity between children, or solo masturbation by a childCategory 3 – images depicting non-penetrative sexual activity between adults and childrenCategory 4 – images depicting penetrative sexual activity between children and adultsCategory 5 – images depicting sadism or bestiality. The bulk of the images were classified as category 1, but the sample included material classified in all categories. The largest single category of video material was category 4, but again the material included images in all categories. Mr Padberg acknowledged that the total amount of material was substantially more than the material analysed. The sample material comprised 798 child pornography images and 287 child pornography video files. Overall, it is clear that there was a substantial amount of pornographic material. The sexually explicit material depicted girls and boys ranging in age from about nine months to about 14 years. The majority of the images and videos depicted girls estimated to be under the age of 14 years. The Judge viewed some of the material. He described the material as “shocking and abhorrent”. It depicted “abusive and disgraceful behaviour”. The creation of the material involved “perverted and criminal conduct of the most serious kind”. The Judge noted that the material in category 4 and category 5 was “… particularly deviant and involved conduct likely to have caused severe physical and/or psychological trauma to the victims”. There was no suggestion that Mr Padberg distributed any of the material, or tried to profit from it. He did not pay for it. Mr Padberg cooperated with the police, made full admissions and entered an early guilty plea. When sentenced he was 26 years of age. His background was unexceptional, although he had a poor employment record. His health was not good. He was born with a hole in the heart, and it was difficult for him to undertake strenuous physical activity. He had been diagnosed with anxiety disorders and depression before the offending was detected. After the offence was detected, he displayed symptoms of acute stress reaction and depression. Mr Padberg was examined by Dr Hawkins, a psychologist. Her opinion was that the risk of him reoffending was low. Her reasons, which throw some light on the offending conduct, can be summarised as follows. Mr Padberg had sexually deviant tendencies, but did not display characteristics commonly found in primary paedophiles. He did not have an entrenched history of child sex offending. He was in the early stages of the disorder, at which stage it is most amenable to rehabilitation. He did not suffer from “entrenched denial”. He had family support. There were no concurrent factors such as drug or alcohol abuse which might predispose him to further offending. His anxiety disorder was being treated. He was likely to comply with a supervised structured rehabilitation program. His deviant tendency was of a non-exclusive type, and he displayed sexual interest in adult women.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.Conclusion For those reasons I would grant permission to appeal but dismiss the appeal. WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons. KOURAKIS J: I have had the benefit of reading the remarks of the Chief Justice and do not need to repeat the factual circumstances giving rise to this appeal. I respectfully agree with the conclusion that error has been shown but not with the decision to dismiss the appeal. In my view, the error calls for the intervention of this Court. The images accessed and possessed by the respondent include many images which fall within the two most abusive of the five categories of the generally accepted taxonomy of pornographic images of children. They are photographs and videos which depict penetrative sexual activity between children and adults, and sadism or bestiality involving children. The Judge, who viewed a sample of the material, observed that it was “ … particularly deviant and involved conduct likely to have caused severe physical and/or psychological trauma to the victims”. In my view, that will almost always be the case for material falling within either of those two categories. 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.

Ratio Decidendi

Legal Principle Established

The Judge made a recognizance release order effective immediately, in respect of the first offence. He ordered that the sentence for the second offence be suspended. In each case this was upon Mr Padberg entering into a recognizance in the sum of $100 for a period of two years, one of the conditions of the recognizance being that he undertake such counselling and treatment as might be directed.Consideration of appeal There can be no doubt about the seriousness of the offending conduct. The offences of themselves are serious. The amount and kind of pornographic material involved means that these are serious instances of the relevant offences. 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: see Stephen Allan Jones [1999] WASCA 24; (1999) 108 A Crim R 50 at [9], Kennedy J. The material in Mr Padberg’s possession is material of the kind just referred to. The fact that he did not sell or communicate it, and did not pay for it, does not alter these facts. If those factors were present, they would aggravate the offending conduct. 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.