R v Padberg
[2010] SASC 189
•30 June 2010
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 189Court of Criminal Appeal: Doyle CJ, White and Kourakis JJ
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.
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).
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.
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 18 months on the same basis as for the first offence. The Judge fixed a non‑parole period of six months in respect of the second offence. He ordered that the second sentence operate concurrently with the first sentence.
The Judge made a recognizance release order in relation to the first offence, the order to take effect immediately. The Judge suspended the sentence in respect of the second offence. That meant that Mr Padberg did not undergo imprisonment.
On appeal, Ms Chapman, counsel for the Director, challenged only the order for immediate release and the order suspending the sentence in respect of the second offence. She did not argue that the head sentence and non-parole period were inadequate.
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 activity
Category 2 - images depicting sexual activity between children, or solo masturbation by a child
Category 3 – images depicting non-penetrative sexual activity between adults and children
Category 4 – images depicting penetrative sexual activity between children and adults
Category 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.
But for the early plea and cooperation, the Judge would have imposed a sentence for the first offence of 24 months. For the second offence the sentence would have been 18 months. The Judge ordered that the two sentences operate concurrently, which meant an effective sentence of imprisonment for 16 months.
The Judge considered the question of suspension. He noted the serious nature of the offending, and the serious circumstances. He recorded that personal and general deterrence were important factors. He considered that the risk of Mr Padberg reoffending was low. He noted that he was young. Mr Padberg had no recording of offending conduct.
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.
It is the objective seriousness of this kind of offending, its prevalence, and the need for deterrence that justify what I have said. Because the first offence is an offence against Commonwealth law I have considered sentences imposed in other Australian jurisdictions. The Court was referred to a number of cases in which the offender was sentenced for the first offence and for the local equivalent of the second offence.
I consider that those decisions support what I have said above. There are cases in which a wholly or partially suspended sentence has been imposed, but that is not inconsistent with what I have said above. The cases also indicate that if the offender has distributed the material to others, the offending will be regarded more seriously.
In R v Gordon [2009] QCA 209 Keane JA, with whom the other members of the Court agreed, said at [43]:
[43]It may be accepted that the “paramount” need for deterrence requires that a sentence of imprisonment be imposed for offending of the present kind, and even that such a sentence would usually involve a period of actual custody. Reference may be made here to the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in James v The Queen [2009] NSWCCA 62 at [1], [7]-[8] and [11]. But this court has recognised that strong mitigating factors of the kind which are present in this case may warrant the immediate release of an offender on his own recognisance. It may be noted that Ms Abraham QC did not refer this court to any decision of the High Court or of an intermediate Court of Appeal in Australia which excludes a non-custodial sentence of imprisonment from the range of punishments appropriate to the contraventions of the Commonwealth Code.
Footnote omitted
In the end the Court struck out an appeal by the Director of Public Prosecutions (the Court refused an application for an extension of time), indicating that had the appeal proceeded, it was not persuaded that it would have been necessary to impose “a substantial period in actual custody”: at [44].
In R v Sykes [2009] QCA 267 the Court dismissed an appeal against the severity of a sentence that included a period of time to be served. Mullins J, with whom the other members of the Court agreed, said at [28]-[30]:
[28]The applicant had accessed a modest number of images only, but that occurred on more than one occasion over a period of some months. The possession offence involved only a small number of images. Although the largest proportion of the images involved in the applicant’s offending were category 1 images, some of those images were of extremely young children. As Mr Rice of Counsel for the respondent pointed out, images in all categories involve the exploitation and degradation of children and deterrence remains the paramount consideration for the sentencing.
[29]The applicant relied on many factors in his favour that were also present in many of the comparable decisions: early plea of guilty to the offences on an ex officio indictment (indicative of both remorse and cooperation with the administration of justice), a good prior work history and no prior criminal history. There was minimal evidence before the sentencing judge, however, of the applicant’s prospects of rehabilitation. The applicant had undergone limited counselling after being charged and the letter from the counsellor did not offer any insight into the benefits the applicant gained from that counselling or his future prospect for successful rehabilitation: cf to R v Richardson; ex parte A-G (Qld) (2007) 175 A Crim R 244, 246 [3], 249 [29] and R v Salsone; ex parte A-G (Qld) [2008] QCA 220 at [26].
[30]On the material that was before the sentencing judge, it was open to the sentencing judge to require the applicant to serve some of his sentences of imprisonment in actual custody. The sentences that were imposed were not beyond the sound exercise of the sentencing discretion.
In DPP v Latham [2009] TASSC 101 there were aspects of the offending that made it more serious than the present case. Porter J considered decisions from a number of Australian jurisdictions and identified factors relevant to sentencing for offences of the kind now in question. He said at [34]:
[34]In R v Oliver [2003] 1 Cr App R 28 and also R v Gent (2005) 162 A Crim R 29, there is discussion as to the factors which bear upon the objective seriousness of possession and distribution of child pornography. Those factors include:
– the nature and content of the images, including the age of the children and the gravity of the activity portrayed – in particular, the degree of obvious physical harm or fear or distress in the victim;
– the number of images or items of material;
– whether mere possession is for the purpose of further distribution, and whether there will be any profit or benefit from the activity of the offender. Actual profit or benefit will aggravate the offence, whilst absence of such profit or benefit is not mitigatory.
– the level of personal interest in the material, as perhaps evidenced by the way in which any collection is organised on a computer;
– whether the possession or distribution involves a risk of accidental discovery by innocent computer users.
I agree with that summary.
In DPP (Cth) v D’Alessandro [2010] VSCA 60 the Court of Appeal of the Supreme Court of Victoria considered decisions of other intermediate appellate courts. Harper JA said at [21]:
[21]… It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one (R v Jones (1999) 108 A Crim R 50, 51 (Kennedy J)). Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration (Assheton v The Queen (2002) 132 A Crim R 237, [35]-[36] (Malcolm CJ, Murray and Steytler JJ agreeing)). Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it (R v C [2004] QCA 469, [21] (McMurdo P)). Fourthly, that those who make up that market cannot escape responsibility for such exploitation (R v Gent [2005] NSWCCA 370, [43] (Johnson J, McClennan CJ at CL and Adams J concurring)). Fifthly, that limited weight must be given to an offender’s prior good character (Ibid [65]). Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty (Ibid [99]). They include:
(a) the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;
(b) the number of images or items of material possessed by the offender;
(c) whether the possession or importation is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence.
He agreed at [27] with the observation made in other cases that having regard to the importance of general deterrence, and the circumstance that offences involving child pornography were often committed by persons of prior good character, it was legitimate for a court to give less weight to prior good character as a mitigating factor.
Other cases to which the Court was referred include the following:
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 296I turn now to the reasons of the District Court Judge.
There is no apparent error in his reasons. He has referred to the relevant aspects of the offending and to the relevant personal circumstances of Mr Padberg. The sentence of imprisonment (apart from the aspect challenged on appeal) is within the range indicated by the decisions referred to by me.
When the Judge turned to the question of suspension, he again referred briefly to the relevant matters.
Nevertheless, I consider that a wholly suspended sentence was not warranted. I am influenced by the period of time over which the offending occurred, the quantity of material, and the circumstance that the most serious kinds of child pornography were involved. I consider that the need for deterrence outweighed the personal factors which, I agree, tended to support the decision that the Judge made. I consider that the Judge erred in this respect.
But on an appeal against sentence by the Director of Public Prosecutions, the Court does not intervene merely because error is demonstrated. There are two particular reasons why the Court should not intervene in the present case. First, although I consider, with respect, that the Judge erred, the error was in the exercise of a discretion which is a wide one, and the result is one that could be supported by reference to some of the decided cases. As well, the Court is reluctant to imprison a first offender who was set at liberty by a sentencing Judge, even though error has occurred.
For those reasons I consider that in the present case it suffices to grant permission to appeal, but to dismiss the appeal.
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.
The Judge did not fail to have regard to any relevant consideration; he expressly addressed the importance of deterrence. There was therefore no process error in reaching the sentence which he did.[1] However, in my view there is clearly an error in the ultimate outcome; it was manifestly unreasonable and plainly unjust to suspend altogether the sentences of imprisonment which the respondent’s offending warranted.[2]
[1] R v Horstmann [2010] SASC 103 at [36] and [38].
[2] R v Horstmann [2010] SASC 103 at [36] and [37].
It is in the very nature of this type of offending, which often involves the sharing of electronic files between offenders, that the Court’s approach to sentencing will quickly be communicated to those with a predilection to access child pornography. In my view, it is also likely that those individuals will find the prospect of immediate imprisonment a strong deterrent. These offences cause much suffering and are difficult to detect. It is of the utmost importance that sentences which have a strongly deterrent effect are imposed. There was no aspect of the respondent’s circumstances which could reasonably be regarded as sufficiently differentiating him from the generality of other offenders so as to displace the need for a sentence with a high level of deterrence.
I acknowledge that where a sentence, although manifestly inadequate, is consistent with existing, albeit erroneous, sentencing patterns, there may be good reason to refuse leave notwithstanding the error. I acknowledge that that is all the more so where the respondent to a prosecution appeal is a first-time offender who was not sentenced to an immediate term of imprisonment. However, the establishment and maintenance of sentencing standards for offences of this type which have a strongly deterrent effect is a matter of urgency and outweighs considerations which are personal to the respondent. For that reason, I would give leave to allow the appeal. Having granted leave, and being satisfied that the sentencing Judge erred, I am obliged to correct that error because I have no further discretion to refrain from doing so. I must impose the sentence which, in my view, should have been imposed by the Judge.[3]
[3] Criminal Law Consolidation Act 1935 s 353(4)(a).
I would therefore give leave to appeal the sentence and allow the appeal.
I would order the sentences to be served concurrently. I would set aside the suspension of the sentence of 12 months’ imprisonment imposed for the State offence and would instead fix a non-parole period of five months. I acknowledge that that period is less than the proportion often fixed as a non-parole period. In my view, however, that course is appropriate in this case for two reasons. First, it is necessary to allow the respondent a meaningful opportunity for release on parole having regard to the head sentence of 12 months.[4] Secondly, he is a first‑time offender and his personal circumstances suggest that he would benefit from a relatively longer period on parole and a shorter period in prison.
[4] R v Sarandoglou [2010] SASC 190 at [32]-[33]
I would set aside the order of immediate release made on the sentence of 16 months’ imprisonment imposed for the Commonwealth offence and would instead order release after a period of five months to coincide with the non-parole period imposed for the State offence.
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