R v Reilly - [2013] SASCFC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v REILLY
[2013] SASCFC 106
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Stanley)
18 October 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TOTALITY - GENERAL PRINCIPLES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - PRIOR CRIMINALITY
The appellant pleaded guilty to two counts of aggravated dissemination of child pornography, two counts of aggravated possession of child pornography, two counts of accessing child pornography, failing to comply with reporting obligations and breaching bail. The sentencing Judge imposed a total head sentence of imprisonment for seven years and a non-parole period of five years and three months. The appellant appeals on the ground that the individual sentences imposed and the resultant head sentence, together with the non-parole period, are manifestly excessive.
Held by Kelly J dismissing the appeal (Peek and Stanley JJ agreeing):
1. The circumstances surrounding the commission of the offences were objectively very serious and called for the imposition of a sentence which reflected as paramount the need for general and personal deterrence (at [21]).
2. The head sentence was within the appropriate range (at [32]).
3. The discount of 25 per cent allowed for the earlier offences and 20 per cent for the later offences for the appellant’s pleas was appropriate (at [25]).
4. Although the non-parole period fixed reflects a relatively high proportion of the head sentence, it is not outside the appropriate range (at [30]).
5. Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 63, s 63A(1)(a), s 63A(1)(b); Child Sex Offenders Registration Act 2006 (SA) s 44; Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 10(2), referred to.
R v Ohmer [2011] SASCFC 44; R v Hill (2011) 110 SASR 588; R v Ryan [2012] SASCFC 136; R v Bolbot [2013] SASCFC 110; R v B, RWK (2005) 91 SASR 200; R v E, AD (2005) 93 SASR 20, discussed.

R v REILLY
[2013] SASCFC 106
Court of Criminal Appeal: Kelly, Peek and Stanley JJ
KELLY J.
Introduction

This is an appeal against sentence imposed in the District Court on 14 June 2013.
On 20 July 2012 the appellant, Laurence Mark Reilly pleaded guilty to two counts of aggravated dissemination of child pornography, contrary to s 63 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), and one count of aggravated possession of child pornography, contrary to s 63A(1)(a) of the Act. To a separate charge of failing to comply with reporting obligations, contrary to s 44 of the Child Sex Offenders Registration Act 2006 (SA), the appellant also pleaded guilty. I will refer to these charges as the earlier offences.
On 19 April 2013, the appellant pleaded guilty to the following further similar offences: two counts of accessing child pornography, contrary to s 63A(1)(b) of the Act, a further count of aggravated possession of child pornography, and one count of breaching bail contrary to s 17 of the Bail Act 1985 (SA). I will refer to these charges as the later offences.
The aggravating feature for the crime of dissemination and both crimes of possession, was the fact that many of the children concerned were under 14 years of age.
The maximum penalty for each respective offence is as follows: 12 years imprisonment for aggravated dissemination of child pornography;[1] seven years imprisonment for aggravated possession of child pornography;[2] five years imprisonment for access to child pornography;[3] two years imprisonment or a fine of $10,000 for breach of bail;[4] and two years imprisonment or a fine of $10,000 for failing to comply with reporting obligations.[5]
[1]    Criminal Law Consolidation Act 1935 (SA) s 63(b).
[2]    Criminal Law Consolidation Act 1935 (SA) s 63A(1).
[3]    Criminal Law Consolidation Act 1935 (SA) s 63A(1).
[4]    Bail Act 1985 (SA) s 17.
[5] Child Sex Offenders Registration Act 2006 (SA) s 44.
The learned sentencing Judge exercising the powers available to him under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) imposed one penalty of four years imprisonment in respect of the earlier offences, and one penalty of three years imprisonment in respect of the later offences. On account of the appellant’s pleas of guilty, he reduced the head sentence he would otherwise have imposed from five years to four years in respect of the earlier group and from four years to three years in respect of the later group of offences. The Judge ordered that the two terms of imprisonment be served cumulatively, thus making a total head sentence of imprisonment for seven years. He imposed a non-parole period of five years and three months.
A Judge of this Court granted permission to appeal on 5 August 2013. The appellant appeals on the ground that the individual sentences imposed and the resultant head sentence, together with the non-parole period, are manifestly excessive.
Background
The appellant is 59 years of age. He is not a first offender; he has previously been convicted of indecent assault in 1988 and possession of child pornography in 2006.
The earlier offences
The evidence before the sentencing Judge showed that the appellant joined a computer file sharing program called “Gigatribe” in about May 2011. That program can be described as “friend-to-friend” as opposed to “peer-to-peer” because only those individuals accepted by the appellant could download files from him and vice versa. It came to the attention of police that the appellant’s Gigatribe account was potentially disseminating child pornography, and subsequently, an undercover police officer sent the appellant a friend request, which he accepted. On 23 January 2012, the undercover police officer downloaded 315 child pornography images and four videos from the appellant’s file sharing program. On 27 January 2012, the undercover police officer downloaded an additional 101 images and five videos of child pornography from the appellant’s file sharing program. These acts constituted two of the appellant’s crimes of aggravated dissemination.
On 17 February 2012, the police searched the appellant’s residence and seized his laptop and a USB. The laptop contained 466 images and one video of child pornography. Of the 466 images and one video, 461 images and one video depicted children under the age of 14. The USB device contained more than 28,000 images and videos. A representative sample of 998 images and two videos was examined and found to contain 970 images and two videos of child pornography depicting children under the age of 14 years. The appellant’s possession of these images amounted to his first count of aggravated possession.
At the time of these offences the appellant, a registrable offender, had reporting obligations under the Child Sex Offenders Registration Act 2006 (SA) which required him to inform police of his Gigatribe account and username. Though the appellant informed the police of other lawful accounts, he did not inform the police about this account and consequently committed the offence of failing to comply with reporting obligations.
In relation to these activities the appellant was arrested and then released on bail.
The later offences
Whilst on bail, the appellant was seen accessing child pornography at an internet café on 2 February 2013 and 13 February 2013. On those occasions, a total of 6,764 images and 146 videos were downloaded. The USB drive that was used by the appellant at the internet café was also analysed. A representative sample of 212 images and 20 videos depicting children less than 14 years were found. For these crimes of aggravated possession of child pornography, accessing child pornography and breaching bail, the appellant was arrested, charged and remanded in custody. It is of note that this was only a matter of days before he was next due in court in relation to the earlier offences.
Submissions on appeal
In relation to the penalty imposed for the earlier set of offending, the appellant contended that the starting point of five years was too high and indicated that the sentencing Judge wrongly regarded the appellant’s offending as being an example of the worst category of aggravated possession and aggravated dissemination. The appellant submitted that though approximately 29,000 images and videos amounted to a significant quantity of child pornography, it fell a long way short of the large amounts in cases such as R v Ohmer[6] and R v Hill[7] which involved 200,000 and 500,000 images respectively. As such, the appellant submitted, this case did not fall within the most serious category in terms of volume of material. Nor, the appellant submitted, did the dissemination offence fall within the most serious category, because the activity involved file sharing and was not a commercial operation. The appellant also submitted that though a number of the images and videos fell within the highest categories of the Oliver scale,[8] the bulk of the material that was disseminated and found in the appellant’s possession was in the lowest categories.
[6] [2011] SASCFC 44.
[7] (2011) 110 SASR 588.
[8]    R v Oliver [2003] 1 Cr App R 28 at 467. The English Court of Appeal analysed the seriousness of comparable offences involving the possession of indecent photographs of children, by reference to five different levels of activity. Those levels were identified as:
1.    images depicting erotic posing with no sexual activity;
2.    sexual activity between children, or solo masturbation by a child;
3.    non-penetrative sexual activity between adults and children;
4.    penetrative sexual activity between children and adults;
5.    sadism or bestiality.
With respect to the penalty imposed for the later set of offending the appellant noted that for the same reasons as with the earlier offending, the material found in the appellant’s possession was in a lower category of offending. Comparing the earlier offences, which included aggravated dissemination, the appellant noted that the relevant charge of accessing should have attracted a lower penalty overall, notwithstanding the aggravating feature that the appellant had breached bail. Counsel submitted that the discount of 25 per cent given on account of the appellant’s pleading guilty some six days after being arrested was insufficient. Counsel noted that the appellant indicated his plea within days of arrest and agreed with the Crown’s laying an ex officio indictment without having to go through the committal stage.
Regarding the accumulated head sentence, the appellant argued that it was crushing and required reduction on account of the principle of totality, which was not expressly considered by the sentencing Judge.
Finally, in relation to the non-parole period of five years and three months, counsel for the appellant submitted that a lengthier period of parole within the community would benefit the appellant and the community at large, as it would allow the appellant access to a rehabilitation program better catered to paedophiles than the generic Sexual Behaviour Clinic program which is available within the prison.
Discussion
The starting point for consideration of the appellant’s submissions on appeal is to bear in mind the respective maximum penalties for the offences to which the appellant pleaded guilty.
In respect of the earlier offences it needs to be borne in mind that the appellant entered his plea on the basis that he had been engaged in the activity on the Gigatribe website for some eight or nine months prior to the date when he was charged in February 2012. Further, there was an element of deception in the circumstances surrounding the charge of failing to report as he was required to do under the Child Sex Offenders Registration Act 2006 (SA) because although the appellant did declare some of his accounts to police, he failed to report the critical account which was the Gigatribe website. The appellant’s submission that the appellant’s offending was less serious because it did not involve any element of commercial distribution for profit requires some comment. It is true that any element of commercial gain will place an offence at a high level of seriousness, however, as the English Court of Appeal observed in R v Oliver the swapping of images can properly be regarded as a commercial activity albeit without financial gain because it fuels demand for pornographic material.[9] A similar point was made recently by Sulan J (with whom Kourakis CJ and Blue J agreed) in R v Ryan.[10]
[9] R v Oliver [2003] 1 Cr App R 28 at 467.
[10] [2012] SASCFC 136 at [53]-[58].
The two counts of aggravated dissemination were not isolated instances. They occurred against a background of the appellant accessing that website for over eight months. While the appellant was correct in asserting that the bulk of the images disseminated were in the lowest categories, it is not insignificant that of the 302 images depicting children under 14 years of age, 26 percent were in the more serious categories of three and four. Moreover, of the 7 videos depicting children under 14 years of age, 4 were in the most serious category of five.
This Court has repeatedly stated that when sentencing for offences of this type, general deterrence is of heightened significance. Furthermore s 10(2) of the Sentencing Act provides that in the case of an offence involving the sexual exploitation of a child, the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence is a factor to which the court must give proper effect. The creation and dissemination of child pornography is a serious social evil. Those who participate in it must understand that their conduct will result in a severe penalty. I agree with the remarks of Sulan J in the recent case of R v Bolbot[11] to the same effect.
[11] [2013] SASCFC 110.
The appellant did not stand to be sentenced as a first offender. The fact is he had been previously convicted of both indecent assault and a similar charge of possession of child pornography in Victoria. The fact that the earlier group of offences were committed in breach of a provision of the Child Sex Offenders Registration Act 2006 (SA) that is designed to prevent that very activity by a person previously known to have offended, was an aggravating circumstance.
The later offences, although involving possession offences in respect of which a lower maximum penalty was applicable (seven years), was nevertheless a serious example of that offence. The quantity of images was certainly not on the same scale as in Ohmer or Hill, however, it needs to be borne in mind that on the scale of seriousness (one to five) identified in Oliver at least 40 per cent of the images subject of the two counts were in the more serious categories at level four and five. It involved two separate incursions in a public place frequented by young people. The declarations in respect of the later offences, which were made available to the Court after the hearing of the appeal, demonstrate that the appellant was observed in a popular internet café in Hindley Street by a concerned member of the public who frequents that café himself to play online computer games. On the first occasion, he observed the appellant viewing child pornography for up to six hours. The witness did not take the matter any further on that occasion, but when he returned some 11 days later on 13 February and saw the appellant there again indulging in the same activity for approximately two hours, he then decided to report the matter to the police.
The police immediately went to the café and seized closed circuit television footage from the café, the USB drive used by the appellant on that occasion and the computer terminal which he was using. In these circumstances it might be thought that the prosecution case against the appellant in respect of the later group of offences was overwhelming. That factor needs to be borne in mind when assessing the complaint that the discount for the appellant’s plea and co-operation with the authorities was insufficient.
In addition, the later group of offences were committed whilst the appellant was on bail awaiting sentence for the earlier offences. In these circumstances I do not consider that the complaint that the discount allowed for the pleas respectively at 25 per cent for the earlier offences and 20 per cent for the later group of offences discloses any error.
The appellant made further complaints that the sentence for the later offences was made cumulative upon the sentence for the earlier offences without any explicit consideration given to the issue of totality.
The totality principle has been described as the requirement that the court take a last check at the total sentence arrived at to see whether it is just and appropriate.[12] In its nature the totality principle involves what might be called a final check or consideration, intended to ensure that in the course of aggregating penalties the court has not arrived at an aggregate that is disproportionate to the seriousness of the offending conduct taken as a whole, so as to impose a sentence which is, in the circumstances, so crushing as to call for intervention on the grounds of mercy.[13]
[12] R v B, RWK (2005) 91 SASR 200 at 204 per Vanstone J.
[13] R v E, AD (2005) 93 SASR 20 at [38] per Doyle CJ.
Here the appellant complains that the total length of the head sentence arrived at by making each of the sentences cumulative has had the effect of imposing an overall crushing sentence and calls for some reduction on account of the principle of totality.
I do not think this submission ought to be accepted. The appellant was to be sentenced for two discrete episodes of offending. The circumstances, which I have previously discussed in detail, surrounding the commission of these offences was objectively very serious and called for a sentence to be imposed which reflected as a paramount consideration the need for general and personal deterrence. The appellant had a prior history of offending. The circumstances in which each episode of offending was detected, reveal that the appellant was engaged in an ongoing course of activity on both occasions. The nature and content of the images the subject of each episode of offending was objectively speaking very serious. In addition, the appellant’s prospects of rehabilitation were not positive. In a report prepared for the purpose of sentencing for the earlier group of offending, in ignorance of the later offending, the psychologist expressed the view that the threat of imprisonment would not act as a significant personal deterrent for the appellant. He already knew that the offending for which he was to be sentenced was illegal and carried severe penalties if caught. It did not stop him offending on that occasion. The Judge was correct to conclude that the appellant’s prospects of rehabilitation were very poor.
Given the circumstances, although the non-parole period fixed reflects a relatively high proportion of the head sentence, I do not consider it to be outside the range appropriate.

Given the appellant’s background and history and the circumstances surrounding each episode of offending I consider that the approach taken by the Judge was entirely justified. I do not consider any error of principle has been demonstrated. Nor do I consider that in the particular circumstances confronting the Judge the total head sentence imposed is crushing.
In conclusion both the head sentence and the non-parole period are well within the range for offending which involved the aggravated dissemination of pornographic material and the aggravated possession of that material. No error of law or fact in the approach of the Judge has been demonstrated. I would dismiss the appeal.
PEEK J. I would dismiss the appeal. I substantially agree with the reasons of Kelly J.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Kelly J.