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…

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 Reilly

Details

AGLC: R v Reilly [2013] SASCFC 106
Case: [2013] SASCFC 106
Decision Date: 18 October 2013

CaseChat Overview and Summary

The appeal concerned a 59-year-old man, the appellant, who pleaded guilty to multiple offences including aggravated dissemination and possession of child pornography, accessing child pornography, failing to comply with reporting obligations, and breaching bail. The sentencing judge imposed a total head sentence of seven years imprisonment with a non-parole period of five years and three months. The appellant sought to appeal this sentence, arguing that the individual sentences and the resultant head sentence and non-parole period were manifestly excessive. The appeal was heard by Kelly, Peek, and Stanley JJ of the Court.

The central legal issues before the Court were whether the total head sentence and the non-parole period imposed by the sentencing judge were manifestly excessive, and whether the discounts applied for the appellant's guilty pleas were appropriate. The Court was required to consider the nature and circumstances of the offences, the appellant's prior criminal history, and the need for general and personal deterrence in determining the appropriateness of the sentence.

Kelly J, with whom Peek and Stanley JJ agreed, dismissed the appeal. The Court found that the circumstances of the offences were objectively very serious, necessitating a sentence that prioritised general and personal deterrence. The head sentence was deemed to be within the appropriate range, and the discounts of 25 per cent for earlier offences and 20 per cent for later offences for the guilty pleas were considered appropriate. While acknowledging that the non-parole period represented a relatively high proportion of the head sentence, the Court concluded that it was not outside the appropriate range. Consequently, the appeal was dismissed.

Orders

Orders of the court

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.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J PEEK J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J,

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