R v Riddle - [2012] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RIDDLE
[2012] SASCFC 82
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nyland and The Honourable Justice Anderson)
5 July 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty to the offences of aggravated possession of child pornography contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA) and indecent filming contrary to the Summary Offences Act 1953 (SA) - the judge ordered that the two terms of imprisonment imposed be served partially concurrently - he ordered a head sentence for both offences of 3 years with a non-parole period of 1 year and 10 months - the appellant appealed against his sentence - whether the head sentence and non-parole period are manifestly excessive
Held: Anderson J (Kourakis CJ and Nyland J agreeing) The head sentence and non-parole period are not manifestly excessive - no reason to interfere - appeal against sentence dismissed.
Criminal Law Consolidation Act 1935 (SA) s 63A(1); Summary Offences Act 1953 (SA) s 23AA(1); Criminal Law (Sentencing) Act 1988 (SA) s 10(4), referred to.
R v Padberg [2010] SASC 189; Director of Public Prosecutions (Tas) v Latham [2009] TASSC 101, discussed.
R v Oliver [2003] 1 Crim App Report 28, considered.

R v RIDDLE
[2012] SASCFC 82
Court of Criminal Appeal: Kourakis CJ, Nyland and Anderson JJ

KOURAKIS CJ: I agree with the reasons of Anderson J. I would dismiss the appeal.
NYLAND J: I agree with the reasons of Anderson J. Regrettably, as mentioned by Anderson J in his reasons, offences relating to child pornography are becoming more prevalent. Those who commit such crimes must therefore expect to receive severe penalties. I would dismiss this appeal.
ANDERSON J.
Introduction
The appellant pleaded guilty to the offences of aggravated possession of child pornography, contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA) and indecent filming, contrary to s 23AA(1) of the Summary Offences Act 1953 (SA). The offence of possessing child pornography was aggravated by the appellant’s knowledge that the victims were under 14 years of age.
He pleaded guilty to those charges in the Magistrates Court and was sentenced in the District Court. The judge sentenced him to imprisonment for the offence of aggravated possession of child pornography for 2 years and 3 months which was reduced from 3 years and 3 months because of the plea of guilty and the appellant’s remorse. The judge further sentenced the appellant for the indecent filming offence to 1 year and 9 months imprisonment which was reduced from 2 years and 6 months because of the guilty plea and again, the appellant’s remorse.
The judge ordered that the two terms of imprisonment imposed be served partially concurrently and imposed a final head sentence for both offences of 3 years. He imposed a non-parole period of 1 year and 10 months.
The maximum penalty for the offence of aggravated possession of child pornography is imprisonment for 7 years and for the offence of indecent filming 4 years.
The issue in the appeal against sentence is whether the head sentence and the non-parole period are manifestly excessive.
Background
The appellant is 50 years of age and has no previous convictions. In relation to the child pornography offence there were 1,955 still images and 113 movies. Approximately 85% of the still images and 60% of the movies depicted children under the age of 14 years. The judge described the images further in his sentencing remarks. He said:
About half of the still images of children under 14 years depicted erotic posing with no sexual activity. There were over 250 still images depicting sexual activity between children under 14 years or solo masturbation by such a child. There were about 200 still images of non-penetrative sexual activity between adults and children under 14 years. There were about 230 still images depicting penetrative sexual activity between children under 14 years and adults. There were 10 still images depicting sadism or bestiality involving abuse of children under 14 years.
Of the movies found on your computer that depicted children under 14 years, nine depicted erotic posing with no sexual activity, 47 depicted sexual activity between children or solo masturbation by a child, two depicted non-penetrative sexual activity between adults and children, and 13 depicted penetrative sexual activity between children and adults.
In relation to the indecent filming charge the judge described the offending as follows:
In addition to the images of child pornography to which I have just referred there were 23 other movie files on your computer hard drive. These contained images which had been recorded in a bathroom at your house. This was the bathroom used by children. These films had been made by you by using a small camera placed on a storage shelf within the bathroom. Some of the images were of a teenage girl undressing and having a shower. I was told by counsel for the DPP that the girl depicted could not be identified. I was informed by your counsel that you maintain that the persons filmed were not your daughters. As the DPP told me the girls filmed could not be identified, the DPP does not dispute your assertion.
The images and movie files taken from the appellant’s computer were classified according to their levels of seriousness in accordance with a five-level scale which was established in the United Kingdom and adopted by the Court of Appeal in R v Oliver [2003] 1 Crim App Report 28. This scale is known as the “SAP Scale”. It is also known as the COPINE Scale (Combating Paedophile Information Networks in Europe).
From the still images which depicted children under the age of 14 years approximately 75% were in the first two categories of the scale. There were, however, 193 level-three images which depicts non-penetrative sexual activity between adults and children. In addition there were 227 level-four images which depicts penetrative sexual activity between children and adults and there were 10 level-five images with seven involving sadism and three involving bestiality.
Of the movies, again most were in levels one and two but there were two level-three movies depicting non-penetrative sexual activity between adults and children and 13 level-four movies depicting penetrative sexual activity between children and adults.
As can be seen, the offending was very serious. The sentencing judge saw some of the material and said, “Seeing a large erect adult penis jammed into a small girl’s vagina, and seeing it ejaculate into the mouth and over the face and hair of that small girl, is distressing and disturbing. The look on her face is haunting. What effect it must have had on this child at the time, and what its long-term effect on her is, is beyond my imagination”. I share the judge’s views.
The sentences imposed
Mr Muscat SC for the appellant argued that the sentences were manifestly excessive. He submitted that the length of the sentences imposed went beyond any sentences which have been subject to review by the Court of Criminal Appeal. Mr Muscat’s submission was that the material possessed by the appellant was much less in nature and quantity than the material found in cases in which comparable sentences were imposed.
Mr Muscat provided the Court with a comparative sentencing schedule which outlined details of child pornography cases heard by the Court of Criminal Appeal. These cases are of limited assistance to the Court because each case must be decided on its own facts. It is particularly difficult in these types of cases to compare the sentences imposed. Mr Muscat emphasised that in all the cases outlined, the non-parole period is less than 50% of the head sentence. The fixing of a non-parole period is not a mathematical exercise and is of limited assistance to analyse it in that way. It is a classic example of the use of a broad judicial discretion.
Many of the cases referred to by Mr Muscat in both his oral argument and in the comparative schedule deal with offences of only child pornography. Here the Court is dealing with both the child pornography and the indecent filming offences for which the terms of imprisonment are being served partially concurrently. I acknowledge that the latter offence has a lower maximum penalty but I am of the view that the offence is, in the circumstances of this case, almost as serious. I will say more about this offending later in these reasons.
Mr Muscat did not contend that an immediate prison sentence was inappropriate. He submitted that the material which I have described earlier fell short of the nature and volume of materials found in what he called the most serious categories of offending. He emphasised that the majority of the material came within the lowest two categories on the COPINE Scale.
Mr Muscat submitted there was a series of personal circumstances which are not properly reflected in the sentences imposed. He referred to the appellant’s age, his lack of previous criminal history, his productive and useful life, his employment in a responsible position, the fact that despite his breach of the family trust his wife still regularly visits him in prison, the fact that he immediately accepted responsibility for his behaviour and pleaded guilty at the committal hearing as all amounting to an assessment that he is or should be regarded as being at a low risk of reoffending.
Ms Matteo, for the DPP, submitted that it was important that the offending was against a background of first accessing the material some four years earlier and then accessing it reasonably regularly thereafter. She submitted that the amount of material in the appellant’s possession was significant and that the subject matter was graphic. I have already described the nature of the material.
Ms Matteo emphasised that s 10(4) of the Criminal Law (Sentencing) Act 1988 (SA) provides that a primary policy of the criminal law is to protect children from sexual predators and to ensure that in sentencing paramount consideration is given to the need for deterrence.
Ms Matteo submitted that neither the sentence nor the non-parole period was manifestly excessive. She emphasised the judge’s revisiting of the appellant’s prior good character in deciding whether to suspend the sentence.
The appellant’s personal circumstances
The appellant’s personal circumstances can be summarised as follows. The appellant is 50 years of age. Apart from the offending he was otherwise a person of good character. He was employed in a responsible position until his arrest for these offences and had been highly regarded by his employer. After police seized his computer equipment he became suicidal and spent several weeks in the Flinders Medical Centre psychiatric ward. The appellant informed the DPP that he would plead guilty, even before any witness statements were filed in the Magistrates Court, and then pleaded guilty at his committal hearing. The appellant is willing to partake in treatment at Owenia House (formerly the Sexual Offender Treatment and Assessment Program) once he is released on parole and such treatment was recommended by Dr Raeside, a psychiatrist who examined the appellant for the purpose of a report.
Sentencing principles applicable to child pornography
The relevant sentencing principles for child pornography cases are well established in R v Padberg [2010] SASC 189. Doyle CJ said:
[20]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.
…
[22]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. …
[23]It is the objective seriousness of this kind of offending, its prevalence, and the need for deterrence that justify what I have said. …
I agree with these statements.
Doyle CJ at [27] referred to Director of Public Prosecutions (Tas) v Latham [2009] TASSC 101 where Porter J identified relevant factors that should be borne in mind when sentencing for these kind of offences. Porter J identified five main considerations bearing upon the objective seriousness of the offending. He said:
[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:
o   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;
o   the number of images or items of material;
o   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.
o   The level of personal interest in the material, as perhaps evidenced by the way in which any collection is organised on a computer;
o   Whether the possession or distribution involves a risk of accidental discovery by innocent computer users.
Doyle CJ said that he agreed with the summary.
The child pornography sentence
The maximum penalty for this offence is imprisonment for 7 years. I have earlier described some of the images and where they fall in relation to the scale of seriousness. Some do contain images of penetrative sexual activity between adults and children. In my view the sentence imposed was within an appropriate range for this type of offending. I do not agree with the submission that the sentence should be regarded as manifestly excessive because it exceeds sentences imposed in the cases reviewed by Mr Muscat. This offence has become more prevalent and warnings have been given by the Court of Criminal Appeal as to the likely severity of sentences. Doyle CJ in R v Padberg said at [21]:
[21]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.
As in all sentencing, no two cases are the same and as I have indicated it is my view, even after reviewing the sentences summarised by Mr Muscat, that the sentence imposed in this matter for the possession of child pornography was within the appropriate range.
Indecent filming
This is a most disturbing aspect of the appellant’s offending. He set up a camera in a bathroom used by his daughters. He said that he did it to capture on film two of his eldest daughter’s friends, who were approximately 14 or 15 years of age. They were filmed whilst undressing and showering. He told Dr Raeside that he filmed the friends of his daughter in his bathroom out of curiosity. He told Dr Raeside that it was his intent to film the friends out of curiosity “to see if I could set it up and not get caught”. I find this explanation bizarre.
The filming of very young children, entrusted to the appellant’s care by their parents, was a serious breach of trust. The dissemination of child pornography between those who have a prurient interest in it depends to a large extent on the contribution to the bank of material made by them. I do not accept that he filmed the children merely as a technological challenge. He did so to satisfy his own prurient interest with images of the friends of his children. There is no evidence in this case that the appellant did, or intended to, exchange the material with others.
The effect that this filming had not only on the young victims who were filmed, but on his own daughter, and the resultant embarrassment she must have felt is quite difficult to imagine. Clearly the appellant either had no concept of the effect on his daughter or alternatively considered it and disregarded it.
Non-parole period – prospects of rehabilitation
In relation to the non-parole period Mr Muscat submitted that it represented approximately 60% of the head sentence which he submitted was above the non-parole periods imposed in the cases which he reviewed.
Mr Muscat argued that the appellant in a custodial setting is unable to utilise the services offered to sexual offenders at Owenia House or elsewhere. He says that, as a result, the non-parole period should be set at a lower proportion of the head sentence to enable the appellant to engage in rehabilitation in the community whilst under parole supervision. He emphasised the limited availability at Owenia House and contends that the appellant will have greater possibility of accessing rehabilitation if he is a non-parole patient rather than a voluntary community patient.
Mr Muscat submitted that the sentencing judge failed to give sufficient weight to the personal mitigating circumstances and prospects of rehabilitation.
Before the appellant was arrested he was assessed as a suitable patient for Owenia House. There was no evidence put before the sentencing judge or indeed before this Court as to how long an offender needs to be on the programs offered at Owenia House or elsewhere. Given the appellant was assessed as being suitable for Owenia House I see no difficulty with the appellant continuing the services offered by Owenia House after his non-parole period has expired, especially in light of the fact that he previously expressed a willingness to participate in treatment and was assessed as a suitable patient.
Notwithstanding the limited availability, the prison offers a Sexual Behaviour Clinic Program to sexual offenders. Ms Matteo argued that there was no evidence before the sentencing judge about the disparity between being in custody versus being at liberty to access programs which focus on sexual offenders rehabilitation which would advance the appellant’s rehabilitation. There was an absence of evidence before the sentencing judge and this Court regarding the consequence of imposing a lower non-parole period to give effect to accessing sexual offender rehabilitation programs.
Consideration
The appellant’s prospects of rehabilitation do not outweigh the severity of the crimes and do not justify a further reduction in the non-parole period of the appellant. The trial judge appropriately set out in some detail the relevant personal circumstances of the appellant in relation to the imposition of penalty and alluded to his good character, productive life and recommendations of Dr Raeside.
There is no suggestion that the sentencing judge failed to take into account any of the relevant circumstances personal to the appellant. He specifically referred to these matters in his sentencing remarks and summarised the analysis given by Dr Raeside in his psychiatric report. In his sentencing remarks the judge actually revisited the prior good character of the appellant before he finally imposed a non-parole period. He said at the conclusion of his sentencing remarks:
Whilst I acknowledge your exceptional prior good character and the ongoing adverse effects your continued imprisonment will have on your family, these do not outweigh the gravity of your crimes. I do not consider that there is sufficiently good reason to suspend this sentence.

In my view the sentencing judge did not overlook the matters emphasised by Mr Muscat. He clearly took them into account. In my view he did not overlook any relevant matters. It therefore becomes a question of whether, in the exercise of his sentencing discretion, the judge has erred in imposing a non-parole period that is manifestly excessive. Whilst in the cases referred to by Mr Muscat there has been generally a lower percentage of the non-parole period to the head sentence than fixed by the judge in this case, I can see no reason to interfere with the non-parole period fixed by the judge, especially considering the remarks of Doyle CJ in R v Padberg to which I have referred.
For these reasons it is my view that the non-parole period is not manifestly excessive.
I would dismiss the appeal against sentence.