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…

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 Riddle

Details

AGLC: R v Riddle [2012] SASCFC 82
Case: [2012] SASCFC 82
Decision Date: 5 July 2012

CaseChat Overview and Summary

The appellant, a 50-year-old man with no prior convictions, appealed against the sentence imposed by the sentencing judge. The appellant had pleaded guilty to aggravated possession of child pornography and indecent filming. The sentencing judge imposed a head sentence of three years imprisonment for both offences, to be served partially concurrently, with a non-parole period of one year and ten months. The appeal concerned whether this head sentence and non-parole period were manifestly excessive.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether the sentencing judge had erred in imposing a head sentence and non-parole period that were manifestly excessive, thereby warranting interference on appeal. This required the Court to consider the gravity of the offences, the appellant's personal circumstances, and the appropriateness of the non-parole period in relation to the head sentence.

Anderson J, with whom Kourakis CJ and Nyland J agreed, held that the head sentence and non-parole period were not manifestly excessive. The Court acknowledged the appellant's prior good character and the potential adverse effects of imprisonment on his family, as considered by the sentencing judge. However, it found that these factors did not outweigh the gravity of the crimes committed, which involved a significant quantity of child pornography, including images and films depicting sexual activity involving children under 14 years, and the filming of children in a private bathroom. The Court concluded that the sentencing judge had properly taken into account all relevant circumstances and had not erred in his exercise of sentencing discretion.

Consequently, the appeal against sentence was dismissed, and the orders of the sentencing judge were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

ANDERSON J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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.