R v Ryan

Case [2012] SASCFC 136

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v RYAN

[2012] SASCFC 136

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Blue)

20 December 2012

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

Crown appeal against sentence - respondent pleaded guilty to two counts of possessing child pornography and two counts of aggravated possessing child pornography - sentenced to 18 months' imprisonment with a non-parole period of four months - whether manifestly inadequate.

Held:  Appeal allowed - the Judge made a factual error regarding the respondent's willingness to plead guilty to latter charges - the Judge's finding as to the respondent's risk of re-offending was against the weight of the evidence - the Judge gave insufficient weight to the respondent's prior convictions - the Judge erred in his assessment of the respondent's prospects for rehabilitation - the sentence imposed was so manifestly inadequate as to amount to error.

Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(e)(i), referred to.
R v Oliver [2003] 1 Crim App R 463; R v Nemer (2003) 87 SASR 168; Everett v The Queen (1994) 181 CLR 295; R v Gent (2005) 162 A Crim R 29; Director of Public Prosecutions (Tas) v Latham [2009] TASSC 101; R v Padberg (2010) 107 SASR 386; R v Hill [2011] SASCFC 109; R v Riddle [2012] SASCFC 82; R v Hayes [2012] SASCFC 96; R v McGaffin (2010) 206 A Crim R 188, considered.

R v RYAN
[2012] SASCFC 136

Court of Criminal Appeal:       Kourakis CJ, Sulan and Blue JJ

  1. KOURAKIS CJ:                 I agree with the reasons of Sulan J.  I would grant permission to appeal, allow the appeal, set aside the sentence imposed in the District Court and remit the matter to that Court for re-sentence.

  2. SULAN J: The Director of Public Prosecutions (‘the Director’) seeks permission to appeal against a sentence imposed upon the defendant and respondent to this appeal, Paul David Ryan.

  3. The defendant pleaded guilty to two counts of Aggravated Possess Child Pornography and two counts of Possess Child Pornography. The maximum penalty for possessing child pornography is 5 years’ imprisonment for a first offence. The offence of possessing child pornography is aggravated where the offender knows the victims of the offence were under 14 years of age.[1] The maximum penalty for aggravated possessing child pornography is 7 years’ imprisonment for a first offence.

    [1]    Criminal Law Consolidation Act 1935 (SA), s 5AA(1)(e)(i).

  4. On 24 August 2012 a judge of the District Court sentenced the defendant to 18 months’ imprisonment, and fixed a non-parole period of four months, the sentence to commence on 20 June 2012. 

    Background

  5. On 5 June 2008, the defendant was arrested. At that time police seized a computer and two USB drives belonging to the defendant. The computer and each of the drives contained child pornography. The defendant was charged with 3…

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R v Ryan [2012] SASCFC 136
Case
[2012] SASCFC 136
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentence imposed by a judge of the District Court on the respondent, who had pleaded guilty to two counts of possessing child pornography and two counts of aggravated possessing child pornography. The respondent had been sentenced to 18 months' imprisonment with a non-parole period of four months. The Crown argued that the sentence was manifestly inadequate.

The central legal issue before the Full Court of the Supreme Court was whether the sentence imposed by the District Court judge was so inadequate as to constitute an error. This required the Court to consider various factors, including the judge's factual findings regarding the respondent's willingness to plead guilty, the assessment of his risk of re-offending, the weight given to his prior convictions, and his prospects for rehabilitation.

The Court allowed the Crown's appeal, finding that the sentence was indeed so manifestly inadequate as to amount to error. The reasoning for this conclusion included a factual error made by the sentencing judge concerning the respondent's willingness to plead guilty to certain charges. Furthermore, the judge's finding regarding the respondent's risk of re-offending was considered to be against the weight of the evidence. The Court also determined that insufficient weight had been given to the respondent's prior convictions and that the judge had erred in his assessment of the respondent's prospects for rehabilitation.

Consequently, the Full Court quashed the sentence imposed by the District Court and remitted the matter to the District Court for re-sentencing.

Orders

Orders of the court

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Background

Background to the litigation

On 24 August 2012 a judge of the District Court sentenced the defendant to 18 months’ imprisonment, and fixed a non-parole period of four months, the sentence to commence on 20 June 2012. Background On 5 June 2008, the defendant was arrested. At that time police seized a computer and two USB drives belonging to the defendant. The computer and each of the drives contained child pornography. The defendant was charged with 3 counts of aggravated possessing child pornography and 3 counts of possessing child pornography. The seriousness of child pornography material is described using a five-level scale.[2] That scale is known as the “COPINE Scale” (Combating Paedophile Information Networks in Europe). On that scale, level 5 is the most serious and denotes sadism or bestiality. Level 1 is the least serious and indicates erotic posing with no sexual activity. [2] R v Oliver [2003] 1 Crim App R 463. The defendant’s computer and USB drives were found to contain, in total, 425 child pornography files. Of these, 403 were aggravated files.[3] There were 266 level 1 files, 14 level 2 files, 4 level 3 files, 118 level 4 files and 1 level 5 file. 22 basic files were found. 19 were level 1 files and 3 were level 4 files. [3] In total, 407 aggravated files were found but 4 of those files were found twice. The matter was committed to the District Court for trial. On the trial date, 2 May 2011, the defendant pleaded guilty to one count of aggravated possessing child pornography and one count of possessing child pornography (“the 2008 Offences”). Sentencing submissions were adjourned so that psychiatric reports could be completed. On 26 August 2011, the Court was informed that in April 2011 police had re-attended the defendant’s house and seized another computer and USB drives. Child pornography was found on the computer. Sentencing submissions for the 2008 Offences were adjourned a number of times so that the defendant could begin rehabilitation and the second computer could be analysed. On 11 May 2012, police searched the defendant’s home and seized computers. The defendant was arrested and charged with one count of breaching bail and one count of possessing child pornography. He was refused bail and remanded in custody. On 13 August 2012, sentencing submissions for the 2008 Offences proceeded. On that day, the Director laid an ex officio Information relating to the computer seized in April 2011. That Information charged the defendant with one count of aggravated possessing child pornography and one count of possessing child pornography (“the 2011 Offences”). The defendant immediately pleaded guilty to the charges The 2011 Offences were committed whilst the defendant was on bail for the 2008 Offences. The agreed factual basis for the pleas was that 6 aggravated files and 8 basic files were found. Of the aggravated files, five were Level 1 files while one was a level 5 file. Of the basic files, there were five level 1 files, and one file in each of the level 2, level 3, and level 4 COPINE categories.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no evidence that the defendant shared pictures obtained on the children or young people forums with users of the child pornography forums. Regardless, the evidence of his practice shows the dangers that exist in presuming that file sharing is a less serious form of offending than the use of commercial sites. Conclusion Offending of this kind must be discouraged. It involves the exploitation of young children. Such conduct must be condemned and those who engage in it must realise that they will receive little sympathy for their actions. The sentence imposed was so manifestly inadequate as to amount to error. I would grant the Director of Public Prosecutions permission to appeal. I would allow the appeal and quash the sentence imposed by the District Court Judge. As I have observed, there are a number of matters which do not appear to have been considered by Dr Begg, in particular the 2011 offending. Further, the question of what it is to happen in respect of the 2012 Charges has not been finally resolved. There is also the question of whether evidence may be required in respect of the issue of the defendant’s prospects of rehabilitation. I would remit the matter to the District Court for re-sentencing. BLUE J: I agree with Sulan J.

Ratio Decidendi

Legal Principle Established

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